Vickram Kilpady (VK): Let’s talk about your initial days. You came from humble beginnings from Joura village in Madhya Pradesh’s Morena district to these heights. How do you feel about your accomplishments after your retirement from the Supreme Court?
Justice JK Maheshwari (JKM): Yes, I come from a village, Joura, district Morena in Chambal division where dacoits had surrendered in 1972. I have seen Jayaprakash Narayan at my home and I have seen the circumstances and law and order situation in the region. I was inspired to ensure that the legal process should be duly adopted. I worked initially with my brother, who was an advocate, and later did my law degree.
After that, I joined the office of Justice RC Lahoti at Gwalior, worked with him and learned the principles on which he has worked. I realised it was a noble profession and how one went about it. Slowly and by hard work, I gained confidence and understanding of the basic principles of the profession. In some time, I became a leading advocate, and then gradually headed to the bench. So, this was my journey in short.
VK: There is talk of a proposed law in West Bengal which would allow the detention of a suspect for a year without legal representation. Critics say there are enough laws already. Why are our laws getting more draconian?
JKM: Enacting a law is the domain of Parliament and the legislature. The Constitution, under Article 22, has the provision for preventive detention of suspects. It allows detention of suspects with certain exceptions, how and in what manner etc such law must be utilised. Therefore, if you see Article 21 of the Constitution, it says, “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” The law allows such detention but says no person shall be deprived of his personal liberty, except according to procedure established by law, and due process has been converted to procedure established. Once the law is challenged, it may be examined on the anvil of Article 21, whether how far it affects or not the provisions of Article 22 which prescribe conditions for preventive detention.
Secondly, when the law is enacted, if in an individual case, procedure prescribed including time-bound conditions is not followed, it may be looked into by the Board under the said Act. The factor of not having representation may be an issue that could affect it. But all that can be assailed in the individual case, courts usually decide Article 21 matters on fact-to-fact basis.
The court also takes up Article 21 matters at the earliest. This is the endeavour altogether of the courts to take up such matters soon. Even the Supreme Court gives priority to such cases since they are taken at par with habeas corpus pleas. In general, we can’t say things are getting more draconian. Because we see in every state, there is a similar provision, under National Security Act (NSA) there is a provision, under the Constitution there is a provision, state-wise some state acts have the provision. We can’t call an Act draconian until it is examined by the court of law when it is assailed by the parties.
VK: With the continued denial of bail to Umar Khalid and Sharjeel Imam under UAPA, there has been a difference of opinion among Supreme Court judges. People see the Supreme Court as a monolith, doesn’t it send conflicting signals to people at large?
JKM: I know bail is the rule and jail is the exception. Suppose a case comes to the individual judge and he or she looks into it whether bail can be granted or not. A judge has so many factors to consider before granting bail.
Here, sometimes, the judge may be of the view that some type of offences are heinous but the other judge may not feel the same. Bail is given on the judge’s discretion, and when exercising it, there may be some discrepancies because many minds, many finds.
In any case, consistency must be maintained. Though in bail cases, it is not always the case that the precedent should be followed. If some difference of opinion has come, it will go to a three-judges bench that will resolve the same, identifying the guiding principles for grant of bail. Such guiding principle will take into account the facts of the case and the discretion of a judge. This must not be taken to mean there is a difference of opinion among judges.
VK: You’ve been part of the Supreme Court Collegium. How does it accommodate the differences of opinion among judges?
JKM: So far as Collegiums and difference of opinion is concerned, differences are bound to be there but the decision is always collective. When the decision is collective, this difference of opinion is good for discussion and has no adverse impact. Even after discussion, if there is difference of opinion, one can put down the reasons for differing. Even if one member is not agreeing, the decision will be taken on the basis of the majority, and it will go to the government. The government may look into it and find out the truth and can accept or return.
VK: How sensitive should judges be to social media criticism? Anybody can say anything right?
JKM: We have to see how social media criticism affects judges and on what parameters. Firstly, judges should not be affected by social media. Let whoever post what they want to post, there is no problem with that. If social media posts raise an issue with, let’s say, a judgment, they can criticise the judgment or the law. But they can’t take it to the personal level or to affect the institution also. This is wrong. Judges are also human beings who make mistakes, they can correct their mistakes. If you are right, you should not react. We should not be influenced by social media too much. Even otherwise, every day on social media, we see this murder, that scandal, all media trial is there. If you can be influenced by that, it results in a biased decision, so it should be stopped and not be there. There should be a limit to everything but it does have the possibility to influence everyone. Not everyone will be as confident and strong-headed man like me, I will only go by what the law says.
VK: Like doctors, judges are looked upon as divinities by the people who see them as infallible. How does it weigh on you as a person dispensing justice?
JKM: Citizens are made judges. If you see old times and the present, what was the standard of morals then and what is the standard of morals now. If some issue comes like this, we have to see it in this perspective. When judges take oath, it is taken in the name of God or in the name of the Constitution. So when we take this oath to dispense justice as per the Constitution and the laws, we should keep those words from the swearing-in in our minds.
We should be conscious that we don’t end up doing something that could erode public confidence in the judiciary. Judges are human beings; they should understand the line separating their personal and professional lives. Once in court, they should decide a case as per law, and only as per law. Because of the general decline in morals, judges should be careful.
I have seen in a High Court where the father is a judge and the son is counsel and come in the same car to court. The son’s case came up in the father’s court, the judge told his son you have no case. The moral decline is so steep that there is a rule now that one’s kith and kin can’t practice in the High Court for two years when one becomes a judge. So when one takes oath, the person should understand that they should operate within the limits and parameters.
If that is the case, there won’t be a problem. Look at me, I do social service. I run a medical camp in memory of my mother in my birthplace. I work there two days a year. We should know our limits and parameters, and discharge our duties within such parameters.
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