The Indian Express (Delhi Edition)
When two opposing sides claim the same right: SC shows way
Lays down principle of ‘interest of collective or social order’ in cases of ‘intra-conflict’ of fundamental right
THE SUPREME Court order on moving RJD leader Mohammad Shahabuddin from Bihar’s Siwan jail to Tihar Jail in Delhi has laid down an important precedent for situations in which two sides assert the same fundamental right to oppose each other.
A body of judgments has recognised the right to free and fair trial as implicit under Article 21 of the Constitution, which guarantees the fundamental right to life and liberty. Shahabuddin invoked this right to counter the plea to transfer him out of Bihar, where he faces trial in 45 cases. On the other hand, Asha Ranjan, wife of slain journalist Rajdev Ranjan, and Chandrakeshwar Prasad, father of three youths who were allegedly killed on Shahabuddin’s orders, too banked on their right under Article 21 to argue that a free and fair trial was not possible in Bihar, where Shahabuddin wields considerable influence as a gangster-turned-politician.
The question before a Bench of Justice Dipak Misra and Justice Amitava Roy was to resolve this “intra-conflict” of a particular fundamental right when two opposing parties pressed it in the criminal justice delivery system.
The Supreme Court has earlier stepped in to balance two fundamental rights when they competed with each other: right to reputation (defamation) Vs right to free speech, and right to privacy Vs right to health (in a case of an HIV positive patient). In Rev. Stainislaus Vs State of Madhya Pradesh and Ors, the top court examined whether the right to propagate religion under Article 25(1) would also entail the right to convert a person to one’s own religion. It ruled in the negative, putting ‘freedom of conscience’ on a higher pedestal in Article 25(1). “What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s own religion,” the court said.
Shahabuddin’s transfer however was a unique case, since there were no two rights competing with each other but only one right being hinged upon by two sides to seek orders against each other. ■ ■ ■
The Prisoner’s Act, 1950, does not prescribe the transfer of an undertrial from one state to another. For a certain class of prisoners, such as those on death row, the Act makes the provision for transfer, but such a request has to originate from a state government and another state government has to accept it. The Bihar government, in this case, had not sought the transfer.
Further, the apex court, in various judgments — including in D Bhuvan Mohan Patnaik Vs State of Andhra Pradesh and Ors (1975), Sunil Batra Vs Delhi Administration (1978) and State of Maharashtra Vs Saeed Sohail Sheikh and Ors (1980) — has stated that the fundamental rights of a prisoner will not get suspended or “congealed into animal existence without the freshening flow of fair procedure” under Article 21.
The D Bhuvan Mohan Patnaik judgment said: “Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied.”
On the other hand, victims too have invoked Article 21 — reasoning that justice would be the first casualty in an atmosphere of fear, and that a trial court in an area where terror reigns would be reduced to a farce. The right to a free and fair trial is not a one-way street, it has been argued, and victims must have a voice in the criminal justice system.
With opposing sides pitching the same right against each other, the jurisprudential lead came from the Supreme Court in 2005 in the case of another politician from Bihar, Pappu Yadav, now the Lok Sabha MP from Madhepura. Yadav was found addressing an election meeting at a time when he was supposed to have been in jail as an undertrial in a murder case, and a court ordered his arrest. He was, however, sent to hospital instead of prison. The matter reached the Supreme Court, and it was argued that transferring Yadav from Patna’s Beur Jail to a jail outside Bihar would affect his fundamental right. The Supreme Court, however, noted that the authority of the court could not be circumscribed to meet certain exigencies and exceptional circumstances, and Yadav was ordered to be moved to Delhi’s Tihar Jail. It was also kept in view that Yadav’s wife and children were residents of the national capital, and the transfer would not violate his basic rights. ■ ■ ■
The judgment in Shahabuddin’s case, authored by Justice Misra, examined laws and judicial precedents in detail before laying down the principle of “interest of the collective or social order” that must act as a test whenever “intra-conflict” of the same fundamental right is at the centre of a legal dispute.
Justice Misra wrote that “sustenance of public confidence in the justice dispensation system” should guide all constitutional courts to ascertain the “greater community interest” in recognising the right of one of the two parties, which has to be protected as the “paramount collective interest”. It must be kept in mind, however, that the interest of the collective subserves a legitimate public purpose, and is not an idea such as “class honour”, which may seek, for example, to curtail a woman’s right to make choices in life.
The judgment ruled that not only competing fundamental rights but also competing claims under the same fundamental right require to be balanced, and a decision has to be made that galvanises the public interest and restores the faith of the collective in the criminal justice dispensation system.
The judgment is in step with the maxim that the law is not static, and must change with the times. It affirms that a free and fair trial must also cater to victims when they speak as a collective and as society’s conscience, and shows how a constitutional court can devise ways to protect the larger public interest. ON SUNDAY at the Mobile World Congress in Barcelona—thechosenlaunchvenueofmany smartphonemakers—nokiabroughtbackone of its most iconic creations. The Finnish tech major announced the relaunch of the classic Nokia 3310 — in a rejuvenated version with a colour screen, and in colours that would have beenunimaginablewhenthehandsetwasfirst launchedatthesameconferencebackin2000.
While Nokia has all but vanished from smartphone shops over the past year, the brand continued to sell feature phones — phones which can access the Internet and play music but can’t do all the other things that smartphones can — and does reasonably well in that space. It is, in fact, behind only Samsung globally in feature phone shipments now.
It remains to be seen, however, if the Nokia 3310 will be able to make inroads in this segment, especially with a price tag of around Rs 3,500 (Euro 49) in India. The Indian user is likely to find that expensive for a feature phone, and would rather get an affordable smartphone instead.
Should that happen, the 3310 will likely end up as a collector’s item, or one preferred by users who have made a conscious choice to not use a smartphone. It is unlikely it will become a volume player in markets like India. There is only so much that nostalgia can sell.
Before announcing the relaunch of the 3310 at Barcelona, however, the company that gave most of the world’s connected population their first cellular phone, unveiled a set of smartphones — aiming, apparently, to woo those who have never before used a device from the legacy brand.
The Nokia 6, Nokia 5 and Nokia 3, with varying screen sizes and placed at different price points, feature metallic bodies and promise to stand out for Nokia’s well known build quality. They will also have a version of pure Android, so far seen only on Google’s Pixel phones and Moto devices. The phones will be brought to the market by HMD Global, the Finland-based startup to which Nokia has given the rights to build, sell and distribute devices bearing its brand name.
The Nokia 6 was announced earlier in China, where it raked in over a million prebookings in a few hours. This phone will become available globally, including in India, in the second quarter of this year. Priced at € 229 (Rs 16,000), the Nokia 6 will be the premium offering, though priced in the mid range. There is no real flagship for now, but a phone with high-end specs, including a top-of-the-line processor and superior camera features, can be expected later in the year. All the devices announced now — priced between € 139 (Rs 10,000) and € 229 — are in the super-mid segment which gets most smartphone volumes. If these devices are successful, a more affordable smartphone in the € 80 (Rs 5,700) range can be expected, as Nokia goes for the kill.
The best thing about Nokia’s rebirth is the factthatitisnottryingtoohardtosellitslegacy phonemaker status. It is clearly aiming for users who have never experienced a Nokia before — and the metal body, pure Android and affordable price tag should help. It seems set to challenge the Moto G series — which coincidentally announced its new phones at the same time in Barcelona — with the pure Android and no-nonsense design as USPS.