The Blunt Truth

"Good evening and welcome once again to this week's Prime Time Debate; I'm Abhishek your host for this evening and tonight we'll discuss the case of the Sharma couple who are being tried for killing their daughter.

What has become of us? What evil has possessed this country’s men and women that they are killing their own children? Is this how we plan to build our nation? By killing in the name of honour? To discuss and debate these issues I have with me two very eminent personalities who in their own fields of work have earned great repute. To my right is seated Mr. Ashok Gupta, practising Advocate, and to my left is Mrs Anjali Priyadarshini, women right activist. 

So Mr Gupta, what do you have to say about this dastardly crime of the Sharmas? How on earth could the Sharmas kill their own child? And why are not we doing anything about it?

Gupta:  ‘I deem it to be my duty, before I say anything else, to humbly caution you and Ms Anjali. We must refrain from accusing the Sharma couple yet since it's slightly premature to declare the guilt of....'

Abhishek (almost yelling and cutting off Gupta) 'Nothing is premature here on the PTD. It's an open and shut case. The Sharmas murdered their daughter and they should be punished for their heinous act'

Gupta  (resuming carefully): 'We don't yet have facts supporting that, do we?'

Abhishek (leaning forward with bulging eyes): ' We don't have facts? Are you serious? I mean the girl was found stabbed to death in her bedroom, with no one but her parents at home that night, what more facts do you need?'

Gupta: 'That alone does not prove that her parents killed her. And by the way how are you sure that there was no one else there during the occurrence. There are Courts, there has to be evidence, there has to be proof of.........'

Abhishek : 'Oh so talking like a lawyer. You need proof, sure, a young innocent girl was killed  and you need proof.. Mrs Anjali, what say you Ma'm?'

Anjali : 'I am not surprised at all by Mr. Gupta's non chalance considering that every technical detail is always used as defence when it's a crime against a woman'

Gupta:  'What ?? When did I say that....'

Abhishek (again cutting Gupta off): 'I am in complete agreement with Mrs Anjali that we should be not be getting technical here.

Gupta : 'What do you mean 'technical'?....I'm only saying that there are Courts in which guilt of accused persons are proved, not on TV channels'

Abhishek (literally shrieking) : Let me tell our millions and millions of viewers that here at PTD we believe in being blunt and in being bluntly truthful. Perhaps Mr. Gupta here does not know that.

Gupta: 'What truth? We don't even know whose finger prints are there on the knife and who else were there in the house, the investigation is still going on,; why are you.....'

Anjali: 'Technical again'

Gupta to Anjali: 'What technical technical technical are you crying for? It is pure common sense that.....'

Abhisek (yelling again): 'It is an open and shut case Mr. Gupta. We at PTD believe in being blunt and in being bluntly truthful when it comes to crime against women'

Gupta: 'No one is denying it is a crime against a woman but the truth of the crime is yet to be.........'

Anjali: 'Technical technical'

Abhishek: 'PTD never supports crime against women'

Gupta: 'No one is supporting any.....'

Abhishek (interrupting again) :' At PTD we are blunt and we will find the truth...'

Gupta: 'But the truth is not...'

Abhishek: 'No no Mr. Gupta, we're not serving diplomacy tonight. We have only bluntness in our menu tonight’

Gupta: ‘What’s with you and bluntness anyway? Can’t you simply understand that that the truth will come out, but not here, it will come out in due process....’

Abhishek (completely rejecting Gupta's words): ‘No no Mr. Gupta...’

Anjali (sarcastic): ‘Ohhh..So Mr Gupta thinks this murder to be something simple. See ?! Didn’t I tell you? Men never take us seriously’

Gupta: ‘When did this become about how seriously men take women?’

Anjali: ‘Mr. Gupta is clearly discounting my intelligence to understand what he is trying to say here’

Abhishek: ‘Hats off to you Mrs. Anjali for being truly blunt here on national TV. We at PTD welcome it’

Gupta: All I’m saying is that Courts will find out the guilt of the Sharmas. We are not the ones who......’

Abhishek: ‘Come’on Mr. Gupta. You can do better than that. We ask you to be blunt and truthful’

Gupta: ‘What do you think I’m doing?’

Anjali: ‘You are missing the fact that Sharmas have murdered their daughter.’

Gupta: ‘What?? Didn’t you hear anything I’ve spoken so far?’

Abhishek: ‘Excellent, Mrs Anjali, that’s more like it. So much bluntness and honesty. You truly know your facts right’

Anjali: 'This is a crime against a woman. And she must get justice'

Gupta: 'Clearly, that justice is not to be done in this debate...'

Abhishek (intervening again abruptly): 'The verdict is crystal already. The Sharmas are guilty as hell and they will be sent to the gallows'

Gupta: 'Are we to fix guilt of Sharmas here on TV?'

Anjali: 'Now Mr. Gupta has a doubt on your abilities too Abhishek. Why don't you go ahead and call us all wrong Mr. Gupta? Me, Abhishek and the rest of all, with the exception of you'

Abhishek: 'Oh so blunt that one, Mrs. Anjali. We'll take Mr. Gupta's response to that'

Gupta to Abhishek: What exactly are you anchoring? A news show?  A debate on the merits of a legal case or the guilt of Sharmas or my guilt? Surely you aren't hosting a circus, are you?'

Abhishek (nodding vigorously, interrupting) : 'No No No Mr. Gupta. I anchor only the quest for truth and a blunt one at that'

Gupta: 'Well the truth is that you are impatient, speculative and verging on absolute vanity....'

Anjali (jumping in): 'Are you saying that the Sharmas are innocent'

Gupta 'I'm not saying anything about innocence or guilt. I'm just saying that.......'

Abhishek: 'Yes say it bluntly'

Gupta : ' Do you ever let your guests speak?'

Abhishek: 'We like blunt people'

Gupta: 'Well you can go ahead and like whatever and whoever you want but I must get chance to speak whatever I want to. Ok?'

Anjali: 'Perhaps you want a ceremony of bugles and trumpets for proving that the Sharmas are guilty, Mr. Gupta'

Abhishek: Oh my God, that's as blunt as it can get. As we can see Mr. Gupta has no blunt truth to offer'

Then in a sudden inexplicable moment of frenzy and unrest which simultaneously gripped the host and the guests, beginning with Mr. Gupta losing his patience and banging the table hard with his hand, each of them began speaking and yelling at the same time. It was difficult to decipher what they spoke. The words all tossing over each other, blending in a manner so as to sometimes sound like Arabic, sometimes Hindi and partly like deafening war cries. The two gloriously suited men and the  bespectacled lady seemingly full of intellect spoke in such aggressively disregarding fashion that one grocer in a nearby ‘Hat’ who was watching the show at his shop reportedly remarked ‘Arre baba, they are shouting like they are in some ‘hat’. Abhishek, with some residual propriety of a decent host stayed quiet, but not for long. He soon resumed his race of words with the two. The picture was somewhat like this. Mrs. Anjali’s mouth had become so wide open in cut-throat oratory even the dumbest of brains could have assumed that she cawed only three words ‘Justice’, ‘Women’, ‘Technical’ . Atleast these were the words which could be faintly audible from layers and layers of thunderous eloquence from all three directions. Gupta kept banging the desk and pleaded for a couple of seconds so that for once he could speak fully. None heeded. He resumed his assault on Abhishek for being a poor host. And Abhishek kept his banner of bluntness flying high. His voice was the loudest and the others were no match for his roar. Ofcourse, the other two didn’t have his advantage of habit. Some respite was offered when Gupta furiously yanked out the microphone fitted to his shirt, slammed it on the table and walked off the show yelling ‘To hell with your blunt truth.'

Director of the show to Abhishek(on Abhishek's earpiece): 'I just got a call from Legal. They are saying we should not discuss about sub judice cases till Court has not decided the case. Now go and get Gupta back'

Abhishek: 'Ladies and gentlemen we'll break for commercials and return in a moment with other debates. Stay with us’

Abhishek jumps off his chair and runs after Gupta "Mr. Gupta please listen to me. Just for a moment, please listen....."

** 'The Blunt Truth' is a work of fiction and any resemblance of any part or whole of it with any person, people, organization or any event is coincidental.

Divested In Democracy

It is often asked that who will guard the guardians. This question reminds of the Latin phrase 'Quis custodiet ipso custodies ? ' penned by the Roman poet, Juvenal. The saying induces one to dwell on the issue as to in whom the ultimate powers should vest. Democracies around the world try to resolve the dilemma by separating powers between various organs that are responsible for governance and administration. The idea is to never give ultimate power to any one group, but to let the interests of each limb of the State collide and conflict with that of the others. The point of it being that absolute power shall not rest in any authority. In that way each bloc will find it in its interest to check and impede the excesses of others, thereby constantly and perpetually inhibiting it from corrupting itself.

 Perhaps born out of the fear of the hackneyed saying "Power corrupts. Absolute power corrupts absolutely", separation of powers between various organs of the State ensures that each is the sentinel against the corrupt tendencies of the other. Man's ingenuity has led him to overcome every obstacle before fulfillment of his aspirations. It has led him to devise schemes to circumvent the restraint sought to be induced by separation of powers. Organs are hands in gloves to look away from each other's foibles. So instead of acting as custodian of the each other’s virtues, agencies of the State obligated to implement laws, have done deals to remain oblivious to the wrongs committed by their counterparts in return for having their own corruption overlooked, thereby ensuring that the law remains a dead letter in thick books.

By and large, however, the system of separation of powers is a befitting recourse for the soundness of any democracy. Notwithstanding the outcomes presently afflicting the administration of the nation, this principle should never be given up, if we intend to preserve the ideals of our democratic Constitution.

WHEN LAWYERS DON’T ARGUE

"I would not call it an opportunity (to be an amicus in Kasab's case). I think it was an honour given to me…I took it as a sacred duty and I performed it to the best of my ability.”

-          Raju Ramachandran, Senior Advocate, Supreme Court of India, on being appointed as amicus curiae to defend Ajmal Kasab in Apex Court.

 

            Is it proper for any lawyer to refuse to defend any person who is either unpopular, or whom everyone believes to be guilty or whom he himself believes to be guilty? Such is the nature of this debate that it has lived with us since the times of Shakespeare. This question surfaces every time there is either a crime which is so heinous that even lawyers who are duty bound to stand between the accused and the State deny to do so or when the community of lawyers resolve to not represent a particular accused by reason of prejudice or past animosity or because of similar causes. The question is considered more often than not from a moralistic point of view rather than from a legal angle. There is nothing wrong per se in being moralistic in the legal profession, in fact, the right blend of morality and law is capable of doing wonders in administration of justice but the problem begins when the morality is misplaced. And on the basis of such misplaced morality one decides to disregard golden principles of the legal profession.    

             In the present context, let us recall the trial of Thomas Paine, the revolutionary writer of France, who had been charged with seditious libel after the publication of the second part of his work ‘Rights of Man’, and against whom almost the entire community of men had turned. Paine was accused of being a criminal and a terrorist, his offense being the publication of the said book. His earlier writings had been ignored by the government, but his impugned works were perceived as maliciously and wickedly intended to incite violence toward the government. Charges were brought and a criminal action was instituted. No lawyer came forward to represent his defense since it was considered sacrilege and treason to defend Paine in Court and the lawyer choosing to stand up for Paine was sure to be stigmatized and ostracized. Under such inimical circumstances only one fearless attorney stepped forward and he was promptly warned by his most important client that he would lose him if he continued the representation of Paine in Court. The lawyer categorically indicated his intent to proceed and as expected he was fired by that client of his. The lawyer who stepped forward to defend Paine was none other than the great Thomas Erskine, eventual Lord Chancellor of Great Britain. Erskine's decision to defend Paine cost him his position as attorney-general to the Prince of Wales, to which he had been appointed in 1786. Men who criticized Paine also condemned Lord Erskine and called him a traitor. Outraging rumours and writings were published against Erskine. But he never budged. Any discussion on the topic at hand would therefore be incomplete without reminding ourselves of the very famous speech of Lord Erskine rendered by him during the trial of Paine. Erskine's speech is also remembered for his reflection on the duty of advocates to take up even unpopular cases. He spoke thus :

            “My name and character have been the topic of injurious reflection and for what? Only for not having shrunk from discharge of a duty which no personal advantage recommended, and which a thousand difficulties repent. But gentlemen (of the jury) I’ve no complain to make either against the printers of these libels nor even against their authors. The greater part of them ….may have believed that they were serving their country by rendering me the object of it’s suspicion and contempt and if there have been amongst them others, who are mixed in it from personal malice and unkindness, I thank God that I can forgive them also.

Little indeed they know me who thought that such calumnies could influence my conduct. I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end.  

If the advocate refuses to defend from what he may think of the charge or the defense, he assumes the character of the Judge, nay he assumes it before the hour of judgment and in proportion to the risk, rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions and which commands the very Judge to be his counsel."

A society can be called civilised only when it offers, even for the most barbaric criminal, a fair chance to defend himself. A lawyer must partake in the process of such a person’s defense notwithstanding his personal reservations regarding the man. Only then would he have fulfilled his true role as a lawyer. This is what eminent Senior Counsel Raju Ramachandran indicated when he said that he considered it an honour to defend Ajmal Kasab in the Supreme Court long after the entire country had declared him guilty. Guilty he was without a shred of doubt. Nevertheless he was entitled to his day in Court. That is the rule of law on which the founding fathers of our Constitution rested the fate of our great nation. There was pervasive cynicism against our judicial process, in the minds of our own countrymen, when the very man they saw to have killed hundreds of their fellow citizens, using one after another legal provision to stall the proceedings. He exhausted all forums available at his disposal and was ultimately found guilty by the Supreme Court and executed. Our judicial process thus honourably withstood the test of impatience and suspicion of several in the Kasab’s case to come out clean and effective in the end. This would not have been possible if lawyers would not have represented Kasab at various stages, right from the stage of trial to his appeal in the Apex Court. 

            Problem arises when Bar Associations pass resolutions against representation of certain accused persons. It has happened in the Delhi ‘Nirbhaya’ gangrape case, in Ajmal Kasab’s case and several other instances when the concerned Bar Association has resolved to not represent a particular accused in Court. Imposition of such decree on one and all prevents even the right minded advocates from pursuing their profession in proper spirit. One can understand that most of the times it is the terrible nature of crime which deters advocates, who are after all human beings, from defending the alleged perpetrator of such ghastly offences. But the point that seems to be overlooked is that until and unless the accused is not represented in Court, the judicial process cannot begin and consequently the guilt cannot be determined and therefore the sentencing will be mired in delays and laches. That being one persuasion, the other comes from the Hon’ble Supreme Court itself, which has categorically ordered (dtd. 30.07.2010) in the case of Mohd. Shuaib and Ors. Vs. Bar Council Of India & Ors. that

If any State Bar Council receives information/complaint that any advocate is being prevented by an advocate or advocates or any Bar Association from appearing and/or representing any accused, the Chairman of the State Bar Council and/or any member so empowered by the State Bar Council shall forthwith issue directions to the concerned advocate, advocates or Bar Association to cease and desist from such action.

The Courts are also under a duty to ensure that the accused is provided legal representation right from the moment he is produced before them. The Courts should ensure that the accused is provided the services of a lawyer through all stages of the case. Therefore if no one comes forward to represent the accused the Court should immediately appoint a State Defence Counsel / Legal Aid Counsel to represent the accused in Court.

And so far as lawyer's themselves coming forward to take up unpopular cases is concerned, hereinbelow is reproduced Lord Erskine’s immortal words in the Indian context

Let the learned Indian lawyers forever, at all hazards, assert the dignity, independence, and integrity of the Indian Bar, without which impartial justice, the most valuable part of the Indian constitution, can have no existence

DOCTRINE OF POSTPONEMENT – BALANCING RIGHT TO FAIR TRIAL OF ACCUSED & RIGHT TO FREEDOM OF SPEECH & EXPRESSION OF MEDIA

“A defendant on trial for a specific crime is entitled to his day in court, not in a stadium or a city or

nationwide arena.” -          Thomas Campbell Clark (United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of  the United States from 1949 to 1967)

While upholding the death sentence of Ajmal Kasab, the Hon’ble Supreme Court came down heavily on the electronic media and made a scathing criticism of its reckless coverage of the 26^th November terror attack on Mumbai and observed that "the coverage helped the assailants counter security movements as their positions were being reported live. The operational movements were being watched by the collaborators across the border on TV screens and being communicated to the terrorists.” Media overreach is a daily affair these days, especially in under trial cases. Accused persons standing trial or who are likely to stand their trial in Courts, are being treated and tossed around like villains on prime time television debates much prior to the hearing of their cases.  Television channels indulge in deliberating, discussing and garnering speculative opinion regarding the facts and fate of under trial cases. The peril of prejudice born out of such unwarranted barrage of speculations and opinions about sub judice matters never appears to be considered by the media while dealing with such subjects. What the media seems to be unmindful of is the fact that excessive prejudicial publicity leading to usurpation of functions of the Court, not only interferes with administration of justice which is sought to be protected under Article 19(2), it also prejudices or interferes with a particular legal proceeding.

One specific area where the media of our country urgently needs to focus is that of achieving a correct poise while dealing with sub judice matters without surrendering journalistic ideals. The Apex Court has declared that “A trial by press, electronic media or public agitation is the very antithesis of rule of law”. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent their encroachment upon civil rights. Therefore any prevention and / or regulation must necessarily come from the outside. Amidst such circumstances, the Supreme Court delivered a landmark verdict on 11.9.2012 in the case of Sahara India Real Estate & Ors Vs Securities & Exchange Board Of India & Anr.,wherein it expounded what is known as the doctrine of postponement. In this case the Court was seized with the adjudication of a dispute between the Sahara Group and market regulator SEBI (Securities Exchange Board of India) which had arisen due to alleged leakage of sensitive confidential communication inter parties and their consequential publication by the media. As a preventive measure against publications tending to prejudice the targets of such publication, the Apex Court propounded the ‘doctrine of postponement’ the gist of which it stated as thus:

“anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the …. principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework.”

 The Supreme Court has categorically remarked that orders of postponement should not disturb the content of the publication and such orders would only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period. The Hon’ble Court elucidated the requirement of the doctrine by observing that

‘when there is no other practical means that is capable of avoiding the real and substantial risk of prejudice to the connected trials, postponement orders safeguards the fairness of such trials.’

Critics of the verdict predict that the judgment will lead to harassment of media persons and that it would create serious problems and opens the floodgates for the high and mighty to seek virtual censorship. However, in order to preempt any inference of its verdict as an attempt to suppress freedom of the media, the Apex Court while indoctrinating in the aforestated case has already made its views on the importance of media’s role clear. The Court has acknowledged that the media, in several cases in India, is the only representative of the public to bring to the notice of the court issues of public importance including governance deficit, corruption, drawbacks in the system. It has been further clarified that by setting forth the doctrine the Court is not passing a blanket order, rather the concerned Courts shall be free to deal with each application on a case by case basis. It is equally noteworthy that, this is not the first time that the Supreme Court has favoured the principle of postponement. In several instances in the past it has allowed prior restraint on publication and has thereby asserted that such an approach on its part is neither unwarranted nor unjustified.

A fair and unbiased media is indispensable in our country. It has in its own way served as a check against the corrupt and stood guard against exploitation of the vulnerable. Incidental to such purport and objective of its function, the media must necessarily carry with it the inherent right to freedom of speech and expression, guaranteed by our Constitution. However, unlike in the United States of America where freedom of expression is absolute under the First Amendment, in India freedom of speech and expression is not absolute and it is subject to reasonable restrictions. It’s high time the media realized the necessity of such a limitation keeping in mind the principles discussed and directions laid down in Sahara India Real Estate & Ors Vs Securities & Exchange Board Of India & Anr . It must also remember that playing to the gallery may maximize media's immediate commercial gains but slowly yet surely it’ll stand bereft of the support and admiration of the right minded people and that would be a barter the media cannot afford to make. Reinforcing the foundation of our democracy involves according due weight to both – right to free speech and expression on one hand and the effective administration of justice by ensuring fairness of trials on the other - a valued rule required to be remembered by all concerned.

Did You Know ?

Privileged communications is an exchange of information between two individuals in a confidential relationship.  A privileged communication is a private statement that must be kept in confidence by the recipient for the benefit of the communicator. Even if it is relevant to a case, a privileged communication cannot be used as evidence in court. Privileged communications are controversial because they exclude relevant facts from the truth-seeking process. Generally, the laws that guide civil and criminal trials are designed to allow the admission of relevant evidence. Parties generally have access to all information that will help yield a just result in the case. Privileged communications are an exception to this rule. 

Privileged communications exist because society values the privacy or purpose of certain relationships. The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client.

These relationships are protected for various reasons. The wife-husband and clergy-communicant privileges protect the general sanctity of marriage and religion. The psychotherapist or physician and patient privilege promotes full disclosure in the interests of the patient's health. If patients were unable to keep secret communications with psychotherapists or physicians relating to treatment or diagnosis, they might give doctors incomplete information. If doctors received incomplete information, they might be unable to administer health care to the patient, which is the very purpose of the doctor-patient relationship.

The following communications fall in the category of privileged communication under the Indian Evidence Act and they cannot be ordinarily disclosed to the Court by the person to whom they are made:-

• All verbal & written communication made between husband and wife during the existence of their marriage, is strictly protected from disclosure. Neither spouse can be compelled or permitted in a Court of law to give evidence of what has been told to him / her by his / her spouse. For example if a husband comes and tells his wife that he has committed murder, then, even if the wife wants to disclose the said fact, her evidence cannot be accepted by Courts as her knowledge is based on 'privileged communication'. ( However this privilege can be waived by the party making such communication)        

         But if, say for example,  murder has been committed by a woman's husband in her presence, 

         she is free to give her evidence that she saw her husband commit murder.

• No public officer can be compelled to disclose official communication made to him in official confidence, when he considers that public interest will suffer by such disclosure.

• No Police Officer can be compelled to say from where he got the information as to the commission of any offence.

• If a man, with the purpose of engaging an advocate to defend him in Court, goes and tells that advocate that he's committed a crime and he even narrates to him how he did it the lawyer is barred from disclosing what he told him. Meaning that the lawyer cannot go and tell the Court that actually his client has committed the crime since he himself confessed the same before him. This bar also extends to clerks and servants of the lawyer who ordinarily have the scope of hearing such communication e.g. typist, associates etc. Such a privelege can be waived if so chosen by the client
• A legal adviser is also prohibited from disclosing information given to him by his client.

Information Courtesy :-

Indian Evidence Act, 1872

legal-dictionary.thefreedictionary.com

Supreme Court Settles The Law on Anticipatory Bail

Before I inform my dear readers about the captioned development, I must explain to them what is anticipatory bail in the first place. Law provides for curtailment of liberty by way of arrest in certain prescribed scenarios. Bail is the security that a person is directed to give to the Court / releasing authority in lieu of the conditional freedom he is granted from such curtailment. Bail may be granted with or without surety (guarantor). Now this naturally means that the question of bail arises only when a person is in custody and he seeks to get out of the same. But in case of anticipatory bail, a person applies for bail, even before he is arrested, in anticipation of such arrest. The relevant provision of law is laid down in Section 438 of our Code of Criminal Procedure. It basically says that whenever a person apprehends or has reasons to believe that he is likely to be arrested on suspicion of him having committed a non bailable offence then he can apply either to the Court of Sessions or to the High Court, for issuing a direction that in the event of his arrest he shall be released on bail. Then the concerned Court, after taking into consideration the facts and circumstances of that case, may decide accordingly.  It needs to be understood that this provision exists to prevent so far as possible malicious arrests and frivolous detention which are politically motivated either to humiliate or to injure the reputation of the concerned person.

A Court while considering an application for anticipatory bail usually weighs the following factors:-

• the nature and gravity or seriousness of the accusation as apprehended by the applicant
• the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence 
• whether motive behind the accusation is to humiliate or malign the reputation of the applicant by having him arrested 

Yesterday the Hon'ble Apex Court has settled a long debated issue as to whether anticipatory bail should or should not be granted to absconders and persons who flee beyond the reach of the investigative agency even before their arrest. The Hon'ble Court held that no court should grant anticipatory bail to a person who had been declared an absconder either during the investigation or during the trial.

Writing the judgment for the bench, Justice Sathasivam agreed with the proposition of additional solicitor general Siddharth Luthra and said, "We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and is declared as a proclaimed offender in terms of Section 82 of the Criminal Procedure Code, is not entitled to the relief of anticipatory bail."  The case related to the alleged suicide of Vibha in her in-law's house in Punjabi Bagh, New Delhi, on September 1 last year. She was married on January 19, 2010. The bench said the allegations levelled against the accused persons, including the husband's brother, was that they subjected Vibha to cruelty demanding sizeable amount in order to settle the payment of Rs 5 lakh for the flat allotted by Delhi Development Authority.






*Information Courtesy - The Times Of India

Speeches By Sri Ram Jethmalani - I

Do you agree that we need more of such speakers / members in our Parliament than the ones who simply induce chaos and disturbance ?

Upright, Fearless & Eloquent


There are unfortunately a very few such examples in our Parliament.

Exploring Our Justice Delivery System

1. )            On Law Making & Myths About the Justice Delivery System

      " Avinash : You know, at times I really think that the law is aptly called blind. Why else is there 

                      so much injustice all around, despite libraries full of Codes, Laws, Regulations and 

                      Rules in our country. The discontentment has climbed upto an extent where people 

                      call law an a** . Ever thought why is it so ?

       Me :        I think it’s mostly because of the popular perception that law serves the interests of 

                     only the powerful and the privileged, while the un privileged suffer................... "

                    (Read more at On Law Making & Myths About the Justice Delivery System)

     2. )           On Free Speech, Media Trial & Prejudice

                   "There's nothing more sanctimonious in any democracy than the freedom of speech 
                    and expression. But we must understand that like any other freedom, it too is not 
                    absolute and it is subject to reasonable regulations and restrictions................"

                    (Read More at On Free Speech, Media Trial & Prejudice )


     3.)           Justice in Jeopardy... Why ?

                  " ....what is essential in this context is that when we read or hear against our judicial 
                    system we, as responsible persons, must also strive to analyse the cause (s) behind those 
                    facts.... "

                   (Read More at Justice in Jeopardy... Why ? )






        

Why A Lawyer Must Defend A Perceived Criminal

Very often we find ourselves nurturing anger and hostility against lawyers because we can't help ourselves from thinking that they defend criminals and the corrupt and ultimately, many a times, aid them to escape the clutches of law. 

This video will perhaps clarify the notion of many, that lawyers do a great disservice to this country by choosing to defend the perceived corrupt / unpopular persons in Court. In this conversation, Mr. Ram Jethmalani, a lawyer who requires no endorsement of his excellence in the field of law, cites the very famous speech of Lord Erskine, perhaps one of the greatest legal minds that ever was, who went against his friends and family to defend Thomas Paine who had been charged with seditious libel after the publication of the second part of his Rights of Man. This speech was rendered by him during the trial. Erskine's speech is also remembered for a passage on the duty of barristers to take on even unpopular cases.

I'm quoting that speech of Lord Erskine which you'll find Mr. Jethmalani reiterating in this video.

"My name and character have been the topic of injurious reflection. And for what ? Only for not having shrunk from discharge of a duty which no personal advantage recommended, and which a thousand difficulties repent. But gentlemen (of the jury) I’ve no complain to make either against the printers of these libels nor even against their authors. The greater part of them ….may have believed that they were serving their country by rendering me the object of it’s suspicion and contempt and if there have been amongst them others, who are mixed in it from personal malice and unkindness, I thank God that I can forgive them also. Little indeed they know me who thought that such calumnies could influence my conduct. I will for ever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end.  If the advocate refuses to defend from what he may think of the charge or the defense, he assumes the character of the Judge nay before the hour of judgment and in proportion to the risk, rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions and which commands the very Judge to be his counsel."

To what does this principle owe its basis ? Well, it owes its basis to the  "law". That law, which is nothing but legal enactments of our Parliament.  And the will of the Parliament is nothing but the will of the people. It's the people of this country who through their representatives in the Parliament have created this principle that "no man will be condemned without being given a fair chance to defend himself". Therefore no matter what we may infer about the real motive behind why lawyers do what they do, this principle remains the bedrock on which it's justified.