Time to introspect how far courts have protected liberty: Justice AS Oka

Supreme Court Justice Abhay S Oka on Saturday underscored the pressing need to introspect how far courts in India have protected the liberty of citizens and its various facets which are guaranteed under Articles 21 and 22 of the Constitution. .He specifically referred to the right to fair trial and the safeguards against arrest."We know that so many rights are conferred under the Constitution. In the context of criminal law, there is a concept of fair trial which is part of Article 21. There are safeguards against the arrest provided in Article 22 of the Constitution. And today, when we have completed 75 years of existence of our Constitution, we will have to candidly analyze how far our courts are protected these rights guaranteed under the Constitution," Justice Oka said.On treatment of accused individuals, Justice Oka highlighted three fundamental principles in criminal law - the presumption of innocence, the requirement that guilt be proven beyond reasonable doubt, and that bail is the rule and jail is the exception.He asserted that these principles should apply even in special statutes like the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities Prevention Act (UAPA) with some modifications."I have said so in one of the judgments," he added..Presumption of innocence, bail is rule jail is exception should apply to PMLA, UAPA.Justice AS Oka.Justice Oka was delivering the third Ashok Desai Memorial Lecture organised in the memory of the former Attorney General by the Bombay Bar Association in Mumbai. The event presided by Bombay High Court Justice Revati Mohite Dere served as a platform for discussing the challenges that hinder criminal justice system in the country. Justice Oka's lecture focused on the issues that ail the criminal justice system. Justice Oka began by honoring the legacy of Ashok Desai, highlighting the importance of humility in the judiciary. He recounted Desai’s refusal to attend a felicitation ceremony after a significant victory for a social activist. "Desai said 'your job ends by arguing to the best of your ability and you should never take credit'. This sentiment contrasts with the current tendency to seek public acknowledgment post-verdict," Justice Oka said. .He then highlighted the overwhelming backlog in Indian courts as revealed by troubling statistics.“Total pendency in different High Courts in India is about 62.5 lakh, out of which 18.25 lakh are criminal cases," he stated. In Maharashtra alone, nearly 55 lakh cases are pending including 38 lakh criminal cases. In Mumbai, over 6 lakh cases are stuck in magistrates’ courts with over 46,000 pending in sessions courts.He also expressed concern about the pendency of bail applications.The pendency of bail applications is over five thousand in the Bombay High Court, illustrating the enormity of the task facing the courts, he said..He explained how addressing cases under Section 138 of the Negotiable Instruments Act and matrimonial disputes can significantly reduce case pendency. Unresolved matrimonial issues often lead to multiple cases such as maintenance, domestic violence and Section 498A complaints even extending to prosecutions under the IT Act, the top court judge stated..On right to fair trial, Justice Oka highlighted positives including the trial of Mumbai attack terrorist ajmal Kasab.."I feel proud that our country gave even Kasab (Ajmal Kasab) a very fair trial," he said. However, he pointed out the difficulties many victims face in having their complaints registered. “Imagine if a common man goes to the police station... but he finds it very difficult to get the offense registered.” He noted that this frustration leads many to seek judicial remedies further adding burden to the courts..I feel proud that our country gave even Kasab (Ajmal Kasab) a very fair trial.Justice AS Oka.The judge also revealed systemic issues in law enforcement, noting that 28% of Mumbai police constables live in slums due to inadequate salary. "So this is the state of affairs; about 1/3 of the police constables in Mumbai are living in slums, and we expect them to perform well.".He also flagged another ill plaguing the criminal justice system - the pressure on police to arrest suspects driven by public demand, media reports, and political statements."This is a sad reflection of retributive tendencies which are still present in our society," Justice Oka remarked, adding that 80% of prisoners in Maharashtra are under trial, highlighting society’s tendency to presume guilt..Justice Oka also addressed the rise of social media trials, which bypass the judicial process. "I always said on public platforms that every citizen of India has the right to criticize judgments of all courts but that criticism has to be constructive. Those who want to criticize the judgement must say where the courts have gone wrong but this media trial or trial on social media platforms is something which is different," he said..About 1/3 of the police constables in Mumbai are living in slums.Justice AS Oka.Justice Oka also expressed reservations about capital punishment.“Our justice system is not foolproof,” he said, calling for introspection on whether capital punishment serves as an effective deterrent.Justice Oka stressed the need for judicial system improvements, pointing to the "inadequate judge-to-population ratio." He emphasized that simply increasing the number of judges would not be sufficient without improving court facilities and administrative support.He also said that all these reforms have to begin with trial court and district courts.“We have completely neglected. Those who sit in the higher judiciary; but we have forgotten that our trial and district courts are also constitutional courts," he said in conclusion..[Read Live Coverage]