‘Long pre-trial detention is unjust’

Published: March 15, 2012 - 17:29 Updated: March 16, 2012 - 12:51

Refusal of bail to those accused of serious offences has become the norm today, whereas it should be an exception. Sidhartth Luthra, senior counsel in the Supreme Court, talks to Hardnews on issues concerning the credibility and accessibility of our judicial system

Sadiq Naqvi Delhi

How does one deal with corruption in the judiciary? Can the bar play any role?

The Chief Justice of India raised a concern about corruption in the justice delivery system. This has to be addressed since the credibility of our legal system and our democracy depends on a litigant's confidence that there is a level playing field in any forum that he approaches for dispensation of justice. And the judiciary comprises erstwhile members of the bar. A lawyer is bound to act fairly in his conduct towards his colleagues, his clients and the system. The bar and the bench have a symbiotic relationship and it is the bar's duty to ensure fairness, transparency coupled with integrity. Once we have this starting point, the ideal of justice will be achieved, which the founding fathers hoped for when they framed the Constitution.

What about allegations that the Bar Council of India is lenient towards charges of professional misconduct? Has the Advocates Act made things worse?
Cases of professional misconduct need to be dealt with by any professional body with utmost sincerity. Of course, frivolous complaints that aim to damage a professional's reputation must be dealt with strongly. The Advocates Act and the Bar Council rules had noble objectives, but it seems they have not met with much success. With modernisation of the profession and focus on professional legal education, the new breed of lawyers that is emerging should make a change. They should maintain high standards, which by itself will ensure reduction in complaints of misconduct.

Most Indians are poor. How do you explain the exorbitant fees charged by top lawyers?
There is a schedule of fees provided under the High Court rules, which are not really in keeping with the contemporary costs. Most lawyers charge high fees as a filtering mechanism to contain work pressure. Regulation of fees is not the answer. Rather one must ensure that the Bar Council provides free legal services, as senior lawyers do, to ensure fair justice for all. Some states such as Delhi run successful legal services/aid programmes. A life or a death sentence case of a poor litigant filed through the Supreme Court Legal Aid Committee (SCLAC) must be represented by a senior lawyer. We need to ensure that the quality of legal aid lawyers is improved by making the job more attractive and by providing them adequate training. In Delhi such training programmes are already in place.

Do you think there is a menace of frivolous Public Interest Litigations (PILs), filed allegedly at the behest of warring corporates?
The tool of PIL is a unique part of the Indian legal system. There are frivolous PILs, which have been a subject of consideration by the Supreme Court. In Balwant Singh Chaufal's case, the Supreme Court had directed the high courts to frame rules to regulate PILs and contain frivolous PILs, including by imposition of high costs. Merely because there is a misuse of a legal remedy, the instrument of PIL cannot be criticized in isolation. PILs have brought justice to the poor, helped clean up the environment, facilitated good governance, and protected the fundamental rights of ordinary citizens. A few frivolous PILs can never overshadow all this.

Has the court set a bad precedent in recent judgements by intervening in policy matters?
The courts normally refrain from intervening in policy matters. But that is not an absolute rule.

What about the denial of bail? We have seen that in cases like Binayak Sen's and others charged with sedition. In terror-related cases, many of the accused are acquitted after years in prison. Isn't that denial of justice?
There has been a change in bail jurisprudence in the last 30 years. In the late 1970s, there used to be a liberal approach to it. In the last two decades, however, refusal of bail appears to be a common occurrence rather than the grant of it. The courts have now introduced the element of seriousness of the offence, which is being treated as a paramount consideration in deciding on the grant of bail. As a consequence, serious offences – murder, corruption, official secrets and several others – result in longer pre-trial detention, which works against the presumption of innocence of the individual. Upon acquittal, the period spent in custody cannot be given back. Lengthy pre-trial detention prejudices the rights of an accused and the cause of justice; it should be an exception, allowed only in rare cases.

Refusal of bail to those accused of serious offences has become the norm today, whereas it should be an exception. Sidhartth Luthra, senior counsel in the Supreme Court, talks to Hardnews...
Sadiq Naqvi Delhi

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