Delhi High Court Women Lawyers Forum and Women in Criminal Law Association are hosting a webinar titled “Defending Liberties”.

Justice Madan Lokur (Retd.), Supreme Court of India will interact with Warisha Farasat, Tara Narula, Shalini Gera and Sowjhanya Sukumaran.
Live updates available here. 👇🏽

@sowjhanya @taranarula1
An introduction of all the participants takes place.

Tara Narula then begins with the importance of the writ of habeas corpus and invited Justice Lokur to speak on the same.

@taranarula1
Justice Lokur: There was a lot of debate in the Constituent Assembly about whether preventive detention should be there or not. Historically, the writ of habeas corpus has been a very important writ, in England and India.
Justice Lokur: It was primarily used in preventive detention matters under MISA, COFEPOSA and now NSA and others. In my view, this writ should be used liberally by the Courts.
Justice Lokur: When you’re talking about preventive detention, you mean putting someone in detention without any trial for years. So, what are the safeguards against this arbitrary use of power ?
Justice Lokur: The Supreme Court has been very liberal in granting these writs and if you go through the judgments, there are very few cases where they haven’t been entertained. In fact, SC has also said that another habeas writ can be filed if one is dismissed.
Justice Lokur: They have also said that a petition does not need to be filed, and even a postcard can be sent. The interpretation has been liberal.
Justice Lokur: There are different ways of going about it and I would give it the widest possible interpretation.

Narula asks whether this position is being diluted in any manner.
Narula asks the question to Warisha Farasat, who has experience in habeas corpus writs, especially in wake of the changes made to Article 370.

Farasat states that procedural technicalities should not obstruct the relief.
Farasat: Essentially, I want to make two quick points. I think the writ is a time-sensitive writ and the Courts should take it seriously as most of the people who do approach the Court do not have an alternative remedy.
Farasat: Another thing is that State must be put to notice. This is something which might be lacking as it is contrary to the guidelines put down by the SC itself. Tough questions must be put to the State.
Farasat notes that most of the people who were picked up and detained post August 5, 2019, were lawyers, journalists and civil society activities.
Shalini Gera now speaks about the Panda case wherein a tribal activist was picked up by the police and had been tortured.

Gera: For a writ of habeas corpus to be effective, there is a need for a functioning legal system in which people have faith.
Gera: The Court did allow the writ and asked for Panda to be produced. But, when he was, he was surrounded by the Police and they wouldn’t leave. So, when the Court asked him about the detention, he said that he had gone on his free will.
Gera: Later on we learned that he had been tortured, but he did not have faith in the Court. How do we make someone believe in the justice system ?
@sowjhanya now presents her views in context of the Delhi Riots and how many of their clients were charged under the UAPA, one of the most stringent statutes.
@sowjhanya: Securing liberty is important, but there were other issues as well, such as gathering of evidence. Here, I will defer the issue to Shalini as we would want to know, strategically, where do you start ?
Gera: Even with acquittals, it’s not that we managed to get people out in short amount of time. It is the process that gets to you. Every case depends on the pressing need at that point. All I can say is that you have to learn the Court & sometimes you have to give up something.
Farasat adds that many times the State files voluminous charge sheets, sometimes running into 10,000 pages.

“As lawyers, we should not get intimidated. A lot of it is electronic evidence. We must look at them carefully, even if they have no meaning”.
Farasat: You have to go behind all of these pages and figure out what is prosecutable. Another learning is to stay the course as it will be very difficult. UAPA matters take years. But, like any other matter, you have to stay the course.
Farasat: One has to maintain patience, even through the lengthy pages because many a times these pages don’t mean anything.
@sowjhanya now asks Justice Lokur about the training of judges when it comes to presiding over such complex cases.

Justice Lokur responds that training is needed.
Justice Lokur: There is a Federal Judicial Academy in US. There was a tie-up where judges went to US for training. But, the problem is that, judges get transferred. So, the entire training becomes complete waste.
@sowjhanya: With the PC Act or POCSO, there are time-bound trials. Should it be present for other matters so that the process is hastened.

Justice Lokur: It must be done, but I’ll tell you one practical difficulty. Lawyers ask for adjournments, so matters get delayed.
Narula now brings up the matter of media trials.

“As a lawyer, sometimes I wonder if I should fight fire with fire, but this is frowned upon”.
Narula refers to the Kappan case and asks Justice Lokur about how one should go about it.

Justice Lokur: You should fight fire with water. You should tell the Court about the statements. The Court is responsible for it. Not you, or the media.
Justice Lokur: Where do these WhatsApp messages and disclosure statements come from ? The prosecution ? It’s up to the Court to bring them in line. If they don’t do anything, then fight fire with fire.
Farasat: I think Justice Lokur’s advice is very wise, when it comes to subjudice. The investigative agency will keep leaking stuff, especially in terror trials. I have seen this in my own cases, where I’ve seen the matter on media before it comes to my notice.
Farasat: I am quite wary of the media. Whatever you have to say, it’s better to say it in Court first. There are times when the media hounds you for the information and if you don’t give it, they give out wrong information.
@sowjhanya takes up the issue of how some lawyers are labelled as “activist lawyers”.

“Of course, the opposing counsel makes these comments. But, Courts also make these statements and impute motives. These deter young lawyers, especially women.”
@sowjhanya: How do you toe the line in being both an activist and a lawyer ?

Farasat: This is very worrying and this trend has been on the rise over the past 2-3 years. This is very the Bar must step up, especially senior members of the Bar. This solidarity will go a long way.
Justice Lokur: Ideology is important, but it should not come in the way of your professional assignment. Because that means that if you come across a person who differs, you won’t defend him.
Justice Lokur: I want to say one thing about Judges criticising lawyers. I think that’s unfair to target a lawyer for appearing for a particular client. Very, very unfair. If a lawyer is dealing with hundreds of COFEPOSA cases, you can’t say he’s also a smuggler.
@taranarula1 now raises the issue of how gender of a lawyer affects the matter.

Gera: The question of targeting lawyers, I feel there has been a quantum shift in how the State has been dealing with this. “Jihadi lawyers” or “Naxalist lawyers” is becoming streamlined.
Gera, while noting that gender has been an issue as there were very few women lawyers where she came from, but she did benefit from her caste as opposed to how a male adivasi lawyer would fare.
@sowjhanya asks Justice Lokur : Do you think that it is different for the way women and men are treated in the Bar ?
Justice Lokur: When I started, there were very few women lawyers. They were tolerated, if you understand what I mean. Over the years, from the 1970s, the women lawyers have increased. The number of women judges have increased. 1978 was when Sunanda Bhandari became a Judge.
Justice Lokur: There definitely been a shift. Whether they have been discriminated, I don't know. In the Supreme Court, I don't think there has been discrimination.
@taranarula1 now asks the speakers to recite one “mistake story” pertaining to their legal careers.
A question is posed to Justice Lokur as to why the Supreme Court is discouraging Article 32.

Justice Lokur: I don’t know why they would say that, but I would imagine it’s because there has been an overload of cases under this Article.
Justice Lokur: I’m just guessing, it could perhaps mean that the matter would need local understanding. Maybe this is what the CJI had in mind. But, this doesn’t apply to personal Liberty cases.
A question is asked on why the Courts are being “bitter” with reference to matters pertaining to Varavara Rao, Stan Swamy and other human rights defenders.

Gera responds that the situation could be rectified if she had an answer.
Farasat adds that UAPA is being added to FIRs of people who the government finds “inconvenient”. She states that in such situations, there is malafide right from the beginning as the situation is becoming too brazen and other Courts must take cognisance of the matter.

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