In Conversation with Hon’ble Dr. Justice Kaushal Jayendra Thaker, Judge, High Court of Judicature at Allahabad

The judiciary is an integral part of the Indian democracy, and being a part of this prestigious field must be rewarding and challenging at the same time, Could you share with us what led you to pursue a career in this field?

Any judiciary is an integral part of a country, especially a democracy. As India is the largest democracy, we have a big judiciary which makes sure it safeguards the interests of its citizens. As a judiciary is independent of the executive, it can easily safeguard the rights of the citizen to ensure peace and harmony. However, its role is not just limited to this. It plays different roles to make sure there is smooth functioning in the country. Firstly, it plays a great role in making new laws. The judiciary is the rightful interpreter of our constitution as well as the current laws. It has the power to create new laws as well as overrule policies that might violate our constitution.

Furthermore, the judiciary also prevents any form of violation of the law. Similarly, it files a lawsuit against the person found guilty of doing the same. After that, a judge passes his verdict after listening to both parties closely and announces the judgment accordingly.

You have always been a strong propagator providing justice in many criminal cases. In your opinion, what are the biggest challenges in the Indian Criminal Justice System?

There are various challenges to the criminal justice system such as, 

Pendency: The basic and fundamental reasons for the delay caused in the criminal dispensation of justice are: (a) Docket explosion which has overburdened the judiciary. More cases are being instituted compared to the rate of disposal of cases. (b) Unnecessary technical objections lead to unnecessary adjournments and hence delay the entire trial. (c) Procedural bottlenecks of lack of infrastructure. 

Colonial Nature: Both substantive and procedural aspects of the criminal justice system were designed with the purpose of ruling the nation in British colonial times. 

Slow Enforcement of Judicial Orders: Lack of coordination between the Judiciary and Police often results in judgements remaining on paper rather than percolating to the ground. For instance, Section 66A, IT Act, 2000 that prescribed punishment for sending offensive messages through a computer or any other communication device. Even after Section 66A was struck down by the Supreme Court, police continued to carry out arrests. It shows a lack of coordination and a failure to apply judgements on the ground.

Inhumane Behaviour Behind Bars: Over the years, critics have repeatedly complained about the indifferent and even inhuman behaviour of prison staff. Also, there have been many instances of custodial rapes and deaths resulting in violation of prisoners’ human rights. 

Language Barrier: As per the current constitutional scheme, English is the official language for the Supreme Court and High Court of India until Parliament by law otherwise provides. [Article 348(1)]. For those coming from different linguistic backgrounds, the complexity of statutory language makes the legal system difficult to understand. This language barrier limits their understanding regarding their rights, exacerbates a lack of awareness and effectively prevents them from accessing justice.

Recently, Allahabad High Court In Transgender Person’s Plea Seeking Marriage Registration held that a “Marriage Certificate is not necessary For Adopting a Child”, this proves as an important clarification for the rights of Single parents to adopt a child under the Hindu Adoption and Maintenance Act, 1956. Would you share with us what was your thought process behind this verdict?

For adopting a child, a marriage certificate is not sina-quo-non and as per Section 7 [Capacity of a male Hindu to take in adoption] and Section 8 [Capacity of a female Hindu to take in adoption] of the Hindu Adoption and Maintenance Act, 1956, do not require marriage and or registration of marriage. Therefore, it would be against the law to require a transgender person to produce a marriage certificate.

The Allahabad High Court in a path-breaking judgment of Raghwendra v/s State of Uttar Pradesh directed the Uttar Pradesh Government to instruct the District Magistrates of all the districts to re-evaluate the cases for remission after 14 years of incarceration even if appeals in such cases are pending in the High Court. As a member of the bench that delivered this judgment, could you tell us why the court decided to issue such directions?

The accused in U.P. are in jail post-conviction for more than 20 yrs. As per Saudhan Singh (Saudhan Singh v. State of U.P. 2021 SCC Online SC 3259), the government must have the scheme to consider releasing as per section 433 of Cr. P.C. so these directions. As per the case of Vishnu (Vishnu v. State of U.P. (2021) 2 All LJ 445) in the State of U.P. even after 14 years of incarceration the matters were not even sent to the Magistrate for re-evaluation of cases for remission as per the mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in a catena of decisions even if appeals are pending in the High Court. The object of Section 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. Remission/ commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. A copy of this judgment was sent to the Law Secretary, State of U.P. who impressed upon the District Magistrates of all the districts in the State of U.P. to reevaluate the cases for remission after 14 years of incarceration as per the mandate of Sections 432 and 433 of Cr.P.C. even if appeals are pending in the High Court.

With the advancement of technology, new categories of crime have emerged. In dealing with white-collar crimes and cybercrimes, what are some difficulties that the judiciary faces? Do you believe that laws related to such crimes should be part of the curriculum in law schools so that we are better equipped to deal with such crimes in the future?

New subjects are being introduced into the curriculum in law schools. Earlier, certain laws were not part of academics, but now, forensics is a part of legal studies. Changes in legislation also try to meet these new challenges. Teaching environment jurisprudence and cyber laws would change the quality of litigation. There are several courses which have been introduced to give specialisation in subjects like cyber laws etc. Frequent workshops are conducted by the judicial academies as well, to train the judges of subordinate Courts.

With the ever-changing world of technology and the growing interest of humans in cyberspace. In your opinion how can the legislature be developed to create a balanced law towards righteous progress and easier navigation of this cyberspace?

The best way to define Cyberspace is the virtual and dynamic space created by the machine clones. In order to ensure that humans do not misuse Cyber technologies, Cyber laws are generated. The overall idea of Cyber law is to stop any person from violating the rights of other persons in Cyberspace.

If we go by the Cyberspace definition, Cyberlaw can be considered a generic term related to all regulatory and legal properties of the internet. Any activities of the citizen related to or concerned with the legal aspect of Cyberspace come under the purview of Cyber laws. To define the different arms of Cyber security, two main acts are considered in India. They are; 

1. The Indian Penal Code, 1860 and
2. The Information Technology Act, 2000.

Technology is always a double-edged sword and can be used for both purposes – good or bad. Hence, it should be the tenacious efforts of legislation to ensure that technology grows in a healthy manner and is used for legal and ethical business growth and not for committing crimes.

With the emergence of COVID-19, the entire legal system has seen a huge shift into the online or virtual mode unlike ever before. Do you support virtual hearings as a way of hearing cases going forward and what are your recommendations for improving the working of Courts?

Virtual hearings are here to stay. It was an indispensable tool for the functioning of the Courts during the pandemic. Yes, technology has made lots of inroads in the system for the delivery of justice. It is helpful in tracking matters and getting similar matters to be decided together. But the work culture and change of mindset are very essential. The judges, lawyers and staff must employ technology to aid the dispensation of justice. The procedural laws must be detached from the colonial mindset.

As Law Students, a lot of us aspire to join the prestigious field of Judiciary. What would be your advice to us students who wish to embark on this journey?

Judiciary in India enjoys a very significant position since it has been made the guardian and custodian of the Constitution. It not only is a watchdog against violation of fundamental rights guaranteed under the Constitution and thus insulates all persons. The judicial system has an important role to play ultimately in ensuring better public governance. There may be a plethora of regulations, rules and procedures but when disputes arise, they have to be settled in a court of law. Indian Judiciary has been proactive and has scrupulously and overzealously guarded the rights fundamental for human existence.

The approach of the judiciary in India has time and again been that while it may be appropriate that the courts show due deference and margin of appreciation to the opinion formed by the executive, any State action making inroad into the personal liberties or basic human rights of an individual must invariably be subject to judicial scrutiny which would rest on objective proof, relevant material in accordance to the law and through a procedure that passes the muster of fairness and impartiality. It is indeed a matter of great satisfaction that the two other chief organs of the State in India have always respected the jurisdiction of the judiciary to subject every State action to “judicial review” and, therefore, have either abided by the decisions taken or taken requisite follow-up action in furtherance of such decisions. 

Therefore, the upcoming students in the field of the judiciary should play a role in the development and evolution of society in general and in ensuring good governance by those holding reigns of power in particular.