8 Apr 2010

Public Trails: The law redefined

In a recently delivered decision which exhaustively covers all issues (and objections raised) on the aspect of denial of a right to fair hearing on not allowance of public trail, Justice Dalveer Bhandari and Mukundakam Sharma of the Supreme Court, in their separate but concurring decisions have dismissed the appeal of Shahabuddin against the decision of the High Court directing trail within the prison. The Court discussed the legal position with due reliance of the cases in other jurisdictions to set at naught the challenge made by Ram Jethmalani against the High Court order.

Justice Bhandari discussed the following;
  • There is no need for the High Court to give a hearing to the accused while deciding the venue of the trial. It is only if the Sessions Court is moving the place of trial that the parties have a right to a hearing. [para 104-105]
  • There is no violation, if circumstances demand, of a right to fair hearing by shifting the hearing from a normal court room to a special court. [para 107-110]
  • Right to fair hearing is not violated only by shifting the trail from court to jail.  It is further to be shown that public access to the trail was blocked. [para 114-147]

Some insipid observations made by him, which are also worth pondering are as under;
131. Every criminal act is an offence against the society. The crime is a wrong done more to the society than to an individual. It involves a serious invasion of rights and liberties of some other person or persons. The   people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate.  Whether it responds appropriately to the situation or it presents a pathetic picture. This is one aspect. The other aspect is still more fundamental. When the State representing the society seeks to prosecute a person, the State must do it openly. ...
132. In dispensation of justice, the people should be satisfied that the State is not misusing the State machinery like the Police, the Prosecutors and other Public Servants. The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the Courts. The Courts have no such means or power. The Courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing Courts more and more to public gaze. 
Justice Sharma added his reasoning to dismiss the appeal, observing inter alia as under;
54. According to Black’s Law Dictionary (6th Edition, 1990, p. 1091), an “open court” means a court to which the public have a right to be admitted. This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators. In R. v. Denbigh Justices, (1974) 2 All ER 1052, 1056 (QBD), it was held that the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in the open Courts. It was further held that if the press has been actively excluded, the hearing is not in the open Courts. On the other hand, even if the press is present, if individual members of the public are refused admission, the proceedings cannot be considered to go on in open Courts. In my considered view an ‘open court’ is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings. Although the general rule still remains that a trial must be conducted in an open court, it may sometimes become necessary or rather indispensable to hold a trial inside a jail. Considerations of public peace and tranquility, maintenance of law and order situation, safety and security of the accused and the witnesses may make the holding of a trial inside the jail premises imperative as is the situation in the present case. The legal position as regards the validity of a trial inside the jail premises is well settled. In Kehar Singh case (supra) Shetty J. in his concurring judgment, after going through a number of authorities, on this issue observed thus:
“45. It may now be stated without contradiction that jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The enquiry or trial, however, must be conducted in open Court. There should not be any veil of secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of judicial process should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The Presiding Judge must have full control of the Courthouse. The accused must have all facilities to have a fair trial and all safeguards to avoid prejudice.” 
55. It is evidently clear from the aforesaid decision that a trial inside a jail does not stand vitiated solely because it is conducted inside the jail premises.

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