You are a judge known for landmark verdicts… How do you look back on your career?
I believe that a judge’s responsibility is to serve the people. If you go by Socrates’s definition, a judge’s duties are ‘to listen courteously, to answer wisely, to consider soberly and to decide impartially’. What he did not mention was the commitment to society. In every case that came up before me, this value remained primary in my mind.
Your order banning smoking in public places is still talked about. Can you explain the case?
After I was elevated as a high court judge in 1992, a writ petition came before our bench. It was filed by Monamma Kokkad, who used to travel between Ernakulam and Kottayam daily. She was a professor in Kottayam. She highlighted that the train compartment turned into a smokehouse during the monsoon as co-passengers smoked even as the window shutters were kept down due to rain. Once when she questioned smoking inside the train, she was told to hire a car after alighting at the next station. These were helpless, hapless people. I believed it was a God-sent opportunity. I am not belittling anybody, but I doubt if the outcome would have been the same had the petition gone up before any other judge in India.
How did the government react to the case?
It strongly opposed the petition. The case was taken up by the advocate general, and there was a lot of criticism against me. They said that the court had no jurisdiction at all. They claimed that it was an encroachment on the domain of the executive and legislature, as it was a policy matter.
What was the reaction of the public, and the tobacco industry?
The public reaction was terrific. However, the industry never liked it because it was their source of income. The tobacco lobby is the second most powerful after the arms lobby. They can purchase anybody. There are 1.5 billion smokers in the world. Imagine the industry’s income per minute. Naturally, I am a persona non grata as far as tobacco companies are concerned.
Did you face any pressure from the lobby group?
I had 13 months to retire and my position was number three, as per seniority, in the Kerala High Court. So I had a chance of becoming the chief justice. But I was transferred to the Allahabad High Court. The public smoking judgment was delivered on July 12, 1999. The [transfer] letter came within a few weeks. I immediately met Justice Krishna Iyer. I told ‘Swami’ about the transfer order: ‘What should I do? I haven’t done anything to harm anyone.’ He said it was an extraordinary situation. Then I met another judge, Justice Khalid, who was a friend. He was the chief justice of Jammu & Kashmir and later served as a Supreme Court judge. At the Allahabad High Court, my position would be 14th as there were many judges. I was eventually advised to meet the Chief Justice of India. I went to Delhi and we had a 90-minute discussion. Finally, the CJI said that the SC usually did not alter transfer orders, but gave me choices – Andhra Pradesh, Karnataka and Madras. I preferred Madras. In the Madras high court, I joined as second in seniority and later became its acting chief justice. I had three months left in service when the chief justice there was transferred. I should have got the position, but something happened. People were against me there as well. So, I could only become the acting chief justice.
So, was the tobacco lobby the reason for you not becoming chief justice?
Not just that. After retirement, I once went to Delhi for an assignment. [Former Congress leader] Ghulam Nabi Azad was my personal friend. He told me I should become a governor. He immediately rang up the then home minister, Shivraj Patil. He replied that only the Congress president could take a decision. I was asked to meet KR (former President K R Narayanan). I met him at his office. He spoke to the Congress president and wrote a letter.
What happened after that?
The next day, the letter reached the home minister’s office and, a day after, the PM’s office. But, many Congress leaders took serious exception to my possible appointment without their knowledge. A group of Congress leaders met the party president to get the decision withdrawn.
How did you come to know about that?
During a book release function in Thiruvananthapuram, (Congress leader) P J Kurien said I was to become a governor, but ‘we brought him here’. My apprehensions were true. I believe that some people acted against me.
Do you think that the ban on public smoking has been successful, given that youngsters are now moving to drugs?
Tobacco is the greatest killer of all times. It destroys a family. To curb drug use, the higher-ups must sit down and make tough decisions. First, we must impose stringent control on the use of mobile phones in educational institutions. Mobile phone is the villain in the piece. Meeting at a specific place, the time of delivery… everything is discussed in code language through the mobile phone. For what purpose are the children using mobile phones inside educational institutions? Mobile phones should be banned in schools and colleges.
Can you explain how you went about the Nedumkandam custodial death case, in which Rajkumar, a small-time financial agent, had died on June 21, 2019?
In the autopsy report, the head of the forensic medicine department stated that the cause of death was pneumonia. However, when I consulted my friends who are doctors, doubts arose. The deceased had been seen by a doctor just two days before his death, and no signs of pneumonia were diagnosed. However, my observations were insufficient without expert support. Under the Commission Act, I appointed three expert doctors and we proceeded with another autopsy. We retrieved the body from the cemetery and conducted the autopsy at the Kanjirappally Taluk Hospital. I personally entered the autopsy room. Upon turning the body, we were astounded to find the left thigh fully intact, devoid of even a scratch, yet bearing 22 contusions inflicted by iron rods. The police officers believed the deceased had amassed a considerable sum of money and they wanted to get that money by torturing him. The findings ultimately led to the conclusion that death was due to deep contusions. I ordered a compensation of Rs 15 lakh, and the immediate dismissal of the officers involved.
Instances of police atrocities seem to be on the rise. Do you believe the police personnel need better training?
I believe there is a breakdown in the system. The police force requires both reform and enhanced training. The Supreme Court has noted that mere complaints about police misconduct are insufficient. The high courts, with their extensive jurisdiction, can proactively address custodial violations or killings.
People joining the force are well educated, mostly postgraduates, these days, yet there seems to be little change in the behaviour and language of police personnel. What is the reason?
The behaviour has not changed because they are in the company of rough people. I issued an order against use of abusive language by police personnel immediately after taking charge of the State Police Complaints Authority.
There have been allegations of police associations shielding wrongdoers within the force. What are your thoughts on this?
There is no association for personnel in the Army, Navy or any other central force. They are all disciplined forces. I advocate for the prohibition of political associations within uniformed forces. Such associations have no place in these institutions.
Following the Kumarakom boat tragedy, the inquiry commission you headed had submitted a report and suggestions. However, boat tragedies still happen.
Many tourists come here to enjoy the backwaters, houseboats, and things like that. Safety should be given primary importance. In the case of the Railways, whenever an accident occurs, the railway safety commissioner responds immediately. Therefore, I had suggested appointing a water safety commissioner just like the Railways. But no appointment has been made yet. There should be a water safety commissioner.
If recommendations are not being implemented, what is the objective of having inquiry commissions?
They are accepting the reports but not implementing the recommendations. These reports are put in the dustbin. Inquiry commissions are appointed to douse public ire. Even educated people think that an inquiry commission is the universal panacea for everything.
While such reports usually appear in the public domain, the report by Justice Hema Commission, which inquired into sexual harassment in the film world, has not come out. It is said that the commission itself did not want the report to be made public. Can a person heading a judicial commission take such a stand?
The function of an inquiry commission is to submit the report as per the terms of reference. That’s the only function of the judicial commission. As per the Commissions of Inquiry Act, the report must be submitted before the assembly. It’s not mandatory to make it public. However, the commission itself cannot make a decision as to whether the report should be made public or not. I don’t think that’s correct.
You have often stressed that animals also are entitled to right to dignity. Recently, some people lost their lives in attacks by wild animals. Where does your sympathy lie?
Animals have the right to live in dignity. It’s unfortunate that some people lost their lives. I sympathise with their families. But, look, where do these people live? On forest fringes. Previously, what was the status of these fringes? So, basically, these people are living in the forest – man has trespassed into the forest. Originally, these were all places occupied by animals. Animals are also beings. The Constitution tells us to show compassion towards beings. Thousands of people die of snake bites in India every year. Kill all the snakes – is that a remedy? As far as possible, human incursions into forest areas should be curbed. Where do animals go for water? Where do they go for grazing? Why do they come to human habitats?
What are your views on firework displays and parading of elephants at temple festivals?
Age-old customs cannot be stopped overnight. Thrissur Pooram, for instance, is famous for its fireworks. I am in favour of fireworks though I am against sound pollution. It is said that buildings develop cracks due to fireworks. But that raises another legal question. Which came first, the building or the temple? So if a person constructs a building near the place where the fireworks are held, that matter has to be settled first.
You were against the Kochi Metro. Can you explain why?
A metro rail that did not touch the High Court, Civil Lines, and other places of importance was doomed to be a failure. It is now that they are taking it to the Civil Lines (the Collectorate). My objection was about the alignment and the monetary loss.
You have talked about judicial delays. You said in one of your speeches that the manner in which courts and tribunals work is the reason for the big delays and backlog of cases.
Justice Krishna Iyer had said, and I too agree, that a time limit on submissions and a page limit on judgments will go a long way in reducing the docket explosion. In the US Supreme Court, there are only nine judges and they are appointed for life. And they have a system of written pleadings. Copies of which are circulated among the nine judges and they come prepared after reading the documents. So, the time required for submissions is reduced. We too need to implement a time limit for submissions.
In the ‘ice cream parlour case’, there was a petition for a CBI investigation against IUML leader P K Kunhalikutty. There was an allegation that some judges had taken bribes. What happened?
Kunhalikutty and I haven’t met. K C Peter, the then ADGP, visited me… the allegation was that I had taken bribes. I responded that I had written a good judgment. They went to the Supreme Court, but the petition was rejected. I said sex or sensation was not a criterion to decide whether a case has to be investigated by the CBI or not. It turned out to be a political issue, and was taken up by former chief minister VS (V S Achuthanandan). There is not one per cent of truth in the allegations. The judgment was correct. A CBI investigation is not possible for every case.
You have checked the details of the case. Did Kunhalikutty have anything to do with it?
I don’t think so. Kunhalikutty does not come into the picture at all. The political parties demanded a CBI investigation. CBI investigation is warranted only in certain circumstances. Such circumstances were absent in the case and accordingly, it was dismissed. I have quoted it as well.
You gave him a clean chit by rejecting a plea for a CBI probe...
Yes. Otherwise, people would demand a CBI investigation for every case. I followed Supreme Court guidelines. A CBI investigation was not required. The former CM took up the issue, and my name was dragged into it.
There is an allegation that the Supreme Court is under the Centre’s control, and high courts are influenced by state governments. Is there any truth in such charges?
I cannot fully concur with that. One of the important judgments by the Supreme Court this month was about electoral bonds. It is a big issue. The Election Commission has to publish details by March 13. Once that is out, the entire image [of the government] can vapourise. Had the Supreme Court been under the Centre’s control, would it have given such a judgment?
The National Judicial Appointments Commission for selection of judges was struck down by the Supreme Court. Do you think the collegium system is better? Or, do we need a new mechanism?
A collegium gives recommendations to the central government to appoint so and so… the names should be of persons of reputation, good practise, and things like that. If that’s not the case, doubts will be cast. However, if you ask me, my answer would be that the collegium system is fair and reasonable. It’s working moderately well.
What about the kith and kin of former judges being appointed?
Suppose a kith or kin of a former judge is excellently equipped to be a judge, do you think it is fair to deny him the judgeship because he/she is related to a judge? There may be people who enter the judicial edifice solely on the grounds of being kith or kin. They are exceptions.
There is a trend among judges now to go for populist judgments and make oral observations that make headlines. These statements are often not part of the final judgment. Some allege judges say things in court for publicity. What is your take on it?
The Supreme Court has recently advised against publishing such observations that judges make while hearing cases. The media should not play up such statements, and give only what’s in the judgment. It’s better to skip these observations.
Recently, a judge of the Kerala high court refused to adjourn a case despite the advocate complaining of a severe back pain and asked him to continue the argument. What’s your take?
I cannot approve. On what ground did the judge say there is an urgency to hear the case? Humanitarian considerations should always be the top priority. Long back, there was a similar incident where the judge asked the party to appear in person for the case despite him saying he was hospitalised. He was brought to the hearing on a stretcher (laughs).
Looking back, are you satisfied with your career as a judge?
I am satisfied with my career as a lawyer and a judge.
TNIE team: Kiran Prakash, Rajesh Abraham, Manoj Viswanathan, P Ramdas, Arun M, Aishwarya Prabhakaran, Harikrishna B, A Sanesh(photos), Pranav V P (video)