Justice Deepak Gupta
Justice Deepak Gupta
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Justice Deepak Gupta: A fearless crusader for the Rule of Law

Anitha Shenoy

Justice Deepak Gupta retired from his post as a Supreme Court judge on May 6, 2020, when the world was in a midst of a pandemic of unparalleled scale. He became the first judge to retire ‘virtually’, without the actual presence of the members of the Bar and the bench.

He spent nearly 16 years in the higher judiciary, first as a judge of the Himachal Pradesh High Court, then as Chief Justice of the Tripura and Chhattisgarh High Courts, before his elevation to the Supreme Court.

If one has to zero in on the issues that concerned him the most – they were lack of respect for the Rule of law, environmental degradation, and apathy towards the disadvantaged.

Justice Gupta’s judgments were a sharp indictment of the failure of the authorities in protecting the environment. His judgments reflect how environmental degradation is in fact an outcome of the collapse of the Rule of Law.

If one reads the various judgments authored by him, both as a High Court judge and as a Supreme Court Judge, one sees how he ensured that the Constitution meant something tangible to the people of India, as opposed to being hallowed words in a big book. His body of work reflects his nature and his thought process. Like him, his judgments are sharp, simple and frank. There is no attempt to sugar-coat the failure of the government and the authorities in sober words. He believed in calling a spade a spade.

The Rule of Men

Justice Gupta was part of the Constitution Bench which heard the legal challenge to Section 184 of the Finance Act of 2017. In his separate and (partly) dissenting opinion, he highlighted powerfully that:

“The bedrock of our democracy is the rule of law and not the rule of men. Anywhere, anytime, when ordinary people are given the chance to choose, the choice is always the same; freedom, not tyranny; democracy, not dictatorship; rule of law, not the rule of men.”

In many of the cases he dealt with, he recorded the complete breakdown of the Rule of Law. In the case concerning illegal construction in the Aravallis in Haryana, he noted that "the rule of law seems to have broken down in Haryana and become the rule of men only to favour the applicants” (builders).

In the Goa mining case, the Bench comprising Justice Madan Lokur and himself held that

“Laxity and sheer apathy to the rule of law gives mining leaseholders a field day, being the primary beneficiaries, with the State being left with some crumbs in the form of royalty”.

It is not only in the judgments of the Supreme Court that one is able to see Justice Gupta’s quest for green justice. In fact, in his home state of Himachal Pradesh, he is still known as the ‘green judge’. This was not without reason. He headed the very active ‘Green Bench’ of the High Court and delivered landmark judicial decisions.

His judgment in Him Privesh is regarded as among the most significant in the field of environmental jurisprudence. Without doubt, few other judgments in India have laid threadbare the illegal manner in which environmental clearances are granted. In this case, he found every authority at fault, whether it was the Pollution Control Board, the Environment Ministry, or the expert committees. He said:

“The officials who were manning these authorities are supposed to act like watch dogs to fiercely protect the interest of the public. They unfortunately behaved like meek lambs being led for slaughter.

At a time when judicial decisions on the environment are largely based on legitimizing illegality on the ground of the ‘doctrine of proportionality’ and ‘balancing’ environment and development, Justice Gupta’s judgment is essential reading to appreciate that there can be no balancing of legality and illegality.

This understanding can be summed up by a quote from Justice Gupta’s speech in November 2019, at the inaugural function of the Global Law Conference in Chandigarh University. He said,

“Bad environment can never be good economics. It is only in a healthy environment that there can be a good economy.”

Independence of the Judiciary

The Independence of the judiciary is a key component of the Rule of Law. But independence itself is not enough. The judiciary, including the tribunals should be fearless. This was highlighted in the Finance Act case, where Justice Gupta noted:

“One of the essential ingredients of both democracy and rule of law is an independent and fearless judiciary. When the rule of law disappears, we are ruled not by laws but by the idiosyncrasies and whims of those in power.”

Right to Dissent

At a time when protest and dissent is viewed as being anti-national, the Judgment in INSAF by the Bench of Justice Nageswara Rao and Justice Gupta is a stern reminder that any political action by civil society organisations funded through foreign contribution is not illegal and not prohibited under the Foreign Contribution Regulation Act.

The Court held,

“...support to public causes by resorting to legitimate means of dissent like bandh, hartal etc. cannot deprive an organisation of its legitimate right of receiving foreign contribution”.

Bandh, Hartal, rasta roko, according to the Bench, are common methods of political action. The only condition should be that the voluntary organisations should have absolutely no connection with party politics or active politics.

Justice Gupta articulated his view on the right to dissent in a democracy in a speech delivered in September, 2019 on the topic of sedition law in India and freedom of expression, where he said that:

I think our country, our Constitution and our national emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person’s mind or in his heart?”

Defender of social justice

Justice Gupta’s attachment to social justice was plain for all to see. It must be acknowledged that Justice Madan Lokur was a crucial part of this ‘dream team’ and together they gave the words in the Preamble of our Constitution a new meaning.

They left their mark in cases like Re: Inhuman Conditions in 1382 Prisons, where while considering the issue of unnatural deaths in prisons, the Court issued extensive directions for training and sensitization of prison officials, appointment of counsellors for prisoners, conducting a performance audit of prisons, exploring the idea of ‘open jails’ or ‘open prisons’, and to account for the number of unnatural deaths of ‘children in conflict with law’ in childcare institutions.

The Bench of Justices Madan Lokur and Deepak Gupta was the social justice 'dream team'
The Bench of Justices Madan Lokur and Deepak Gupta was the social justice 'dream team'

Continuing on the same journey, in the case of Environment and Consumer Protection Foundation, the Court held that it was its constitutional duty to intervene in cases concerning socially disadvantaged classes who have no real access to justice. The case concerned the dismal living conditions of widows in Vrindavan. The Court in this case gave its imprimatur to an action plan which included measures such as a widows management fund, medical insurance, encouragement to open avenues for employment for widows in homes, vocational training and other measures.

In the case of National Campaign Committee for Central Legislation on Construction Labour the Bench held that the apathy in implementation of building construction laws virtually amounted to exploitation of the workers. The Court issued directions to strengthen the machinery for registration of establishments as well as construction workers, to strengthen the machinery for the collection of cess, to frame a composite model scheme for the benefit of construction workers in consultation with stakeholders, and for social audits to be carried out, among others.

Even on issues of gender justice, Justice Gupta’s imprint is visible. In the case of Nipun Saxena, the Court held that Section 228-A of the Indian Penal Code imposed a clear-cut bar on the disclosure of the name and identity of victims of rape. In his judgment, Justice Gupta held that this non-disclosure would apply to cases where the victim had died. He said,

“We have to deal with the important issue that even the dead have their own dignity. They cannot be denied dignity only because they are dead.”

In order to protect the privacy of victims of rape and offences under the Protection of Children from Sexual Offences (POCSO) Act, the Court directed that FIRs relating to these offences would not be put in the public domain, that the identity of a victim who was dead or of unsound mind would not be disclosed without authorisation of their next of kin, and that a victim exercising their right to appeal would not be obliged to disclose their identity.

In the case of Independent Thought, Justice Gupta in his concurring judgment held that:

“…When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy. ….. A 15 or 16-year-old girl, when forcibly subjected to sexual intercourse by her “husband”, undergoes a trauma, which her body and mind is not ready to face. The girl child is also twice as more likely to die in childbirth than a grown up woman. The least that one would expect in such a situation, is that the State would not take the defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Articles 14, 15 and 21 of the Constitution. … Law cannot be hidebound and static. It has to evolve and change with the needs of the society”.

The court went on to read down Exception 2 of Section 375 of the IPC insofar as it related to girls below 18 to bring it in consonance with the Constitution and the POCSO Act.

At the ‘virtual retirement’ function of Justice Gupta, everyone lamented about his extremely short tenure in the Supreme Court. As I see it, it is not the length of time Justice Gupta spent with us that matters but the rich body of work that he left behind to serve as an inspiration for all times to come.

Fali Nariman said in his book ‘Before Memory Fades’,

“Do not believe too much of what judges exuberantly say in their judgments. Often they say it for effect. They usually don’t mean it”.

Justice Deepak Gupta is clearly an exception to the above. Without a shred of doubt, he meant and lived what he wrote in his judgments.Anith

Anitha Shenoy
Anitha Shenoy

The author is a Senior Advocate at the Supreme Court of India.

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