A few months ago, I wrote on this blog about the Supreme Court's decision in Varinder Kumar v. State of H.P., through which a different bench of Three Justices limited the applicability of the ruling in Mohan Lal v. State of Punjab, which was delivered in early 2018. To quickly recap, the issue at hand was very specific: are investigations by the police officer who was responsible for the initial drug-bust (these were NDPS cases) liable to be set aside on apprehensions of bias?
In Mohan Lal, the 2018 decision, the Supreme Court said yes and made a new rule that the same officer can't continue to investigate the case. Where the same officer did continue, it would render the entire investigate illegal and, naturally, also render the eventual trial to be set aside. By all accounts this was a pretty drastic set of remedies being judicially created, and back in 2018 itself there was a sense of palpable discontent with the ruling especially because it would potentially affect pending cases. Fast-forward to 2019, and the decision in Varinder Kumar came which explicitly made the ruling in Mohan Lal inapplicable to all pending cases.
But rather than simply restrict the ruling because of the madness that would ensue in pending cases, the decision in Varinder Kumar engaged in a profound discussion about the need to balance rights of accused persons versus the rights of victims / society. The discussion, as I argued in the earlier post, was horribly misguided and based on unsubstantiated straw-man arguments that ultimately imperil the values of freedom, equality and fraternity sought to be secured through the Constitution by means of a criminal procedure code.
In a short paper recently published in the Journal of NLU-D (SSRN version here), I engage with the idea that maybe the experience in Mohan Lal and Varinder Kumar is reflective of a deeper, more entrenched trend, of how the Supreme Court has historically dealt with the idea of "rights" in context of criminal procedure. To this end, I draw a parallel with the rights to free legal aid and a speedy trial, both of which were hallmarks of the Indian Supreme Court's Due Process revolution between the late 1970s to 1980s.
While the Supreme Court certainly spoke a language of "Rights" while dealing with the issues, on closer examination it appears that this was only a tool to help redress the plight of poor and oppressed persons in dealing with the State, a task which the court took on through the vehicle of particular cases before it. The decision by which these "Rights" are created in fact show a surprising disregard for critical issues that would need some thought; for instance, what remedy should follow if the right stands violated?
That the Court is fashioning the contours of this right as it goes along (or "winging it") becomes clear with each successive case. Until finally, matters reach a head and a petition is brought by a kind of litigant who the Court definitely didn't have in mind when it was fashioning these new rights. For instance, and this is from a Case, the right to legal aid is sought by someone implicated in a case about sexual assault or a socio-economic offence.
What does the Court do? It doesn't stay true to the logic of "Rights" in these cases and treat all defendants equally, nor does it create rational limits based on economic status etc. Instead, it tells us that these defendants are not getting protections. Without saying it, the Court transforms these rights, into benefits, which it will confer upon classes of persons which it decides are deserving of them.
By no means am I claiming to have studied all the rights-creating exercises of the Court in my Paper. But the similarities in judicial approach in cases that are separated by decades is certainly striking. If nothing else, the paper encourages some reflection about the halo that gets drawn over the judicial excursions of the Post-Emergency era in Indian legal history by many quarters. More seriously, it also invites critical thinking about reform strategies that turn to the Court for help and should make all the stakeholders pay more attention to the means that are employed to achieve possibly desirable ends.
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