Did Madras HC Judge Exceed His Brief By Targetting ‘Linguistic Chauvinism’?

Justice N. Kirubakaran's remarks on language politics, the media, NGOs and political parties, while denying bail to an accused, made even his colleague on the bench to distance herself from them.

New Delhi: Justice N. Kirubakaran enjoys a unique distinction in the country. No other high court or Supreme Court judge can boast of a Facebook page, exclusively run by his fans in his name, though it cautions the readers that it is neither run by him nor does he associate with it. The page has 5,286 followers and compiles news and events connected with the judge.

But even the die-hard followers of this Facebook page may have a problem applauding him for his judgment in Kalailingam v State represented by The Deputy Superintendent of Police, National Investigation Agency, Hyderabad, (Camp at Puducherry) which he delivered on Friday, sitting in a division bench with his sister judge, Justice R. Hemalatha.

In this case, the bench denied bail to the petitioner, accused of being a member of Tamil Nadu Liberation Army, an organisation banned under the Unlawful Activities (Prevention) Act, 1967 (UAPA).   In January 2014, he was accused of placing a bomb below a parked car at the residence of the present chief minister of Puducherry, V. Narayanasamy, who was then the minister of state, Prime Minister’s Office. The trial is in the final stage and all the witnesses except the investigating officer have been examined. Four other cases are apparently pending against the petitioner. Two of them are murder cases, which are pending trial and the witnesses are being examined. The bench, therefore, concluded, that if the appellant-petitioner is enlarged on bail, there is the likelihood of his tampering with the witnesses.

The bench agreed with the trial court that it would not be appropriate to grant bail to the appellant when the trial is almost going to be over. However, it is precisely for this reason that Justice Kirubakaran must have refrained from passing observations on the merits of the case, which could be interpreted as influencing the decision of the trial court on the guilt of the accused. Sadly, the order does not have the usual qualifier that the trial court should conclude its proceedings without being influenced by the high court’s observations.

Innocent until proven guilty

Justice Kirubakaran referred to the chargesheet filed by the police in the case, which according to him, contained “seditious pamphlets published by the appellant and other accused”. He then went on to extract “some important portions” of the pamphlets to show how they are “seditious in nature”, and the accused are trying to create terror in the name of language, culture, and separation of Tamil Nadu.

Justice Kirubakaran, as a seasoned judge, must be aware that the accused is entitled to the presumption of innocence, till proven guilty. At the time of grant of bail, a judge can take into account the gravity of the offence, alleged to have been committed by the accused. But the judge is not expected to convert the bail proceedings into a trial court proceedings to pronounce on whether the evidence gathered by the police proves the guilt of the accused. If so, what is the need to wait for the trial court’s proceedings to conclude and deliver its judgment?

Justice Kirubakaran has implicitly ruled out the possibility that the trial court could find the accused innocent, and disbelieve the police version. “The above seditious pamphlets would demonstrate demand for ‘Liberation of Tamil Nadu’ and ‘Tamil Language’,” he observed.

Justice Kirubakaran suggested that such “fringe” elements are more active in Tamil Nadu than before and wearing the “masks” of NGOs, human rights organisations and political groups, they are trying to create unrest in the state by way of “continuous propaganda” through social media, instigating the people to protest, creating a fear psychosis and spreading hatred among the masses.

Justice Kirubakaran then turned his ire towards the news media, which he alleged, is spreading “distorted news” and exaggerates “minor incidents”. Taking the recent Galwan valley conflict between India and China as an example, he alleged that some people, who “are lovers of the neighbouring nation” stood exposed by their open support to the enemy. “These elements are threat to our nation. The fundamentalists and extremists which are a threat to national integrity and unity have to be nipped in the bud…”, he observed.

Justice Kirubakaran then deplored the fact that more protests have been held in Tamil Nadu in India since 2009. Relying on the data released by the Bureau of Police Research and Development, Ministry of Home Affairs, he stated that Tamil Nadu recorded the highest number of protests among all the states, at 20,450, while Punjab came a distant second with a little over 13,000 protests. He said:

“In Tamil Nadu, more number of cases are being registered by the National Investigation Agency and more number of terror activities are carried out. Since 2014, the NIA has claimed to have arrested 127 ISI sympathizers across the nation and the highest number of 33 were from Tamil Nadu.”

The Madras high court, having delivered a judgment on July 9, 2009, through Justice K. Chandru, defending the right to protest, must have been proud to note that it has recorded the highest number of protests among all the states. Justice Kirubakaran’s order also ignores another judgment of the high court, delivered in 2018 in Government of Tamil Nadu v P. Ayyakannu, again in defence of the right to protest peacefully.

The fact that the NIA has registered more number of cases in Tamil Nadu and has arrested 127 “ISI sympathizers” across the nation and that those held in Tamil Nadu constitute the highest among all the states, should not ipso facto, have convinced Justice Kirubakaran about the correctness of the agency’s claims. As a judge, he should have considered these official claims with a pinch of salt, and wait for the outcomes of trials in these cases, to conclude whether the claims should be taken seriously.

Representative image. Photo: PTI

Justice Kirubakaran made some unwarranted comments about organisations fighting for the rights of the people, forgetting about corresponding duties. Such comments, made in Paragraph 24, even if made in general, without hearing those concerned organisations, smack of bias, and may disqualify Justice Kirubakaran from hearing any human rights case involving an NGO. In Paragraph 25, he criticised the political parties for “waiting to make use of such position to arouse linguistic chauvinism to harvest political dividends”.

Justice Kirubakaran may well have the right to express his strong views on such matters. However, when he does so in the course of pronouncing his judgment in an unrelated matter like this, without hearing the political parties concerned, he may well create distrust among potential litigants about his ability to decide matters before him without bias or prejudice.

His advice to the governments not to create any apprehension in the minds of the people that only a few chosen languages are given prominence and recognition may well be directed towards the Centre. It is not as if Justice Kirubakaran is not aware of the role of the language in Tamil Nadu’s politics. Perhaps he is more concerned with the scope for the growth of linguistic chauvinism, in the face of the perceived instances of Centre’s subtle attempts to impose Hindi in non-Hindi speaking States, as reported in the media recently. His concern, though genuine, should have been articulated elsewhere, rather than in the course of writing this judgment, which could make the public to ask whether he has mixed up the issues.

His reliance on the Supreme Court’s judgment in Anuradha Bhasin v Union of India, to support his theory that modern terrorism heavily relies on the Internet, appears to have been borrowed out of context. That judgment is a precedent for the Supreme Court’s ruling that an indefinite suspension of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality.

Justice Kirubakaran’s advice to the government to effectively deal with anti-national forces with “an iron hand” which are bent upon creating fear, unrest in the society in the name of “language”, “race”, “religion” “region” or “ideology” and stall the development and divide the country, could only provide fodder to demands for extra-judicial violence by the state, and the institution of false cases against political dissidents.

Justice Hemalatha, while agreeing with Justice Kirubakaran on the dismissal of the appeal for bail by the appellant, added tersely:

“However, I do not subscribe to the views expressed by Hon’ble Justice N. Kirubakaran with regard to the Tamil Organisations, the languages and the consequent suggestions given to the Government. They are not relevant to the present petition. Learning languages is a matter of one’s personal choice.”

Madras high court. Credit: Wikimedia Commons/Yoga Balaji CC BY 3.0

Justice Kirubakaran’s rich legacy

The September 18 judgment, though erroneous, should not come in the way of assessing the admirable record of Justice Kirubakaran in hearing human rights cases. Justice Kirubakaran, who joined the high court bench as an additional judge in 2009, and as a permanent judge in 2011, retires on August 20 next year. So far, he has authored 492 judgments and has been cited in 143 judgments authored by other judges of the high court, which is a decent record for any Judge.

Although 157 of his 492 judgments dealt with cases under the Motor Vehicles Act, some of his other judgments and interventions are noteworthy. On Friday, he asked the additional solicitor general, R. Shankaranarayanan, how the Centre could tell parliament that it had no data on the number of migrant workers who died or lost their jobs during the lockdown to fight COVID-19.

On May 16, while hearing the same case, he said it was difficult to hold his tears while hearing the tale of migrant workers and asked the Centre to reveal the number of migrant workers who died while on their way to their native states.

An injured person is carried by a relative as migrant workers arrive at Danapur Station by a special train from Tamil Nadu, May 11, 2020. Photo: PTI

As a judge, Justice Kirubakaran has always displayed extraordinary sensitivity to habeas corpus petitions. Recently, a bench presided by him, ensured that a young woman, in her mid-20s, was freed by her family. She alleged to the bench through video-conferencing that her family was opposing her relationship with a man outside her caste. This is in contrast to how the Supreme Court vacillated before granting Hadiya her freedom to choose her partner.

In Jeevitha v State of Tamil Nadu (decided on September 11) and in S. Mohan v The Secretary to Government (decided on August 13), the bench presided by him set free detenues held under the preventive detention law on the ground that there was unexplained delay in considering their representation to the authorities. He expressed his agreement with the Supreme Court’s 2011 judgment in Rekha v the State of Tamil Nadu, in which it was held that preventive detention is by nature repugnant to democratic ideas and an anathema to the rule of law.

“We must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India, which was won after long, arduous, historic struggles”, he quoted the Supreme Court as observing in that case.

In T. Ganesh Kumar v Union of India and others, decided on April 9, he declined the plea to restrain the print media from publishing any newspapers in India in view of the spread of the coronavirus, on the ground that there is no reliable scientific evidence to support the petitioner.

In The Commissioner, Corporation of Chennai v The Secretary, Department of Municipal Administration and Water Supply and Others (decided on September 18 last year), he substantially enhanced the compensation payable to a victim who suffered grievous injuries because of the falling of an electric lamp post on him. A single judge of the high court had granted a compensation of Rs 5 lakh.  But Justice Kirubakaran enhanced it to Rs 63,26,000, suo motu, in the absence of any appeal by the victim himself. Finding that the victim has been deprived of marital bliss as a result of the tragedy, Justice Kirubakaran created a separate category called “Loss of Marital Prospects”, and awarded Rs 2,50,000 under this head.

In 2014, in S. Kannan v the Commissioner of Police, a bench presided by him had declined permission to conduct a cock-fight as part of a temple function, relying on the Prevention of Cruelty to Animals Act, which prohibits subjecting of animals to unnecessary pain or suffering.

On August 22, a bench presided by him asked the Centre why a law to bar persons with criminal antecedents from contesting elections has not been enacted yet, despite the Supreme Court’s suggestion in 2018 in Public Interest Foundation v Union of India.

Justice Kirubakaran is, of course, known for making statements which make headlines. Sample these: Call for mechanism to verify if women who marry imprisoned convicts do so of their own free will; Restrict people from purchasing more than one housing unit to solve housing crisis; gun culture in Tamil Nadu must be contained; Centre should give a timeframe to amend abortion law; the image of press getting damaged of late owing to ‘fake journalists’; cartel of doctors, pharma, diagnostic labs fleecing patients; government policies keep changing according to wish of ruling parties; ban on the download of TikTok and its subsequent lifting following the Supreme Court’s direction; and advising the state government to amend the Employees State Insurance Act to cover internal injuries.

But his order on Friday appeared to cast a shadow on his otherwise meaningful interventions in most of these cases. Clearly, judicial activism is a double-edged sword.