By Apurva Viswanath
New Delhi, Dec. 2, 2018: Justice Joseph, the controversial but ‘compassionate’ judge who has retired from the India’s Supreme Court, was seen to have held views in line with the Church — particularly on abortion and divorce.
“If someone is to take a vote on who is the nicest judge, Kurian Joseph will win,” Attorney General K.K. Venugopal said to a huge crowd gathered on the Supreme Court lawns to bid farewell to the judge on November 29 .
In his five-year-eight-month tenure as an apex court judge, Justice Joseph always had a trademark smile on his face even during the many the watershed moments for India’s judiciary. But the “compassionate judge” has never made any bones about taking on the government.
From quashing the Narendra Modi government’s ambitious National Judicial Appointments Commission in 2015 to holding a press conference against then Chief Justice Dipak Misra in January 2018, Joseph has constantly been at the center of controversy.
However, his first ‘controversy’ happened in April 2015 when he wrote to Modi expressing his inability to attend a conference of judges and chief ministers that was held on Good Friday.
“Secularism is being tinkered with,” Joseph had said objecting to holding official events on festivals of religious minorities. While Hindu radical websites attacked the judge, the church rallied behind him.
Although the event took place according to the schedule decided earlier, the controversy put Justice Joseph’s religious views under the spotlight. As a Syro-Malabar Catholic, the Bible was a guiding force for Joseph but questions were raised on whether the judge’s religious views interfered with his constitutional duties.
“There are judges who have political affiliations to far-right organizations. So while it is unfair to single out Justice Joseph for his views, judges must certainly have a code of conduct governing their affiliations,” said senior advocate Colin Gonsalves.
In 2013, he participated in a conference organized by the Canon Law Society of India to “make Canon law more relevant and effective.” As chief justice of the Himachal Pradesh High Court, Joseph had preached the Bible on Shalom TV and did the first reading in the Mass when Archbishop Kuriakose Bharanikulangara was consecrated.
As he retires, ThePrint takes a look at Joseph’s judicial decisions in death penalty, matrimonial issues and abortion cases — three areas of law on which the Catholic Church has strong views.
As a matter of principle, Joseph never delivered a death sentence in his 18-year career as a judge. The controversial 2015 ruling in which the top court awarded the death penalty to terror-convict Yakub Memon turned dramatic after a two-judge bench of Justices Joseph and Anil Dave delivered a split verdict.
Joseph had ruled in favor of allowing another mercy plea by Memon.
In the last month of his tenure, benches led by Joseph recalled two death penalty verdicts given by the court — in 2006 and in 2009. Joseph also sparked off another debate on the constitutionality of capital punishment in a dissenting opinion.
“There have been many judges who have taken a principled anti-death penalty stand. Some may have been influenced by their religious views but I don’t see anything wrong with that,” said senior advocate Sanjay Hegde.
“Justice M.B. Shah, a Jain, was known as a judge who would never award the death penalty. Lawyers would deliberately try and get their cases listed before him,” he added.
The amendment to allow women to abort unwanted pregnancies up to 24 weeks, as opposed to the current 20-week limit under the Medical Termination of Pregnancy Act, has been pending since 2014, so women are forced to approach the Supreme Court in exceptional circumstances.
When one such case was before a bench headed by Joseph in July, he gave away what he thought of abortion in a single word — murder.
“You should make the mother hear her child’s heartbeat,” Joseph said.
In 2015, he had disagreed that a 14-year old should be allowed to abort her 24-week fetus conceived through rape.
“Now since everyone knows about the incident, is it necessary to kill… abort the child?” the judge had asked, ignoring the psychological trauma of child birth on a minor girl.
Although he expressed strong reservations against abortion even for rape victims and minors, the judge allowed it in some cases.
Senior advocate Anand Grover, who specializes in reproductive rights and has called for decriminalization of abortion, criticized Joseph’s “dogmatic views”.
“You actually kill a woman if you don’t allow abortion. This is a rhetoric question you have to answer in favor of those living today,” said Grover.
“Even Latin American countries and Ireland are changing their views,” he said.
But not everyone finds fault with Joseph for his views on abortion.
“While Kurian Joseph’s views on abortion might have been due to his religious beliefs, he is not misinterpreting the law here. Courts are not the correct forum for deciding these issues,” said Alok Prasanna, senior resident fellow at Vidhi Centre for Legal Policy.
Joseph held the roster on matrimonial cases in the Supreme Court for a long time and is known to make best efforts to reunite warring couples.
The judge would routinely appoint senior advocates to act as mediators in divorce and custody disputes and counsel them against separating.
Many lawyers ThePrint spoke to recalled anecdotes of the judge chiding couples who refuse to end their legal battles.
“If he spotted a senior advocate from the same part of the country as the couple fighting the case, he would ask them to mediate,” a senior advocate who did not wish to be identified said.
In a few instances, the judge even packed off children of parents engaged in a custody battle to boarding schools, raising questions of judicial overreach.
While many, including Attorney General Venugopal, praised the judge’s efforts, young lawyers who appear in his court were not very happy with his court room sermons on importance of a family.
“If a couple has come travelling all the way to the Supreme Court seeking a divorce, it shows that their decision is not reckless. At this stage, a judge trying to unite them shows disregard for their individual agency,” a Supreme Court advocate who has appeared before the judge in one such case said.
“It is very patronizing, especially to women,” added the advocate.
Still a favorite
Although Joseph is hailed as a liberal and compassionate judge, his diverse and complex judgments show why judges cannot be easily bracketed as either liberal or conservative.
One case that serves as a classic example of Joseph’s views is his opinion in the triple talaq case where he arrived at a liberal decision through a conservative reading of the religion and interpretation of religious texts.
“It is unconstitutional because it is un-Islamic,” Joseph had concluded.
Joseph who had called for increasing the age of retirement for judges is not retiring any time soon. He is likely to take up mediation since he has already announced that he won’t take up a post-retirement job from the government.
In legal circles, Joseph is known as a compassionate human being, a family man and most importantly as someone who makes no airs about being a judge of the Supreme Court.
In August, the judge was seen on the street opposite the Supreme Court packing relief material that was donated for the devastating floods in his home state Kerala. A few days later, he sang “We shall overcome” for a charity show to raise more funds.
On his 65th birthday, just a day after he retired, Joseph addressed another press conference, this time it was a friendly chat with journalists he had invited to his house for coffee. Young lawyers continued to swarm the judge’s house all day, clearly showing that he is a favorite.
[Source: theprint.in, December 1, 2018)