[dropcap]I[/dropcap]N the second part of his interview with advocate Prashant Padmanabhan, Justice K T Thomas (Retd) discusses nationalism, secularism, constitutional and public morality, and why he believes the Supreme Court’s Sabarimalajudgment is correct.
Prashant Padmanabhan: Ireland did not have an abortion law. An Indian woman, Savita Halappanavar, died there due to lack of sanction for abortion, despite medical reports to the contrary. Now that country has amended and repealed the ban on abortion. Likewise in many states in the US, there is an attempt to outlaw abortion. Your views?
Justice K T Thomas (Retd): It is a matter of national policy. I am not in favour of any religious thought to be introduced in the Constitutional Republic.
Prashant Padmanabhan: Should a woman have the right to abort in rape cases?
Justice K T Thomas (Retd): In the case of rape, the option must be given to the mother. But the abortion must be limited to the earliest period.
Prashant Padmanabhan: With the induction of conservative Judges like Neil Gorsuch and Brett Kavanaugh in the US Supreme Court, there is a fear that court will take a u-turn in issues like secularism, abortion, LGBT Rights etc. Is there any such possibility in India?
Justice K T Thomas (Retd): In the secular Constitution of India, the place for religion is mainly below four topics – public order, public health, public morality and fundamental rights. In no instance, must religion be given a place above those four topics. I admire the makers of the Constitution, in placing religion below the four subjects. After all, religion and those who believe in any religion must have the same rights.
It was not the custom simpliciter which the Supreme Court considered in the Sabarimala It was a rule enunciated under legislation enabling the authorities to ban women of a certain age from going to a particular place of worship. It was this rule which the Supreme Court considered and found repugnant to Article 13 of the Constitution.
Prashant Padmanabhan: In this context, may we know your views on constitutional morality? Is it different from public morality? There were divergent views on the application of constitutional morality by the Judges in the Sabarimalacase. (Attorney General) K K Venugopal has criticised it mainly on the ground that it is judge-centric. Both the majority and minority view rely on Constitutional morality.
Justice K T Thomas (Retd): I have not applied my mind on the distinction between constitutional morality and public morality, it requires in-depth study. But I fully endorse the majority view of the Supreme Court in the Sabarimala case. I expressed my stand in favour of such a view when I was a judge in the Kerala High Court, though it could not be transformed into a judgment.
Worshipping is everyone’s right. You cannot bar a woman from doing that. The custom at Sabarimala was developed at a time when trekking to Sabarimala took several days and menstruating women found it extremely difficult to trek in. With the improvement in automobile transport, now there is no such difficulty. In fact, it was not the custom simpliciter which the Supreme Court considered in the Sabarimalacase. It was a rule enunciated under legislation enabling the authorities to ban women of a certain age from going to a particular place of worship. It was this rule which the Supreme Court considered and found repugnant to Article 13 of the Constitution.
Prashant Padmanabhan: Your views on the judgment of our Supreme Court on Section 377 of the Indian Penal Code (reading down consensual adult sex in private)?
Justice K T Thomas (Retd): I have not formed an opinion on that.
Prashant Padmanabhan: Do you think that the judgment of our Supreme Court in adultery case is correctly decided? (de-criminalising adultery)?
Justice K T Thomas (Retd): Yes, I agree.
Prashant Padmanabhan: I am reading out a portion from Justice Dhananjay Chandrachud’s judgment in Adulterycase: “Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence” Do you agree with this view?
Justice K T Thomas (Retd): Yes, I agree.
If the Chief Justice is crossing the limit of forbearance, it is open to the victim judge to resign or apply for premature retirement. There is no occasion justifiable for a judge to exhibit publicly against the administrative action of a Chief Justice.
Prashant Padmanabhan: There is a bar on any discussion in the legislature of a state (Article 211) or in Parliament (Article 121) on the conduct of judges of high courts or the Supreme Court. Is that bar applicable to legislators outside the House also?
Justice K T Thomas (Retd): The discussion outside can be permitted without infringing the contours of contempt of court.
Prashant Padmanabhan: Some politicians have the habit of not only criticising judgments but ridiculing the judges who pass “unpleasant” judgments. One Kerala politician who is recently elected to the Parliament has been vocal in his criticism of the Supreme Court interfering with the custom at Sabarimala, as well as the Adulteryjudgment. He has publicly ridiculed the judge for passing such an order and commented as to what the judge would do if he finds this situation at his own home. Do you think that this is an acceptable code of conduct for a legislator?
Justice K T Thomas (Retd): Suppose a judge after passing a judgment in a murder case on his way back, witnesses a murder and suppose he was compelled to exercise his right of private defence to the extent of causing death of another person, or if the judge witnesses a rash and negligent driving, can they say that in all such cases the judge has a disability to judge a particular legal issue.
This is exactly what Justice Khehar expressed when somebody raised an objection that in the NJACcase those who are going to be in the collegium should refrain from hearing it. Justice Khehar gave a very befitting reply saying, “can a judge refrain from hearing any case on land or land acquisition on the basis of his own land being acquired in future”.
One of the best judgments of the Supreme Court is when they heard the question whether the salary of the judges is subject to income tax. In spite of seemingly formidable reasoning that the salary is fixed by the Constitution and through a legislative process it cannot be reduced, the then Supreme Court Judges rejected the argument and held that all the judges are bound to pay income tax. I wholeheartedly welcome this. This is the way a judge should approach every issue, unmindful of any benefit a judge might earn by accepting any particular contention.
Prashant Padmanabhan: What should sitting judges do if they have a grievance against the functioning of any Chief Justice?
Justice K T Thomas (Retd): He should personally meet the Chief Justice and convey it to him. If the Chief Justice is crossing the limit of forbearance, it is open to the victim judge to resign or apply for premature retirement. There is no occasion justifiable for a judge to exhibit publicly against the administrative action of a Chief Justice. After his retirement or resignation, he can do it as a free citizen, if he wants.
Prashant Padmanabhan: Do you support the #MeToomovement. Or do you feel that it is going beyond limits, sometimes trying to implicate well-known personalities like a film star or public figures?
Justice K T Thomas (Retd): I feel it is silly to mention what happened many many years ago. Because in all such cases, the male alone will be victimised. If it is of a recent episode, it is a different matter.
Prashant Padmanabhan: At present, there is only one judge in the Supreme Court who has been a trial judge. Do you wish to see more district judges reaching the Supreme Court?
Justice K T Thomas (Retd): From my experience, I can say advocates with good practice on the criminal side and judges with a background of conducting sessions trials certainly understand the practical nuances arising in criminal cases. If I am not accused of blowing my own trumpet, I would claim, I had that advantage. Justice Krishna Iyer had that advantage, though he was not a sessions judge. Justice Chinnappa Reddy had that advantage of being a public prosecutor for long. I could mention many names of good trial lawyers, but only a very few trial judges have reached the Supreme Court.
Prashant Padmanabhan: How do you view recent Supreme Court judgements dealing with bail applications?
Justice K T Thomas (Retd): The first place to apply for bail is the sessions court. Next is the high court and the Supreme Court should be chosen as the last forum. If all the accused in all cases, reach the Supreme Court, you can imagine the confusion it could create. Except in very, very suitable instances, the Supreme Court would be taking a practical step by directing the petitioner to approach the primary court for bail.
Prashant Padmanabhan: Recently there was another caseof an arrest of a woman for sharing a meme of West Bengal Chief Minister. Though the Supreme Court released her on bail, it had suggested that she apologise. Was it proper for the Supreme Court to suggest to an individual to apologise to the government which unlawfully arrested her?
Justice K T Thomas (Retd): It is difficult to answer because conditions can be imposed depending on the situation. Perhaps, I would not have imposed such a condition, but I reserve my right to impose such a condition in appropriate cases.
Prashant Padmanabhan: What are your views on arresting people for a cartoon or a meme of a chief Minister or Prime Minister?
Justice K T Thomas (Retd): If it does not cross the limit of obscenity, cartoons should be encouraged.
Prashant Padmanabhan: You are a living legend in criminal law. What are the reforms you envisage in our criminal law system?
Justice K T Thomas (Retd): I passed a number of judgments in the high court and Supreme Court, some of them became path-breaking judgments. A judgment can be passed only on the strength of given facts in a particular case. Barring constitutional questions, every judgment is a single journey ticket. Regarding reforms in criminal law, it is a large subject which cannot be answered in an interview with limited time.
Proper Hinduism as understood by Swami Vivekananda and Mahatma Gandhi can be quoted as a model, not the Hinduism practised by persons with a political motive. Not the Hinduism of Godse.
Prashant Padmanabhan: Is the adversarial system of adjudication best suited for India?
Justice K T Thomas (Retd): So far the adversarial system has proved to be better than any other system.
Prashant Padmanabhan: In rape cases, the statement of the victim is to be taken before the judicial magistrate as per Section 164 (5A) of the Criminal Procedure Code(CrPC). Can such requirements be made to record statements regarding other offences as well?
Justice K T Thomas (Retd): Yes, Section 164 is intended for that. But practicality must also be taken into account. If in all cases, the Investigating Officer resorted to the procedure under Section 164 of the CrPC, magisterial work would become paralysed, particularly in a country like India where we have far fewer courts than what is required.
Prashant Padmanabhan: Would that reduce the instances of police coaching witnesses?
Justice K T Thomas (Retd): Police coaching a witness, if done correctly, is not wrong. But police coaching a witness to speak falsehood in court is bad. I was trained under a senior, who was, for a long time, a public prosecutor. I’ve observed him refreshing the witness with the aid of their prior statements and the judges who knew this advocate were of the opinion that he would never instigate a witness to speak falsehoods in court. Inexperienced witnesses lose their composure when they go to the witness box. Coaching is advisable to maintain their composure in Court while facing the cross-examination.
Prashant Padmanabhan: How often should the Supreme Court interfere under Article 32, when the detenu is in custody after a judicial order? Recently in Serious Fraud Investigation Office v. Rahul Modi, a bench of Justices Uday Lalit and A M Sapre held that “a habeas corpus petition against a remand order would not lie unless the magistrate had acted without jurisdiction or if the remand order was without jurisdiction or passed in an absolutely mechanical manner or wholly illegal”. Do you think that the criteria is sufficient?
Justice K T Thomas (Retd): I agree with that view. Justice Uday Lalit is a very experienced criminal lawyer. He has appeared in many cases before me and I have understood his merit. I knew him only as a lawyer.
Prashant Padmanabhan: We’ve read your article on Gandhiji. As a young student, you cried on hearing the news of the death of Gandhiji. There is a new generation which hates Gandhiji and admires Godse. Your views?
Justice K T Thomas (Retd): India is a vast country with a vast population. If one or two individuals feel as Godse felt, it cannot be prevented. Godse wrongly thought that by assassinating Gandhiji, he can save the nation. I read from a book written by Robert Payne, that perhaps Godse would have repented in the last days of his life. He gave his own reasoning for that conclusion.
Prashant Padmanabhan: One retired Supreme Court judge, Justice Markandey Katju called Gandhiji a fraud and an agent of British. Parliament condemned him. He complained that he was not given an opportunity to defend his stand in Parliament. Your views?
Justice K T Thomas (Retd): I too would have joined the Parliament (in condemning Justice Katju), if anybody says Mahatma Gandhi is a fraud. You cannot imagine a human being, reaching the zenith of human personality as Mahatma Gandhi did. This was not merely a case of spirituality; it was a case of politics also. He combined nationalism, spirituality, politics and human rights. How can anybody say that he is a fraud? Did Markandey Katju really say that!
Prashant Padmanabhan: Is India becoming more and more intolerant?
Justice K T Thomas (Retd): We have not become intolerant. It is only hyped in the media. For becoming more tolerant, we require education for more and more people. Only then people will realise that religion is not their identity but only an accident.
Prashant Padmanabhan: There is a rise of hyper-nationalism and far-rightparties across the globe. Do you think that India will also go that way?
Justice K T Thomas (Retd): The purpose of nationalism is that the nation must progress, economically as well as morally. That should be the aim of nationalism of any progressing country.
Prashant Padmanabhan: Will India remain secular? If yes, what would be her strength?
Justice K T Thomas (Retd): India is secular. There is no doubt about that. What is meant by secularism? Unfortunately, today secularism is confined only to religions. The basic idea of secularism is the dignity of the individual transcending all divisive and discriminating influences. Secularism is not defined in the Constitution but it is accepted as the basic principle.
Prashant Padmanabhan: Swamy Vivekananda has declared in his Chicago speech of September 11, 1893: “I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration, but we accept all religions as true. I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth”. Do you think that Hinduism can still claim to be that tolerant?
Justice K T Thomas (Retd): Proper Hinduism as understood by Swami Vivekananda and Mahatma Gandhi can be quoted as a model, not the Hinduism practised by persons with a political motive. Not the Hinduism of Godse.
Prashant Padmanabhan: When the government has an absolute majority in Parliament, the Opposition is undecided even on the Leader of the House, is there is anything which we must be cautious of?
Justice K T Thomas (Retd): What is wrong in permitting the largest opposition party to be the main opposition party. Whether its leader should be given the benefits of Leader of Opposition is a different question. Opposing the Government should be the right of all individuals, particularly those who are in the opposition. The law of sedition cannot be applied to them. That is the difference between a dictatorship and a democracy.
Our Prime Minister said that despite the numerical fall of the Opposition parties, he would welcome interacting with them and desired to have their opinions as he values their opinion. This attitude was maintained by Jawaharlal Nehru and Vajpayee. Vajpayee did not have an absolute majority, but Nehru and Modi have their own.
Judges should learn to maintain punctuality. Judges should avoid taking leave on working days. Judges should also learn to pronounce their judgments within the shortest period after concluding their hearing. The longer period they delay, there is a possibility of other cases creeping in and further delaying the remaining cases.
Prashant Padmanabhan: There has been an all-party meeting to discuss “one nation, one election” or simultaneous elections to the Parliament and state Legislatures. Your views?
Justice K T Thomas (Retd): Themost ideal situation would be one election to Parliament, state assemblies and local bodies. The maximum I can envisage is separating local body election. Bye-elections should be avoided. The party which has won a constituency must be given the opportunity to nominate another person during the remaining period.
Prashant Padmanabhan: Finally, your advice to fellow judges, young entrants to the judicial service and to lawyers?
Justice K T Thomas (Retd): Hard work is the only short cut. Either as an advocate or as a judge. Judges should learn to maintain punctuality. Judges should avoid taking leave on working days. Judges should also learn to pronounce their judgments within the shortest period after concluding their hearing. The longer period they delay, there is a possibility of other cases creeping in and further delaying the remaining cases. I’ve come across this situation, delaying judgments, even among some of the best judges. Rajiv Gandhi assassination caseis the best example (of maintaining a schedule). We heard arguments for about four months, intervened by Special Leave Petition days; but the judgment was pronounced within three weeks. The Registrar General told me that he expected the judgment only after a year. I told him that if it was after a year, the judgment would not have been pronounced at all. The freshness of the argument is the best aid for a judge to pronounce the judgment.
Prashant Padmanabhan: Is there any other issue you would like to speak on?
Justice K T Thomas (Retd): Issues never end. They come one after another. As and when an occasion arises, this conversation can continue.