Judges work harder than the busiest counsel: Justice Abhay Thipsay (Part II)

Varun Chirumamilla June 26 2018

In the second and final part of our interview with Justice Abhay Thipsay, we sought his views on an overburdened judiciary, pendency, how the Sohrabuddin encounter case has been handled, and more.

What in your opinion are some of the most misused provisions of law in this country?

Laws like the Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention Of Terrorism Act (POTA), and the Unlawful Activities (Prevention) Act (UAPA) are draconian laws and the provisions therein are misused. I have expressed this view at several fora.

I have serious doubts whether such dangerous provisions, which can be harmful and which can be easily be misused, are really necessary. If investigating agencies and  prosecutors do their jobs professionally, there is no need for such provisions.

According to me, the provision of law which permits a police officer to record  a confession is also one provision which is misused. It is not possible to critically discuss this legal provision here because that would be a separate topic in itself.

I will tell you of one instance. There was a case of counterfeit currency and, the provisions of the UAPA were applied. This Act makes it very difficult for the court to grant bail. The law says that if the allegations appear to be “prima facie true”, then the Court should not release an accused on bail. So, if the police record something which may or may not be true, or which may be revealed to be unreliable later on, the accused still remains in custody.

In this case of possession of counterfeit currency notes, the charge of being a “terrorist” was levelled against the accused. I expressed my surprise. I was told that the notes were printed in Bangladesh, and that is why it attracted the ‘charge of terrorism’.

This did not fit the definition of a terrorist under the Act. But an experienced prosecutor, who knew the law, said that it is terrorism because there was a  spate of such counterfeit currency notes flooding the market and that there was apprehension being created in the minds of the general public as to whether the currency was genuine.

Now, these types of ridiculous things do happen. I would say that provisions of the UAPA were grossly misused in that case.

Then there is the offence of abetment of suicide, punishable under Section 306 of the Indian Penal Code. That is also much misused; because whenever anybody commits suicide, the tendency is to blame somebody and the courts at the lower level and sometimes at the higher level also, are afraid of giving bail to the accused. I have seen cases where an individual in a failed relationship commits suicide and the partner is automatically charged with abetment.

So far as the Acts like TADA, POTA, UAPA are concerned, the contention of the investigating agencies, or the executive government is that the growing terrorism cannot otherwise be curbed by ordinary laws.

Then, the misuse of the provision of abetment is because of the uproar in society when tragedy strikes. Psychologically, the public feels better that somebody is held accountable, and then the whole process of stretching the law and trying to make it a criminal offence starts.

Where it is a criminal offence of lesser degree – such as causing death by a rash and negligent act – artificial, novel and incorrect reasoning is adopted to make it out to be a different offence attracting a greater degree of criminality, such as culpable homicide.

What role do judges have in trying to bring down the pendency figures? 

Judges have to work harder and try to dispose of as many cases as possible, which they are doing any way. Contrary to what the general public might think, judges work hard. They work much harder than the busiest counsel. They work at home. Inspire of that, the pendency keeps on increasing, at least in some areas of law. Judges use several methods like encouraging mediation, conciliation, etc. They try to bring about a settlement.

However, such efforts cannot be made in all the matters, particularly, in criminal law; matters cannot be settled this way.

Judges can make efforts to reduce the pendency of cases and as a general rule; they are trying to do so right from the lower courts right up to the Supreme Court. However, merely reducing pendency on paper does not help. This happens in some cases.

Take for example a case where somebody makes an application to the High Court for quashing criminal prosecution. The High Court, in such cases, often directs such person to approach the Sessions Court, or the Magistrate, or to make a proper application before any of these courts. Then, the proceedings before the High Court get disposed of but the dispute which exists i.e. the issue between the parties, is not decided at all. Again, the same grounds are urged before the Sessions Court, or another Magistrate, the hearing of which may go on for years. So, sometimes, the figure of disposal and the reduction of pendency can be deceptive.

Are high court judges overburdened? Will appointing more judges solve the problem?

High Court judges are indeed overburdened. Appointing more judges would reduce the workload to some extent and pendency will also come down. Even if the vacant posts are filled and High Courts function at their full sanctioned strength, the burden would be somewhat reduced.

What is your take on judges taking up post-retirement jobs?

If you have used the word ‘jobs’ in the sense of employment, or in the sense of any other personal occupations such as legal consultancy, practice etc, there are two views on that. Generally, of course, judges take up appointments to some administrative or quasi-judicial tribunals after their retirement. The work is necessarily of a judicial nature and there, the judges perform the same duties as they were, prior to retirement. 

There seems to be no objection to judges taking on such assignments after retirement. I do not know of any judges of superior courts who have taken private employment after retirement. 

Here, we have to distinguish between the judges of the subordinate courts and the judges of the superior courts. A High Court judge cannot practice anywhere except the Supreme Court. That is not applicable to the judges of the subordinate courts, who can practice even in the courts subordinate to the courts in which they were presiding, after a period of two years. 

Post retirement, judges of the higher courts usually do some consultation and, arbitration work, or they practice at the Supreme Court. According to me, there should not be any objection to judges taking up assignments after retirement. 

However, as I said, there are two views. There are some academicians and scholars who assert that the judges should not do anything to earn a livelihood after their retirement as they get a pension, and they should be satisfied with that. 

What are your thoughts on how the Sohrabuddin case has been handled?

I have already spoken publicly, about wrong discharge orders having been passed in the matter. Now, of course, all this does not seem to be very material as a number of witnesses have turned hostile, and the trial is probably coming to an end.

If a large number of witnesses are hostile, there is not likely to be evidence against the accused and then they would be, ultimately acquitted.

The case was transferred by the Supreme Court of India from Gujarat to Maharashtra because the Supreme Court felt that there was a likelihood that the trial would not being fairly conducted in the State of Gujarat, as a particular political party was the ruling party and a prominent leader of that party, and some high-ranking police officers from the state, were the accused.

The purpose behind the transfer – which was to ensure a fair trial – has not been served.

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