I GOT LETTERS DURING THE BEST BAKERY TRIAL URGING ME TO ACT LIKE A HINDU
Justice (RETD) Abhay Thipsay
Back in Mumbai, where he acquired a reputation for being an uncompromisingly independent judge with a remarkable grasp of the law, retired Justice Abhay Thipsay, who was suddenly transferred to Allahabad a few month before retirement, talks to Jyoti Punwani about his many controversial orders.
These include granting bail to high-profile accused such as Salman Khan as well as to UAPA/MCOCA detenus, be they suspected Maoists or terror accused. Justice Thipsay was selected to conduct the 2002 Best Bakery trial, which was transferred out of Gujarat by the SC. He convicted nine of the 17 accused, sentencing them to life.
What was the reason for your transfer despite your having turned it down when asked?
I will never know, the reasons are never disclosed. My transfer was all the more baffling because it came separately, after about 49 transfers had been effected at one go. That was unusual.
It was rumoured that your granting bail to Salman Khan in the hit-and-run case was the reason.
I’ve passed many controversial orders, but that certainly wasn’t one of them. It was a routine order, upheld by the Supreme Court. I suspect a controversy was deliberately created over it, because ironically, when Salman Khan was finally acquitted, there was no hue and cry.
Did the transfer come as a shock to you?
I was deeply hurt by it, coming as it did at the fag-end of my career, and for no ostensible reason. However, in Allahabad, as in Mumbai, I continued to be given important and sensitive matters, and also headed a division bench, so I knew the transfer was no reflection on my integrity.
Actually, in 2014, a social media campaign was started against me, alleging that I was corrupt. It was so strong that the police themselves informed me that it was emanating from Gujarat, and that the same post had been clicked 1,000 times on just one day.
Until then, some of my judgments had been described as controversial. That I didn’t mind. But never had my integrity been questioned. That demoralises you.
Your bail orders to suspected Maoists and terror accused couldn’t have made you popular with the authorities. What made you give such bold judgments? In fact, you were even known as the ‘bail judge’.
I’ve always decided bail on the merits of the case. I’ve never been scared of taking decisions in accordance with the law. What is ‘bold’ in these judgments? In court, there can be only one conclusion, based on the evidence presented. Many a times the crime alleged is enormous, but there is no evidence against the accused. Courts are not supposed to see what’s not there.
I had the distinction of the state’s top law officer appearing before me in bail matters, perhaps because the state might have thought its case was weak. But the presence of a senior law officer didn’t affect me.
Rejecting an application for bail is very easy, particularly when the matter is hyped in the media. But judges cannot behave like politicians. I never surrendered to the ‘national interest’ and ‘national security’ argument, which is advanced when there is no merit in the prosecution’s case. My stand has always been: Show me the evidence. Senior officers have told me: ‘The accused are guilty, but we can’t get the evidence against them’. But what can I do? I’m not God. If guilt is to be decided on the assumption that anyone arrested is bound to be guilty, why do you need courts? There has to be judicial scrutiny. A prima facie case must be there; if not, bail ought to be granted. The charges against the youngsters accused of being Maoists were laughable: they spoke against fee hikes and poverty! My order granting bail to Jignesh Shah was also upheld by the Supreme Court. Once, I did not grant bail even when the punishment was just a two-year sentence, because the accused had been caught red-handed in that case. Trouble is, granting of bail to a high-profile accused gets hyped in the media. You may grant bail in 50 insignificant matters, but one gets hyped.
Yes, I was unpopular with the agencies. Even as a magistrate, I was told that one accused was on the IB list, but that didn’t deter me from granting him bail.
Most magistrates are seen as vulnerable to police pressure. Did you face any as a magistrate?
I never faced any pressure. Actually, it’s not about pressure. Magistrates feel it’s more convenient to avoid friction with the police, because you can get things done with their help. The trouble is, many a magistrate’s CR is affected because you grant bail. But if you remand a person to custody without evidence, no adverse remarks are made against you! Even the press doesn’t criticize you. If you affirm the state’s actions, your integrity is never suspected. But if you release an accused, there’s a huge clamour.
Given your long experience of criminal law, can you explain why police investigations are so sloppy? Don’t they want convictions?
No, they aren’t bothered. They are under pressure to arrest, that’s all. They can blame the court for releasing the accused, spread the propaganda that ‘we did our job, it’s the courts who are letting off criminals’. But I must say, after seeing the UP Police, I have a greater respect for the Maharashtra Police. There, the police do no investigation at all. They arrest the accused based on a complaint and leave it to the court. The judges there are tremendously overworked.
Did you face pressure during the Best Bakery matter?
No pressure, but I got a lot of letters, persuading me to “act like a Hindu”. They recalled the history of 800 years, told me this was an opportunity to take “revenge”. Some assured me that the entire Hindu society would back me if I acquitted the accused; others said God would reward me. The persuasive letters outnumbered the threatening ones.
Having heard many MCOCA matters, do you feel this law is necessary?
The underworld certainly exists and needs to be tackled. But MCOCA is a badly drafted law; its provisions are ambiguous. And it has the most draconian provision: making confessions to the police admissible as evidence. That’s why it is often wrongly applied even to crimes under UAPA. Such laws are not necessary if the prosecution and the judiciary do their job professionally.
Many innocent Muslims have been being framed for terror. Are the police prejudiced?
Not more than the average Hindu, I would think. I’ve seen some prejudice even among my colleagues sometimes, while working in the subordinate judiciary.
Haven’t there been many cases of Muslims framed for serious offences, with no satisfactory evidence?
Yes, but they were granted bail, or ultimately acquitted. I would not say that the ordinary police go around framing innocents deliberately. The trouble lies with agencies like the ATS or the Special Branch. They work in too centralised a manner. Investigation is carried out by top officers, and sanction is also needed from a very senior officer. With the top hierarchy of the police involved, internal checks to see that the investigation is fair are rendered meaningless.
Often, they cannot get hold of the real culprits, or, cannot find evidence against them.
But the State cannot accept that no one is arrested for such serious crimes. It then becomes much easier to keep a record of petty criminals and arrest a few of them.
Do you feel the judiciary remains the last resort for justice?
In spite of all its drawbacks, it does. But for getting better people as judges at all levels, there must be more transparency in the process of appointments.