Whatever is necessary to save the Constitution must be done, Justice Abhay Thipsay [Part I]

Varun Chirumamilla

Justice Abhay Thipsay, who retired as a judge of the Allahabad High Court in 2017, recently joined the Congress Party, stating that he needed a platform from which to address certain goings-on in the country that concerned him.

Bar & Bench spoke to him to find out what motivated him to take the step, how the legal fraternity reacted to the news, what we can expect from his new avatar, and a whole lot more.

The majesty of the judiciary has taken a hit in the recent past, and public criticism of our courts and their judgments are on the rise. How does one reverse such a trend, or at least ensure that the cracks do not widen?

This is indeed a very serious issue and worthy of deliberation. However, the public criticism of our courts is often unjustified. There maybe orders which are legally untenable, but the criticism does not depend on that.

Perfectly proper and legal orders are sometimes criticized and orders which are not in accordance with law are celebrated and publicised. The working of the courts and their decisions attracts huge publicity in modern times.

Because of this publicity, judges sometimes face unwarranted criticism and in some instances, undeserved praise. The problem is that the general public is not aware of the legal procedure and the law. Law is based on common sense, a sense of equity and justice. It is not designed to cause injustice to anyone.

However, impressions are sometimes falsely created that a particular case should be decided in a particular way. The media publicises these opinions which are not based on any knowledge of the facts of the case. If the judgement goes contrary to popular perception, which in itself is a media creation, it is criticized.

People fall for gimmicky media trails, which decide the guilt or innocence of a victim even before the matter comes to court. This can be reversed by creating general awareness about the legal process.

Unnecessary publicity being given to court proceedings does in some instances pressurise the judges, and they are sometimes afraid of passing fearless judgments. This happens more at the lower level, because there are instances where even High Courts misunderstand perfectly legal orders on the basis of media reports.

I think to ensure that the cracks do not widen, the Bar has to play a big role. The Bar has to explain, talk to people, refute wrongful allegations against the judiciary, and so on. We need the judiciary to be protected, for the preservation of our democracy. A strong and independent judiciary is the very backbone of the rule of law.

You had recently said that communalism and ultra nationalism are on the rise. In this context can you explain what “waging war against the state” is being read as, and what the correct interpretation is in your opinion?

Yes. I did say that and I do feel that. ‘Waging war against the State’ is an offence under the Indian Penal Code which is defined and made punishable under Section 121. The Indian Penal Code was enacted in 1860. After independence, and after the Constitution came into being, all the laws which were in force prior to this must necessarily be read in consonance with the Constitutional provisions and principles. Any laws contrary to or inconsistent with the Constitutional provisions shall be void to the extent of such inconsistency.

The penal provisions regarding ‘waging war against the Government of India’ were utilized by the British against the people who wanted to revolt against the British Rule and wanted a government of their own.

It is very difficult to precisely explain what ‘waging war against the government’ means, because that would need highly complex legal discussion. But it has been held that these words seem naturally to import “a levying of war by one who throwing off the duty of allegiance arrays himself in open defiance of his sovereign in like manner and by like means as a foreign enemy would do, after having gained footing within realm”. There must be some insurrection, there must be force accompanying that insurrection, and there must be an object of a general nature.

The section needs to be properly interpreted or even re-drafted in free India.  Otherwise, there is a possibility of the government misusing this provision for silencing the voices of those that speak against them or their policies.

Surendra Gadling, a prominent human rights lawyer from Maharashtra, was recently arrested under the Unlawful Activities Prevention Act. He was allegedly in possession of some inflammatory literature. How do you see this playing out?

It would not be proper to comment on this or give a categorical answer to this question, as I am not in possession of sufficient facts. Generally, an advocate who appears for persons accused of a crime, is not attributed the criminality attached to those whom he is defending.

One has to see whether the acts of Surendra Gadling went beyond what would be an advocate’s plain and legal duty and whether he himself did something which could be characterised as a crime.

If he was in possession of some “inflammatory” literature, one has to be clear about what is conveyed by the word “inflammatory” and in that regard, one has to seriously consider whether such literature was banned by the state under the provisions of Section 95 of the CrPC.

If the literature was not banned and if it propagates a particular philosophy, whether it is “inflammatory” and whether the possession thereof amounts to an offence, would need to be seen in the context of Unlawful Activities (Prevention) Act.

I may observe that there have been instances where these provisions have been wrongly invoked and the speeches or the literature actually fell short of the degree of criminality that would be attached to it. But for that, one needs to study the matter and no off-hand opinion can be given.

The present government has been criticized for exerting pressure on the judiciary. Did you or your brother and sister judges feel the same while in office?

As far as I am concerned, there was no direct pressure put upon me by any government, during my 30 years as a judge. But there are ways of exerting pressure, such as making the presence of agencies such as the Intelligence Bureau felt in court.

Senior law officers such as the Advocate General appearing in a straightforward matter relating to bail is another indirect way of exerting pressure on a judge. Whether judges succumb to such power depends on the individual. I can’t say whether other judges feel the same because usually these matters are not discussed. The general discussion would be about the trends at the Bar, the hostility of the press, and things of that nature. No judge speaks of there being any pressure from the government.

You have joined the Congress Party less than two years since demitting a Constitutional Office. How have your colleagues at the Bar and the Bench re-acted to this?

Well, I would say that the reaction has been mixed. Some have approved it wholeheartedly, some have said that ‘it is alright’, and a few – a very few – have said that it should not have happened. Those who did not approve feel that a judge should not join any political party. I do not agree with this view.

On the whole, the lawyer community seems to be alright with my decision. In fact, some of them said that people should not hold back in these troubled times. Some retired judges whom I did not expect to approve of the move, also said that it was a good step.

One or two Senior Advocates have expressed their reservations in general terms that a judge should not join any political party. However, I do not think they are right. There have been several instances because I know so many retired judges who have joined politics. In fact, I know instances where they are immediately rewarded with high office. I have not come across a single instance where a retired judge has joined a party which is not in power, either at  the Centre or in the State.

What role do you plan on playing having joined the Congress party?

It is too early to say. I joined the party because I thought that I should have a platform from where I can express my views and my concerns about the growing intolerance, communalism, aggressive cultural nationalism, and an open attack on Constitutional principles.

It is not that these things were not happening earlier, but now they are on the increase. What is significant is that the section of society which indulges in such practices is now emboldened and encouraged. I think that something should be done in that regard.

I realized that one cannot do that alone and if one wants to be active on the social front, they would need to join a political party – a political party whose ideology is consistent with Constitutional values and principles.

I have no particular plans as to what exactly should be done. That would be discussed with the leaders of the party and then some proper role will be assigned to me, where my knowledge and expertise in the legal field can be utilised.

Whatever is necessary to save the Constitution, and to preserve democracy should be done. Whatever small contribution I can make to that end, would make me glad.

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