NJAC Judgment V: Kurian Joseph J

Hon’ble Justice Kurian Joseph has been in the news: first, because of his tiff with CJI Dattu and second, for his contribution in the Yakub Memon case. Gold fish have no hiding place. And therefore, the ‘briefest’ judgment?

Historical, Textual, Structural, Prudential, Doctrinal, Episodic, Ethical” arguments aside, “there cannot be any legal sense of an issue, which does not appeal to common sense.”

This Bench is bound by the ratio that Independence of Judiciary is part of the Basic Structure, and that Appointment of Judges is an integral part of the concept of Independence of Judiciary.

Direct participation of the Executive or other Non-Judicial elements would ultimately lead to structured bargaining in Appointments, if not, anything worse.”

Parliament has no power to gerrymander the Constitution.”

There shall be no interference on powers central of each Branch.”

National Judicial Appointments Commission Act, 2014 is a still born child.

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Hon’ble Justice Kurian Joseph notes, there would have been no Second Judges Case if the First Judges Case had “properly adverted” to Samsher Singh. He calls Samsher Singh a “celebrated decision”.

It is interesting to note what Lokur Saab had to say on Samsher Singh:

The Court speaking through Chief Justice A.N. Ray (for himself and four other learned judges) overruled Sardari Lal and held that the decision did not correctly state the lawIn a separate but concurring judgment authored by Justice Krishna Iyer (for himself and Justice Bhagwati) the view expressed by Chief Justice Ray was accepted…In a sense, this decision was a percusor to the primacy conclusion in the Second Judges CaseJustice Krishna Iyer penned the decision in Samsher Singh on behalf of Justice Bhagwati as well. Surprisingly, Justice Bhagwati did not refer to this decision in the First Judges Case. The significance of this failure is that while in Samsher Singh it was held by Justice Bhagwati that the ‘last word’ must belong to the CJI, in the First Judges Case it was held by Justice Bhagwati that the ‘ultimate power’ is with the Executive. This completely divergent view, though in different circumstances, is inexplicable…”

Hon’ble Justice Kurian Joseph, to avoid multiplication, used fewer words. But then, his exclamation mark says it all:

Strangely, the Presiding Judge in the First Judges Case and author of the Majority View, was a Member who concurred with the Majority in Samsher Singh case and yet there not even a reference to that judgment in the lead judgment!”

What is the difference between “strangely” and “surprisingly”?

It is “strange” that the Bible I placed on my bedside table yesterday night is missing this morning.

It is “surprising” that I found a ten-rupee note on the road on the same day I got a promotion.

Is  Hon’ble Justice Bhagwati’s view on Primacy a Missing Bible or a Ten Rupee Note?

Hon’ble Justice J. Chelameswar for instance changed his views for the better in M. Siddheswar and I had noted then,

It might be very useful to find more instances such as these – with clever scrutiny of the judge compositions – in order to find a pattern of how frequently or infrequently an SC Judge alters or refines his opinion/judgment during his tenure. Especially if he has held one under a future Chief Justice. It might very well be ‘indicative.” [A Judge Adapts to Changing Benches]

After reading, Hon’ble Justice Kurian Joseph in addition to what Lokur Saab had to say, I am left with the query..

What is the explanation to this “inexplicability“?

Judment Rating: 6.5/10.

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