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'Magistrates Should Not Curtail Personal Liberty In A Casual Manner' : Justice Deepak Gupta | Full Text Of Interview

Manu Sebastian
5 July 2022 4:17 PM GMT
Magistrates Should Not Curtail Personal Liberty In A Casual Manner : Justice Deepak Gupta | Full Text Of Interview

Former Supreme Court judge Justice Deepak Gupta, in an interview with Manu Sebastian, Managing Editor of LiveLaw, shared his opinion about the case against fact-checker Mohammed Zubair and expressed concern about the worrying trend of Courts denying bail without proper examination. He stated that many judges are scared to grant bail due to fear of public opinion and added that judicial academies which train Magistrates must instil in their minds that they are dealing with fundamental rights of the citizens. The former judge also commented about the dangers of media trial and the pressure created by social media commentary on judges.

Here is the full transcript of the interview. The video can be watched here.

Something is amiss in case against Zubair : Justice Gupta

Mr. Sebastian: "The arrest of Mohammed Zubair, the co-founder of fact-checking website Alt News, has given rise to a lot of concerns regarding the future of independent journalism in India. There is a widespread belief that the arrest of Zubair is the vindictive action taken for his activities of fact checking and documentation of hate speech. Several journalists and activists, both in India and abroad, have condemned the arrest and the case against him. The case is based on a tweet posted by him four years ago where he had shared the clip of a scene from a movie which had released in 1983 and it is now alleged that the tweet is provocative and has offended religious sentiments. There are several questions regarding the genuineness of the case and also the manner in which the courts have dealt with the case. There are some doubts as to whether the courts have safeguarded fundamental rights and have ensured due process both in arrest and remand...Do you see any substance or merit in this widespread belief that this case is a malicious case based on concocted facts to target journalism or the activities of Zubair?"

Justice Gupta: "I would not go to the extent of saying 'malicious'. Malice in law is something very different. But I definitely feel that something is amiss as far as this case is concerned. He was called to join investigation in another matter where he had got protection from arrest. While the investigation was going on, a notice was given to him that we now we are arresting you in the fresh case which related to a tweet which he had made with regard to a movie made by one of the greatest filmmakers, Hrishikesh Mukherjee, who had a great sense of was a comedy...I have seen the tweet, it is just a single page- the hotel name has been changed from 'Honeymoon hotel' to 'Hanuman hotel' may be offensive, I don't know, it is for somebody else to decide. But does it fall within the purview of something which has the likelihood of causing great disaffection between two religious communities or not? It does not offend Hinduism in any manner. Assuming that there is something wrong, it is still not something which is a crime. And you see, for something to be a crime, it should have a tendency to hurt religious sentiments- I think the words are stronger. Now after four years of this tweet and 40 years of this movie being made, no religious sentiments were hurt and nobody had ever complained of this tweet. How does the police suddenly wake up and say that we have got a complaint, an anonymous complaint? If you today go to lodge a complaint, if a poor person goes to lodge a complaint in a police station even in a very serious offence, it is very difficult to lodge a complaint. They will say 'file a written complaint, file an affidavit'...Now on a tweet, (they say a complaint has been made). I am not saying it is illegal- they can do it. But do they do it in the normal run-of-the-mill cases? Every day we see cases in the Supreme Court where women have gone and complained of rape and the case has not been registered. We had that case in Hathras last year and so many other instances. Here, on a tweet, they lodged...Now this gentleman, who has tweeted it, it seems that two days later, his twitter account had been closed. Then it has been reopened. But who is the person who is complaining?
Given the background that Zubair is involved in fact checking, he is part of Alt News- even I go to their site sometimes to check out if some news is correct, not only them, there are others also- I may agree to a certain extent that when journalists, fact checkers, their alignment is with a particular ideology or ideological group, then they tend to be targeted. It is human nature. But the law should not (unclear)...We may target as belonging to different ideology but we expect the police and above to behave without any such ideological grounds.
I have a simple question, which I think was what Justice Surya Kant also alluded to. I am not saying that Nupur Sharma did not have the right to say that. Being a great advocate for free speech, I think she also had the right to say it and nobody needs to get so offensive or hurt about everything. But if she could say that which had a much bigger propensity to instigate violence, and she is not arrested. The complaint is with the Delhi police. But Zubair is arrested. There is some question to arise about the fairness of the police. If we are to live in a country where people have faith in the police, have faith in the legal system, in the entire judicial system, there should not ever be even the semblance of this thing that people have been targeted because of their political or religious preference".
Pained by what is happening in cases like Zubair and Ketaki Chitale
Mr. Sebastian: "Even before the court, Senior Advocate Vrinda Grover, Zubair's lawyer, had made this submission that several people had tweeted this image and several others have retweeted also but only he was targeted, and it was only because of his profession and his identity. However, the court has granted remand- first four days remand was granted and then it was extended to 14 days judicial custody. In the first remand order, there is a curious fact that the magistrate has in a way authorised the police to seize the mobile phone and the laptop used by Zubair. First remand was granted by saying that they need to seize the mobile phone and laptop. Zubair's lawyer had raised this argument that he being a journalist, seizing his mobile and laptop can be highly intrusive and a lot of sensitive information can be collected by the police. This can initiate a roving enquiry into his activities. How do you see this development, What is the legality of this process?"
Justice Gupta: "I am very pained by what has been happening not only in Zubair's case but other cases also. Let us take the case of that lady(Maratih actor Ketaki Chitale) who made a tweet against Mr. Sharad Pawar and she spent about 20 odd days in jail. Zubair is a personality, he has a public image so his case has been taken up. But the lady's case was not taken up. There was someone who made a cartoon of Mamata Banerjee or said something offensive against her. He also went...What worries me is that the courts are willing to grant police remand or judicial custody in cases like this without even examining whether a case for police remand or judicial custody is made out. If you had made the tweet four years back, the police or magistrate cannot authorise a fishing enquiry. And from what I read, they said that his phone had come with a blank, that he has deleted information. I can imagine that his phone...I am not even sure if it should have been done at that stage, to even indicate to seize his laptop. All of us- you, me, any citizen of this country, leave aside a journalist- will have on his phone or laptop, tablet or whatever lot of material which may not be criminal but which you and I may not want somebody else to see. Photographs of me and my wife, photographs of me and my children, photographs of family- I don't want the cops seeing them without any rhyme or reason. And at that stage! Now they are introducing FCRA etc, I am talking about the day of the remand. At that stage, there was no such thing...How can they enter into (unclear)?All of us have some privacy in life. And journalists also have to protect people who give them information. It is a right. A journalist can take the risk of going into jail or going to contempt- you know of the famous cases from India and abroad- but journalists have a right to say that we will not disclose our source of information. Because if they disclose their source of information, for all times to come, they will never have a good source. Also, there are personal matters, financial matters. I am not saying it cannot be done. Once the case is made out, the police can always say that here is a man we are charging with some serious offence and we want to investigate. But look at this matter- the initial charge is of a tweet. He accepts that he made the tweet. He is not even denying that he made that tweet. So what else has to be proved? Nothing else is to be proved as far as that case is concerned...
I am sorry to say this, time and again I am saying this, but magistrates are very reluctant to grant bail even in the smallest of the offences. And if it is a high-level offence in the public eye, then they feel that...many magistrates, many judges are scared to grant- that what will people think if we grant bail. I am not calling them dishonest judges. These are not judges who are dishonest- they are just feeling...I was the Chief Justice of Chhattisgarh and I asked these judges why are you not granting bail in these minor offences. Our jails are flooded with people who are there not after conviction but as undertrials. 70 to 80% of them are acquitted. Whether it is Zubair or Teesta, because they are high-profile people, we talk about them. But a Ram Charan or some odd man in West Bengal or Tripura or Chhattisgarh could be behind bars for years on an end.
It is not only these cases but I think we need to change the mindset and we need to bring back in the minds of the judges what is the rule of this country- which is as Justice Iyer had put that bail, not jail is the rule. Some of the judicial Academies where these magistrates get training must instill into them that we are dealing with the life and liberty of a citizen. A constitutional right guaranteed to him, liberty, under Article 21 of the Constitution.
His liberty can be curtailed in accordance with the law and that law is 167 of the Cr. P. C. or some other provision. When the magistrate looks into this, he must say that I have the right to curtail the fundamental right but what am I curtailing- a very big fundamental right. In that sense, the magistrates sometimes don't think that they are performing a constitutional duty. This is a constitutional function to take away the liberty which is the most fundamental of all rights. So it should not be done in a very casual manner.
Today it seems in every case that arrest is the rule and bail is not given for years at an end. We say that speedy justice is our fundamental right but people are behind bars for five years, seven years, eight years and the trials are not even started. I don't even know where we are heading. We need to have a clearer vision, even from the apex court now, as to how the bail matter should be dealt with. The Supreme Court made a grave mistake- criminal defamation and all should no longer be offences in the statute book- sedition, even section 138 of the negotiable instruments act. We have turned civil transactions into criminal offences and people are behind bars...Today I am told that those 6 to 8 people who were beaten by the police in UP have been let off as no offence. They are beaten up, kept in jail for 20 days and after that you release them. We have no system of compensation also".
Judges must be trained to deal with human rights
Mr. Sebastian: "Last week, the Kerala High Court had sought explanation from a judicial magistrate for remanding an accused without verifying whether arrest was necessary and without satisfying that the Arnesh Kumar guidelines were complied with. To my knowledge, this is the first instance where a court has sought an explanation from the magistrate for remanding"
Justice Gupta: "I read it. But I have not read the judgment or the order. I just read the news. This will have some effect on the magistrate. If I tell you the other aspect, in some of the High Courts, disciplinary actions are being initiated against judicial officers for granting bail. The judges are scared. In Hindi, they would say 'We are scared that if we give bail, there may be an allegation from above that he takes money or something perhaps'. But I am not talking about Zubair and all. I am on the larger thing that how our judges should be trained to deal with the human rights. Even when I was a young lawyer, there were some judges who never gave bail on the first day. Even for minor offences, they would send for one or two days. One of them would always remark that 'Our police know no other mode of investigation, they can only slap twice and ask questions'. Our investigation needs to be more scientific and more forensic. Today if the police wants to get information from my computer or my laptop or my phone, they can do it in many, many ways. But what is the purpose when we say bail is not to be granted? That he will influence the witnesses, that he is a flight risk. These are the two main grounds which were considered, besides where we also thought that a very serious offences of murder or rape is involved, then we are very reluctant to grant bail. These were the set principles, but over the last 10-15 years, I have started seeing that every offence is serious, everything is serious...there is something more than meets the eye as far as this case (Zubair's) is concerned. I will not say 'malicious' or anything or use any word lightly till I have more information. But something is definitely amiss, for the reasons I have stated. But I am saying that we always only look at these cases, whether it was Disha Ravi or Zubair now. Even in this Disha Ravi, no case has been made out as far as I know. And this young girl, who will compensate her for the month or two months that she lived (in jail)? You made it very difficult for her to get a job. There will always be that there was a police case against her. It is ridiculous...And everything today is on the net. If I give my Aadhaar card number, I am sure they will get it. If somebody really wants to get information, they can even find a traffic challan against me. Because my driving license would be attached to Aadhaar and my bank account from where I paid the fine would also be linked to it. This sort of invasion into the human rights is worrying. Secondly,
what worries me is that though our superior courts are doing a very good job as adjudicators of disputes, but when it comes to being guardians of the rights of the people, I think somewhere there is scope for improvement than what we are doing right now"
Media Pressure on judges
Mr. Sebastian: "Like you mentioned that sometimes, judges are pressurised or scared to grant relief even if they feel otherwise, Justice Pardiwala has recently expressed concerns about personalised attacks on judges in social/digital media and he has said it can lead to a dangerous scenario where judges will decide based on what the public opinion might be or what the digital media or social media might say instead of what the law might say. Especially in the high-profile cases where there is a lot of negative campaign, do you feel that judges might also succumb to that pressure?"
Justice Gupta: "I will say that judges should be trained to resist such pressure. But we are also humans. Finally, we are humans. We no longer live, to quote, in ivory towers. We are aware of what is happening around us. And every judge has his own biases. Even me- I am pro-human rights- that is my bias. But as a judge, I would always try that my decision is within the four corners of law. There was this one decision when even my law clerk had written an article in Live Law where she said that personally his opinion was totally different, but as Justice Deepak Gupta, he decided differently. I am bound by the law, I have taken an oath to uphold the Constitution and the laws and not what I believe should be the law. Now 377 (IPC) has been abolished. But when it was an offence and somebody had appeared before me and said I have committed the offence, could I say that I will acquit you because I believe it should not be an offence? That is not the discretion. Though I am sometimes called a liberal judge, I sometimes have a quarrel with my liberal brother judges who say we will never impose death sentence because we don't believe in death sentences. Then I said you should not have taken an oath to uphold the Constitution when there are laws in the country which provide death sentence in many cases. We can have our personal views but we must know how to keep our personal views separate. This is very important because in this day and age of social media, 2-3 aspects will have to be kept in mind. Judges have always made off-the-cuff remarks, but they were not reported. But now you say something on the bench and even before the other side has heard it, it has been tweeted to the rest of the world. I am not even sure if this minute-to-minute reporting, which even LiveLaw does in some cases, is good or not. Because as a judge when I am hearing, say Mr Manu Sebastian argues the case, I may not agree with him but after hearing him, I may change my mind. There could also be a possibility that I am totally with you but after hearing the other side, I change my mind. This trial by media itself is dangerous. Whether it is Indrani Mukherjee or somebody else's case, the media holds a trial, puts into evidence that which is not even admissible in law. A statement made to a police officer- they may just say that this is what they said to the police officer but it is a confession which is not finally admissible in law. But in the mind of the people, they create an image of whether the person is guilty or innocent, depending upon which side of the media you are favoured by. The other aspect is social media reporting judges' comments. It saddened me...Not only what Justice Pardiwala said, but Justice Surya Kant...That bench (of Justices Surya Kant and Pardiwala) was party to 2 decisions in 2 high-profile cases- one was the Maharashtra set of cases. As soon as the Maharashtra set of cases came, there were allegations against one of the learned judges by one set of people who belong to one ideology that he is this, he is that and that he has decided in favour of the (unclear). And when in Nupur Sharma's case he said something, the people who had been supporting him in the other case started cooking up things in the social media that he is like this. Are judges to be tried? As I said, even cases should not be tried in media, but judges are never to be tried. The minute we have a trial of judges by the is very easy to say we will live up to our oaths but we are human beings. If our families and everybody are put in danger, then some of us will not be able to withstand the pressure of media trial. That really needs to be looked into very seriously. Because this is a very dangerous trend that you attribute motives to judges just because they ordered something or they remarked something. The court should come down with a very strong hand. This must never be allowed because if the respect for the institution of judiciary is lost then there can be no rule of law in the country"
Judges should not be tried in media
Mr. Sebatian: "What all techniques should be adopted to empower the magistrates to withstand the pressure as well as to decide cases without any external influence and strictly as per law?"
Justice Gupta: "I don't blame the judges at the Mufassal level. It is very easy to sit in the Supreme Court and the High Court and to give lectures on how to behave as a judge because you have so much protection. But the poor Munsiff in the court, he has to be sure that he does not annoy the local bar otherwise they will keep filing complaints against him to the portfolio judge or the guardian judge. I actually pity them. This lead has to come from the High Courts and the Supreme Court. They have to lead and show the way. And one of the ways is by court orders and the other is by giving them protection from unnecessary action being taken against them and lastly, they should be encouraged to be fearless. The first word in the oath of a judge is 'without fear or favour'. Today I find fear not only of the government, but fear of my peers, fear of what my seniors will say, fear of what society will say. This has to be instilled in the magistrate that they have to be totally fearless...And because of this social media, even judges have to be a little circumspect before making comments. I am not talking about these comments (Justice Surya Kant's in the Nupur Sharma case). I am not at all on the Supreme Court case. I am making it very clear that in Nupur Sharma's case, I don't think the comments were uncalled for. But you also know and I also know that today there are YouTube videos everyday of different High Courts. When you see those, I do feel the proceedings could have been conducted better- than threatening every lawyer that you will be sent behind bars- because it is going to be reported. Judges in India must know that in the next year or two, there will be live proceedings, live streaming everywhere. A little bit of circumspection would be called for".

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