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A Letter To Law Minister

A Letter To Law Minister

Dear Shri Ravi Shankar Prasad Ji,

I had an occasion to share the dais with you when Shri Manoj Shrivastava, who retired from the Indian Administrative Service two years ago, invited you and me to a seminar he organised in collaboration with Harvard University at Hotel Maurya in Patna. This was in the nineties. I was impressed by your argumentative skills, although what you said really rattled me.

For instance, you said that good governance and election results did not go hand in hand. You paid handsome compliments to the M Karunanidhi ministry in Tamil Nadu which failed to return as the DMK was roundly defeated. Your argument was that people voted on extraneous considerations, not on the performance of the ruling party.

Perhaps, that may be why you are paying scant regard to public opinion when you take such astounding decisions as returning the name of Justice KM Joseph whom the Collegium had recommended for elevation to the Supreme Court.

Why I thought it necessary to join issue with you in my capacity as a citizen of this country are some of the arguments you made while returning the Collegium’s recommendation. You mentioned that both the President and the Prime Minister were on board with you on this issue. Does this have any relevance? In India, we have the rule of law and on an issue of law, it is immaterial what opinion two individuals have, no matter what position they hold in society. As the saying goes,  suprema lex est (law is supreme)!

I grew up at Valanchuzhy, a small village in Pathanamthitta district in Kerala and I studied at the Government High School there. One of my fellow villagers was the late Fathima Beevi who, as you know, became the first woman to become a judge of the Supreme Court. 

One of her nieces was my classmate. Decades later, I visited her in New Delhi where she received me with great warmth when I mentioned our village name Valanchuzhy. No, I did not meet her for any favour.

When she was appointed as a judge of the Supreme Court, the government at that time did not check whether there was a precedent of appointing a woman. Many years earlier when Anna Chandy was appointed a judge of the Kerala High Court, nobody bothered whether any woman was ever appointed to such a high position. The point I wanted to make was that Kerala had the distinction of producing the first woman High Court and Supreme Court judges in the country.

I am personally against the Collegium system which I think needs to be replaced with a more democratic, transparent system. Since the Collegium system is right now in vogue, let’s debate the issue within its four walls. The Collegium recommended two names for appointment to the Supreme Court, that of Indu Malhotra and Justice KM Joseph, Chief Justice of the Uttarakhand High Court. You chose one and rejected the other.

You know very clearly that in the Supreme Court, it is seniority which counts for elevation to the post of Chief Justice of India. Even if Justice Joseph is appointed at a later stage, he would be junior to Justice Indu Malhotra. In short, you have already done an irreparable damage to Justice Joseph’s career.

You have argued that appointing Justice Joseph would have been unfair to other senior judges. I would come to this in an instant. 

Before that, let me point out with all respect to Justice Indu Malhotra that she was not the senior-most advocate practising in the High Courts and Supreme Court of India. When Justice Krishna Iyer was appointed directly from the Bar, nobody questioned it saying that there were more senior lawyers than him. He never became the CJI but he proved to be one of the greatest judges of the country. Similarly, when eminent jurist Fali S Nariman’s son was directly appointed to the Supreme Court, nobody said he was very junior in the profession.

You have mentioned that Kerala is a small state and it already has a representation in the Supreme Court in Justice Kurian Joseph. You are utterly mistaken when you see him as a representative of the Kerala High Court in the Supreme Court. 

He is there as a judge of the Supreme Court and not as a representative of any community, region or state. I am sorry to say that your statement betrays your bias. It’s worse to know that it is supported by President Ram Nath Kovind and Prime Minister Narendra Modi.

The Supreme Court was never seen as a Rajya Sabha where every state has representation according to the size of its population. 

By the way, Kerala has no representative in the Union ministry. You may mention the name of Shri Alphons Kannanthanam. He is a representative of Shri Modi and he represents the Rajasthan state in the Upper House.

I remember Justice Cyriac Joseph of the Supreme Court, who after retirement became a member of the National Human Rights Commission. When he was a judge of the apex court, there was another Keralite, Justice KS Radhakrishnan, serving on the Bench. Nobody saw it as over-representation of the state. Do you know that Delhi is a  smaller state than Kerala? As Modi once said after your party suffered a humiliating defeat in the Capital city, “Delhi is just one of the many cities in India”.

Do you know that Delhi has four judges in the Supreme Court, including Justice Indu Malhotra, out of the total of 25? Maharashtra with five judges has a greater representation. Uttar Pradesh and Karnataka have two each. True, there is only one person from your state as a judge of the Supreme Court. The point is that nobody sees them as representatives of states. They are on the Bench because they are eligible to hear all kinds of cases and give their verdicts without being partial to any caste or creed or language or region. I am sorry to say that you are the first to see Supreme Court judges as representatives of states.

You say that appointing Justice KM Joseph would be unfair to other judges of the high courts. You are absolutely wrong on this. He is already a Chief Justice of a High Court. So he should be compared with chief justices of high courts, not judges of high courts. You did it deliberately to show Justice Joseph in a poorer light.

Did Justice Joseph ask the Collegium to choose him? No, it was the Collegium which chose him in its abundant wisdom. While choosing judges, the Collegium did not go by seniority alone. In fact, it went by merit alone. I agree that merit is often an opinion. You may find Modi a great leader but there are millions of people who find him a disastrous leader. It is all a matter of opinion.

You have brought up the subject of giving representation to Scheduled Castes and Scheduled Tribes. Having mentioned it, do you want reservation for SC and ST categories at the Supreme Court level? I still remember how  the then President KR Narayanan, who was also, incidentally, from Kerala, was pilloried when he wrote a letter to the CJI in which he gently suggested the need for representation of Dalits in the Supreme Court.

I personally would be happy if you can persuade your party to introduce reservation for SCs and STs in the Supreme Court and High Courts. If you try, you will find yourself banished from the BJP. Now having said this, is Justice KM Joseph a hindrance for giving representation to such categories of people? The Supreme Court has a total of 31 posts of judge. I do not have to tell you that six posts of judge are vacant and you can persuade the Collegium to recommend the names of Scheduled Castes and Scheduled Tribes to fill all the vacant posts, if necessary. By the way, the first Scheduled Caste person to become the Chief Justice of India was from Kerala.

A poor lawyer can be judged by the extraneous issues he brings forward for want of valid points, while making his argument in a court of law. How truly the Bard had said that “sound and fury signify nothing”!

We all know why you have rejected the Collegium’s proposal to appoint Justice KM Joseph. I wish you had the guts to say it. It is his verdict in 2016 against the dismissal of the Congress-led Uttarakhand government that has angered you and your party. 

Do you know, to quote the Bard again, that he is more sinned against than sinning? Anybody who has read the verdict in the  SR Bommai vs Union of India case on Centre-state relations knows only too well that the floor of the House was the only forum where a government’s majority could be tested.

Justice Joseph’s verdict clearly upheld the judicial principle that the Governor of Uttarakhand should have allowed the Chief Minister to prove his strength on the floor of the House. But you and Modi were impatient and wanted to prove the point that you were above the law of the land. The dismissal of the government was utterly wrong.

In fact, Joseph’s verdict was upheld by the Supreme Court bringing the dismissed chief minister back in the saddle. The whole episode could have been averted if your party was more democratic and waited for the elections. Instead, you encouraged the Aya Rams and Gaya Rams to make mincemeat of democracy in the state.

Alas, you saw the verdict as a verdict against the BJP government. That is where you and your party erred. By not appointing Justice Joseph, you were giving a signal to all the judges that promotions and post-retirement jobs depended on how pliable they were as judges. It is a dangerous trend.

Judgeship is not the birthright of anyone, the least of all Justice KM Joseph’s. He has already proved that he would be guided solely by the merits of a case. For a judge, no other quality is greater than this quality to give a verdict without fear or favour.

Whether he becomes a Supreme Court judge or not, he has already found a place in the hearts of the people as a judge of principles. By the way, he is the worthy son of a worthy father whose voluminous reports as Chairman of the Law Commission are a treat for anyone interested in the constitutional and administrate law of the country. It is not necessary that one should become a judge of the Supreme Court to prove one’s brilliance!

We recently heard about a judge of the High Court of Rajasthan who said that peacocks were the most beautiful creation of God as they never copulated to produce their offspring. Have you heard about a judge by the name Padmanabhan Subramanian Poti? He did not become a judge of the Supreme Court. The highest position he could reach was as Chief Justice of the Kerala and Gujarat high courts. However, he is still remembered for the pathbreaking judgements he delivered.

Given your power and the readiness to use it for political purposes, you may succeed in preventing Justice Joseph from becoming a Supreme Court judge but do not think that power will stay with you forever. You are never tired of mentioning how Indira Gandhi tried to pack the Supreme Court with her nominees and how during the Emergency the apex court ruled that even a person’s right to life stood suspended.

Instead of learning from the mistakes she committed, you are emulating her in a cruder, devious manner. She had at least the fig leaf of the Emergency to cover her strong-arm methods? What right do you have to arm-twist the judiciary? Do you know that the judiciary is one of the few institutions that still instils confidence in the minds of the people? Your blatant interference will sound the death-knell of the independence of the judiciary. That is the greatest disservice that you can do to the idea that is India.

Yours etc.

( ajphilip@gmail.com)

(Published on 30th April 2018, Volume XXX, Issue 18)