Blurring the line between law and morality: An overview of the colourful tenure of Madras High Court judge, Justice N Kirubakaran

Justice N Kirubakaran , a Madras High Court judge known for his proactive approach in matters of public interest , and who has sometimes sparked debates on the limits of judicial activism, demitted office this week.

. Justice Kirubakaran was appointed as an Additional Judge of the High Court on March 31, 2009 and made a Permanent Judge on March 29, 2011.

. Over the course of his tenure, Justice Kirubakaran has taken up issues ranging from the integrity of the Bar and weeding out fake journalists , to calling for policy interventions on varied issues of public interest.

. Days before his retirement, he also issued a slew of directions to in a bid to free the Central Bureau of Investigation (CBI) from its “caged parrot” status .

. While the Madras High Court bids adieu to the activist judge, we remember here some of the notable rulings rendered by Justice Kirubakaran during his term.

. The first TikTok ban . Before the Central government banned the use of TikTok, a Bench headed by Justice Kirubakaran was the first to briefly ban the video-sharing app on concerns that " by becoming addicted to Tik Tok App, and similar Apps , or cyber games, the future of the youngsters and mindset of the children are spoiled.“

. The Court, however, lifted its TikTok ban later after the platform approached the Supreme Court, which directed the Bench to decide on interim relief.

. Of course, the fate of the app was later sealed when the Centre imposed a ban citing national security interests amid rising tensions between India and China.

. On a related note, Justice Kirubakaran has also voiced concern over India's near total dependence on "enemy country" China when it comes to the import of ingredients for life-saving medicines.

. The moral side of courts . It is safe to say that the judge did not shy away from being vocal about his views in his judgments. His rulings often struck an empathetic tone and were sometimes underpinned by moral considerations , rather than the cold hard print of the law.

. For instance, while ordering the relocation of a TASMAC outlet earlier this year, a Bench headed by Justice Kirubakaran had urged the government to consider implementing a State-wide prohibition of alcohol to wipe away the tears of women and children and to usher in a more peaceful society as envisioned by Mahatma Gandhi.

. In another case concerning the hardships faced by people belonging to Scheduled Caste (SC) communities, owing to the absence of a road to a graveyard, a Bench led by Justice Kirubakaran expressed anguish over the continued ill-treatment of SC communities.

" We have to hang our head in shame for having ill-treated and discriminated the Scheduled Caste people for centuries together," observed the Bench in its order.

. " Hey Bharatha Matha!! look how your daughters are being molested, sexually assaulted and murdered by some of the devilish creatures roaming in your land. The said culprits could neither be termed as ”human beings” nor as ”animals”, as even animals are noble in their own way," exclaimed the Judge in another impassioned order, which discussed sexual violence against women in a case involving the gang rape and murder of a mentally challenged 60-year-old woman.

. At a time when courts were being criticised for not acknowledging the issue enough, Justice Kirubakaran was among the first to strike a note of anguish over the heart-breaking condition of migrant workers left in the lurch during the COVID-19 pandemic and lockdown.

"... it is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers, " the Court had observed at the time.

. Navigating the ethics of the Legal Profession . The judge has also been particularly vocal when it comes issues concerning the ethics of the legal profession and standards of legal education .

. In 2017, he took note of the proliferation of unruly advocates while hearing a case concerning a dispute between old and new trustees of the Annai Medical College.

. Justice Kirubakaran noted that while it is only a negligible number of advocates who engage in such behaviour, since the number is increasing by the day, “ the time has come to save the advocates who are wedded to the profession .”

. With a view to weed out criminal elements in the Madras Bar, the Judge issued various directions to aid the verification process of enrolled lawyers.

. The following year, a Bench headed by Justice Kirubakaran also issued directions to ensure the clean conduct of State Bar Council elections . The 2018 order began on a scathing note, with the Bench commenting,

“ Bribery, Corruption, Money Power, Caste card, Violence, Selling and Buying votes, Malpractice ” are synonyms of Indian election process . The ensuing Bar Council elections to be held on 28.03.2018 is not an exception .”

Days later, however, the Supreme Court stayed this order with then Chief Justice of India Dipak Misra criticising the order as being moralistic.

. “ The legal profession is not a child’s play ", commented a Bench led by Justice Kirubakaran in another case, wherein the High Court suggested the introduction of minimum experience criteria before fresh law graduates are allowed to practice before the High Court.

. Benches led by Justice Kirubakaran have also criticised the misuse of advocate stickers (even questioning why advocate stickers should not be banned given their misuse) and called on lawyers to refrain from resorting to boycotts and strikes , given that it would affect the rights of the litigant public and the justice delivery system.

. One such Bench passed an interim order last year to restrain lawyers from donning the advocate's black gown/coat and neckband while participating in strikes and demonstrations.

. The judge was also part of the Bench which expressed concern over the absence of a group health insurance policy for advocates, more so amid the COVID-19 pandemic during which many advocates lost their lives. The Court proceeded to constitute a committee to examine how medical insurance could be provided for advocates.

. Where the judge was slow to anger . A Bench led by Justice Kirubakaran last year showed grace and patience when it recalled a partly dictated order following cries of injustice in open Court by a lawyer.

" Although the outcry of the counsel for the respondents amounts to contempt of court...taking into consideration that she is having a grievance...this court will provide an opportunity to her, " the Court said.

. In an earlier case, wherein the Court's attention was drawn to abusive comments made on social media in reaction to some of its observations, Justice Kirubakaran remarked ,

"Only when defamatory, unwanted observations or comments, allegations were made against the judges in personal and the judiciary in general, action is needed to be taken. Merely because judiciary is affected, the police need not show any special interest and like any other cases, the case connected with this issue has to be investigated and dealt with by the Police. ”

. Decentralising the system . Other notable cases decided by the judge include those where views were expressed against centralizing tendencies.

. Last year, a Bench led by Justice Kirubakaran urged the Central government to respect vernacular languages of all states and not expect everybody to know Hindi and English.

. In another case, the Court observed that the National Green Tribunal (NGT) at Delhi does not have superior powers over other NGT Benches.

. In a case concerning the reservation extended to students who have studied in the Tamil medium, a Bench headed by Justice Kirubakaran also raised concern that the future of the Tamil language appears bleak, with the number of students pursuing Tamil medium school education falling to dangerous levels.

. Perceived gaps in law: Death penalty for corrupt officials, Goondas Act and more . Orders authored by the judge have also pinpointed gaps in policy including on abortion law , procedural criminal law , insurance law , maternity benefit laws , mental health , and a concrete law governing Torts and State liability .

. Even before the government had introduced its controversial Constitutional amendment permitting reservation for Economically Weaker Sections (EWS), the judge had asked the State government file its reply on why a reservation system for the benefit of economically backward members of forward communities should not be introduced.

. Whereas related issues are presently being discussed by the Supreme Court, in 2020, a Bench headed by the judge had also questioned why the Centre was yet to enact a law to bar politicians with criminal backgrounds from contesting elections.

. A Bench led by Justice Kirubakaran also expressed concern over the effects of unregulated online gambling , months before the Tamil Nadu government introduced an ill-fated law to ban online gaming including online poker and online poker with stakes. The judge was also vocal in criticising celebrities who endorsed such games.

. The wide-ranging and complete ban in Tamil Nadu was ultimately struck down by a Bench led by Chief Justice Sanjib Banerjee earlier this month, with the Bench observing that the law was capricious, excessive and disproportionate.

. On a more controversial note, Justice Kirubakaran also recommended the invocation of the Goondas Act to deal more stringently with wrongdoers on multiple occasions.

Why shouldn’t the Goondas Act be amended so as to allow detention of corrupt public officials? asked Justice Kirubakaran in 2017 while passing an order smacking of exasperation at the rampant corruption in government departments, particularly in registration departments. The judge took a step further in November 2020, when he suggested that the death penalty should be imposed as punishment for corrupt practices.

. In 2020, a Bench led by Justice Kirubakaran opined that water polluters should also be treated as Goondas under the Tamil Nadu Goondas Act, 1982. The same year, he opined that those involved in edible oil adulteration should be punished under the same law.

. In 2015, the judge was also reported to have called for the castration of child rapists, opining that " the present law is ineffective in dealing with such criminals ."

. Going beyond the brief: Linguistic chauvinism, CSR for film industry, freebie culture . Given the public-spirited nature of the judge, cases before Justice Kirubakaran have often taken interesting turns.

. A habeas corpus plea seeking the release of a man detained under the Arms Act for allegedly having committed robbery at gun-point prompted a Bench led by Justice Kirubakaran to voice a note of concern that the " gun culture " is slowly spreading in the State.

. In another case, the Court mulled over the viability of introducing restrictions on persons from acquiring more than one housing unit, given the problem of inadequate housing faced by many in the country. The main matter related to an appeal filed by the Tamil Nadu Housing Board against the quashing of land acquisition proceedings related to a housing project.

. A feud between two gang leaders that left two (including a police officer) dead prompted a Bench led by Justice Kirubakaran to take note of the prevalence of gangsters in Tamil Nadu and across the country.

. A 2016 plea to prevent rogue websites from pirating the Tamil film "Kabali" prompted the judge to ponder over social responsibility in film making , and even ask the Central government to respond on whether social responsibilities similar to “Corporate Social Responsibility” can be cast on the cinema industry.

" Gone are the days of actors like MGR and Sivaji Ganesan, whose films and the characters portrayed by them went a long way in reforming the society and in inculcating moral values in the minds of the public…Many social evils and recent crimes are, no doubt, the effect of recent films. Youths are made to believe that they can win over an urban girl by constant stalking...The Cinema Industry, especially, the leading actors, should think over before accepting any role as to the impact it is likely to cause on the society…", the order had stated.

. In March this year, a Bench led by Justice Kirubakaran expressed strong opinions against the freebie culture indulged in by political parties during election season and called for amending the Representation of Peoples Act, 1951, so that freebies offered by political parties are also viewed as a "corrupt practice" under Section 123. Freebies are making people lazy and dampening the working culture, the Court had said, adding that this could also be tied to the rise in the engagement of migrant labour.

These observations were made in a petition to de-reserve the Vasudevanallur Legislative Assembly constituency, from where only Scheduled Caste (SC) candidates can presently contest the Legislative Assembly elections.

In the same case, the Bench also opined that the reservation of constituencies for SC candidates should continue until such candidates are fielded and win elections even in general constituencies.

. In another case that made headlines, Justice Kirubakaran commented ,

" There should not be any room for linguistic chauvinists to create any unrest in the name of languages in any part of our country...Governments should make every citizen to feel that his language, culture, religion, race are preserved and protected and not interfered with or suppressed by any action of the Governments. "

The observations, however, were made in a case involving a bail plea moved by a member of the banned “ Tamil Nadu Liberation Army .” The bail plea was ultimately rejected.

Notably, Justice R Hemalatha , who was also on the Bench, distanced herself from the remarks made by Justice Kirubakaran on linguistic chauvinism , observing that they are not relevant to the present petition and adding that " Learning languages is a matter of one's personal choice."

. As is evident, Justice Kirubakaran has often traversed beyond the case that was before him in an effort to tackle larger issues and to call attention to pressing issues that he viewed as being in public interest.

. Whether it was for the better or for the worse, the judge will be remembered for the holistic manner in which he performed his role, regardless of the propriety of doing so.

Blurring the line between law and morality: An overview of the colourful tenure of Madras High Court judge, Justice N Kirubakaran

Meera Emmanuel

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