My philosophy for public good was always in conformity with ideals of BJP: Justice Rohit Arya

In a controversial move, former Madhya Pradesh High Court judge Justice Rohit Arya joined the Bharatiya Janata Party (BJP), which has been the ruling party in the State for most of the last two decades..The propriety of this move has been called into question, given that judges are required to be free from ideological bias, political or otherwise. And in this interview with Bar & Bench's Ratna Singh, Justice Arya admits that his 'philosophy for common good' has always been in line with the BJP's ideals. .Justice Arya was in the news in 2020, when he granted bail to a man who molested a woman on the condition that the victim ties a Rakhi for her assailant. He also denied bail to comedian Munawar Faruqui for 'hurting religious sentiments,' and questioned religious conversions in another order. The first two verdicts were overruled by the Supreme Court (here and here)We asked him questions on these rulings..And in response to a question on concerns surrounding the new criminal laws, the former judge cited a speech by Lord Macaulay - the author of the now-repealed Indian Penal Code - made in 1835 and popularised in recent times by a WhatsApp forward. The problem is, such a speech does not exist..In this interview, Justice Arya also expressed his views on the Collegium system, live-streaming of court hearings and more.Edited excerpts follow..Ratna Singh (RS): What prompted you to join the Bharatiya Janata Party? Was it always part of the plan?.Justice Rohit Arya: I had no plans to join any particular party, but after demitting office, I wanted to continue in public life. I always found that my philosophy for public good was in conformity with the ideals and policies of the BJP. So, I thought this is a party which may help facilitate addressing the cause of public or poor in public domain, and at the same time, ensuring their socio-economic development and larger perspective for the betterment of society and country..RS: Don't you think that judges joining politics post-retirement blurs the lines of separation between the judiciary and the executive?.Justice Rohit Arya: There should be respect for the (judgeship) chair for all times to come, as long as you are sitting on that chair. So once you become a judge, you forget that you are a lawyer. Then you are committed to give substantive justice to the parties before you on the touchstone of the Constitution. These are the commitments when you are sitting on the seat of the justice. Once you demit the office, you are again back as a citizen which you were at the time when you joined the assignment as a judge.The person who was a judge after retirement has joined the politics. There is a difference. Don’t mix up the individual with his position as a judge because the position of a judge has nothing to do with his subsequent life, which he is supposed to enjoy at his own wishes and wills. After demitting law offices, we are primarily citizens and as we have right to air our view, our perception, concerns and commitment. So there is nothing wrong if a judge, after demitting office, joins politics..RS: We quite frequently see orders that are passed by judges reflecting their ideological leanings, and often, those are set aside by the Supreme Court. Aren't judges required to separate themselves from these biases in order to do justice?.Justice Rohit Arya: 100%. Judges should always insulate themselves from any premonitions of preconceived notions. They should go strictly by record with due respect to the facts and the law applicable to a given case. I always believe and practiced that majesty of law is ultimate. No one has a right to either disturb the majesty of law or do any position with the majesty.A judge is expected to give judgment upon due appreciation of facts with proper application of law to the given factual matrix. The conclusion should be tempered with compassion always, of course, without sacrificing the discipline of law. I have always ensured that justice is done in such a manner that the discipline of law is not violated and discipline of judicial propriety is not compromised.But at the same time, looking at the factual scenario in hand, what judgment may be delivered with an element of compassion to do complete justice between the parties. This should be the approach, which I have practiced..RS: In 2021, the Supreme Court said that your order imposing the tying of Rakhi as a bail condition in a molestation case "effectively turns molester into brother by judicial mandate". Do you regret passing such an order?.Justice Rohit Arya: When you are in the seat of justice, every day you pass some orders to the best of your ability. We have taken oath when we became a judge, that we will do our job to the best of our ability. Logic has no end. If I in my perception found something was right, I did it. If later the Supreme Court found it was not right, we accepted because it was the judicial discipline that if the Supreme Court says no, you are not right, we with great respect accept it. There is nothing to comment on it and that is the law of the land. And we all, every citizen is bound by law of land, much less the judge. For a judge especially, it is a matter of judicial discipline.One should not comment upon the judgment tendered by the Supreme Court on the judgment of a judge by a judge, who has been a judge. Now I am no longer a judge. I am only a citizen of India. So I'm not supposed to comment and why should I comment? I accepted what the Supreme Court said that is a law. That is the end of the matter.Law is dynamic and it keeps changing, perceptions keep changing, ideas keep changing, understanding keeps changing and that is why we say law is full of life..RS: In a 2022 case, you said that religious conversions for marriage in India pose a "serious threat to marriages recognized under personal laws". Isn't it the fundamental right of Indians to choose their own religion?.Justice Rohit Arya: Well, in the context of those judgments, I have nothing to comment upon, because those are the matters of judgment which were relevant when I was judge.But conversion, as a matter of fact, should be voluntary and would be only permissible if a person attains that maturity. It should not be by way of compulsion or by way of any question. Everybody is free to practice religion of his own choice. In our Constitution, there is no such prohibition. But it should be voluntary and it should be regulated. It should have a regulation..RS: In one of your orders, you had said, "Mutual respect, faith and trust amongst all citizens of India are basic tenets of coexistence, in a welfare society governed by the principles of rule of law." You are now joining a party whose leader clearly hurt the sentiments of a minority by calling them "infiltrators" in an election speech. Aren't there double standards at play here?.Justice Rohit Arya: See, I always go by as a student of law. The Constitution is of paramount importance to me. I go by the spirit and content of the Constitution. Article 51 deals with respect and brotherhood for other segments of people in different religion or caste. I stick to it and no one according to me should hurt the feelings of minorities. It is the mandate of the Constitution and we all should respect the Constitution...All laws flow from the Constitution.We all should respect and abide by the Constitution..RS: There have been instances of video clips from your court proceedings going viral on social media. What are your thoughts on court hearings being live-streamed and the subsequent use of these clips by the general public?.Justice Rohit Arya: (Laughs) Sometimes I feel it is not really good as a matter of fact. See, live streaming is given only to ensure that people get a fair chance of witnessing proceedings of their cases. But what happens is that people pick up certain things from proceedings and give it some different facelift, only to attract people. If you really want to bring to the people the proceedings in court, then bring before them what was the subject before the court, what were the contexts in which the questions were asked, what were the contexts in which the conversations took place. That would be more fruitful than giving all sorts of clippings such as “judge ko gussa aya”. All these things catch the attention of people but you are making a mockery of the system. This should not happen..RS: There are concerns that the newly implemented criminal laws will cause a lot of confusion and lead to two parallel criminal justice systems. What is your take on that?.Justice Rohit Arya: In Bharat, during Ram Rajya, the concept was threefold - observance of principles of natural justice, equal opportunity for different set of classes of people in society like children, women, men, old age people etc. Everybody had a fair light of hearing and third was speedy justice. In Sanatan Era, ladies were given utmost respect and status as per the law prevailing during that time. In Mahabharat Kaal, it was also said that to eradicate Brahm or confusion and to protect wealth, Mariyada (Dignity) and Anushasan (Discipline) should be established.When the British came after 500 years of Muslim rule, Lord Macaulay in 1835 said in the House of Commons that he had travelled India from East to West and North to South and did not find any beggar or thief. He said this country has rich cultural heritage and absolutely flawless spiritualism and the backbone for these two noble values of this country, is the education system of which medium of instruction was Sanskrit. He said that if you want to rule this country, then you have to break their backbone and eradicate their education system with the substitution of English medium. This is how the English medium schools came to our country..Editor's note: There is no record of this Lord Macaulay speech cited by Justice Arya. Multiple forums and publications have conducted fact checks on this 'speech that never was' - here, here and here..Then with that mindset, the British brought the Indian Penal Code, Code of Criminal Procedure and Evidence Act, with no doubt, conforming to the concept of justice, equity and good conscience. They enforced these laws to create a fear psychosis. The investigation conducted by the police at that time was known 'danda' - an investigation conducted to induce torture. So only that perception was spread in the public domain that if you do not work with discipline or according to our wishes, then you will be meted out with severe punishments.The three new codes represent the movement from danda (punishment) to Nyaya Sanhita that is, from Penal Code to Justice Code. It's all public-centric, ensuring people get speedy justice in the most transparent manner. It is quite a balancing act and it does not do any offence to any person, rather it adds on to the policy of our Constitution..RS: Lawyers across the country, especially those from the South, are up in arms over the renaming of the laws to Hindi, and feel that there is no substantial change in the substantive or procedural laws..Justice Rohit Arya: The law is to be respected by one and all. There is a substantial shift from the procedural laws and this is for the benefit of the accused and victim both...It is not a total overhauling of the laws. There is an addition and deletion in furtherance of doing complete justice to the parties in a time-bound period. People who come to the court of law, they await for the judgments for years, having a feeling of uncertainty. One has to address this problem, that is how to ensure speedy justice...What is wrong with the amendments which have been brought? I don’t feel anything is wrong.These cosmetic changes have nothing to do with law. Even if it is named with some Hindi word, this will not change the spirit of law. .RS: The Bharatiya Nagarik Suraksha Sanhita (BNSS) allows police custody beyond the first 15 days of arrest. Don't you think there is scope for misuse and ill-treatment of citizens who may be falsely accused?.Justice Rohit Arya: It is regulatory. It is not that you can do it on your own. There has to be judicial intervention. With the permission of the concerned magistrate, you can do this. You cannot do it on your own, like we could (do it) under the previous law, the process of police remand. So for investigation purposes, police remand is given or judicial remand. Likewise, detention of a person with the intervention of the judicial authority is not illegal detention. You can challenge the order..RS: Do you think the Collegium system is the best way to appoint judges? The Supreme Court Collegium has been at loggerheads with the Central government over its failure to process judicial appointments in a timely manner. Given that you are from the judicial domain, will you advise the ruling party to process these appointments faster, given the burden on our judges?.Justice Rohit Arya: 100%! Collegium is the best way to appoint judges.I am not supposed to speak on this issue because that is not in my domain. I can only say on principle it is definitely an excellent procedure and nobody should have objections to it. The procedural issue between the Supreme Court and Central government - I have nothing to say. I can only appreciate the system which is in existence.It is for the government to decide and take decisions but it is expected that earlier the better..RS: The Central and State governments are responsible for the majority of litigation before our courts, and many of the cases are frivolous. What do you think should be done to address this?.Justice Rohit Arya: As far as my knowledge goes, for 85% of the population, district court is the final court. Only 15% cases come to the High Court and only 8-9% cases go to the Supreme Court.All High Courts, Supreme Court and Central government - we need to address how best we can do at the district court level to ensure reduction of cases. There should be proper infrastructure for the district court judiciary, sufficient human resources and of course, other amenities, logistics etc. This should be our prime concern that district judiciary should be revamped, reinforced to the best.We need to address the problems of villages and if you resolve them, then you definitely ensure that the breeding ground of litigation is contained. I called it as “termination of germination for litigation”.If you resolve the dispute at the early stages, those cases will not come to the courts of law. So this is one of the schemes I would certainly request the Central and state political executives to look into. This will bring peace and tranquility in society because a person having a case in some court or some forum always has some negativity in his mind and that really travels down to different members of the family...Litigation is not the solution. Mediation or understanding is a solution if you really want to lead a good life..[Watch Full Interview Here]