Supreme Court, its judges don't have to be fund collectors for govt: Justice SK Kaul

Justice Sanjay Kishan Kaul

The Supreme Court and its judges are not the “fund collectors” for the Government, justice Sanjay Kishan Kaul said on Friday, adding principles of law are more important than the stakes a case may carry.

Addressing from a ceremonial bench set up to bid adieu to the second most senior judge of the top court, justice Kaul, not the one to mice his words, was emphatic that the judges must be “bold”; remain committed to the administration of justice and should discourage adjournments because a litigant approaches the apex court after a spate of difficulties.

The judge, who has repeatedly through his judgments supported freedom of expression and artistic creativity, also appealed for tolerance of contrary views, pointing out that people must live to learn with each other so that the world does not shrink into a small place.

Justice Kaul has to demit office on December 25. However, Friday turned out to be his last day in office because the Supreme Court goes on a winter break starting December 18. It will reopen in the first week of January.

“I do not believe that we are the fund collectors for the governor. Stakes are not important. What is important is what the principle of law it carries. And that this court has administered justice. As it is expected — without fear of favour,” said justice Kaul.

He added that the boldness of a judge is of utmost importance if they expect other stakeholders and institutions to show courage. “Boldness of a judge is a very important factor. If, with the constitutional protections which we have, we are not able to exhibit this, we cannot expect other parts of administration to do so,” the outgoing judge emphasised.

Justice Kaul dearly fondly what a senior colleague told him when he joined the Supreme Court in February 2017. “He told me that a litigant comes to the court as a last resort, of his being through the various processes and he finds that there are no solutions. If he owes 50 given 55, don’t give him 45 because with great difficulty he comes to this court. That’s something I’ve kept dear to my heart,” he said.

Set to hang up his boots after serving as a judge for more than 22 years that including a stint of more than six years in the Supreme Court, justice Kaul stressed that the independence of the judiciary must be protected and that the bar and the bench ought to work together for it. “Ultimately, there’s no other method by which the judiciary can stand up for itself. And I think it is the duty of the bar to support the judiciary. Yet, I agree that the bar is the judge of judges. I fully appreciate that,” he added.

Justice Kaul also addressed another important malady of the court system – adjournments. He said that courts must function because that’s the expectation with which the litigant comes to the court. “As a lawyer, I felt that an adjournment culture was prevalent and felt it was not right. I have always believed that. A case must be taken up on the day it is listed,” underscored the judge, adding the confidence between the bar and the bench must grow to speed up hearings of cases in the top court.

Associated with two powerful judgments negativing a ban on paintings of MF Husain and a novel by author Perumal Murugan, justice Kaul called for greater tolerance among people. “People must have tolerance for each other’s opinion. I think that’s the greatest message I would like to give. We are at a time in the world where the tolerance levels have gone very low…Internationally, nothing to our country specifically. It’s time the human species learn to live with each other and live with other species of this world…to be able to adjust to it so that the world remains the large place it is and doesn’t become a small place,” he added.

In 2008, justice Kaul quashed the obscenity case against late MF Husain and backed the painter, who was forced to go into exile after his painting of Mother India as a naked woman was accused of hurting religious sentiments. Presiding over a bench in the Delhi high court at that time, the judge found nothing wrong in Husain’s work, holding that art is a coming of age and each form of expression in art, from naturalism to abstract expressionism derives its strength from the artist’s emotional pursuits of his perceptual reality.

In his 2016 judgment on controversial Tamil author Murugan, who was facing charges for the vocalism he practised in his book Madhorubagan, which loosely translates into English as ‘One Part Woman’, justice Kaul, then the Madras high court chief justice, said: “The choice to read is always with the reader. If you don’t like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary – what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”

Justice Kaul concluded his last sitting in the court by saying that he was going out as a satisfied man. “I go with the full sense of satisfaction. I have tried to do my best whatever I could. Sometimes it may be the best, sometimes it may not be. But I tried,” he said.

His friendship has been an enormous source of strength: CJI

Chief Justice of India (CJI) Dhananjaya Y Chandrachud, in his address, applauded justice Kaul for his urge to do justice; the desire to grant relief; the aspiration and the commitment to the cause of justice. The CJI added that he shares a long association with justice Kaul when both of them were college students in Delhi.

“It has been a matter of great honor for me that we shared this very dais together…We go back a long way and we’ve stood together…in trying times and happy times. And I think justice Kaul’s friendship has been a source of enormous strength for me,” said the CJI.

Justice Kaul recalled how he and justice Kaul were together on the benches that decided some of the landmark cases in the top court, including the right to privacy, Article 370, marriage equality and validity of unstamped arbitration agreements.

The CJI also pointed out that he had the occasion to examine the Centre’s appeal against a judgment of justice Kaul in 2010 ordering permanent commission for women officers in armed forces. “I have had the greatest good fortune of having to firm this decision to grant gender equality to members of the armed forces, with the women in the armed forces, which eventually culminated in the judgment of our court delivered by me (in 2020),” said justice Chandrachud.

The CJI hoped justice Kaul, in his new avatar, will have “plenty and plenty more to contribute to our society”.

Attorney general R Venkataramani, on his part, highlighted that the December 11 judgment, authored by justice Kaul while upholding the abrogation of Article 370, marks constitutional jurisprudence in more than one sense. just calls expression.

“Justice Kaul expressed that there should be a Truth and Reconciliation Commission. I think it marks a watershed in the way the court can articulate a profound thought about the healing that was required. I’m sure that that came to you not only because he belongs to this part of the country with the long lineage of his family over a period of time, I think it correctly captured the essence of the time,” said the top law officer.

Venkataramani added that the judge’s call will go a long way and catch the hearts of the people of Kashmir and the rest of the country to ensure that truth and reconciliation is the only way to bring about peace in the in the crisis between times of our country.

Justice Kaul’s journey as a judge

Justice Kaul, one of the youngest lawyers to be designated as a senior advocate at the age of 41, was elevated as a judge in the Delhi high court in 2001. He was appointed as the chief justice of the Punjab and Haryana high court in June 2013. He later joined the Madras high court as its chief justice in July 2014. He was appointed as a judge of the Supreme Court in February 2017.

Justice Kaul has been associated with a slew of path-breaking judgments that richly contributed to the jurisprudential wealth of the constitutional courts.

In his 2010 judgment granting permanent commission for women officers in the armed forces, justice Kaul wrote: “If these officers have performed equally well in their task which are non-combat in nature and on that basis respondents have extended their period of SSC more than once, it would be gross violation to Articles 14, 16 and 21 of the Constitution of India to accept a situation where such women officers are deprived of a PC while male officers are granted this PC. If this is not discrimination what would be discrimination based on gender and denial of equal opportunity of employment to these women?”

In 2017, in his judgment affirming the right to privacy as a fundamental right, justice Kaul called it a natural and inherent right. “In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right,” he wrote.

In his 2018 judgment in relation to a reservation in promotion, justice Kaul was on the Constitution bench that introduced the “creamy layer” for Scheduled Castes/Scheduled Tribes, holding the “cream” of SC/STs should be excluded from the benefits of reservation in government services.

Justice Kaul also wrote the majority judgment in 2019 deciding not to order a court-monitored investigation of the Union government’s purchase of Rafale fighter aircraft. “We cannot lose sight of the fact that we are dealing with a contract for aircraft pending before different governments for quite some time. The necessity for those aircraft has never been in dispute… This court did not consider it appropriate to embark on a roving and fishing enquiry,” the judgment read.

The true import of the contempt jurisdiction of a court was elucidated by justice Kaul in a 2020 judgment. “The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in,” he said.

It was justice Kaul that brought another glass ceiling down by allowing girls to be inducted for training at the prestigious National Defence Academy (NDA). Coming down hard on what it termed the army’s mindset in providing equal opportunities to women, the judge in 2021 threw open the doors of the joint defence service training institute of the Indian armed forces to women cadets, holding that the policy that restricts their entry into the elite institution is based on “gender discrimination”.

Justice Kaul also rendered an array of crucial judgments relating to personal liberty, in his endeavour to correct the bail jurisprudence in the country.

In a 2021 judgment, justice Kaul held that if a person has not been arrested during the investigation and there is no complaint against him of non-cooperation, he is not required to be arrested just because a charge sheet has been filed against him.

Again, in July 2022, his bench, in Satender Kumar Antil Vs CBI directed that investigating agencies must refrain from arresting accused for offences entailing punishment up to seven years in jail without explicitly specifying the need to do so. A trial court shall not approve the detention unless satisfied by the reasons cited by the police, ordered the bench led justice Sanjay Kishan Kaul as it ordered strict compliance with the Arnesh Kumar judgment.

In another judgment in July 2022, a bench led by justice Kaul said that India should never become a “police State” with investigating agencies acting like a vestige of the colonial era, while calling upon the Union government to consider framing a new law to facilitate the grant of bail and usher in objectivity in the criminal justice system to ward off unnecessary arrests, especially in cases where the maximum punishment under the alleged offence is up to seven years in jail. The judgment lamented that jails in the country are flooded with undertrial prisoners since a large number of arrests are made by police as a matter of routine and then the courts end up dealing with the bail applications in a “negative sense”.

Justice Kaul also registered a suo motu (on its own motion) proceedings to track the endeavours being made by high courts across the country to prioritise bail pleas of undertrials and also separately monitors a case to ensure appropriate guidelines are in place so that life term convicts, entitles to remission, have their requests for remission duly and swiftly considered by state authorities.

By a judgment in March this year, a Constitution bench led by justice Kaul dismissed a petition filed by the Union government in 2010, demanding an additional compensation of more than ₹7,400 crore from the American company Union Carbide Corporation (UCC) for the victims of 1984 Bhopal gas tragedy, and reproached the Centre for “gross negligence” in providing insurance cover to those affected by one of the world’s worst industrial disasters which claimed more than 5,000 lives.

He also presided over another Constitution bench that ruled in favour of the authority of constitutional courts in dissolving a marriage on the ground of irretrievable breakdown of marriage. Public interest lies in dissolving a “dead marriage” when a relationship has been wrecked beyond hope of salvage, the May judgment had held, ruling that the Supreme Court can grant divorce in the event of “irretrievable breakdown” without sending the parties to a family court, where they must wait for at least six months to obtain by mutual consent or by proving accusations against each other.

Justice Kaul was in minority with the CJI on the five-judge marriage equality bench that had on October 17 held refused to grant legal recognition to same-sex couples and said only Parliament and state legislatures can validate their marital unions. While the CJI and justice Kaul ruled in favour of recognition of civil unions — considered the world over as the first step towards granting full marriage equality — the other three judges overruled this view.

In the Article 370 judgment delivered on December 11, justice Kaul highlighted the ordeal of the Kashmiri Pandits, who were forced to flee their homeland over three decades ago in the face of brutal violence by fundamentalists, recommending a structural investigation of the events and a Truth and Reconciliation Commission to rebuild the social fabric and heal wounds. While agreeing with the other four judges on the bench on upholding the abrogation of Article 370 through presidential orders on 2019, the judge made an appeal to the Union government for the setting up a Truth and Reconciliation Commission, which he said would prompt “a collective telling of the truth” and an opportunity for the victims to narrate their stories to pave way for future reconciliation.

On November 11, Justice Kaul had expressed regrets that he could not hear a case demanding reconsideration of a July 2022 verdict that had affirmed a spate of contentious provisions of the Prevention of Money Laundering Act (PMLA). The judge remarked that he was letting go of the matter with a “heavy heart” since there would be no time left for him to write the final order in view of persistent request by the Centre and ED to defer the hearing.

Known for playing with a straight bat, justice Kaul had on December 5 remarked that “some things are best left unsaid” when the hearing of the case relating to delays by the Union government in processing the collegium’s recommendations on judicial appointments was abruptly dropped from the list of business. Over the last few hearings, justice Kaul had kept the Centre on its toe, reproaching the latter repeatedly for sitting over several collegium’s recommendations while also calling the Centre’s selective decisions on appointment and transfer of judges “troublesome”.

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