Is it in the interest of the nation to detain an innocent, asks Justice Thipsay.
Protection of your civil rights can be ensured by the judiciary alone. Every executive wants a weak judiciary. The only guarantee of a fearless judiciary is the support of the Bar. Advocate Shahid Azmi was a symbol of fearless advocacy necessary for the independence of the judiciary.”
These were the concluding remarks of Justice AM Thipsay, who retired as a judge of the Allahabad High Court, and was earlier with the Bombay High Court.
He was delivering the Shahid Azmi memorial lecture organised by the Innocence Network.
The Network has been set up by Abdul Wahid Shaikh, the only 2006 Mumbai train blasts accused to be acquitted, to fight for the innocence of his fellow accused.
The theme of the lecture was ‘Terror Trials’. Justice Thipsay, who had dealt with a number of terror cases, discussed the special provisions of antiterror laws, which he described as ‘draconian’.
Some of these, like the admissibility of confessions by the accused before police officers of a certain rank, or, production of the accused before executive magistrates, had no logical rationale, said the judge.
The judge spoke of the pressure created on judges trying terror cases by these special provisions, which went against normal principles of law applicable in normal cases, and which curtailed the discretion of the court. The use of terms such as ‘anti-national’ and ‘national interest’, the appearance of senior state prosecutors, the aggressive tone used by the police while deposing, all this created a certain type of atmosphere in the courtroom, he said. A judge could start thinking that he could be considered anti-national if he gave an order that favoured the accused. So he could be tempted to stick to ‘safe’ orders.
“We need to define the term antinational,” said the judge. “What is meant by the term nation? Is it the land or the people? Which people? Only those with a certain culture, or all who live here? Is it in the interest of the nation to detain an innocent?”
“We are a civilised society which wants to prove guilt through civilised methods,” said the judge, known for his controversial orders. “Evidence has to be judged on the basis of facts, whatever the offence. Ultimately, conviction without evidence is a threat to the rule of law.”
A crimeless society need not be the best society, said Thipsay. It’s only one attribute for a good life. We need to find out how offenders are created.
The judge expressed scepticism about the new ordinance prescribing death for rapists of children acting as a deterrent for rape. The only deterrent to crime is the certainty of being caught, he said.
According to the judge, if investigative agencies did their work efficiently and without bias, there would be no need for special anti- terror laws.
Advocates Monica Sakhrani and Wahab Khan recalled the late Shahid Azmi’s work. He was gunned down in his office in Kurla on February 11, 2010.