Justice Deepak Gupta: Brazen Flouting of Law in Vikas Dubey Encounter Doesn’t Portend Well for India

"I think we have to get together and send a message as a society that the law must be followed. Even if the person is the most heinous criminal, the legal system cannot be hijacked either by the police or anybody else."

The killing of gangster Vikas Dubey by the Uttar Pradesh police has put the spotlight back on encounters and extrajudicial killings.

While the police’s theory of this encounter is tough to believe, there is a large section of people that’s hailing it as ultimate justice. While there are serious questions on the legal validity of this whole encounter, there are concerns on the weakening of the rule of law, whether the people, the upholders who have the responsibility of upholding rule of law, are the ones who are weakening it. Vikas Dubey had a three-decade-long career in crime, more than 60 cases against him and about half a dozen murder cases.

On this issue, The Wire‘s senior editor Arfa Khanum Sherwani speaks to former judge of the Supreme Court, Justice Deepak Gupta. Read a full transcript of their conversation below.

Arfa Khanum Sherwani: Hello and welcome to The Wire, I am Arfa Khanum Sherwani. The killing of gangster Vikas Dubey by the Uttar Pradesh police has put the spotlight back on encounters and extrajudicial killings.

While the police’s theory of this encounter is tough to believe, there is a large section of people that’s hailing it as ultimate justice. While there are serious questions on the legal validity of this whole encounter, there are concerns on the weakening of the rule of law, whether the people, the upholders who have the responsibility of upholding rule of law, are the ones who are weakening it. Vikas Dubey had a three-decade-long career in crime, more than 60 cases against him and about half a dozen murder cases.

I have a special guest with me, Justice Deepak Gupta who has recently retired from the Supreme Court. So welcome to the programme.

My first question to you would be that since Vikas Dubey and his associates were accused of killing eight policemen in Kanpur, there were apprehensions and there were media reports that he knew too much and he will be killed in an encounter and still the police went ahead and killed him. What do you think is the reason behind this brazenness, and especially when people from the legal community are saying that this is not just a gangster who has been killed, but it is the encounter of the rule of law. What are your thoughts on this?

Justice Deepak Gupta: See if you look at the chain of events: one day after this incident happened, where Vikas Dubey allegedly killed 8 policemen – I’m assuming he killed the policemen – they went and destroyed his house. There is no procedure prescribed for destroying the house.

Then you heard stories that this gentleman may try to get into some media house or something, as he was scared that he might be eliminated. Some of his associates were eliminated, and it’s easier to eliminate in an encounter outside. One did not expect an elimination after a formal arrest.

Once he was arrested by the Madhya Pradesh police in Ujjain, he was not produced before a magistrate. They have 24-hour’s time but under [Section] 167 [of the Code of Criminal Procedure], the rules are forthwith. Twenty-four hours is the upper limit of the time. And then the chain of events, so many things happened – the media being stopped, the cars being changed, so many things.

So this is not the final word because finally the court or the investigation panel being set up or the judicial commission set up [will have to decide]. But indications are that this was not an encounter, he did not run away, he was killed. That brings us to the question of why he was killed.

AKS: Yes.

JDG: I really don’t have any answers to why he was killed. But police made up such a shoddy story, it seems they don’t even give a damn whether people think that we killed him or not. And they’re right, you know. That’s what worries me most, it’s not the fact that he has been brutally – I mean the law has not being followed, that is worrisome – but what worries me even more is that a lot of people holding positions in power have not only not condemned the incident, but have sort of supported the incident by saying, ‘So what, he was a murderer, he murdered a policeman, so what?’

AKS: I’ll come to this, Justice Gupta. What I want to bring here is the absence from judiciary, the absence from the National Human Rights Commission, and that is why I raised brazenness of the incident, that even all police officers, media reports – media which in the last five-six years has gone completely pro-establishment – even that media raised questions, it was so in-your-face, it was so brazen.

But despite that, the court has not taken any suo motu cognisance of the incident. Also, NHRC has been completely quiet on this. Do you think the Supreme Court of India should have intervened even if he was a criminal, even if he was a history-sheeter, even if he was a gangster who had 60 cases on him including half a dozen murder cases?

JDG: Suo motu it is not required, because as I have read in the papers, there was already a petition filed. So when there’s already a petition filed, there’s no need to take sou motu action. And I’m sure the court will take action on those petitions as and when they come up, as I’m told there are now three or four petitions filed in this case. Because sou motu would only rise if nobody else has come to you. But if that petition had already been filed a day before, there is no need to take suo motu action.

As far as the NHRC is concerned, I think no action has been taken and I’m sorry to say that I do feel that the NHRC was a body meant to protect human rights. It was a body created for the protection of human rights of the citizens. Yes, it does not have any adjudicatory powers, its powers are more recommendatory in nature, but somewhere long down the line, the NHRC has now become almost as if it will not do anything. That’s my feeling. Justice Venkatachaliah and all they were there, there were reports being filed at least, and even the NHRC can move the courts. If the NHRC feels that it doesn’t have the wherewithal to handle it, it can also file a petition in the court, that please take action in these matters.

Also read: In the Fight Between Encounter Policy and Rule of Law, It’s Clear Who Is Winning

AKS: Yes, I’m saying this because there was a recent case, there was a recent report by NHRC, where they blamed the Jamia students themselves for the police violence. The report also said that it should be probed what the real motive behind the anti-CAA protests was. So that is why I’m asking whether NHRC – National Human Rights Commission, which was meant to protect the human rights of Indian citizens – is actually working as an anti-human rights commission.

JDG: No, I won’t go to the extent of saying that it’s anti-human rights, but I definitely feel that the Human Rights Commission is not working to the extent we expected it to work for the protection of human rights of the citizen. I have not read that order in complete, and sometimes some remarks are taken out of context, so I would not like to comment on the remarks on the Jamia students, as I should have read the order to do that. I have not read it.

Police clear the anti-CAA protest site outside Jamia Millia Islamia. Photo: PTI/Files

AKS: So going back to your concerns on how people who are sitting in positions of power, they are kind of giving it legitimacy, they are giving a kind of wider acceptability in the society, that so what if he was killed, he should have been killed, he deserved to be killed. Why do you feel that a person who has had a history of 30 years of crime, violence, murders and other crimes deserved a fair hearing, deserved a fair trial?

JDG: See, as judges, even when I became a lawyer in the year 1978, I took an oath to uphold the Constitution. All of us, all citizens must uphold the Constitution. And Article 21 of the Constitution reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

An encounter is not a procedure established by law. Killing by the police – it is a killing, I’m qualifying my word, that will have to come out later – but it’s not a procedure established by law. So it becomes illegal by itself, and once it is illegal then all of us – whether it be ministers, whether politicians, bureaucrats, judges – all of us who have sworn to abide by the Constitution and the laws, then if we condone such an action, or even when we turn a blind eye to the action, I think we are doing a disservice to the nation, and a disservice to the Constitution.

If we are call ourselves a civilised society, if we are to call our country a civilised nation, if we are to say that we are a country governed by the rule of law, then there is no place for encounters.

You see, we are so proud of the fact as a judiciary – and I’m very proud of being a member of that judiciary which gave Kasab a fair trial, and he was hung after his trial had been completed. He had a fair trial. I think in this case, the police should have requested the chief justice of the high court, they could have set up a special court, they could have done something.

See but what was this message sent on the next day itself, that we have razed his house to the ground. You are destroying evidence! There would have been evidence in that house, something would have come out from that. And why it was done? I mean there is a lot of conjecture going around – was it done to protect other people? Was it done to protect the truth from coming out?

One part of the crime is investigation. Once investigation is done, then prosecution. And in 1993 we submitted a report which separated – prior to that, the police and the prosecutor worked as one – we separated it, so that the prosecutor should be independent of the investigation.

You have an investigation, prosecution and adjudication by the judges. But you can’t have the investigator, prosecutor, adjudicator, jury,  judge everybody in one person. If you let be, that is very sad. It’s not only the Vikas Dubey case, it also happened in Hyderabad.

AKS: Yes, I was coming to it but I want to ask you this. The question here is that is the police at the moment looking more powerful than what it was a few years ago? Do you think it’s dangerous for the police to be given so much of power, to one institution, and is this also a by-product of the judiciary not doing its duty, taking a back seat?

JDG: See, there is no doubt about the fact that when the police wields too much power, then there is misuse of the power. But this is not the first time it is happening. It has happened during the Punjab militancy times, there were thousands who were killed in fake encounters. It has happened many times. It’s not only now that it’s happening.

Also read: Why Revenge Killings and Instant Justice Should Never Be the Answers We Want

AKS: Would compared the Punjab militancy time to now? Do you think the intensity and brazennes…

JDG: No, Vikas Dubey is nothing compared to the Punjab militants, I’m not saying that. But that where I want to make a distinction – whether it is a militant, whether it is a hardened criminal, whether it is a first-time offender, a minor who just committed a murder or say some young boy slaps a police officer or shoots him – does that give the right to the other policemen to just bash him up or to kill him? So I don’t agree with you that you can make a difference between Punjab militancy and this. Anything that is illegal, is illegal. Circumstances can’t change that.

AKS: You said that you are proud of the fact that even somebody like Ajmal Kasab, a terrorist, he was given a fair hearing, and you’re proud of the fact that he was. Do you also remember the kind of politics that was done against a particular party, who was ruling the state and Centre at that point in time, that we actually serve and feed biriyani to terrorists?

So what I’m trying to say here is…

JDG: See, I’m not a politician, I have no political leanings. I have sworn by the Constitution, and I am not going to get into this debate of who is right or who is wrong. I will stay away from that debate. I am talking about whether the encounters were right or wrong.

See, encounters have happened in various times, under various governments. See, regardless of political affiliations. wherever a party is in power and wherever it is an absolute power, it tends to misuse it. Where they have full control over the police, then they tend to misuse that.

Our problem is that we have not followed various judgments of the Supreme Court, various recommendations of various commissions, separate investigation, separate law and order. Police reforms are not being done, police is not being trained. It’s not that the police is all bad, we’ve seen a very gentle face of the police during these COVID times also, where they helped people.

But policemen in India don’t regard brutality as something which is abhorrent to rights. They feel it’s a part of the game. Koi chal raha hai, usko laathi maar do (If someone is passing, hit them with a stick). Agar usne kuch kiya ho ya nahi kiya (Whether he has done anything or not), so what, I am a policeman, I can give him a little a lathi, so what. This brutality has to stop. It starts from there. Once you give him the right to use a lathi, then he goes further and…

AKS: You know why I said that the kind of politics that are associated with say terrorist attacks, or how terrorists are treated, or how criminals are treated, is because there is a responsibility that also has to be taken by elected representatives. They also are responsible for upholding the Constitution, upholding the rule of law, and if they start doing politics over court cases, then the end result is that people, especially the public perception, you talked about the Hyderabad police encounter that actually kind of enjoyed wide popular support. There was popular support when those four accused were killed.

So do you think the reason behind this could be this delayed, long-drawn, slow legal proceedings, so that people actually lose patience and also lose confidence in the system? And they then demand this instant justice, which is also kind of favourable to the politicians, they can show themselves as vindicated? Do you think this also works for politicians, that is why they also try and incite this demand for instant justice and demand for public support?

JDG: I think this question will have to be divided into three or four, I will just look into the judiciary aspect of it. There is no doubt that the long delays in the court, in the judicial system, in delivering justice in cases like this does cause anguish. Even in the Nirbhaya case, people felt that five-six years was a very long time. But I can tell you, I have been Chief Justice of a High Court in Chattisgarh, where I had a case 20 years old, 25 years old pending.

So we need to improve the judicial system, there is no doubt about it, but that can be done only with the help of the people in power. If the judiciary is going to get only 0.57% out of the budgetary allocation of the country, then we can’t….

We have hardly about 20,000 judges in the country, for a population of [more than] 135 crore that’s abysmally low. So I’m not making any excuses, but these sort of cases, even the judiciary must try and decide them as fast as possible. Yes, there’s no doubt that people get tired, ki court mein case pata nahi kab khatam hoga (I don’t know when court case will end). That’s one angle.

The other thing is the glorification, on the large screen especially, of police officials who take the law into their own hands. They become larger-than-life images.

AKS: In Bollywood, especially.

JDG: That’s why I said on the large screen. In India, Bollywood has a great influence on the constabulary of the country. So they also get affected if ABCD actor can use the gun and be portrayed as a hero, why can’t I. So that… but that mindset cannot change by itself, it has to be changed by all those concerned. The judiciary will also have to play an important role in changing the mindset. The judiciary has a very important role.

Because I strongly believe that when a judge refuses to grant bail to any person who’s committed any grave crime, then the judge or the court is depriving them of liberty in accordance with law. But then don’t we have the responsibility to see that his rights are not trammelled while he’s in custody? He’s not deprived, he’s not tortured, he’s given what is due to him. We have this system of criminal jurisprudence where believe that every man is innocent until proven guilty.

This is a one-off case where it appears he was a very hardened criminal, maybe no mercy should have been shown to him even by the court. But what was happened in this case? I don’t know, maybe you can enlighten me, has that man, that policeman who actually told him that this raid is going to happen, has he been arrested? Where is that man? Because the beans can be spilled in various ways. You can’t trace out the crime by killing everyone related to the crime.

A poster for Dabangg, in which Salman Khan plays a policeman who is glorified for violence.

AKS: Have we failed as a society in educating our young men and women in school and in college, that the establishment of rule of law, upholding it, is only meant to safeguard them and their interests in the long run? As Dr N.C. Asthana who was a DGP, said in an interview to that when policemen are going to do to one of these people who are now cheering these men during an extrajudicial killing, if it comes to them, then they will realise how dangerous it is to actually give so much power to police and not really go through the due process of law.

And that brings me to the next question. In your famous speech, you said the legal system favours the rich and powerful. Do you think that that’s also the reason, when you are acknowledging it and you’re saying that the legal community should be doing something about this, do you think this is also one of the reasons that the common people, the masses also understand that tareekh pe tareekh – they will only get dates and not justice. And that is why they run out of patience? Can we actually do something about it?

JDG: See the first part, I really feel that we have to tell people that the establishment of the rule of law is the very basis of a democracy. It’s the  very basis of any civilised society. Otherwise we are ruled by the whims of a few, and then the rule of law goes for a six. So we need to not only educate students and youngsters, but even as citizens ourselves we need to know that if there’s a red light, we must stop. It’s these small infractions which it my mind lead to this ‘why should I bother about them’ [mentality].

The second aspect which you talked about, you see our legal system is really geared in favour of the rich. I said that in my farewell speech and I am repeating it now, that if a powerful man even like this Mr Vikas Dubey. If a case had been filed against him, he would have challenged every order in the high court. He would have challenged every proceeding in the high court, come to the Supreme Court, and one day he would have got an order of a stay of the trial. And the trial would have stayed. And that is why people feel this retribution, this instant justice, is good.

I can tell you that so many times then rich and the powerful, if they are behind bars, keep filing bail applications only to get an order that – they know they will not get bail – but only to get an order that their trial may be expedited. If the trial is completed early, and he buys of the victim, he goes scot-free. What happens is his trial is being expedited at the cost of some poor man getting legal aid, whose legal aid is not doing the same sort of job of filing bail applications timely.

So I, even as a Chief Justice and a judge, I’ve had difficulty that when we got orders from the higher courts, we decided this case within two months. Then what do I do with the other cases, because I must go by my turn. But we make exceptions in very rare cases. So one, the rich can get the best lawyers, they can go to the Supreme Court time and again, the poor can never afford that. So if the rich man is outside jail, he will go every time to the Supreme Court to delay matters; if he’s in jail he’ll go to the Supreme Court every time – High Court, Supreme  Court, everywhere – to ensure that the trail is expedited. It helps.

Also read: The State Can’t Ignore Legal Safeguards Meant to Protect Citizens from Itself

AKS: So you think that Vikas Dubey could have gotten away? You think he could? Because he did it, for the last 30 years. He killed – allegedly I would say – he killed a sitting minister and he got away with it.

JDG: Two crimes he has been acquitted of. He was charged with I remember 60 cases or something?

AKS: Yes, and half a dozen murder cases.

JDG: And still he got bail. Was such a person really entitled to get bail?

AKS: Do you think this frustrates the policemen, because of Dr Asthana was also saying that you know, doing an investigation and finding evidence, presenting it, it’s all a lot of hard work. Instead of that, you actually take a shortcut and just kill the criminal, and you know that he’s done this. So he said that at a level, policeman who wouldn’t want to do such hard work, and still maybe at the end of the day they would be less frustrated, they would maybe go if it was possible, if it has legitimacy, they would just go for a shot.

So let me come down to another question, and I would also want to read this out for the benefit of our viewers. In 2014, the Supreme Court issued 16 requirements that it said must be met in matters of investigating police encounters. The court said it was important to set the standard procedure for an independent investigation into deaths caused in police encounters. And these guidelines are report to court, registering FIR, CID to start independent probe, magisterial probe, inform NHRC, medical aid to victim, no delay in FIR, send report to court, inform victim’s family, submit half-yearly report, prompt action against guilty cops, compensation to victim’s family, cops must surrender their weapons, inform cops’ family and give legal aid, no immediate award for cops involved, victim’s family can approach court against bias in probe.

So sir, my question to you would be that do you think the SC guidelines are being flouted in the Vikas Dubey murder case? In this case, do you think all of these 16 guidelines, majority or most of it is being flouted?

JDG: These guidelines were given in PUCL vs State of Maharashtra.  These 16 guidelines were given with this that if you take custody of a person and that person dies when he’s in your custody, then the burden sort of shifts on you to show that how did he die. And therefore these 16 guidelines, they’ve just been blatantly flouted. See my worry, what troubles me even more than the death of Vikas Dubey, is the flouting of the law. Because the brazenness with which the law is being flouted does not portend good things for the country coming up. Because we will reach that stage where that famous quote: ‘When they arrested my neighbour I did not protest and when they arrested the men and women in my opposite house I did not protest, and when they came to arrest me there was no one to protest. That is what will happen if we allow this to go on.

I think we have to get together and send a message as a society that the law must be followed. Even if the person is the most heinous criminal, the legal system cannot be hijacked either by the police or anybody else. Today it’s the police which has done it. There is a little element of justice because the police is doing it, and it’s seen as an upholder of the law. But tomorrow it could be a mob doing it, day after it could be somebody lynching somebody, which has already been happening. So can you have justice being delivered by anybody? You can’t distinguish between a policeman or a citizen when it comes to delivering justice. So it’s a very, very dangerous thing and I really feel that this has been flouted totally (the directions of the Supreme Court).

AKS: But when you say we should get together, who are we, where does the buck stop? Who does the buck stop with?

JDG: Finally, it has to be the people. Because obviously this UP government is tacit. I’ve not seen a word of condemnation coming out from any really political party. Everybody is questioning but nobody says we condemn this act. Because I’m saying I also can’t condemn it unless I say… but if it is that this story of the police is not true, then it is a very condemnable act. And what worries me is even civil society people are starting to believe that this is the only way of justice, that’s the second. The political class has to step up and even the judiciary has to step up and see that the image of the judiciary does not fall, and that we rise to the occasion and ensure that justice in these cases is also done as fast and as fairly as is possible, so that people don’t lose faith in the judicial system. The minute the people lose faith in the judicial system, we will reach a state of anarchy and nothing else.

AKS: Right, but Justice Gupta I don’t understand one thing. If you see from March 2017, the data says that there have been 119 cases of encounter killings in Uttar Pradesh since Yogi Adityanath has taken charge as the chief minister. Why is there so much anger and noise over the killing of only Vikas Dubey? Were the lives of rest of the 118 people – were those children of lesser gods, that we only care about a high-profile criminal being killed? Why is the judiciary not saying enough on these people 119 people? The Wire had a report which said that most of these people who have been killed in encounters they come from lower caste groups or religious minorities. Do you think that it’s kind of acceptable for people for the marginalised groups to be killed? More than maybe this high-profile criminal?

JDG: No, not at all. I think nobody in his right senses can say that you can distinguish. What I said in answer to one of your previous questions, whether it’s a hardened criminal or the most the most heinous criminal, or just a young boy whose first crime it is, they all have to be treated in accordance with the law. It’s a hard fact – that’s what I said when I said it in favour of the rich and the powerful – then obviously those who belong to the underprivileged sections of society get marginalised in the system.

That is why the Dr Surendranath report talks about minorities being the victims more often than not. But I don’t agree that there will be no noise – may not be as much noise as in this case, because noise is raised by the media. So I can’t decide which case the media will pick up and which it will not pick up, because today it is only if the media projects something that it comes to light.

But there have been a large number of killings. There is some perception that the law and order situation has improved because of these killings. But even if it has improved. Let’s assume I’m saying, even if it has improved, that doesn’t mean that you will take the law into your hands. You have to improve the law and order situation in accordance with the law, and not by violating it.

Vikas Dubey in the custody of the Ujjain police. Photo: PTI/Files

AKS: Right. So this [the previous question] was about politicians and the government, but this question is about the judiciary. Magistrate enquiries have been completed in 74 encounter cases where deaths occurred and the police have gotten a clean chit in all the cases. In as many as 61 cases out of these 74 cases, closure reports filed by the police have been accepted by the court. Your comments please.

JDG: Without knowing the cases, I will not be able to comment. It depends on the facts. But I can tell you, most of these cases investigation is done by police officials. So if the investigation is faulty, there is no evidence, they don’t bring any evidence. See, the magistrate is not supposed to collect evidence himself. That is why, one of the very strong recommendations is that in such cases there should be an independent investigation team.

Now, if the same police station or the neighbouring police station is given the charge of investigating this case, you know what the result is going to be. There will be no evidence, then we know nothing. You know there is a lot of evidence here which has to be collated. The recording from the toll barrier where the media was held up, there said to be a statement of a man… Now, if the police investigation doesn’t tally all that, the magistrate will not go to collect itself.

AKS: Who should be part of a team that investigates? Who should be a part of that team if not these policemen?

JDG: I read somewhere, I am not very sure. I think Mr Asthana’s article, he has given some details of what this team should be. It obviously has to have some investigating officers, but of very senior rank, impeccable integrity, maybe someone from the neighbouring state, maybe someone from another state.

AKS: And why I am asking this question, why it is so important, is because even in this case following the Supreme Court guidelines, an enquiry has been ordered. But do you think it’s going to be impartial in this case?

JDG: To be honest, I am not very hopeful of what the result is going to be.

Also read: Vikas Dubey Killing Shows the Police Now Think Openly Flouting Procedures Is Good

AKS: Right. Also another question is that if I particularly talk about the state of UP and the UP government that has kind of legitimised the “thok denge” culture. The chief minister himself, in front of hundreds of people, he said, “Humare yahaan toh thok dete hain.”

When he says all of this, in a way is he giving a message to the policemen and also the kind of impunity that they have received, and they will receive in cases of extrajudicial killings? Do you think it is the responsibility, as one of the upholders of law and rule of law and constitution, as chief minister, is it irresponsible?

JDG: The chief minister of any state takes an oath to uphold the Constitution in the laws, and as I read Article 21 of the constitution, there is no doubt that nobody can be deprived of their life or liberty unless as dictated by law. And if any occurrences of the chief minister or any other constitutional authority give encouragement to these sort of activities, then they are beyond the scope of law. I think they should not make any such statements.

They must say, yes, bring them to book – kanuni tareeke se inko jail do, death sentence ho sakti hai. It can be a death sentence or they could be in jail for the rest of their lives. But you can’t say kill them, shoot them, beat them up. You can’t have retributive justice of this nature.

AKS: And what is the role of judiciary, especially the state judiciary, working in a state where the chief minister himself encourages the policeman just to go out and kill people?

JDG: The judiciary also has a very important role. The magistracy has a very important role. See, this is a different case. As I said they were bringing him from Ujjain and true, they didn’t even produce him before the magistrate.

Look at what happened in Tamil Nadu – they produced him in front of a magistrate who saw those people from two stories above. Look at those two, the father and son in Tuticorin. What was their crime, that they kept their shop open 15 minutes long and then they might have had an altercation with the policemen.

Here it was a dreaded criminal at least, there it was not even that, they were also both killed. So there is something in the psyche of the police, the training of the police, which has to be changed; that you can take the law into your hands, you can’t beat up people just so mercilessly.

AKS: True, I know you’ve spoken against this and again it also goes back to – I’m not saying that they are entirely responsible – but the glorification of torture in judicial custody, the way we see it in films, the third-degree torture, even all of this is shown as if it’s just an acceptable way of policing, of investigation, of judicial processes.

So my next and very important question to you would be that as they say that judicial impartiality is a very important and significant element of justice, lately there have been concerns on the impartiality and state of judiciary in India. Do you think in a way judiciary has gradually been becoming subservient to the government? Do you agree that this is a legitimate criticism?

JDG: I don’t agree with you on that. Not at all. There are judges and judges. You can’t tar the entire judiciary. Some judges may be toeing the government a line, but there are a lot of judges who don’t toe that line.

See I can tell you, when you look from outside it is different. There are judges who also have different philosophies and viewpoints. Some of us may be liberal judges. Some might be slightly more conservative. So somebody is very easy, some judge gives bail easily in all cases. Some judges are very strict in bails. So as long as that judge is consistent in what he does, I have no problem. But like they say in cricket, if the umpire’s is consistent, and every time the ball goes outside the legs stump he puts it a wide, it doesn’t make difference as to who is bowling.

So, I wouldn’t say that judiciary is compromised or anything, but well there may be some black sheep. Also sometimes our perceptions differ. See, I am a judge who in certain ways is a more liberal judge. There are some judges who are not so liberal and were more conservative. I may disagree with them, but I don’t see that their viewpoint is totally wrong. So I won’t go to the extent of saying that.

Yes, there are phases, there was the era when Justice Krishna Iyer, Justice Chandrachud was the Chief Justice, and Justice Bhagvati were there. That ten years was a very different era, when rights jurisdiction was given a lot of importance. But you will also realise that was also the era where a tenant never lost not the case in the Supreme Court and landlords also always lost. That was an era where every case was decided in a particular philosophy. I don’t agree with that also. Judges should have no philosophy other than the Constitution.

AKS: But do you think the number of conservative judges are outnumbering liberal justice judges at the moment, in 2020?

JDG: I don’t know, it depends court to court, in some courts maybe. I can’t say.

File photo of Safoora Zarfar. Photo: Special Arrangement

AKS: You know why I’m asking this question is because recently we saw the CAA protesters, their protests being criminalised. We saw the case of Safoora Zargar, not just once but more than once she was denied bail. This young pregnant student who stood for her constitutional rights and she was sent to jail.

Apart from this, there are a few journalists who are now being charged with sedition cases. But you know, I think in no scenario – they should have got bail immediately the first day, the judges should have rather laughed over the cases on them. But now this has to be taken seriously.

JDG: See, I agree with you that a lot of these cases should be just thrown out. My views on sedition are well known. I don’t have to repeat my views on sedition. In fact in my view, this law of sedition should be thrown out. But you are right. I think most of the trial court judges have not even read the judgments in previous cases on what amounts to sedition. If they read that, even the FIR will not make a case for sedition. Why are they issuing notices left, right and centre I just don’t understand.

I think some of the high court chief justices must take up these matters. Give advice to the judges, guidelines, give training. You can’t call people out on sedition or anything just on a drop of the hat.

Another aspect which is worrying me very much now is that for everything, the police wants to arrest. In every crime, you don’t have to arrest the person. Yes, serious crimes, where investigations are required, you may need the person arrested. Small crimes, anything some does, put them behind the bars for a couple of days. Then bail is granted, not granted that is the other issue.

Well there are certain different approaches. I won’t talk about the Zargar case because finally the government only agreed that she may be released on bail. But there are judges as I said, judges and judges. There are some orders passed in one court by one set of judges which are totally different from another set of judges, that looks like a dichotomy. But that happens when you have two-three views of different judges who may take… I’m just…

Leave aside this political cases at a time, but there are some judges who would grant bail even in murder cases. When I was a lawyer we would see that they would grant bail…because they used to feel that once investigation is over, we’ll grant bail. Please see that bail is a rule, punishment has to come after the trial is over. Today a lot of judges also feel that jail is part of the crime, so crime must have been committed so let them stay in jail.

We had some judges when I was a young lawyer who would never grant bail and they would say openly that I don’t grant bail because I know finally the police will not be able to gather enough evidence against them, so let him stay in for a couple of years that’s the only punishment. So it’s not that they were dishonest judges. But that’s a point of view.

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AKS: But are you saying that this whole culture of arrest and FIR on journalists, on students raising their legitimate demands especially CAA protesters, you think that this culture has to be discouraged, and is this only dependent on individual judges who can do this or is there any other way?

JDG: As long as a protest is peaceful, as long as it is setting up your constitutional rights, you have a right to protest against the government in power. You have a right to put forth your point of view. You may belong to a minority; you may belong to the deprived classes; you may belong to the affluent classes; but you may feel that this is something which is not right. You may be wrong, but you have a right to project what is your point of view. Tomorrow I may be wrong.

See what the majority says is not always right. So I don’t think when people disagree, as long as the disagreement is being said in a peaceful manner, without breaking any laws, then just bringing in one complaint in X place, one complaint in Y place, file 20 complaints against either a journalist or a…that needs to be…I think Justice Chandrachud in the Arnab Goswami case did do something like that. And that has to be done in most of the cases. Leave one case, let it go on, and the other cases should all be combined.

AKS: Right, thank you very much Justice Gupta. I hope as you said, we all need to come together, we all really need to come together and re-instill that faith, belief in the judiciary once again. Because in a way I think in the last few years, I would say the fate of the common people in the judiciary has taken a beating, has shaken to some extent. Thank you very much, sir.

JDG: Thank you.