IN this first part of a freewheeling discussion with advocate Prashant Padmanabhan at his home in Muttambalam, Kottayam district on June 19, 2019, Justice K T Thomas (Retd) talks about his reservations with the Collegium system, the death penalty and where he believes it can be imposed, and why he thinks the Supreme Court erred in summoning Justice Markandey Katju before it.
Prashant Padmanabhan: Having retired from the Supreme Court on January 29, 2002, it has been a long 17 years. How often do you remember the judges and lawyers of the Supreme Court of India? Any particular judge or lawyer?
Justice K T Thomas (Retd): I remember them quite often. Among the lawyers, there are a few that I remember – between six to ten lawyers. Among my colleague judges, those with whom I sat for a long period; these are the persons I remember – Justices A S Anand, Variava, R P Sethi, M K Mukherjee and then, of course, host of other judges with whom I sat. Probably these are the judges with whom I sat for a longer period. May not be fair to pick out one of them. I have continued relations with Justice Variava for a longer period as we have been on arbitration panels in many cases.
The Collegium should not recommend more than two persons. The reason is the tendency of the members of the Collegium to adopt a barter system – if you agree on my candidate, I will agree on your candidate.
Prashant Padmanabhan: What are the changes you see in the present day Supreme Court from the time you were there?
Justice K T Thomas (Retd): Supreme Court remains the same then and now. The testing period of the Supreme Court was during the Emergency, I was not a judge during that time.
Prashant Padmanabhan: Prof N R Madhava Menon is no longer in our midst. Do you have any memories of him?
Justice K T Thomas (Retd): I had a very close connection with Madhava Menon, even when he was the founder of NLSIU (National Law School of India University), Bangalore, NUJS (National University of Juridical Sciences), Kolkata and National Judicial Academy, Bhopal. He held top position in all these institutions, and he was good enough to involve me also on a number of occasions. We maintained a very good personal relationship also.
Prashant Padmanabhan: Justice Krishna Iyer had suggested an Appointment, Performance and Punitive Commission for Judges. Your thoughts?
Justice K T Thomas (Retd): I have not applied my mind on that. About (judicial) appointments, I would have preferred the Collegium, if the Collegium system is subjected to further improvements.
The one experiment I have seen was done by Chief Justice Jawaharlal Gupta when he was the Chief Justice of the Kerala High Court. Particularly as an outsider to Kerala, he wrote letters to all his colleague judges to recommend names of members from the bar, three times the number of vacancies to be filled up. He shortlisted eight to ten names who were recommended by the largest number of judges and started observing them and hearing their performance in court. He selected three from them and put up their names to the Collegium. I wrote an article later that this is a very good model which all other High Courts can follow because it had the effect of bringing all judges within the ambit of the selection process. The three names he recommended were the best at that time.
Prashant Padmanabhan: The Times of India recently quoted Chief Justice of India, Ranjan Gogoi’s statement: “Non-political appointment of judges alone could ensure the independence of the judiciary”. Your views?
Justice K T Thomas (Retd): The executive will have a say after the initial selection is made by the Collegium. Their opinion is to be collected certainly because they have a better machinery to know the past of the person. There is nothing wrong in considering a candidate suggested by the executive also.
The NJAC (National Judicial Appointments Commission) would have been a very desirable improvement, but unfortunately, it was struck down by a majority of judges of the Constitution Bench. I expressed my strong dissent to the majority judgment of that case. At least once in 25 years, the existing system should be subjected to further improvement.
I have also a view that at a particular time, the Collegium should not recommend more than two persons. The reason is the tendency of the members of the Collegium to adopt a barter system – if you agree on my candidate, I will agree on your candidate. That possibility can be prevented if the number of recommendation at a particular time is limited to two. The selection of one person is most desirable, but due to the time-consuming aspect, it can be increased to two. Definitely not more than two at a time.
After capital punishment had been remitted (in the Rajiv Gandhi assassination case) for all the persons sentenced to hanging, I noticed that they were all continuing in jail for more than 28 years. I felt it involved a human right violation. I wrote to Sonia Gandhi to make a petition to the President of India for the remission of the remaining period of the sentence in their cases. Unfortunately, she did not do anything, even though I know that she was in receipt of my letter to her.
Prashant Padmanabhan: Most memorable case in your position as a Judge of the Supreme Court?
Justice K T Thomas (Retd): There were a few, but I think the Rajiv Gandhi assassination case, considering the length of time we heard the case, the length of the judgment, very large number of accused were convicted and punished to capital punishment – it is still on my mind. The best judgments I like are on my mind – among those, the judgments pronounced by me concerned prisoner’s rights and improvement of prison conditions.
Prashant Padmanabhan: While the other two Judges confirmed the death sentence of a woman convict, Nalini (in the Rajiv Gandhi assassination case), you’ve advocated life imprisonment for her, instead of the death penalty. Sonia Gandhi herself has requested for releasing Nalini. Was it a vindication of your stand?
Justice K T Thomas (Retd): After capital punishment had been remitted for all the persons sentenced to hanging, I noticed that they were all continuing in jail for more than 28 years. I felt it involved a human right violation. I wrote to Sonia Gandhi to make a petition to the President of India for the remission of the remaining period of the sentence in their cases. Unfortunately, she did not do anything, even though I know that she was in receipt of my letter to her. I mentioned to her that she was the most appropriate person to make such a request to the President as otherwise, politics would have been brought in, to make it a highly controversial issue.
Prashant Padmanabhan: Do you think the imposition of the death sentence is largely judge-centric? Isn’t the term “rarest of rare” wide enough for a judge to interpret according to his own philosophy?
Justice K T Thomas (Retd): I very strongly believe that imposition of capital punishment is a violation of Article 21 of the Constitution but I had to abide by the majority judgment in Bachan Singh’s case and award capital sentences in very limited instances. I find only one instance where the capital sentence is justified. It is based on the principle of “right of private defence”. I shall elaborate it a little further. If a terrorist with an extraterritorial connection is detained for life imprisonment, as it happened in Kandahar, (a terrorist act) can be repeated, at the risk of the lives of many innocent persons. The hijacking of aeroplane perhaps can be prevented now but buses carrying passengers, boats, even schools could be subject to terrorists surrounding (them) with lethal weapons, demanding the release such hardcore prisoners.
Considering this aspect, in appropriate cases, capital punishment can be imposed for saving the life of innocent persons in India. That’s why I said it is based on the principle of the right of private defence. Then you are permitted to take the life of another person. Even in the sole dissenting judgment of J.Bhagwati in Bachan Singh’s case, such a solitary exceptional area has been indicated.
Prashant Padmanabhan: The Law Commission headed by Justice A P Shah has recommended the retention of death sentence in terror-related cases only. Are your views similar?
Justice K T Thomas (Retd): I would not say any terror-related case. ‘Extraterritorial connection’ is very important, according to me.
I very strongly believe that imposition of capital punishment is a violation of Article 21 of the Constitution but I had to abide by the majority judgment in Bachan Singh’s case and award capital sentences in very limited instances.
Prashant Padmanabhan: Do you agree with the death sentence on Afzal Guru?
Justice K T Thomas (Retd): My earlier answer is enough. Going by the law as it is now, there is no point in expressing an opinion on individual cases.
Prashant Padmanabhan: Justice Markandey Katjuhad been demanding death sentence for Govindasamy,the convict in the Soumya murder case. He was summoned to the Supreme Court to explain his stand. Do you think that the Supreme Court has ignored the bar under Article 128 of the Constitution of India, in doing so?
Justice K T Thomas (Retd): I totally disagree with the course adopted by the Supreme Court in demanding Justice Markandey Katju to appear before the court. What Justice Markandey Katju has expressed outside the court was his personal opinion. Though I had very good personal relations with Katju, I did not at all agree with his stand that in the Soumya case, the death penalty could have been given. On the facts of the case, it could only be a case of rape.
Prashant Padmanabhan: What is your view on seven senior most judges of Supreme Court directing a sitting high court judge to undergo a medical examination? (Order dated 01.05.2017 in Justice Karnan’s case)
Justice K T Thomas (Retd): Very unusual conduct exhibited by Justice Karnan as a judge, both at the Madras High Court and subsequently; it could instil doubt in the mind of a judge that the mental condition of Justice Karnan needed a thorough examination. If his conduct was influenced by any such mental illness then he would be entitled to the benefit provided in Section 84 of the IPC.
Prashant Padmanabhan: Do you support the medical termination of pregnancy by judicial order at an advanced stage? Under what circumstances?
Justice K T Thomas (Retd): Only to save the life of the mother and not in any other case.
To be continued