Justice VG Arun : Gentleman Judge With Progressive Views

Justice Arun has spoken loudly through his forwarded-thinking judgments on freedom of speech and expression, mental health, secularism, equal rights, freedom from surveillance, to name just a few.

Justice Arun's Outlook on Secularism

While speaking at an event last year, the retired judge had commended parents, who chose to bring up their children without religious labels, and had remarked that children without religion are tomorrow's promise.

In one of his judgments, Justice Arun had allowed the plea of two youngsters, who had embraced a new religion, seeking to change their religion in their school certificates. He had observed that even though there was no specific provision enabling change of religion in school certificates, the same cannot be reason to “tie down a person to one religion” when freedom to embrace religion of choice is guaranteed under Article 25 of the Constitution. 

In 2022, Justice Arun had called upon the government to frame a policy for issuing community certificates to persons belonging to the non-religious category for enabling them to avail the benefits of Economically Weaker Sections (EWS).

In a judgment authored by Justice Arun, he had spoken against animal and bird sacrifice conducted as part of religious activities – “All unhealthy, unscientific and deleterious practices are to be prevented, even if it is done in the name of religion,” he had remarked.

In one of his speeches, Justice Arun had said, “To live without adhering to any religion in our democratic secular country is certainly in tune with our Constitutional principles.”

Freedom of Speech and Expression

In his recent judgment in Juby Thomas and Anr. v. Union of India, relating to the movie 'Haal', Justice Arun had delivered a verdict that underscored the creative freedom of a filmmaker to express his views, enshrined in Article 19(1)(a) of the Constitution.

Not long back, he had considered a plea preferred by a UAPA convict who wanted to publish a book that he had written in jail [Roopesh T.R. v. State of Kerala and Ors.]. Justice Arun had asked the government to expeditiously consider whether the book can be published and remarked “thoughts and dreams being internal and intangible, are beyond external control or curtailment. They are the ultimate realm of personal freedom… For prisoners like the petitioner, the examination can be stricter, but never an insurmountable obstacle.”

The freedom of expression of common man has also been recognized by Justice Arun in his various judgments. He had, in Sharmina S v. Sub Divisional Magistrate, held that merely protesting or shouting slogans cannot be perceived as activities in violation of reasonable restrictions under Article 19.

Quashing criminal proceedings initiated for criticising CMDRF on social media, he had observed: “Clamping persons expressing dissent or raising criticisms with criminal cases is an affront to the democratic values enshrined in our Constitution.”

Justice Arun had also observed: “Free flow of opinions and ideas is essential to sustain the collective life of the citizenry. Fear of setback to Government's initiatives, due to expression of opinion or dissent by a citizen, cannot result in Article 19(2), restricting the freedom of speech and expression, being brought into play.”

Recently, Justice Arun refused to stay the release of the web series 'Anali' which was alleged to have been based on the sensational Koodayi murder case in which Jolly Joseph is accused. He had touched upon the importance of artistic freedom and stated that stay cannot be granted when there is nothing concrete but mere surmises and conjectures.

On Equal Rights and Bodily Integrity

Justice Arun's judgments were vocal about the need for equal rights and bodily integrity, particularly of women, children and transgenders.

He had, while considering a case, observed that transgender persons have the right to participate in sport events in the category of their choice if the organisers had not arranged for a separate category.

While considering a challenge against a Child Welfare Committee order granting custody of one-year-old breastfeeding child to father, Justice Arun had opined the CWC members ought not to have taken child from mother and judged her by their moral standards.

Justice Arun had also highlighted upon the importance the need for appropriate sex education for youngster and expressed concern regarding the increasing number of child pregnancies and easy access to porn (X v. Union of India & Ors.).

In a 2023 judgment, the retired judge had directed the Government to constitute a State-Level Multidisciplinary Committee with experts to examine requests for performing sex-selective surgeries on intersex children.

He also made observations regarding the consequences of allowing parents to permit genital reconstruction surgery on children's rights:

“On careful analysis of the relevant factors and consideration of the rights of the parents and the child, I find that, grant of permission for conducting genital reconstructive surgery would impinge the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India and conduct of the surgery without consent would violate the child's dignity and privacy. Granting such permission may also result in severe emotional and psychological issues if, on attaining adolescence, the child develops orientation towards the gender, other than the one to which the child was converted through surgical intervention.”

Views On Privacy and Against Surveillance

Justice Arun has expressed his views against surveillance in multiple judgments authored by him.

In Agnes Michale v. Cheranalloor Grama Panchayat & Ors., he had spoken against surveillance in the guise of installation of CCTV cameras for security and directed the State Police Chief to come out with appropriate guidelines regarding the manner in which CCTV cameras are to be installed, in consultation with the State government.

While considering a plea by a history sheeter against police surveillance, Justice Arun took the view that Police authorities cannot barge into the house of a history sheeter or any suspect in a criminal case at night, merely under the garb of surveillance (Prasath C. v. State of Kerala & Anr.).

In a 2024 judgment, Justice Arun passed a judgment criticizing the Registrar of a panchayat who had refused to issue a birth certificate to a child and compelling the parents to confirm paternity by undergoing DNA tests.

On one occasion, he had criticized some online media platform for broadcasting the private moments of a woman. Justice Arun had observed:

“In my opinion, publication of another person's private moments for public viewing is, by itself, an offensive act, even if there is no law preventing such action. No person, whether it be the media or Governmental agencies, have the right to peep into the private lives of the citizens of this country, without there being a valid reason.”

Judgments Reflecting the Importance of Mental Health

Justice Arun's views on the importance on mental health is reflected in his judgments on various topics, including medical termination of pregnancy of teen rape victim [X v. Union of India].

He had, in 2021, passed an interim order directing the state government to set up a mental health establishment in at least one prison in the State for the well-being of the prisoners.

Women's Rights

“I would say, I am a bit perturbed by the fact that even though we have excellent lady lawyers, their representation in the bench is miniscule and I hope this will change in the near future,” the retired judge had mentioned in his farewell speech.

Justice Arun had taken a proactive stance while considering a plea (Sakhi Women's Resource Center v. State of Kerala and Ors.) against transfer of women prisoners to a facility with fewer amenities and space constraints.

He had also spoken in favour of compulsory licencing of a breast cancer treatment drug noticing the alarming number of women who succumbed to the disease merely because they could not afford treatment.

Judgments in Criminal Jurisprudence

Last year, Justice Arun had held that a person availing the services of a sex worker can be prosecuted under Immoral Traffic (Prevention) Act.

In another judgment (Shone George v. Union of India), Justice Arun ruled that a 'stranger' to a criminal proceeding cannot be given copies of a criminal records and added that when there is a possibility of the privacy of the parties being infringed, the parties are bound to be put on notice about the application.

In 2023, while considering a suo motu case initiated by the Kerala High Court, Justice Arun called for amendments to the Kerala Criminal Practice Rules for adopting Electronic Tracking System and Digitization of Records.

Justice Arun passed a significant ruling in Sivadasan Nair K.G. v. State of Kerala on abetment to suicide. He held that in order to satisfy the requirement of 'instigation' leading to the offence of abetment of suicide, the words of the accused need not be such as to compel the victim to commit suicide but it would be sufficient if the same is suggestive of the consequence.

In a judgment authored by Justice Arun, he had permitted the cross examination of a witness through video conferencing and had asked the Rules Committee to consider whether the Rules need to be amended to enable courts to permit cross-examination from a remote point (Alex C. Joseph v State of Kerala and Others).

In another ruling, Justice Arun permitted a physically incapacitated accused to appear virtually before a Magistrate while judgment in the case was being pronounced.

Some of Justice Arun's Other Notable Judgments/Orders

Justice Arun's progressive views have been expressed through some of his other notable judgments.

In Dr. Mohamed Rizwan T. v. State of Kerala and Ors., he had passed a detailed interim order with draft guidelines for granting a fair opportunity to medical practitioners who are accused of medical negligence.

Providing relief to the family of an Endosulfan victim, Justice Arun, in a 2022 judgment, directed the government to consider writing off the debts incurred by them and not to stick to technicalities like cut off dates.

In Rajesh v. Sub-Divisional Magistrate, Fort Kochi and Ors., Justice Arun opined that a son's refusal to move mortal remains of mother from stranger's property is akin to abandonment of body and in such cases, the Kerala Panchayat Raj (Burial of Unclaimed Corpses and Carcasses) Rules, 1996 can be invoked.

More recently, in Down Victor v. State of Kerala and Anr., Justice Arun had permitted recall of witnesses since the accused himself had to cross examine them after his lawyer quit, observing that refusal to permit would be against the right to fair trial.

In yet another interesting case (Shan S & Anr. v. Marriage Officer), Justice Arun allowed a bride having Canadian citizenship and holding Overseas Citizen of India Card to appear before the Marriage office in online mode for the solemnization of her marriage subject to certain conditions.

It was Justice Arun who dismissed the plea challenging publication of the Justice Hema Commission report and directed it to be published within a week.

In the same judgment, he had observed:

“If the measures are to attain finality by implementation of the recommendations of the Justice Hema Committee, there has to be debates and discussions in the public domain, prompting the Government to act expeditiously. This can be achieved only by understanding the reasons that led to the recommendations of the report...The media has a major role in initiating such discussions. Therefore, the apprehension that the applicants may utilise the report to malign individuals is misplaced. The apprehension is based on a misconception about the role of media in nation building.”