The SC order to transfer Shahabuddin from Siwan jail to Tihar prison in Delhi not only provides the relief sought by petitioners but also offers a strong legal reasoning to back it
~Parsa Venkateshwar Rao Jr
On the face of it, the plea of Asha Ranjan—wife of Hindustan’s Siwan bureau chief, Rajdev Ranjan who was killed on 13 May 2016 allegedly by politician and convict Shahabuddin’s henchmen—that Shahabuddin be transferred to a prison in Delhi, that Central Bureau of Investigation (CBI) should take over the case and judicial proceedings should take place in Delhi, carried much sense. But the Court had to find a way out to reach the same conclusion, not so much through a circuitous reasoning but through fair weighing of arguments and counter-arguments.
Ordinary people who run into him, as did Rajdev Ranjan, cannot turn to the local administration for protection because his writ runs in the area and officials are seen to be powerless when they have to take action against him.
Four-time Member of Parliament and two-time Member of the Legislative Assembly, Shahabuddin is a powerful politician of the Rashtriya Janata Dal (RJD), and his writ runs with the district administration. He has been convicted in 10 of the 75 cases filed against him, and is considered a “history-sheeter Type A (beyond reform)”. The gangster-turned-politician faces life imprisonment in two cases and 10 years of rigorous imprisonment in one. Forty five cases are pending against him, and he has been acquitted in 20.
The first criminal case was filed against him in 1986, and in 1996 when he and his associates fired at Superintendent of Police SP Singhal, he was sentenced to 10 years of rigorous imprisonment. His name came up in connection with the murder of Jawaharlal Nehru University (JNU) students’ union president Chandrashekhar in 1997. In 2002, when there was a police raid at his house, police vehicles were burnt. And during raids in 2001 and in 2005, ammunition was recovered from his house.
The judgment delivered by Justice Dipak Misra for the Division Bench comprising Justice Amitava Roy not only provides the relief sought by the petitioner but also offers strong legal reasoning to back it. It is with regard to this aspect that the judgment assumes immense importance.
Justice Misra, who delivered the judgment observes: “The stand and stance put forth in the petitions and the arguments advanced by Mr Shanti Bhushan and Mr Dushyant Dave, sometimes one may be inclined to think, are in the realm of rhetorics…” and he takes cognizance of counsel for Shahabuddin, senior counsel Shekhar Naphade’s contentions.
Justice Misra says, “The seminal issue that we are required to address is whether this Court, in exercise of power under Article 32 and Article 142 of the Constitution can direct transfer of an accused from one State to another and direct conducting of pending trials by way of video conferencing.”
Naphade contended, says Justice Mishra, that “for the purpose of transferring an accused from the State of Bihar to a prison outside the State there must exist a law on the statute book which permits such transfer. In the absence of any law, it is not permissible in law to issue any direction for such transfer.” He argued that “Article 142 does not empower this Court to enact law and transferring the third respondent (Shahabuddin) from Bihar to any other prison outside the State would amount to the Court enacting the law and then exercising the judicial power to enforce the law.”
The Court went back to Prisoners Act, 1900, and to Section 29 in it which provided for the inter-state transfer of prisoners, which was amended by Parliament in 1950, which provided for the circumstances under which prisoners can be transferred from one state to another. Then it referred to the case, Sunil Batra vs Delhi Administration and Others, where the appeal came for transfer because a prisoner was brutally assaulted by the Head Warden. The court’s intervention became necessary because “a healing presence of the law to live up to its reputation as bastion of liberty even within the secrecy of the hidden cell.”
The judgment than cites the words of the Court’s judgment in this case: “Therefore, inside prisons are persons and their personhood, if crippled by law-keepers turning law-breakers, shall be forbidden by the writ of this Court from such wrongdoing. Fair procedure, in dealing with prisoners, therefore, calls for another dimension of access to law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates.”
Coming back to the specifics of the case before it, the Court says, “The interest of the victim is relevant and has to be taken into consideration. The contention that if the accused is not shifted out of Siwan jail, the pending trials would result in complete farce, for no witness would be in a position to depose against him… is not an artifice and cannot be ignored.”
The Court goes on to assert, “It would be travesty if we ignore the assertion that if the respondent No. 3 is not shifted from Siwan jail and the trial is held at Siwan, justice, which is necessitous to be done in accordance with law, will suffer an unprecedented set back and the petitioners would remain in a constant state of fear that shall melt their bones.”
The Court arrives at the conclusion: “The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victims(s) and the society at large. These factors would collective allude and constitute the Rule of Law, i.e., free and fair trial.”
It was necessary for the Court to argue meticulously that while the accused enjoys the fundamental right to fair trial implied in Article 21—Right to life—of the Constitution, this right of the accused has to be balanced with the right of the victim as well to Article 21.
Judicial decisions cannot be peremptory even if they are right. Legal reasoning is the sine qua non to carry conviction with the accused as well as the victim, apart from society at large. That is why the judicial process is an important part of the system of delivery of justice.
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