Pankaj Kumar Vs State of Maharashtra and Ors on 11 Jul 2008

Posted on February 17, 2021 by ShadesOfKnife

In this landmark judgment, Apex Court held that Right to speedy trial is implicit to Article 21 of Constitution of India and also passed guidelines to ensure that this right is not violated, and it violated, Constitutional Courts have a duty to fix such violation appropriately.

From Para 14,

14. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union of India & Anr., in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, this Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be ‘reasonable, fair and just’; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

From Para 15,

15. The exposition of Article 21 in Hussainara Khatoon’s case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr.11. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is —
who is responsible for the delay?;
(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on— what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors—’balancing test’ or ‘balancing process’—and determine in each case whether the right to speedy trial has been denied;
(vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint;
(ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

From Para 17,

17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.

Pankaj Kumar Vs State of Maharashtra and Ors on 11 Jul 2008

Citations : [2008 RCR CRI 4 890], [2008 AIR SC 0 5165], [2008 JT 8 109], [2008 AIR SC 3077], [2008 RAJ 6 293], [2008 SCC 16 117], [2008 WLC 2 677], [2008 MLJ CRI 2 1649], [2009 SCJ 1 998], [2008 SCALE 9 760], [2008 CCR 3 176], [2008 DLT CRI 3 533], [2008 SLT 6 233], [2008 AIOL 2116], [2008 ANJ SC 2 173], [2008 BOMCR CRI SC 2 590], [2010 SCC CRI 4 217], [2008 AIC SC 68 93], [2009 LLN 2 798], [2009 FLR 122 790], [2008 CRLJ SC 3944], [2008 AIR SCW 5165]

Other Sources:

https://indiankanoon.org/doc/1223002/

https://www.casemine.com/judgement/in/5609ae6ae4b0149711413c8f

Subhranshu Rout @ Gugul Vs State of Odisha on 23 Nov 2020

Posted on November 25, 2020 by ShadesOfKnife

Single judge bench of Orissa High Court, in this bail matter, held that right to be forgotten (or left alone) is part of bouquet of rights enshrined in Article 21 of the Constitution.

From Para 5,

5. While examining the pages of the case records, prima facie, it appears that the petitioner has uploaded the said photos/videos on a social media platform i.e. Facebook and with the intervention of the police, after some days, he deleted the said objectionable contents from the Facebook. In fact, the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away. Under the Indian Criminal Justice system a strong penal action is prescribed against the accused for such heinous crime but there is no mechanism available with respect to the right of the victim to get the objectionable photographs deleted from the server of the Facebook. The different types of harassment, threats and assaults that frighten citizens in regard to their online presence pose serious concerns for
citizens. There is an unprecedented escalation of such insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from server of such social media platforms like facebook. Though the statute prescribes penal action for the
accused for such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved. There is a widespread and seemingly consensual convergence towards an adoption and enshrinement of the right to get deleted or forgotten but hardly any effort has been undertaken in India till recently, towards adoption of such a right, despite such an issue has inexorably posed in the technology dominated world. Presently, there is no statute in India which provides for the right to be forgotten/getting the photos erased from the server of the social media platforms permanently. The legal possibilities of being forgotten on line or off line cries for a widespread debate. It is also an undeniable fact that the implementation of right to be forgotten is a thorny issue in terms of practicality and technological nuances. In fact, it cries for a clear cut demarcation of institutional boundaries and redressal of many delicate issues which hitherto remain unaddressed in Indian jurisdiction. The dynamics of hyper connectivity- the abundance, pervasiveness and accessibility of communication network have redefined the memory and the prescriptive mandate to include in the technological contours is of pressing importance.

From Para 14,

14. Section 27 of the draft Personal Data Protection Bill, 2018 contains the right to be forgotten. Under Section 27, a data principal (an individual) has the right to prevent continuing disclosure of personal data by a data fiduciary. The aforesaid provision which falls under Chapter VI (Data Principal Rights) of the Bill, distinctly carves out the “right to be forgotten” in no uncertain terms. In terms of this provision, every data principal shall have the right to restrict or prevent continuing disclosure of personal data (relating to such data principal) by any data fiduciary if such disclosure meets any one of the following three conditions, namely if the disclosure of personal data:
(i) has served the purpose for which it was made or is no longer necessary; or
(ii) was made on the basis of the data principal’s consent and such consent has since been withdrawn; or
(iii) was made contrary to the provisions of the bill or any other law in force.
In addition to this, Section 10 of the Bill provides that a data fiduciary shall retain personal data only as long as may be reasonably necessary to satisfy the purpose for which it is processed. Further, it imposes an obligation on every data fiduciary to undertake periodic reviews in order to determine whether it is necessary to retain the personal data in its possession. If it is not necessary for personal data to be retained by a data fiduciary, then such personal data must be deleted in a manner as may be specified.

Subhranshu Rout @ Gugul Vs State of Odisha on 23 Nov 2020

Index of Article 21 case laws is here.

Additional District Magistrate, Jabalpur Vs S. S. Shukla Etc. Etc on 28 April, 1976

Posted on December 6, 2018 by ShadesOfKnife

This judgment is considered a stain on the history of the court, which had delivered a judgment that has trummelled on the rights of citizens.

Case background:

The President of India, during the Emergency, made such a proclamation and many people were detained under various laws. Some of them moved high courts seeking a writ of habeas corpus. The Government said, since the right to move courts for the enforcement of Article 21 is suspended, the petitions were not maintainable.

Real Story:

https://en.wikipedia.org/wiki/Hans_Raj_Khanna#The_Habeas_Corpus_Case

https://www.bloombergquint.com/opinion/vr-krishna-iyer-the-super-judge#gs.89TGyeW0

Hon’ble Court rules:

The 4 out of 5 judges on the bench held that “The width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President. The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control. An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency”

Justice Hans Raj Khanna is the sole dissenting voice on the bench and after referring to earlier A.K.Gopalan case he held that “The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and, therefore, it cannot be said that the resulting situation would mean the absence of the Rule of law cannot stand close scrutiny for it tries to equate illusion of the Rule of Law with the reality of Rule of Law.“

And “The suspension of the right to move a court for the enforcement of the right contained in Art. 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The pre-supposition of the existence of substantive power to deprive a person of his life or personal liberty in Art. 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of Art. 21, the suspension would also dispense with the necessity of the existence of the substantive power The co-existence of substantive power and procedure established by law for depriving R person of his life and liberty which is implicit in Art. 21 would not lead to the result that even if there is suspension of the right regarding procedure, suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that proposition. The suspension of the right to make. any court for the enforcement of the right contained in Art. 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise.. Of substantive power to deprive a person of his life or personal liberty, it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power. The close bond which is there between the existence of substantive power of depriving a Person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in Art. 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power.”

Final Words

There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders.

The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well-established.

Unanimity obtained without sacrifice of conviction commends the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort.

A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed.

Observation: Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognise than that unanimity should be secured through its sacrifice.

Additional District Magistrate, Jabalpur Vs S. S. Shukla Etc. Etc on 28 April, 1976

Citation: AIR 1976 SC 1207, 1976 SCR 172, 1976 SCC (2) 521

Indiankanoon link: https://indiankanoon.org/doc/1735815/

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A.K. Gopalan Vs The State Of Madras, Union Of India on 19 May, 1950

Posted on December 6, 2018 by ShadesOfKnife

This is one of the foremost judgments on the interpretation of Article 21 of Constitution of India. It was delivered by a constitutional bench of 6 judges including Hon’ble CJI, Shri Kania, Hiralal J.

Case background:

Mr. A.K. Gopalan was a communist leader who was detained to the Madras Jail, under Preventive Detention Act, 1950 and he challenged his detention by stating that, his personal liberty was being hampered as he had the right to equality of law.

Hon’ble Court rules:

The court held that the word used in Article 21 just meant procedural due process and since the preventive detention law under which Gopalan was detained was a valid law, Gopalan’s detention was lawful even though that law may have violated some of his other Fundamental Rights such has his Right to Freedom of Movement under Article 19, or, the detention was arbitrary under Article 14.

This doctrine is commonly known as “procedural due process”.

A.K. Gopalan Vs The State Of Madras, Union Of India on 19 May, 1950

Citation: AIR 1950 SC 27, 1950 SCR 88

Indiankanoon link: https://indiankanoon.org/doc/1857950/

The index page is here.

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Tag: Right to Personal Liberty

Pankaj Kumar Vs State of Maharashtra and Ors on 11 Jul 2008

Subhranshu Rout @ Gugul Vs State of Odisha on 23 Nov 2020

Additional District Magistrate, Jabalpur Vs S. S. Shukla Etc. Etc on 28 April, 1976

A.K. Gopalan Vs The State Of Madras, Union Of India on 19 May, 1950