In this context, observations made by retired Supreme Court judge Joseph Kurian in a webinar recently on the application of the principles of Constitutional values by the judges were as candid as these could be, raising serious doubts about the prevailing situation.

“Judges are appointed to uphold the Constitution, and nothing, but the Constitution. We fail sometimes because we become subjectively Constitutional, instead of being Constitutionally objective”, Justice Kurian Joseph said. His remark came in response to a question by one of the panelists whether the Supreme Court applied the principles of Constitutional values uniformly.

Justice Kurian Joseph was one of the four senior judges who participated in the unprecedented ‘call of duty’ press conference in which serious doubts were expressed over the manner in which the then CJI Dipak Misra had used his power of the roster to pick and choose benches that would issue verdicts in a certain way.

He was also among the first ones who criticised the nomination of former CJI Ranjan Gogoi to the Rajya Sabha although Gogoi himself was a co-participant at the milestone press conference. Kurian is known to hold straightforward views on issues of crucial importance to jurisprudence.

“Who secures our sacred values? It is the guardian's duty and our guardian is the Supreme Court. We also have a duty and our duty is to abide by the Constitution,” he said.

“The court is always anti-majoritarian because first duty is to uphold the Constitutional values. A judge is appointed only to stay true to Constitutional values. They must disassociate themselves from their subjectivity and that is how they become counter-majoritarian”, he said.

“Societal values are different from the Constitutional values. The former may go for a majoritarian view, but court is never swayed by this because their duty is to only uphold the Constitution. The President and the Prime Minister merely take an oath to abide by the Constitution of India; they do not uphold it. It is the court which must uphold it; and bear true faith and allegiance to it,” he said.

Similar sentiments were expressed by R V Raveendran, Kurian Joseph’s colleague in the Supreme Court, last year in a Bengaluru lecture on the ‘Anomalies in Law’, where he explained how judges are branded within legal circles as ‘acquitting’ or ‘convicting’ kinds, pro-labour, pro-capitalist, pro-employer, anti-landlord, anti-tenant and, of late, even pro-government and anti-government, depending on the nature of their past verdicts.

When judges go beyond the law and allow personal philosophies and convictions to come in the way, their verdicts are fixed in a pattern and that leads to contradictions in law and justice, Justice Raveendran said. He even recounted a senior advocate’s claim about a famous judge who abhorred landlords and employers and would openly declare that no such individual would succeed in his court.

We have had instances of two judges or benches of judges considering the same case issue different verdicts applying the same law.

Bench-hunting has come to be standard procedure in our courts, which point to a story state of affairs in the country’s judiciary. Bench-hunting works on the basic premises that it is possible to organise ‘pliable’ judges to hear certain cases.

If personal preferences, read prejudices, are allowed to influence the selection of judges, it amounts to acknowledging the possibility that the judgments issued by them may also suffer from personal bias. And that destroys the very foundation and people's faith in the judiciary. When some of the judges accused the mutineering judges of destroying the institution of Supreme Court, they were partly right. But more right is the fact that it had already been destroyed by some of the practices prevailing in the top tiers of judiciary. (IPA Service)