I am not a lawyer. I will write a detailed analysis later and do not want to comment on the substance of the 3 Years JotNa case.
It is ‘subjudice’ to comment on cases before the courts. In his book, ‘Road to Justice,’ the inimitable Lord Denning held: “A country can put up with laws that are harsh or unjust so long as they are administered by judges who can mitigate their harshness or alleviate their unfairness.”
Against this background, it, therefore, behooves on the Judiciary to stamp its authority against the abuse of fundamental rights, as strident criticisms and PROTEST against government policies, can now be readily used as a tool to incarcerate critics unjustly.
To hear bail applications, I trust the judge has shown absolute fidelity to the law. He refused to be swayed by public comments and sudden impetus to prosecute cases.
I will argue that normalizing pre-trial detention by taking too long to rule on bail applications violates the basic fabric of the Constitution that guarantees the right to bail and presumption of innocence.
A judge can deny bail in clearest of the cases when there is a likelihood that an accused person is a danger to the society and will flee when released.
Anticipatory bail is a common law remedy that is wholly discretionary. To deny bail, a judge will politely tell off prosecutors who come to court and state that investigations are ongoing and that the accused will interfere with the investigations when released on bail.
A judge’s rulings on bail will be balanced and satisfying to the higher ideals that he swore to protect.
In other words, judicial activism becomes inevitable in these circumstances.
In “Developing Human Rights Jurisprudence, Commonwealth Secretariat Report 1992,” Justice Bhagwati enthused: “The term judicial activism is slippery as Robert Mcclosky said, but it does have some meaning. To him, one of its aspects was the supreme court’s propensity to intervene in the governing process… judicial activism is not only defensible, but it so also inevitable in any system of constitutionalism.
The two fundamental correlative elements of constitutionalism: Charles Mclewan has said, “are legal limits of arbitrary power and complete political responsibility of government to the governed.
Without a creative and activist Judiciary, these two elements would be impossible to achieve.” He said: “there can only be good government if the rule of law is maintained and the government passed the same government obeys the law.”
Justice Micheal Kirby, then president of the Court of Appeal, Supreme-Court of New South Wales, Australia had this to say: “In the functions of courts in giving meaning to a written constitution, to legislation… expressed in General terms or even to old precedents inherited from judges of earlier time, there is often plenty of room for judicial choice”- see Developing human right jurisprudence (Report by the commonwealth secretariat, London on a colloquium held in Bangalore, India February 24 26, 1988).
Having regard to the nascence of our Constitution, the comparative educational backwardness, the socio-economic and cultural background of the people of the country and the reliance that is being placed and necessarily have to be placed, as a result of this background on the courts, and finally, the general atmosphere in the country, I think High Court has to safeguard the fundamental rights in this country.
The rule of law is still in existence even in a kakistocracy, and where such a government passes a law, it binds it and all its functionaries. The right of individual citizens under the rule of law should be respected, and the Judiciary is a principal agency of the rule of law and court that stands between the citizens and the government, is alert to see that the State or Government is bound by the law and respect it. Any act of governance which is not covered under the umbrella of an enabling law is a nullity.
