Hon’ble Justice Kurian Joseph has been in news: first, because of his tiff with CJI Dattu and second, for his contribution in Yakub Memon. Gold fish have no hiding place. And therefore, ‘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, Independence of Judiciary is part of Basic Structure and appointment of Judges is an integral part of Independence of Judiciary.”

“Direct participation of 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 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:

“Court speaking through Chief Justice A.N. Ray overruled Sardari Lal and held, the decision did not correctly state law. Justice Krishna Iyer accepted the view expressed by Chief Justice Ray. In a sense, this decision was a percusor to the primacy conclusion in Second Judges Case. Justice 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 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 CJI, in First Judges Case it was held by Justice Bhagwati that the ‘ultimate power’ is with 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, Presiding Judge in First Judges Case and author of Majority View, was a Member who concurred with Majority in Samsher Singh Case and yet there is not even a reference to that Judgment in Lead Judgment!”

The difference between “strangely” and “surprisingly”?

It is “strange”, a Bible I placed on my bedside table yesterday night is missing this morning. It is “surprising”, I found a fifty-rupee note same day I got a promotion.

Is Hon’ble Justice Bhagwati’s ‘View on Primacy’ a Missing Bible or a Fifty Rupee Note?

Hon’ble Justice J Chelameswar for instance changed his views 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 Judgment during his tenure. Especially if he has held one under a (Future) Chief Justice. It might very well be ‘indicative’.“

After reading Hon’ble Justice Kurian Joseph in addition to what Lokur Saab had to say, I am left with… where is our explanation to this “inexplicability“?

Judgment Rating: 6.5/10.