Rulers have no heavenly right to rule: Retired Justice KM Joseph

Rulers must be reminded that they have no vested and heavenly right to rule people and that their authority is rooted in the consent of the common public, former Supreme Court Justice KM Joseph recently said.

He spoke about the principle of "consent of the governed" which means that a government derives its legitimacy from the people's approval through election process.

Pertinently, he expressed concerns about the increasing number of political defections in India which defeats people's mandate.

In this regard, he specifically highlighted elections in States like Maharashtra and allegations of Enforcement Directorate being misused for elections and orchestrating defections.

"Look at our country. Look at the kind of defections which have been taking place in our country. Everybody in this country should be shocked at what is happening. We here, we do not know where the truth lies…. We hear about the ED being used. We hear about large sums of money being pumped out. It happened in Maharashtra, it happened earlier also. It is happening right in front of our eyes," he said.

He lamented that such state of affairs have now been normalised.

"Would the American revolutionaries who had fought and won independence have kept quiet if they had seen this being done to their motherland? I am certain no, but we allow it to pass by. We allow it to pass by, notice it for a few, you know, news flashes, a news discussion, everything is normalised."

He said that when elected representatives switch parties, the question is whether such a government has the consent of those who elected it.

The retired judge was speaking at an event organised by the Kerala High Court Advocates' Association (KHCAA) and Constitutional Debate Club on August 6, to commemorate 250th anniversary of the adoption of the United States Declaration of Independence.

Justice Joseph spoke of how the American Declaration of 1776 and connected ideas of liberty and natural rights have influenced constitutional developments across the world, including in India.

Among other themes, the judge dwelt on rule of law. He spoke of how citizens must do their duties and not merely demand rights from the State. He questioned whether Indian society has citizens obey the law in the absence of policing or fear of punishment.

He went on to add that the government too, does not have any vested right to rule.

"I would say, along with this (a citizens' duties), that the American Declaration is an eternal reminder to unending generations of mankind that whether you are freeing yourself from an occupying coloniser, or, like in France (during French revolution), the problems are against your own government, let the rulers be reminded that you have no heavenly right to rule. Your right to rule comes from the fact that we have agreed to be ruled by you and that we have rights. These rights may come under a shadow, may be eclipsed, but they will emerge even stronger the more you suppress."

In his address, he noted that protest and dissent had been central to the American struggle for independence. Drawing a parallel with India, he said that remaining passive in the face of injustice was incompatible with democracy.

He went on to refer to the several protests that are ongoing or have taken place recently in India and said that remaining supine during injustice does not make a country a democracy.

"Now we are in the midst of protests in India, from what I will be telling you, you will realise that remaining supine and without response when injustice after injustice was heaped on you, it really does not make you a democracy. Protesting, dissenting, expressing your opinion strongly, these are the fundamental basis of democracy, and this is what the Americans have shown," the judge said.

He underscored three significant propositions flowing from the US Declaration of Independence. First, individuals possess natural and inalienable rights; second, the purpose of government is to secure those rights; and third, people have the right to change governments which fail in that purpose.

"The declaration goes on to say that if the State actually were to not follow its principal purpose which is to protect the rights, then the people have a right to change the government, to revolt against the government," he said.

The judge also called for a permanent Constitution Bench of the Supreme Court with five-judges, to deal with long-pending matters of constitutional importance expeditiously.

"As an institutional reform that the court may consider having a regular Constitution Bench ... Courts, in these matters of constitutional importance, they should not allow it (pendency), in my view, not beyond a year," Justice Joseph stated.

He further expressed concern over the relationship between large media and business houses and stated that healthy public discourse was being affected.

He said that the right to be informed was necessary for citizens to meaningfully exercise their right to express an opinion and participate in the democratic process.

"The ultimate right of every citizen in any democracy is to pursue truth and find truth. This is the fundamental thing of any democracy, any society. This is sadly missing," added Justice Joseph.

Justice Joseph also spoke on judicial appointments and the need to ensure that judges are fearless and independent as well.

"My fervent appeal is that this discord, this disarmony between the centre and the state and the judiciary should be cleared at the earliest so that you get the finest judges. Because judging is not an easy process," the judge stated.