6 May 2020 12:45 PM GMT
Justice Deepak Gupta has always believed that judges must, first and foremost, be humane, and in that endeavour, he has led by example. In his little more than three years at the Supreme Court, the country has seen him always put the society before self and the institution before the individual. Today, on his last day at the Court (as we live in times when the understanding of 'Court'...
Justice Deepak Gupta has always believed that judges must, first and foremost, be humane, and in that endeavour, he has led by example. In his little more than three years at the Supreme Court, the country has seen him always put the society before self and the institution before the individual. Today, on his last day at the Court (as we live in times when the understanding of 'Court' we've held up till now might be changing forever), it is important to acknowledge the impact that this humane individual has had on our society.
Justice Gupta has never been afraid of putting forth his opinions and standing for what is right, even if it meant going against the tide of the time. While he never had any qualms about speaking up for the right thing, Justice Gupta also practiced what he preached. If he spoke vociferously for contrary opinions and criticism to have a place in our society, he also never stifled any, whenever they came up before him.
Having practiced as a lawyer from the Munsif's Court up to the Supreme Court, Justice Gupta had an impeccable command over the technicalities of lower court practice and procedure. In fact, not many people are aware that while practicing in Himachal Pradesh, he was offered the designation of a senior advocate twice, which he turned down because he simply enjoyed drafting and practicing on the original side.
Another side of Justice Gupta that has stood out during his time on the Bench is that he always encouraged young and junior lawyers. It would not be uncommon for him to encourage junior lawyers asking for adjournments or pass-overs (due to unavailability of their senior counsel), to seize the opportunity and argue the matter themselves. In all fairness of course, he would adjourn the matter if he felt that the assistance of the senior counsel would be necessary. However, such support and motivation from a Judge of the highest court of the country to young lawyers, shows just another side of Justice Gupta's magnanimous personality. One can only hope that all junior lawyers entering this profession get similar encouragement and support.
Justice Gupta has always believed that the scales of justice can never truly be equal, and in order to deliver true justice, the scales have to be tilted in favour of the poor, the oppressed, and the needy. Having dealt with issues involving widespread impact, such as those involving child rights, the homeless, shelter homes, forests, mining, pollution, etc., he has always been able to strike a balance between the need to resolve these issues, and the practical context from which these issues arise. He always understood that functioning in the extreme, either way, would do more harm than good for the people whose rights he was trying to protect. It would not be wrong to say that by tilting the scales in favour of those who truly needed it, Justice Gupta has had a far-reaching, nation-wide and long-lasting impact on our society. His compassion and humanitarian spirit run like a 'golden thread' through all his judgments and orders.
For a part of his tenure as a Judge of the Supreme Court, Justice Gupta was a member of the Social Justice Bench, and for almost the entirety of his tenure, he has been a member of the Environment Bench. The decisions delivered by him while sitting on these benches have shown the humane side of this Judge to the entire country.
While Justice Gupta's passion for child rights is evident in his work as a member, and later the Chairperson of the Supreme Court Juvenile Justice Committee, it is his through his judgments that he has upheld the rights of this country's children, making their lives better, one issue at a time. Through their judgment in Independent Thought v. Union of India, Justice Lokur and Justice Gupta held that Exception 2 to Section 375 of IPC would read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." They increased the previous age limit of fifteen years. This progressive ruling would certainly help in curbing the social evil of child marriages. In his separate albeit important concurring judgment, Justice Gupta highlighted how the earlier law violated the fundamental rights available to the girl child under Articles 14 and 21 of the Constitution.
His judgment in Nipun Saxena v. Union Of India led to issuing of comprehensive guidelines on the protection of identity of rape victims and victims under the POCSO Act during each stage i.e. the FIR, investigation, when filing an appeal, etc. He further held that the phrase "matter which may make known the identity of the person" under Section 228A of the IPC, does not solely mean that only the name of the victim should not be disclosed, but it also means that the identity of the victim should not be discernible from any matter published in the media. This was done keeping in mind the ground realities of our society, where a victim of such heinous crimes faces hostile discrimination and social ostracisation.
Having headed the Green Bench during his tenure as a Judge of the Himachal Pradesh High Court, he carried the same passion and unwavering spirit to protect the environment along with him to the Supreme Court. His love for the environment ensured that he had no inhibitions in reprimanding those who harmed the environment. He was one of the first judges in the country to impose a hefty penalty for violating environmental laws. As a Judge of the Himachal High Court, he imposed a penalty of Rs. 100 Crores on a company for flouting environmental norms back in 2015. While dealing with the issue of vehicular pollution in M.C. Mehta v. Union of India, Justice Gupta reiterated the right to a decent environment within Article 21. Holding that the right to live in a smoke-free environment flows from the right to live a "quality" life guaranteed under Article 21, the registration of all BS-IV vehicles was prohibited with effect from 1st April 2020. This judgment pushed India to jump directly from BS-IV to BS-VI, a feat which if achieved, would make India a shining example to the rest of the world.
It is said that if your heart is in the right place, you will always do the right thing. Apart from the aforesaid landmark decisions, several other judgments delivered by Justice Gupta have had a wide-ranging impact on our society, which will last for years to come.
In National Commission For Protection Of Child Rights & Ors. v. Dr. Rajesh Kumar & Ors., when he found that two statutory bodies whose very purpose was to protect children, were getting embroiled in a battle of egos, he did not restrain from coming down heavily on both the bodies. He very rightly observed that "This case is a classic example where in the fight between the State Commission and the National Commission the children have been, all but forgotten."
Through his orders in Re: Alarming Rise In The Number Of Reported Child Rape Incidents, he issued directions to set up exclusive POCSO courts in the country, and exclusive POCSO Public Prosecutors to be appointed in each district of the country, commensurate to the number of pending POSCO cases pending in that district.
While courts across India are trying to adopt technology in order to keep the wheels of justice moving in these testing times, Justice Gupta has always believed that it is important for the law to move along with the developments of the modern world. For instance, while visitation rights have been a well-established concept in cases involving child custody issues, the scope of these 'visitation rights' needed to be looked at from the perspective of the technologically developed world we live in. Having always endavoured to utilize technology to meet the ends of justice, Justice Gupta dealt with this issue in Yashita Sahu v. State of Rajasthan. He held that courts must ensure 'contact rights' are provided wherever suitable. In this day and age, when parents might live in different cities or countries, visitation rights could prove impractical for the parents, and sometimes even detrimental for the child. He held that with the advent of WhatsApp, Skype, and other video call facilities, there is no reason to not use them in appropriate cases to ensure that a parent without physical custody, should at least be granted 'contact rights' to remain in touch with the child.
All individuals hold certain biases and perceptions as a result of their life experiences. Judges are no different, as they too, are drawn from amongst us. Thus, it would be unreasonable for us to expect them to be free from any biases. Justice Gupta too, as a human being has his own perceptions. However, he has always been conscious of his perceptions, and did not let them play a role when he decided cases. The duty cast upon him dictated that he decided issues strictly in accordance with the law. In Shilpa Mittal v. State of NCT of Delhi, he had to decide whether a juvenile aged 17 years would be tried as an adult for culpable homicide not amounting to murder. The law allowed for juveniles aged between 16-18 years to be tried as adults for heinous crimes (those with minimum punishment of 7 years or more). However, it was silent on the category of offences wherein a minimum punishment was not prescribed, but the maximum punishment prescribed was more than 7 years. Faced with this lacuna in the law, Justice Gupta held that considering the history of our juvenile justice laws, it was not for the courts to legislate which category these left out offences would fall in. Some of the offences which fell in this left out category were extremely grave offences. Even though his personal views as Mr. Deepak Gupta could have been different, but since it was his duty as Justice Deepak Gupta to decide the case in accordance with the law, he held that juveniles committing crimes falling within this left out category could not be tried as adults for now, and he left it to the Parliament to specify if these offences were to be treated as "heinous" under the Juvenile Justice Act.
In these modern times, Judges cannot sit disjunct from the public eye. Throughout his tenure at the Supreme Court, there have been times when Justice Gupta has faced criticism. While he was hailed as the upholder of the rights of children, protector of the environment, and also as someone who spoke for free speech and dissent; he was also criticised for overstepping the line between judicial activism and judicial over-reach for banning the sale of BS-IV vehicles, and for prohibiting all construction activity in Delhi in November 2019 when pollution was at its peak. With having faced criticism at times for his orders and sometimes for not doing enough as a member of a particular bench, he only stood testament to his own words when he said that no one is immune from criticism.
Justice Gupta has always believed that anyone- an individual, an institution, or the society- will only grow through criticism, contrary thoughts and opinions. Hence, Justice Gupta has always accepted fair criticism. Whenever I would go into his chamber to appraise him of something negative being said about him on social media, he would have one of these two responses- "they may be right." or "okay, let them say it, they have the right to".
Having said that, Justice Gupta is not one who would let his sense of 'right' be swayed by what was being said about him, or by what could be said about him. While taking decisions, he never had an underlying motive of wanting to 'appear' as a certain type of judge. He did what he did, because he thought it was the right thing to do. This quality of Justice Gupta can be best described by the words of Mark Twain who once said:
"If you alone of all the nation shall decide one way, and that way be the right way according to your convictions of the right, you have done your duty by yourself and by your country-hold up your head! You have nothing to be ashamed of."
Justice Gupta has always understood the weight of the responsibility on his shoulders, and never let anything influence him away from taking a just and fair decision. For most of us millennials and those belonging to the Gen Z, we would relate to the following modern twist on Twain's words. In fact, Justice Deepak Gupta could be our very own Captain America who said the following words in a comic book story, which were relayed to him by Sharon Carter in the movie Civil War:
"Doesn't matter what the press says. Doesn't matter what the politicians or the mobs say. Doesn't matter if the whole country decides that something wrong is something right. This nation was founded on one principle above all else: the requirement that we stand up for what we believe, no matter the odds or the consequences. When the mob and the press and the whole world tell you to move, your job is to plant yourself like a tree beside the river of truth, and tell the whole world — 'No, you move'."
These words become Captain America's motivation to do the right thing when faced with the difficult choice of either standing alone and doing what he thought was right, or going along with the other Avengers. It would not be wrong to say, that many of Justice Gupta's actions have reflected the same spirit. Public opinion or fear of criticism has never been able to sway him even an inch away from doing the right thing. He has always done the proper thing, not because it would bring him praise, or keep him away from criticism, but simply because it was the right thing to do, and to do it without fear, favour, affection or ill-will is the Oath he had sworn to. When fulfilling his solemn duty, he always picked right way as per his convictions, and stood up for what he believed in no matter the consequences. He has never feared to do the right thing, even if he had to stand-alone. Just like Captain America, Justice Gupta stood alone delivering his dissent in Rojer Mathew v. South Indian Bank Ltd And Ors., when he boldly said:
"The public of this country still reposes great faith in the judiciary. That faith will be eroded in case it is felt that the appointments are made for extraneous reasons…One cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post retiral sinecures."
His undying will to work for the betterment of the society, along with the righteousness embedded in his soul, have been the guiding light for all his decisions. The Preamble to the Indian Constitution and the Oath he swore to hang in his chamber, both of which he would read everyday before leaving for Court. With the Preamble and his Oath as his North Star, his resolve to do justice could not be wavered by even the harshest of denunciation. Along with this, a framed copy of Rabindranath Tagore's "Where The Mind Is Without Fear" also adorned his chamber wall as a constant reminder to never let fear keep him from deciding independently.
As I conclude, there is one anecdote I must mention. This truly brings out the selflessness embedded in Justice Gupta. As he retires today, Justice Gupta would be the only Judge in the recent past to retire without the traditional farewell in the Supreme Court lawns on his last day. For anyone retiring from any job, not getting the customary farewell would be upsetting at the very least. A few weeks ago, I discussed with Justice Gupta the possibility of not being able to have a farewell function on the 6th of May at the Supreme Court premises. His response, without a sigh, was that "this is a very small thing, and it is only important that we as a society, come out of this safely". His ability to always look beyond the self and for the society, is one that is both rare and essential in this profession.
As Justice Gupta dons his robe as a Supreme Court Judge for the last time, I would like to believe that this is not the end of Justice Gupta's legal journey, and is only the end of one of its phases. It would not be wrong to say that this benevolent, big-hearted, magnanimous person would continue doing good for the society even after demitting office, because he was, what he was, without his robe; and while the robe did make him Justice Deepak Gupta, it is his kindness and righteousness that made him worthy of the robe.
Today, we bid farewell to our very own avenger – the humane Captain DG, who has been and will continue to be defined by his will to make the world a better place, along with his everlasting resolve to do the right thing. It would not be incorrect to say that today, more than ever in the recent past, we need our courts to be humane, and while today our Supreme Court definitely has a 'humane' side, the only question is whether that humane side will be allowed to shine as bright to be its overarching guiding light.
 (2017) 10 SCC 800
 (2019) 2 SCC 703
 2018 (14) SCALE 263
 (2020) 1 MLJ 788
 W.P. (Crl.) No. 1 of 2019
 (2020) 1 MLJ 825
 (2020) 2 SCC 787
 2019 (15) SCALE 615