Saturday, February 18, 2017

Every accused including Shahbuddin deserves a trial at which he is physically present

The Supreme Court Judgment on 15 February 2017 forcing a video trial on Shahbuddin by transferring him to Tihar jail appears to violate his fundamental right to a fair trial, and to a trial in which he can participate fully. Being physically present inside the court-room is very different from being linked by video conference. In the latter situation, the jail authorities can essentially control when the accused can speak up in Court. His physical condition might also not be fully apparent to the Court and to observers present in Court. The State can misuse a video trial to deprive an accused of his right of full participation. The accused also has the right to observe court proceedings. An accused who is not present in the court-room cannot observe the judge, the witnesses, the lawyers, and everything else that happens in the court-room. 

It is the job of the State to ensure a fair and open trial, and the accused ought not to be deprived of his defence rights because the State fails in its duty to provide a fair trial and to maintain law and order. 

The Supreme Court should also have transferred the trials to Delhi. 

The SC judgment cites the Subramanian Swamy defamation judgment and the balancing of rights doctrine which is a problematic doctrine and the way in which it is applied in Shahbuddin's case is also troubling. 

In its decision, the SC also claimed that it could restrict Shahbuddin's fundamental rights under its broad and inherent powers to do justice. This is another position that the Supreme Court is increasingly adopting and the legitimacy of this position of the Court needs more analysis. 

The judgment can be found at http://supremecourtofindia.nic.in/FileServer/2017-02-15_1487136730.pdf

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