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Justice KM Joseph: Robbed of His Swansong, Will Be Remembered for So Many Hits

Justice Joseph passed orders ground firmly on democratic ideals, that may not have always suited the party in power.

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An ailing, 70 year old man, Gautam Navlakha would have perhaps perished in jail. His lawyer certainly submitted that there was no possibility of him being treated in there for his crumbling health.

In July 2021 Father Stan Swamy had passed away as an incarcerated under-trial, his health having given away before he was hospitalised. In August 2022, 33 year old convict Pandu Narote contracted a serious illness and fell so sick in jail that he too died shortly after being hospitalised.

But the Supreme Court, at least, came to Navlakha’s rescue. Most specifically a bench of Justices KM Joseph and Hrishikesh Roy, which allowed house arrest to Navlakha, even as the State fought tooth and nail  against it.

On Friday, 19 May, representatives of the same State gave a ’subdued farewell’ to Justice Joseph, Dhananjay Mahapatra noted in a report for TOI. 

Mahapatra recounted that while the other two judges who sat on the ceremonial bench on the same day as Justice Joseph basked in effusive praise and warmth, the Attorney General spoke for a mere minute and twenty seconds about Justice Joseph, and the Solicitor General spared all but ten seconds for him.

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But Why?

Critics suspect Justice Joseph’s tough stand against the State is to blame for the cold-shoulders. For Justice Joseph refused to be overawed by state power.

Unlike some who retired before him, he neither went around vocalising admiration for high government functionaries nor treating them any differently than any other entities involved. Simply put: he refused to lose all objectivity in the face of a powerful executive.

Which is why Justice Joseph was able to pass orders ground firmly on democratic ideals, that may not have always suited the party in power.

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Prominent Orders

1. Lead opinion in a Constitution bench judgment that declared that the appointment of members of the Election Commission of India should be carried out on the advice of a panel consisting of the Prime Minister of India, Chief Justice of India and Leader of Opposition — or in it’s absence, the leader of the single largest opposition party — in the Lok Sabha.

Prior to this, the central government had a free say in the appointment of top EC officials, because the President made the appointments on the advice of the Union Council of ministers, which is helmed by the Prime Minister of the country.

Justice Joseph passed orders ground firmly on democratic ideals, that may not have always suited the party in power.
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2. Direction to all states and union territories to take suo motu action (i.e. without waiting for a formal complaint) in hate speech cases.

Additionally, the bench of Justices Joseph and BV Nagarathna felt it pertinent to “make it clear” that the action ought to be taken in consistency with the secular values of the Constitution.

Justice Joseph passed orders ground firmly on democratic ideals, that may not have always suited the party in power.
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3. Striking down of the president’s rule imposed in Uttarakhand (order passed as the Chief Justice of Uttarakhand High Court)

The division bench headed by him had noted that the government, in taking such action, “is expected to be completely non-partisan” and that the imposition of the President’s rule by the Centre had been “contrary to the law laid down by the apex court.”

It also said:

Justice Joseph passed orders ground firmly on democratic ideals, that may not have always suited the party in power.

However, this decision was always unlikely to bode well with the Central government. And it is believed amid legal circles to have been the reason why the Centre refused to notify Justice Joseph’s elevation to the Supreme Court, until the collegium reiterated it.

It is also, however, known amid those circles that even during the entire period when his appointment appeared uncertain, Justice Joseph conducted himself with dignity, neither expressing displeasure nor disquiet.

But it isn’t just his judgments that ruffled feathers. Even his courtroom interactions reflected a tough judicial mind that wasn’t swayed by displays of power. For that reason, among others, his remarks and reactions were prone to misunderstanding and deliberate misconstruction by sections of the media.

But Justice Joseph was unfettered, even as he warned governments against turning a blind eye towards hate speech, admonished a partisan media and rejected divisions along religious lines.

He was also unruffled by others' perception of him, stating eloquently (in the aftermath of the law officers' muted farewell remarks, as well as the fond recollections by others) –

"All that you have said I take with a generous pinch of salt and it is customary and I would be naive if i take it at the face value…Thank you for all that you have said and perhaps what you have not said."

However, even though what others said mattered little to him, Justice Joseph appeared bothered when he was prevented from doing his job.

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'This is Not Fair to Me'

A bench of Justices Joseph and Nagarathna was slated to deliver the verdict in Bilkis Bano’s plea challenging the Gujarat Government’s decision to allow premature release of those convicted for gang-rape and murder during the Gujarat Riots. However, as per Livelaw, the final hearing in the case could not take place as some lawyers appearing for convicts raised disputes regarding Bano’s (service of notice) affidavit. 

Justice Joseph, on his part, had offered to sit during the vacation prior to his retirement and hear the matter. However, Solicitor General Tushar Mehta and the respondents' lawyers reportedly remained unwilling.

Thus, Justice Joseph noted:

"It is clear what is being attempted here. I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this bench to hear the matter. But, this is not fair to me...”

Perhaps, in a different time, a judge like KM Joseph would have been allowed an opportunity to see this case through – his conclusion awaited and welcome as a manifestation of true justice, across the board.

But Justice Joseph's legacy, albeit iconic and marked with a keen regard for constitutional values and civil liberties, is one that has been carved out of the clutches of an unrelenting state.

Justice Joseph could have done more good if he was elevated sooner. Justice Joseph could have done more good if his dispensation of justice was not obstructed by adjournments. Justice Joseph could have done more good if his journey wasn't marred with hurdles. However, one can take solace in the thought that these hurdles, perhaps, only emanated as consequence of all the good that Justice Joseph was doing already.

A swansong robbed is a loss. But at least Justice KM Joseph’s entire legacy has been a series of hits.

(With inputs from TOI, Livelaw,, and Bar and Bench.)

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