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The consequences of death penalty will terrorise some criminals: Justice Kemal Pasha

It’s true there was an unprecedented mid-term shift of my jurisdiction. The convention of this court was to have normal changes in the jurisdiction of judges on the penultimate.

Published: 25th May 2018 01:31 AM  |   Last Updated: 25th May 2018 08:00 AM   |  A+A-

Justice B Kemal Pasha. (File | EPS)

Express News Service

KOCHI: We heard your jurisdiction was changed at an untimely hour. Are the orders in Alancherry case and Shuhaib case a reason?
It’s true there was an unprecedented mid-term shift of my jurisdiction. The convention of this court was to have normal changes in the jurisdiction of judges on the penultimate date of a term, which will take effect on the reopening day. Normally, a judge will be dealing with his jurisdiction for a full term. I’ve no direct evidence to say the untimely change was because of the said cases. However, when the public is entertaining such a view, one can’t find fault with them considering the circumstances.
Chief Justice is the master of the roster. But won’t such change in sitting arrangements give a wrong signal?

It’s true the Chief Justice is the master of the roster. But it’s quite natural such untimely change in those peculiar circumstances will give way to a wrong signal. The power to change jurisdiction shall not be exercised by succumbing to the pressure of extrajudicial forces.The public says such change in sitting arrangements was politically motivated. Your comments...
As I had said, one can’t be found fault with the public in entertaining such a view, considering the circumstances involved.

Do you feel the Church interfered when the FIR was directed to be registered against Fr Alencherry?
I don’t know anything about it.  But I can very well say there was no interference with me.
Do you think the CPM government interfered when the CBI investigation was ordered in the Shuhaib murder case?

I learn the public entertains such a view. I’ve no evidence with regard to any such interference. I don’t wish to believe there was interference from the government.
Is this the drawback when a local judge is posted as Chief Justice? Do you advocate for a judge of another state appointed as CJ?

A judge of the state concerned knows all the other judges and lawyers there.  There may be persons he likes and dislikes. When the Chief Justice is the master of the roster and is the administrative head, there’s every likelihood of reflecting his personal interest in the exercise of such powers. It is always better to have a Chief Justice from another state. Such a person can make an independent evaluation and act without any affection or ill will in such matters.

Is it appropriate that HC judges accepting appointments by the government soon after his/her retirement?
I’m deadly against judges accepting salaried jobs under the government soon after his/her retirement. There’s a common complaint that judges, who are about to retire, are reluctant to pass orders against the government at least during the year of their retirement. It’s only common sense that a person expecting such powers will be reluctant to invite displeasure from the government. I fully endorse the view expressed by Justice S H Kapadia and Justice T S Thakur that judges shouldn’t accept any salaried job under the government at least for a cooling period of three years from his/her retirement. After that, most probably, there will be a change in the circumstances.

You had awarded death sentences to several accused while serving as district and sessions judge. Do you have any count? Do you think capital punishment can eliminate the most heinous crimes?
I don’t remember the exact number; I think that it’s 13 or 14 persons. Death sentence in cases which can be categorised as the ‘rarest of rare cases’ will have a persuasive effect against the commission of such offences. If a daring criminal, who is a habitual offender, beyond redemption and correction, commits a murder which can be categorised as one among the ‘rarest of rare cases’, there’s no point in leaving him from the gallows. Even though it cannot be said that death penalty can eliminate the most heinous crimes, definitely, it will have a persuasive effect as I said earlier.

There’s a debate going on the death sentence with one section arguing against the death penalty. What’s your view?

There’s a section arguing against the death penalty. The other section advocates for not eliminating death penalty. In Mexico, once death penalty was taken away from the statute.  Subsequently, it had to be reintroduced when the Mexican mayor was shot dead in public in broad daylight. I’m against total elimination of death penalty. It depends on circumstances to decide whether the lesser alternative of imprisonment for life is unquestionably foreclosed. In those cases, the only alternative is death penalty.  The consequences of the death penalty will, no doubt, terrorise at least some criminals, who are about to indulge in heinous crimes.

What’s your view on the political revenge killings in Kannur? Do you have any suggestion on how to deal with the situation?
The investigating machinery should be strong, upright and independent. Not only the persons participating in the incident, but also those behind the curtain should be booked. Special Branch personnel should be deployed for collecting information regarding any possible arrangement to commit murders. The government shouldn’t interfere in the investigation. It shouldn’t shield the wrongdoers even if the assailants are their partymen.

The investigating machinery shall see to it that the entire evidence is collected to canvas a sure conviction of the real accused. The conspirators should also be booked, and evidence should be collected and produced to procure their conviction also. If all such cases are properly investigated, and all the real culprits are convicted, definitely, there will be a fast decline in the repetition of such crimes. 
Is it right to appoint government law officers, considering their political affiliation?

Such practice should be stopped. Persons having integrity, knowledge and proper legal acumen alone shall be entitled to be appointed as law officers. Political affiliation should be a disqualification for such appointment. A prosecutor should be an officer, who is assisting the court to trace out the truth. He should be independent of the government and investigating machinery. Prosecutors shall not be the spokesmen or the mouthpiece of the government or any political party.

You had an eventful career as a lawyer and judge. Looking back, can you tell a couple of the landmark moments in your career?
For almost 16 years, I was a lawyer. I could set up a lucrative practice.  Thereafter, I was directly selected as District and Sessions Judge and worked from 1995 to 2012. My selection directly from the Bar was a landmark in my career. Even though I found it difficult to pull on at the initial stage, slowly, I could adapt the life of a judge and I used to enjoy it.

I had occasion to deal with and dispose of several sensational murder cases. I reckon my service as the District and Sessions Judge as the golden period in my career.  After these much years of my service as a judge, I entertain a feeling that I could do something to the society.  I’ve a feeling that so far I was living for others also.

Which was the most painful moment in your career as a judge? Could you elaborate on how you handled the situation?
Truly speaking, I had no painful moment at all in my career as a judge. I used to enjoy my job of imparting justice. It’s possible in the life of a judge to have adversities. It doesn’t matter if one can face it boldly. If at all anyone wanted to hurt me, I wasn’t for that.Your boldness as a judge shouldn’t go waste. Will you continue to be outspoken about the interference of executive in the judiciary?

I don’t think I’m outspoken. I’m a common man. When injustice comes out from any quarters, it normally provokes me as a common man. I always express my opinion against it. The judiciary shall not give any room for the executive to interfere in the administration of justice. Judiciary shall be free and it shall not succumb to the pressure of executive or any extrajudicial forces.

A few words about your family. Your future plans?
I’ve a wife, two daughters and four grandsons. My sons-in-law are doctors. They are well placed.  It’s true that they are looking after all our affairs. Regarding future plans, in fact, I have no future plans at all. It’s for the God Almighty to decide it. I like social activities. I wish to give free legal advice to the poor. I can write, read a lot and speak openly so that I can express my opinions and pass it on to the persons who want it.



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