Courts must be liberal when it comes to dealing with petitions seeking writ of Habeas Corpus, especially when the case involves preventive detention, opined former Supreme Court Judge, Justice (retd.) Madan Lokur on Friday.
He made the observation while speaking on the theme defending liberties in a virtual discussion organised by the Delhi High Court Women Lawyers Forum and WCLA.
“It must be used liberally by the courts. Because when you are talking about preventive detention, you are talking about putting a person in custody without a trial," he said.
Justice Lokur also interacted with lawyers Warisha Farasat, Tara Narula, Shalini Gera and Sowjhanya Shankaran during the discussion.
Watch the full discussion:
Habeas Corpus jurisdiction, Justice Lokur said, has been used primarily in matters concerning preventive detention in the past.
He went on to observe,
"The Supreme Court, over the years, right from the 1950s onwards, has been very, very liberal in granting relief. There are very few cases where a person has not been given relief under the writ of habeas corpus. The Courts have gone to the extent of saying that even if a petition for habeas corpus has been dismissed, another writ petition can be filed - may be with the same grounds, maybe with different grounds… And that can be entertained. So it’s not as if once the writ petition is dismissed, that is the end of the road. It has to be, and has always been given by the Supreme Court, a very liberal interpretation. And that is how I think it should be. The Supreme Court has also said, you don’t have to file a petition, you can send a post card… It doesn’t have to be by the detenue, it can be by the next friend or relatives. There are various ways of invoking the jurisdiction of the Court in a writ of Habeas Corpus.”
Justice Lokur also recounted a case that came up during his days as the Guwahati High Court Chief Justice, where an SMS sent by a priest regarding the illegal detention of trafficked children led to the former Judge registering the matter as a Habeas Corpus case.
He added, "I would certainly give it the broadest and widest of interpretation."
Warisha Farasat agreed that procedure should not hinder anyone from getting remedy or relief in Habeas Corpus matters. Pertinently, she added that the writ of Habeas corpus is a very time-sensitive writ. As such, courts should deal with such matters swiftly, she opined. She also emphasised that in such matters, tough questions need to be asked of the State.
On how effectiveness of Habeas Corpus hinges on faith in the system
Shalini Gera weighed in to point out that a functional judicial system, in the efficacy of which everyone has some faith, is crucial for Habeas Corpus to be effective.
However, she noted that "In complex situations, sometimes it is very difficult to have that faith.
To illustrate, she referred to her experience in dealing with a case where Sukma-based Tribal activist Podium Panda was arrested. Gera recounted,
"When he was produced in the court, he was surrounded by police on all sides. And even when the court asked the police to step back, they were still present in the same room and they were still encircling him. And in that atmosphere, when he had not met with his wife or had any other kind of interaction with anybody, he was asked by the judge state what is condition was. In that, he said that he had gone with the police of his own free will. With that on record, there was very little that we could do. We did ask for him to be able to converse with his wife, who had not been able to meet him for over a month."
After the court allowed Panda's wife to meet him, it was learnt that he was hung upside down and tortured by the police, Gera added. She observed,
"... he did not have the faith that he could expect anything like that in court that he would actually be let go. It is a lived experience. It is not that the court was being unjust to him. But it was just his experience of so many years of living over there, of seeing the police, the legal stricture.. how do we give him a confidence that in two days, everything Is going to change and that this person who is asking you a question is actually going to listen to you and give you justice?"
Responding to a question posed by Sowjhanya Shankaran on how lawyers could strategise in cases involving offences such as the Unlawful Activities (Prevention) Act (UAPA), which involves stringent processes, Gera also went on to observe,
"It's the process that kills you. Even with acquittals, it is not that you have been able to get people out in a short amount of time... every case has to be dealt with what is the pressing need at that point… A UAPA is a very political case, always… A lot depends on what you are moving outside the courtroom as well as inside the courtroom."
Farasat added that in such cases the charge sheets are often voluminous, but without a lot of substance.
"Many a time these lengthy charge sheets contain nothing, in terms of actual prosecutable evidence. First thing, as lawyers, we should not get intimidated by lengthy charge sheets. As you would do in any criminal case, look over these chargesheets carefully…"
She also remarked that it is important to stay on the course in such cases, although it may drag on for years.
"At any stage of the trial, of cross examination - these are exhausting trials - I think one just has to keep one’s patience and not get bogged down by the lengthy pages," she said.
The webinar also saw the speakers discuss the UAPA cases lodged against Dr. Varavara Rao and Father Stan Samy, both of whom continue to be under custody in connection with the Bhima Koregaon case.
Responding to a question from the audience on why the courts have been bitter in dealing with the cases of the two accused, Gera observed,
"When there is an anti-terror legislation, the bar gets so much higher to get any relief from the court. If there is a serious charge against you, a terror legislation for instance, the court has a tendency to give weight to the police. It makes no sense, but it is something that has been seen repeatedly - not only these cases, maybe these cases are the ones highlighted."
Farasat added,
"What has been happening in the last 4-5 years is that UAPA is being added to general FIRs for dissenters and people who the government finds inconvenient… That is the problem. Varavara Rao, Stan Samy represent that. When you criminalise dissent and you target people by adding UAPA to the FIR only because you know that... the bar to bail is there, then, in some ways, there is malafide right from the beginning. That is something that is generally happening and the courts, especially the higher courts, must be alive to that."
She opined that investigation agencies should act responsibly in such matters and that if they do not, the courts should step in because it is becoming too brazen for anyone's comfort.
Article 32 jurisdiction should not be restricted to Personal Liberty cases
On a related note, Justice Lokur also remarked that the Supreme Court's jurisdiction under Article 32 of the Constitution should not be restricted when it comes to cases involving personal liberty or grave public importance.
A question concerning the provision was posed with reference to a recent oral observation by Chief Justice of India, SA Bobde that Article 32 petitions in the Supreme Court should be discouraged.
Justice Lokur pointed out that the remark may have been made by CJI Bobde in the context of the overload of Article 32 cases before the top court and with reference to cases that do not directly involve personal liberty or public importance that would impact the entire country, He added,
"But, you have various categories of cases. You have cases pertaining to personal liberty for example. You can't say I will discourage Article 32 even if it is a personal liberty case..."
Media Trial: Fight fire with water first, says Justice (retd.) Lokur
The discussion also saw the speakers muse on how lawyers should respond when there is a media trial. In this regard, reference was made to how evidence, WhatsApp chats etc. were disclosed on Television in the Sushant Singh Rajput case, over which matter the Bombay High Court is also due to render its verdict on the media trial aspect.
In such a scenario, where one side to the case approaches the media and influences the course of the case, Tara Narula queried whether a lawyer should fight fire with fire and use the media to an advantage.
Justice Lokur responded that the first course of action should be to fight fire with water. He said,
"I would suggest that the way to go about it is to tell the court - What is this happening? Why is it that all these disclosure statements, WhatsApp messages - how come they are coming into the public domain? If the court does not do anything, then you have no option but to fight fire with fire. But take the first way out - tell the court. After all, the court is responsible for it. You are not responsible, nor is the media. These WhatsApp messages that came on TV in Sushant Singh Rajput’s case - where did they come from? They must have come from the prosecution or the investigating agency - whoever. So, the Court is under an obligation to ensure that a free and fair trial is given. If the Court says, no, I’m not going to give it - fine, then you are entitled to fight fire with fire."
