New Delhi: The Supreme
Court has been liberal while adjudicating matters related to personal liberty
and that is the way it should be, Justice (retired) Madan B Lokur said on
Friday.
He said the writ of habeas corpus
is important and should be issued liberally because when you are talking about
preventive detention, you are talking about putting a person without a trial. A
writ of habeas corpus is filed in case a person is confined in an alleged
illegal or unlawful detention.
Speaking at a webinar titled
'Defending Liberties', hosted by the Delhi High Court Women Lawyers Forum and
Women in Criminal Law Association, he also supported the idea of day-to-day
trials under special acts and cautioned ideology coming in the way of legal
profession.
"In the past, you would find
very few cases where a person has not been given relief under a writ of habeas
corpus. Courts have even said that even when a petition for habeas corpus has
been dismissed, another can be filed. So, it is not as if that once the writ
petition is dismissed, that is the end of the road," he said.
Justice (retd) Lokur said the
Supreme Court has been liberal on habeas corpus petitions, and that's the way
it should be and added that the top court has even said that a person does not
have to file a petition and it can even be a postcard.
Justice Lokur recalled that when
he was serving at Gauhati, he even entertained an SMS alleging illegal
detention in jail as a habeas corpus.
In the Webinar, hosted by law
portal Bar & Bench, Justice Lokur was interacting with advocates Tara
Narula, Shalini Gera, Sowjhanya Sukumaran and Warisha Farasat.
On a question, whether it was
possible to incorporate the need for day-to-day trials in cases under special
acts (like Prevention of Corruption Act and Prevention of Money Laundering Act)
where the detention period is longer, he replied in affirmative and said
"Yeah, it must be done" and added, however, there may be practical
difficulties.
Advocate Narula posed a question
on media trial and referred to actor Sushan Singh Rajput”s death case and how
WhatsApp chats were put in the public domain.
"How do we tread the line?
Do we fight fire with fire?," she asked.
To this, Justice Lokur said there
are two answers to it.
"First, is to fight fire
with water. Ask the court why is this happening? Why are WhatsApp messages etc.
coming to the public domain?
"If the court does nothing,
then maybe fight fire with fire. But first, go to the court. Even in the
Sushant Singh Rajput case, where did the WhatsApp messages come from? Must be
from prosecuting agencies or someone else," he said, adding that the court
is bound to ensure a fair trial. If not, maybe fight fire with fire.
Advocate Sukumaran said the term
'activist Lawyers” is often used as an insult and scathing remarks are made by
judges in court and even orders are written trying to cast aspersion on why a
particular lawyer would take a particular case and that this becomes
particularly difficult for women lawyers.
She added that some people opine
that you can either be a lawyer or and an activist and not both and asked what
can be done to overcome this problem.
Advocate Farasat also said that
this is a worrying trend in the last two or so years and said that ideology
must be put aside and the Bar must come to support.
Justice Lokur said "By and
large, ideology should not come in the way of your professional assignment. If
it does, it means you are not going to defend someone who does not share your
ideology. Ideology and the profession should be kept apart.
"There may be instances
where you might find where it is better to sacrifice...for the sake of
maintaining ideology, that should happen on very, very rare occasions," he
said.
On the point of remarks being
made by some judges criticising lawyers, he said that it is very unfair to
target a lawyer on the ground of ideology or because the advocate is appearing
for a particular kind of client.
Advocate Gera said she was of the
view that there has been a quantum shift in the way the state is treating
lawyers who are defending dissidents. People are getting targetted as 'jihadi
lawyers” and 'naxalite lawyers”, she said.
On the question that if Justice
Lokur thinks that it is different for the way women and men are treated in the
Bar?, he said when he started the career, there were very few women lawyers.
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"They were tolerated if you
understand what I mean. But over the years, from the 1970s, the women lawyers
have increased. The number of women judges have increased. 1978 was when the
first woman lawyer was appointed judge
"There definitely has been a
shift. Whether they have been discriminated, I don’t know. In the Supreme Court,
I don’t think there has been discrimination. I have been out of touch at the
Delhi High Court, I would be very surprised if someone says there is
discrimination," he said.