The Supreme Court has been liberal while adjudicating matters related to personal liberty and that is the way it should be, Justice (retired) Madan B Lokur said on Friday.
He said the writ of habeas corpus is important and should be issued liberally because when you are talking about preventive detention, you are talking about putting a person without a trial. A writ of habeas corpus is filed in case a person is confined in an alleged illegal or unlawful detention.
Speaking at a webinar titled 'Defending Liberties', hosted by the Delhi High Court Women Lawyers Forum and Women in Criminal Law Association, he also supported the idea of day-to-day trials under special acts and cautioned ideology coming in the way of legal profession.
"In the past, you would find very few cases where a person has not been given relief under a writ of habeas corpus. Courts have even said that even when a petition for habeas corpus has been dismissed, another can be filed. So, it is not as if that once the writ petition is dismissed, that is the end of the road," he said.
Justice (retd) Lokur said the Supreme Court has been liberal on habeas corpus petitions, and that's the way it should be and added that the top court has even said that a person does not have to file a petition and it can even be a postcard.
Justice Lokur recalled that when he was serving at Gauhati, he even entertained an SMS alleging illegal detention in jail as a habeas corpus.
In the Webinar, hosted by law portal Bar & Bench, Justice Lokur was interacting with advocates Tara Narula, Shalini Gera, Sowjhanya Sukumaran and Warisha Farasat.
On a question, whether it was possible to incorporate the need for day-to-day trials in cases under special acts (like Prevention of Corruption Act and Prevention of Money Laundering Act) where the detention period is longer, he replied in affirmative and said "Yeah, it must be done" and added, however, there may be practical difficulties.
Advocate Narula posed a question on media trial and referred to actor Sushan Singh Rajput''s death case and how WhatsApp chats were put in the public domain.
"How do we tread the line? Do we fight fire with fire?," she asked.
To this, Justice Lokur said there are two answers to it.
"First, is to fight fire with water. Ask the court why is this happening? Why are WhatsApp messages etc. coming to the public domain?
"If the court does nothing, then maybe fight fire with fire. But first, go to the court. Even in the Sushant Singh Rajput case, where did the WhatsApp messages come from? Must be from prosecuting agencies or someone else," he said, adding that the court is bound to ensure a fair trial. If not, maybe fight fire with fire.
Advocate Sukumaran said the term 'activist Lawyers'' is often used as an insult and scathing remarks are made by judges in court and even orders are written trying to cast aspersion on why a particular lawyer would take a particular case and that this becomes particularly difficult for women lawyers.
She added that some people opine that you can either be a lawyer or and an activist and not both and asked what can be done to overcome this problem.
Advocate Farasat also said that this is a worrying trend in the last two or so years and said that ideology must be put aside and the Bar must come to support.
Justice Lokur said "By and large, ideology should not come in the way of your professional assignment. If it does, it means you are not going to defend someone who does not share your ideology. Ideology and the profession should be kept apart.
"There may be instances where you might find where it is better to sacrifice...for the sake of maintaining ideology, that should happen on very, very rare occasions," he said.
On the point of remarks being made by some judges criticising lawyers, he said that it is very unfair to target a lawyer on the ground of ideology or because the advocate is appearing for a particular kind of client.
Advocate Gera said she was of the view that there has been a quantum shift in the way the state is treating lawyers who are defending dissidents. People are getting targetted as 'jihadi lawyers'' and 'naxalite lawyers'', she said.
On the question that if Justice Lokur thinks that it is different for the way women and men are treated in the Bar?, he said when he started the career, there were very few women lawyers.
"They were tolerated if you understand what I mean. But over the years, from the 1970s, the women lawyers have increased. The number of women judges have increased. 1978 was when the first woman lawyer was appointed judge
"There definitely has been a shift. Whether they have been discriminated, I don''t know. In the Supreme Court, I don''t think there has been discrimination. I have been out of touch at the Delhi High Court, I would be very surprised if someone says there is discrimination," he said.