Independence of judiciary facing threats from within, Bar divided: Retired Justice Kurian Joseph
Former Supreme Court Judge, Justice Kurian Joseph

Independence of judiciary facing threats from within, Bar divided: Retired Justice Kurian Joseph

The former Supreme Court Judge was speaking on the theme Significance of Constitutional Values in the 21st Century, in a virtual discussion hosted by Lex Macula.

There are threats to the independence of judiciary from within the judiciary as well, retired Supreme Court judge, Justice Kurian Joseph opined on Sunday, while also underscoring the need for judges to bear "true faith and allegiance to the Constitution."

Justice Joseph further remarked that the Bar at the Supreme Court and many High Courts are divided along political and communal lines and, therefore, is losing its power as a "real watchdog."

"When things go Constitutionally wrong, it has always been the advocates who have been raising their voice. Where are they now? They are also divided politically, communally, in protecting their own self-interest," he said.

Justice Joseph was speaking on the theme 'Significance of Constitutional Values in the 21st Century' , in a virtual discussion hosted by Lex Macula.

Watch the video:

On the Basic Structure doctrine

Justice Joseph said that the Basic Structure of the Constitution is beyond the amending power of the Parliament.

Speaking on the basic structure doctrine, Justice Joseph observed that the Constitution and the country is built of the five pillars of sovereignty, secularism, democracy, socialism and the republic nature of India. As such, he commented, that no one part can be removed or tinkered with, lest the structure itself would fail.

"But be it unanimous or majority, nobody can touch it (the basic structure). It is beyond the amending power of the Parliament under Article 368 of the Constitution of India. That is the theory of Basic Structure. That theory has been finally settled in the Keshavanadha Bharathi case," Justice Joseph said.

Justice Joseph proceeded to explain how this meant that the Parliament's amending powers are not absolute.

"Constitutionally speaking, it means no body can take away basic structure or dilute it ... Independence of the judiciary is again a basic structure. The 99th amendment introducing a National Judicial Appointment Commission, by the amending the Constitution and introducing an Act - both were struck down on the ground that they violate the independence of the judiciary which is a basic structure. If it is part of the basic structure, it cannot be taken away the Parliament even with absolute majority. Keep in mind, this was unanimously passed - the NJAC," he said.
It (the basic structure of the Constitution) is beyond the amending power of the Parliament under Article 368 of the Constitution of India.
Justice (retd.) Kurian Joseph

The themes of a working democracy, secularism and the independence of the judiciary formed a large part of Justice Joseph's address.

On the citizen's space in a democracy

In a working democracy, Justice Joseph emphasised that the government should be for the people and every citizen must have their space and a voice.

"Citizenship gives you a space," he said.

The reflection of a citizen's space is their voice, he opined, adding that the moment a citizen is denied their voice, democracy is also lost. A counter-culture is supremely important for a democratic country, Justice Joseph went on to observe, adding that when the counter-culture is suppressed, it is not a democratic country.

On the "beauty of Indian secularism"

As far as secularism is concerned, Justice Joseph highlighted that this means that the Constitution respects all religions, rather than disconnecting it from religion altogether or prioritising one religion over another/ others. In India, the country belongs to the people, and not to a divine source, he commended. At the same time, it does not deny the existence of divine powers.

Secularism in India is the right of the people to believe in religion or not to believe in a religion, he said. Justice Joseph added that this is why Article 25 of the Constitution speaks of 'freedom of religion' and 'freedom of conscience.'

"That is the beauty of Indian secularism", he said.

Given the rise of anti-conversion laws in the recent times, Justice Joseph also remarked that citizens can choose to convert to another religion of their choice, provided it is not forced, under duress or under allurement.

"Religion is a matter of faith and of your conscience. Nobody can allure you or threaten you. If so, it is certainly not an exercise of free will. This country respects your free will so no one can either forcefully convert you or appease you for conversion... Conversion by force or duress or by allurement is wrong. It should be left to the individual to make a free choice out of his free will", Justice Joseph said.

... officially we are not attached to a religion. Constitutionally, we are open to all religions. That is the beauty of it.
Justice (retd.) Kurian Joseph

While so, Justice Joseph criticised the fear psychosis now prevalent in the country where a person choosing to convert to another religion is also being stigmatised.

"A fear psychosis as such is introduced in this country that if you change your religion, you would be either finished or cease to be having a position in society. That is certainly wrong, undemocratic, unconstitutional. You have the right to choose any religion of your choice."

Justice Joseph opined further.

"Our country is not against or of any (one) religion. More than 70% of people believe in the Hindu religion, still India does not have an official religion. India does not belong to a Hindu religion. Because officially we are not attached to a religion. Constitutionally, we are open to all religions. That is the beauty of it."

On Life and Liberty

The rights to a dignified "life" and "liberty" under Article 21 of the Constitution are inextricable intertwined, Justice Joseph pointed out.

"Liberty is so closely linked to the right to life. The whole reflection of your existence is liberty. There is no life without liberty, there is no liberty without life," he said.

There is no life without liberty, there is no liberty without life.
Justice (retd.) Kurian Joseph

He went on to assert that all persons are entitled to dignity, regardless of religion, gender, language, wealth, political affiliation, location, caste, community and other factors. In this regard, Justice Joseph highlighted that transgender persons are entitled to the same rights as any other person, man or woman.

On a related note, Justice Joseph also made strong remarks against the objectification of women and their being viewed as "commodities of consumption", leading to their dignity being violated.

Gender equality and the dignity of women would be ensured only with a change in the mindset of the people, he said.

"The dignity of a woman and gender equality - that is something that has to go to the mindset of the general public of this country. No execution or capital punishment will give you this message. Had it been so, after Nirbhaya's case, India should have been a very safe place for women to walk on the streets, alone or in company, day or night," Justice Joseph said.

The dignity of a woman and gender equality - that is something that has to go to the mindset of the general public of this country.
Justice (retd.) Kurian Joseph

Your right to live in this country should not depend on whether you are a man or a woman or a transgender person, Justice Joseph asserted.

On threats to the independence of the Judiciary, within and without

"Casteism, communalism, corruption and the threat to the independence of the judiciary, from within and outside... these are the four dangers I see in the 21st century," Justice Joseph said.

Pertinently, he went on opine that there are threats to the independence of the judiciary from within as well.

"... unfortunately, I plead, it is from within also", he remarked.

A judge must "true faith and allegiance to the Constitution" he said, while answering a question on ideal judicial conduct. This means that a judge's allegiance should not be coloured by political, communal, philosophical bias, or bias of arbitrariness, he added.

The bias of arbitrariness, he explained, arises when a Judge presumes he knows everything there is to know instead of considering the lawyer's assistance in Court.

"(Judges) cannot claim the monopoly of knowledge. A judge is always taught by lawyers - but it should be taught in the right way, that is all", Justice Joseph opined.

Have never seen the Bar so divided

The talk also saw Justice Joseph opine that the lawyers' community has fallen short of their duty to act as the judiciary's watchdogs. He said,

"When things go Constitutionally wrong, it has always been the advocates who have been raising their voice. Where are they now? They are also divided politically, communally, in protecting their own self-interest."

He further emphasised that the "the moment you don't have a unified Bar, in terms of the independence of the Constitutional functioning of the Court, things will go wrong. Things are likely to go wrong, things are going wrong... I have never seen the Supreme Court of India 's Bar so politically and communally divided. And that is the situation in several High Courts across the country also."

... the Bar is losing its moral power and its power as a real watchdog
Justice (retd.) Kurian Joseph


A duty of a lawyer is to think beyond religion, politics and other divisive factors, Justice Joseph said.

"Unfortunately, across the country, the Bar is losing its moral power and its power as a real watchdog... an objective approach to the Constitution is being lost. It is a subjective approach now," he added.

Credibility of a number of Constitutional institutions have been shaken

"The confidence of Constitutional institutions has been shaken...Why should I blame the judiciary alone? Look at any Constitutional institution, has its credibility not been shaken?" Justice Joseph queried.

He added,

"Election Commission, CAG, UPSC, all regulators - MCI, BCI, UGC, Statistical Commission ... RBI - take any sector, I am asking you to make an introspection. Has its credibility not been shaken? ... Is there any investigating agency which has not been attacked on its independence?"

Look at any Constitutional institution, has its credibility not been shaken?
Justice (retd) Kurian Joseph

Terming this trend dangerous, Justice Joseph emphasised that the working of and the confidence in these institutions should ideally only depend on Constitutional integrity and nothing else. In cannot depend on the colour, strength or political power of the government, he said.

Be a human first, Justice Joseph remarked as the event came to an end. He also urged for people to be constantly vigilant to ensure that democracy does not fade away.

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