Bombay HC judge Thipsay’s transfer raises eyebrows
Justice Abhay Thipsay

Eminent Justice of the Bombay High Court Abhay Thipsay will take oath at the Allahabad High Court tomorrow. But news of his sudden transfer has caused much consternation in the corridors of the Bombay High Court.

Justice Thipsay is scheduled to retire in March next year. Transfers of High Court judges at the fag end of their careers are most unusual and naturally lead to speculation about the reasons for the same.

Most lawyers, however, describe Justice Thipsay as a man of ‘impeccable integrity and fearless independence’. “In contrast to many of the other judges, his mindset is pro-Constitution,” said senior advocate Vijay Pradhan.

But what makes Justice Thipsay’s transfer even more intriguing is that his name was exempt from a slew of transfers of high court judges carried out across the country during the first week of April, and that he had reportedly refused consent for the same in February.

Lawyers are also questioning the reasoning behind the transfer as the Bombay High Court is already stretched thin due to a shortage of judges.

It must be noted here that Justice Rajiv Shakdher of the Delhi High Court was also transferred, despite protests from senior lawyers in February. He had set aside the lookout notice issued by the Centre against Greenpeace activist Pooja Pillai.

Lawyers point to Justice Thipsay’s record of passing controversial orders, many of which, said advocate Yug Chaudhry, have been inconvenient to the government. “He would not hesitate to call a spade a spade, and pass such orders as the case merited, regardless of how unpopular they may be.”

Advocate Sudeep Pasbola referred to Justice Thispay as: “One of those rare judges who judge the accused by evidence, not prejudice.”

Justice Thipsay’s most controversial order was the grant of bail to Salman Khan last year on the day he was convicted. But, as the lawyers point out, the judge was left with little choice — he was just acting under the compulsions of the law. Any other judge would have had to do the same, given the circumstances. The bail order was later upheld by the Supreme Court.

Justice Thipsay granting bail to alleged Hawala operator Hasan Ali Khan twice, and to National Stock Exchange scam accused Jignesh Shah also raised eyebrows.

Justice Thipsay went against the trend of not granting bail to those accused of terror. In 2012, he granted bail to two alleged Maoists arrested under the Unlawful Activities (Prevention) Act, citing Supreme Court precedents and making a distinction between ‘passive and active’ membership of a banned organisation. In 2014, he granted bail to ex-SIMI chief Saquib Nachan in a MCOCA case of conspiracy to murder. Nachan, who had spent eight years in jail earlier on terror charges, was recently acquitted of planning the 2002-03 bomb blasts, and convicted only of possessing arms.

But Justice Thipsay based all his orders on sound reasoning, as senior advocate Shirish Gupte put it: “He is very patient, will listen to every argument in detail, but is finally, both methodical and decisive.”

Neither police opposition, nor the appearance of the senior most law officer of the government, intimidated the judge. Despite fierce resistance from the Anti Terror Squad, the judge didn’t relent till the call records of those accused in the July 2006 train blasts were produced in court. They proved that the accused were not present at the scene of the blasts.

In at least two cases, the judge acquitted those charged of serious criminal offences because the evidence against them came from telephone conversations taped by the police without the required permissions.

But the judge has also convicted many, the most famous being Gujarat’s Best Bakery accused — who were charged with setting the Vadodara bakery on fire in the post-Godhra violence, killing 11 Muslims and three Hindus. As an Additional Sessions Judge, Judge Thipsay re-tried the case on Supreme Court orders, sentencing nine of the 17 to life imprisonment. This case drew attention as after most of the people arrested for the 2002 violence got acquitted in Gujarat courts, this was seen as a test for the judiciary.

The unanimous opinion of the lawyers is his transfer is a sad loss for the Bombay High Court and a valuable gain for the Allahabad High Court. But many still remain hopeful. “I hope that a miracle can reverse the transfer of this much misunderstood, upright judge,” said advocate Abad Ponda.

Pointing out the irony of this transfer order close on the heels of the judiciary asserting its independence by striking down the National Judicial Appointments Commission Act (NJAC), advocate Yug Chaudhry said, “The judiciary took a bold stand against government interference by striking down the NJAC Act, but it is sad to see the institution penalising one of its best.”

Advocate Maharukh Adenwala of the Indian Association of People’s Lawyers, felt his transfer sent a ‘frightening message’. “Today, when anyone can be picked up on charges of being anti-national or a terrorist, the judiciary is your last resort. We need judges who are not carried away by media hype and are courageous enough to do their job. Justice Thipsay was one such judge,” Adenwala said.