Nobody can summarise Justice SK Kaul’s legacy better than he did himself, in his farewell speech:
“I go with the full sense of satisfaction. I have tried to do my best whatever I could. Sometimes it may be the best, sometimes it may not be. But I tried.”
And try – he did.
At a time when institutional freedoms appear to be crumbling in the face of a mighty executive, and amid an overbearing sense of majoritarianism, Justice Kaul, who retires on 25 December, displayed a refreshing sense of independence.
He was liberal in thought, and liberal enough in action. And his love for the Arts and artistic independence would shine through his judgments.
'Art Is Not Chaste'
As a Delhi High Court judge in 2008, Justice Kaul quashed charges of obscenity against artist MF Hussain, beginning that judgment with a quote from Pablo Picasso:
“Art is never chaste – when it is chaste it is not art.”
He also asked magistrates to scrutinise each matter in order to prevent “vexatious and frivolous cases” and harassment of artists. Whether this constitutional court recommendation has been adhered to by subordinate courts in the years that followed, is a different matter.
In a 2016 Madras High Court judgment, refusing to ban a book by Perumal Murugan, Justices Kaul and Pushpa Sathyanarayana had said:
“The choice to read is always with the reader. If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary – what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”
This time, Justice Kaul had quoted Voltaire: “I may not agree with what you say, but will defend to the death, your right to say it.”
But Wait…
Which is also why Justice Kaul’s stand pertaining to the anti-CAA and NRC protests becomes inexplicable.
Not only did this order by a Justice Kaul-led bench of the apex court hold that protests cannot be allowed to occupy public spaces (like Delhi’s Shaheen Bagh), it also attempted a distinction between pre-Independence protests and protests of today.
Responding to the argument that protests during the freedom struggle also involved similar occupation of roads, the judgment said:
“We must however keep in mind that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a democracy.”
Whatever happened to defending to death all sorts of speech (and expression, by extension), and to “what is right and acceptable to one may not be so to others” – remains unclear.
Additionally, the bench noted that, along with other designated spaces, protests were permitted in the parliament too. But we have also been witness to shrinking contours of debate, let alone protest, within these temples of democracy.
The suspension of 141 MPs is merely the latest blow in a process that has long been unfolding.
So, would Justice Kaul change his mind if he was hearing the matter today?
One cannot be too sure. In January 2022, the judge dismissed a miscellaneous application seeking clarification of the Shaheen Bagh order.
The other occasion which stands in a startling contradiction to his generally bold, heads-on and probative approach is the decision of a Justice Kaul-led bench to close a suo motu case in connection with sexual harassment allegations against an ex-Chief Justice of India.
This case was initiated in 2019 to probe the possibility of a “larger conspiracy” behind the allegations against CJI Ranjan Gogoi. In 2021, after perusing an inquiry report by retired Justice AK Patnaik, the top court bench noted that two years had passed since “and the possibility of recovery of electronic records at this distance of time is remote”, and closed the matter.
It may be pertinent to add that in 2019, an in-house enquiry conducted by Supreme Court Justices SA Bobde, Indu Malhotra and Indira Banerjee had already given a clean-chit to Gogoi – despite the fact that the complainant had cited apprehensions of bias and withdrawn from the inquiry.
So what really happened? And why weren’t any details made public? And what was the entire inquiry into the “conspiracy” allegations all about? We would never really find out.
In the words of Livelaw’s editor Manu Sebastian: “For a case which was started with much sound and fury, this was an anti-climax of sorts. Neither the inquiry report absolving Gogoi nor the Patnaik panel report are made public.”
And in 2018 – adopting a bafflingly conservative approach – Justice Kaul along with CJI Gogoi and Justice L Nageshwar Rao set aside a Bombay High Court order granting default bail to Bhima Koregaon accused Surendra Gadling, Shoma Sen, Sudhir Dhawale, Mahesh Raut and Rona Wilson.
The High Court had granted them default bail after the police had been unable to file a chargesheet within the stipulated period of 90 days. Barring Raut who was granted bail on merits earlier this year and Dhawale who will be allowed out for eight days beginning 25 December for a family wedding, all of them are still behind bars.
Not one of them has been found guilty yet.
On Liberty and Right To Be Forgotten
But none of this is to say that Justice Kaul’s legacy is encumbered by such instances of inexplicability. Neither can it mark him out as being anti-liberty. In fact, most of his judicial career sparkles with a moving defence of fundamental rights.
In Satinder Kumar Antil vs Central Bureau of Investigation – which is often perceived as the apex court’s follow up to Arnesh Kumar – a bench of Justices Kaul and MM Sundresh emphasised on the importance of “bail over jail” and issued guidelines for grant of bail.
It said:
“The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.”
In doing so, the bench also paid attention to the fact that jails in India are flooded with undertrial prisoners – “Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women.”
Not only does this judgment reflect Justice Kaul’s pro-liberty stance, but it also shows his innate ability to empathise. In yet another glorious display of this quality, coupled with his keen understanding of and appreciation for Art, Justice Kaul directed the Film and Television Institute of India (FTII) to admit individuals with colour-blindness in all the courses it offers.
“Art is non-conformist,” the bench of Justices Kaul and Sundresh noted.
And just like Art, Justice Kaul was non-conformist too. In his concurring judgment in the right to privacy matter, not only did he uphold privacy as a fundamental right, but he also went on to talk about the right to be forgotten.
Finding it within the larger ambit of privacy, Justice Kaul said:
“People change and an individual should be able to determine the path of his life and not be stuck only on a path of which he/she treaded initially. An individual should have the capacity to change his/her beliefs and evolve as a person. Individuals should not live in fear that the views they expressed will forever be associated with them and thus refrain from expressing themselves.”
He was also the only one on the five-judge bench that upheld the abrogation of Article 370 in Jammu and Kashmir, to have at least recommended a Truth and Reconciliation Commission to probe the violation of rights carried out by both State and non-State actors in the valley.
And when it came to the actions of the State, Justice Kaul exhibited a strict, no-nonsense approach, even coming down heavily on the government for its “pick and choose” manner in judicial appointments.
When, on his last opportunity to hear the matter on 3 December, the case mysteriously disappeared from the cause list, Justice Kaul clarified that he had not been the one to delete the matter. “Somethings are best left unsaid,” he had remarked, as per Livelaw.
And this was not the first time he had vocalised this sentiment. Dissolving his bench in November, which was reconsidering the PMLA judgment that had allowed indiscriminate powers of arrest and seizure to the Enforcement Directorate, after the State repeatedly sought more time, Justice Kaul noted that his retirement was due shortly.
“What can I do…I am doing this (dissolution of the bench) with a little heavy heart,” he said, as per Livelaw.
In response to the Solicitor General’s plea for more time, he had also (as per The Wire) remarked: “We know everything. But sometimes, things must be left unsaid.”
Perhaps between the said and the unsaid lies the fact that Justice Kaul was not easily overawed by representatives of the State; and that if he wished, he could have made PMLA more humane, less susceptible to exploitation and misuse; and taken the Government to task for sitting on judicial appointments.
One can guess by his observations in the beginning of both cases that he might have wanted to:
”National interest can be sometimes in hearing the matter also (verbal remark),” and “We hope the situation does not come to a pass that the collegium or this court takes a decision which is not palatable.”
This may have been why he did not get to see these matters through.
But such appearances of a State attempting to evade the opinion of a specific judge only stand testament to that judge’s independence.
And even though, the country missed out on his final orders in these matters, there could perhaps be no bigger compliment for Justice SK Kaul than the fact that he did not get to pass them.
Reflections
And how was he with the lawyers who argued before him, you ask?
“Patient with juniors and willing to change his mind,” a Supreme Court lawyer said in a private conversation.
“He was always in command of his Court,” advocate Shoeb Alam added.
“Proceedings would progress smoothly and with decorum. No matter how acrimonious a litigation would had been, his Court would rarely witness heated exchanges.”
And the scales of justice? According to advocate Alam: “They were always tilted against injustice.”
Returning to Justice Kaul’s own reflection of his career – sometimes what he did may have been best, and sometimes not – but no one can say it was for a lack of trying.
In his words from the MF Hussain order: “Art to every artist, is a vehicle for personal expression,” and in that sense his judgments were Art too. Justice Kaul will be remembered as having committed to them with honesty.
(With inputs from Livelaw, The Wire, Hindustan Times and Bar and Bench.)
(Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She was formerly The Quint's Principal Correspondent - Legal. Find her on X @mekhala_saran. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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