In 1993, when I argued the case of Rajakannu’s murder, I was away from the Marxist party, having been expelled more than five years ago. I did not have any direct contact with them when I was doing the case. In fact, I met Parvathi by accident. I had gone to Neyveli to address some teachers and when I got down from the dais, I saw her, having brought there by some youth volunteers. I told her to come to my Chennai office to discuss the case. After the habeas corpus was filed, several incidents took place and I did not get any help from any organisation. When the case was over, the court ordered a cost of Rs 5,000 (despite my resistance to receive any amount). That amount I sent to Mythili Sivaraman, leader of AIDWA, saying it may help them fight the cause of other women. Even after the case, I never received any acknowledgement from the Marxist party. After my expulsion, I did not join any political party and remained an autonomous individual fighting for the cause of human rights. There were requests from some other parties to join their organisation which I declined.However, the Marxist tag continued even at the time of my elevation to the bench of the High Court. Some collegium members told our chief justice that I am a Marxist and hence my name should not be considered. But Chief Justice AP Shah rejected their opposition and told them that my party association was nearly two decades old. One can’t stop others from regarding me as a Marxist since I had done service for the party for the better part of my youth and for more than 20 years. I still feel proud to carry that tag.Is it true that EMS suggested to Justice Krishna Iyer that you should file an appeal to revoke the expulsion – and that you refused to do so?I joined the CPM in 1968 and started working with their students’ wing and trade union. I was a delegate in the founding conference of SFI in 1970 in Thiruvananthapuram. I rose to become one of its state-level leaders and led many student movements. I also worked with the trade union movement and even went to jail for two weeks for defying prohibitory orders and speaking to workers at a meeting. My expulsion was due to the fact that I had condemned the Indo-Sri Lankan agreement between JR Jayawardene and Rajiv Gandhi and the subsequent action of sending IPKF to enforce it. The party had a different view. After my expulsion, when Justice Krishna Iyer was flying with EMS Namboodiripad, he brought up the subject and told him that it was wrong on the part of the party to lose a good cadre. It was understood that he told Justice Iyer that I could file an appeal to the control commission. Anyhow after that trip Krishna Iyer called me and said: ‘Comrade, we are not red enough for them. We will start a pink party.’ That was Krishna Iyer’s veiled humour. You have written a book titled ‘My Judgments in the Light of Ambedkar’. Are you a Marxist or an Ambedkarite? Or, both?Whatever tag you want to attribute to me, I am certainly not a dogmatist. As a lawyer, you may argue only the cases that come to you. Whatever you may argue, the result is not yours. But when you are a judge, you have to write a judgment and you may be guided by your philosophical understanding of the subject, your experiences in the movement and your own legal knowledge. ‘My Judgments in the Light of Ambedkar’ is a compilation of my judgments relating to caste and religion. In its preface, I write that my understanding of the vexed question of caste was enriched by the writings and speeches of Dr B R Ambedkar. While deciding those cases, I had extensively quoted from the works of Ambedkar, without which it would have been impossible for me to have a correct understanding on such issues. I can also add that the Left movement had failed to address the question of caste scientifically although there are now attempts to address the issue specifically and the CPM also has an all-India forum for this. Choosing one or the other is not a choice. My Marxist background helped me understand Ambedkar better.In the movie, the caste location of people is very important – but the film is strangely silent on your own background. Could you tell me a bit about yourself?I had always refused to answer this question in my career. In the varnashrama arrangement, I do not belong to the avarnas but to the savarnas. Even in the broad classification, I may come under the last of the ladder. But that does not mean the castes which are grouped as Shudras are homogenous. Some have criticised the film because the protagonist lawyer is a non-tribal and have called it regressive. If you realistically look at the situation after the advent of the British system of administration of justice, the court circles were dominated by upper castes and it is only now that you find a greater participation of other communities in the legal profession. In the caste hierarchy, every caste will have to face discrimination. The one in the top may not have any such problem. But the moment a caste finds another caste below, they will also discriminate.The famous Ambedkar quote “learn, educate and agitate” is the slogan meant for the Scheduled Castes and moolvasis in this country. In the ultimate analysis, what is required is a structural change and it requires action in different spheres.There has been a lot of criticism about the depiction of violence in the movie. But when one looks at the judgment of Rajakannu vs State of Tamil Nadu & Ors, which has Parvathi’s statement on the torture that she and her husband had suffered, the reality seems far worse than art.The scenes depicted in the film were carefully crafted and incorporated and a moderation was adopted as it has to go through censorship. But in real life things are much worse and indescribable. As a judge, I have dealt with worse cases of police torture against ordinary people than what the film depicts. You invoked the famous Rajan case to cross-examine witnesses in a habeas corpus case. But even today, habeas corpus cases are not heard with urgency.Habeas corpus is an important part of the prerogative writ jurisdiction vested with the high courts and Supreme Court by which thousands of people have got relief. Even though in AK Gopalan’s case (1950), the court made a very limited interpretation of the fundamental rights enshrined in the Constitution, subsequently the said article became a potent weapon against innocent detenues. Justice VR Krishna Iyer, in his famous judgment (Sunil Batra II), expanded the scope of the habeas corpus and made it available even to prisoners who can complain against ill-treatment and torture by authorities. But there are attempts to weaken the provision by either indifference or calculated restrictions. The classic example is of the prisoners / detenues from J&K whose cases were never taken up and some became infructuous, thanks to the indifference shown by the higher judiciary.There was a time when suggestions were made to amend the Constitution to provide the power of habeas corpus to be exercised by even district courts, so that time and expense involved can be curtailed.How do you see the wide use of draconian laws like UAPA and sedition law?The provision of Section 124A IPC, making sedition as an offence, is antithesis to democracy. It was inserted to protect the colonial government and was freely used against our freedom fighters. One would have thought that after Independence it would be repealed. Even the judiciary has made an erroneous interpretation of the provision. Instead of leaving it to the vagaries of courts’ jurisdiction, it should be scrapped by Parliament.After tasting the powers conferred on the police under TADA and POTA, and after repealing those two enactments under public pressure, the then Congress-led government surreptitiously brought in amendments to the UAPA which is now being used freely by the BJP government against political dissidents and activists. One would have thought a vigilant judiciary would act as a check against arbitrariness. But what we are seeing is the opposite. The Bhima Koregaon accused are still languishing in prison without any relief being granted by the courts. In the process, Fr Stan Swamy, who was working among the tribals, was also made to die.What kind of judiciary does today’s India deserve?In 1969, when EMS Namboodiripad, as chief minister of Kerala, said the judiciary cannot raise above the economic interest of the State, he was hauled up for contempt and punished by the Kerala High Court. Surprisingly, the Supreme Court confirmed the order. Similarly, if anyone says ‘committed judiciary’, it is looked down upon as a dirty term. What we need are judges committed to the constitutional spirit and wedded to the rule of law. This is perhaps the only country where the judiciary appoints itself. The collegium system of appointment has become unworkable and, in many ways, is acting contrary to constitutional directives. It requires an overhaul.
Source: Economic Times
