Reality of Judicial System

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    By Ashok Dhamija, Supreme Court Advocate, Former IPS

    “If lesser mortals like you or me are arrested, the hearing takes place in Magistrate’s court. But, if those allegedly having links with Naxalites are arrested, the hearing takes directly in the Supreme Court.

    Thousands of persons are arrested every day in the country. These arrested persons are produced before the Magistrate court or trial court (if it is a case before a Special Judge). Such Magistrate would examine in detail the grounds for arrest, and will either grant bail or allow further custody of the accused depending on the merits of the case. If the accused is not satisfied with the order of the Magistrate, he can challenge the order before the Sessions Court, High Court or even the Supreme Court, in that sequence. There is even a provision for obtaining anticipatory bail (pre-arrest bail) but that too can be obtained from the Sessions Court and/or High Court and there is an appeal procedure here too. So, an elaborate procedure has been laid down in the criminal laws of the country to take care of the rights of the person arrested.

    But, wait…! These procedures are only for lesser mortals like you and me.

    These procedures are not meant for VVIPs.

    When the 5 activists (alleged to be having connections with Naxalites) were arrested yesterday by Maharashtra Police in connection with the Bhima Koregaon violence incident, today morning a battery of senior lawyers mentioned the matter DIRECTLY before the Supreme Court.

    Moreover, this matter was mentioned before a CONSTITUTION BENCH of the Supreme Court directly. You are generally not allowed to mention a matter before the Constitution bench.

    This matter was mentioned by several senior lawyers, including Abhishek Manu Singhvi, Indira Jaising, Dushyant Dave, Raju Ramachandran and Amarendra Sharan, along with Advocates Vrinda Grover and Prashant Bhushan.[1] Now, Abhishek Singhvi would usually charge about ₹ 10 lakh for a single appearance. Other senior lawyers mentioned above would also charge in lakhs of rupees per appearance in court.

    So, does this mean that these activists have such financial resources to put up so many seniors at the same time? Or, people supporting them would have such resources? Or, else, these people have such high connections that such influential lawyers would appear free for them?

    But, the moot question is why should the matter be mentioned directly in the Supreme Court, when the arrested persons were yet to be produced before the Magistrate court or the Special Judge, as the case may be? Does Supreme Court have no faith in the lower judiciary? I mean there is nothing to show in this case that the lower judiciary failed to take corrective action, which would have warranted direct action from the highest court of the land.

    In fact, media reports further suggest that this matter was also mentioned before one or two High Courts too, at the same time.

    Yes, personal liberty is very important. It is a fundamental right. But, then personal liberty is important for thousands of ordinary persons too, who are arrested daily in India. I am personally handling (and have handled in the past) several cases where accused persons are in jail for years and not days, and that too during trial period or even during investigation period.

    Okay, I agree there are merely allegations against these arrested activists at this stage and the case is yet to be proved. But, then, so is the situation in respect of thousands of persons arrested every day in India – those persons are also facing merely allegations at the time of arrest.

    Why there are different standards for different sets of people?

    Merely because there are certain VVIPs? People who can manage to get big lawyers who charge in millions or lakhs of rupees per appearance? Or, who are influential?

    It is noteworthy that Maharashtra Police has not done any haste in arresting these activists. The Bhima Koregaon incident took place several months back. Meanwhile, Maharashtra Police was collecting evidence during investigation. As per media reports, it was only after evidence could be collected against these activists that the arrests were made.

    Even otherwise, given the influence of such activists (whole mainstream media is with them), the police WILL NOT DARE to arrest these activists without there being sufficient evidence on record.

    Why such evidence is not judged by the Magistrate court in the first instance, as per the normal laws which are applicable for the ordinary citizens? Why directly Supreme Court?

    While I am writing these lines, I just saw a news report that the Supreme Court has asked Pune Police to keep these activists under house arrest till September 6, 2018!!!

    House Arrest? What is that provision? I would like to be enlightened where is that provision in law? Is it being done under Article 142 of the Constitution? It is absolutely abnormal.

    The biggest irony is that the Supreme Court itself is not trusting the lower judiciary, which had the power to deal with such arrest matter. Did the lower judiciary commit any mistake in this matter that the Supreme Court is directly getting involved?

    What about rights of thousands of people – the ordinary people – then, who are arrested everyday in India?

    It is for the trial court to decide whether the arrest of these 5 activists is legally valid or not. It has to be done on the basis of the evidence on record. This is what I feel about their arrest.

    But, law is not equal for everybody. Every person does not get equal protection of laws. Some get special protection of laws. It is evident.”

    Has one considered the penetration of the Left into the Judicial System? Is the judicial system unbiased, as it’s supposed to be?