Credibility of constitutional institutions in India stands shaken, says retired SC judge Justice Kurian Joseph

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

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

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 360 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 said this meant that the basic structure of the Constitution is beyond the amending power of the Parliament under Article 360 of the Constitution of India.

Justice Joseph emphasised that in a working democracy, 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.

Speaking on 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.

Speaking in the context of the rise of anti-conversion laws in recent times, Justice Joseph 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,” he said.

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," he said.

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

Speaking on threats to the independence of the judiciary, within and without, Justice Joseph said: "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”.

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 bear "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.

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 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."

He went on to remark that credibility of a number of constitutional institutions in the country has 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 said.

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?"

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’.