THE GIST of Editorial for UPSC Exams : 10 October 2018 (We need a pro-liberty judicial approach)


We need a pro-liberty judicial approach 


Mains Paper: 2 | Polity 
Prelims level: civil liberties
Mains level: The judiciary is deviating from its own precedents in terms of civil liberties 

Introduction 

  • Article 21 of the Constitution places the personal liberty of citizens on the highest pedestal, and so it is the duty of our courts to protect it. 
  • However, two recent decisions of the Supreme Court suggest that the court may not be showing sufficient zeal in upholding liberty.

Analysing the cases 

  • The case concerning the Bhima-Koregaon accused, the court should have applied the ‘clear and present danger’ test of the celebrated Justice Holmes of the U.S. Supreme Court.
  • The ‘imminent lawless action’ test of the U.S. Supreme Court in Brandenburg v. Ohio (followed by the Indian Supreme Court in Sri Indra Das v. State of Assam ).
  • It would have held that the actions of the accused in the Bhima-Koregaon incident, even assuming the charges to be true, could not have posed any clear and present danger of a violent uprising, and after holding so.
  • The court would have quashed the proceedings against them, and consequently released all the five accused forthwith.
  • In Abhijit Iyer-Mitra v. State of Odisha, the Supreme Court refused bail to the petitioner saying that his action hurt religious feelings, an offence under section 295A of the Indian Penal Code. 
  • Based on the principles laid down by the court in State of Rajasthan v. Balchand and other decisions, bail should have been granted. 

Way forward

  • There was no likelihood of the petitioner tampering with the evidence or fleeing from justice. 
  • Also, the offence was not as grave or heinous as murder, or gang-rape. 
  • All that the petitioner did was to tweet some satirical remarks about the Konark temple, and he clarified in later tweets that he was joking. 
  • It is true that the tweets were indiscreet because many Indians do not understand satire, but the court could have laid down the condition in its order granting bail that the petitioner should not repeat such remarks.
  • It could hurt religious feelings, and if he did that the bail could be cancelled. 
  • It was certainly not a case deserving rejection of bail altogether.

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UPSC Prelims Questions: 

Q.1) Right to speedy trial is a:
(a) Constitutional Right
(b) Legal Right
(c) Fundamental Right
(d) Natural Right
Answer:  C

UPSC Mains Questions:
Q.1) India needs to adopt a pro-liberty judicial approach to maintain civil liberties. Critically examine the statement.  

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