This month, India Law Journal’s Associate Director Mr. Vikrant Pachnanda and Vikramadiya Singh Malik, student, NALSAR University of law, spoke to Mr. Sidharth Luthra, Senior Advocate, Supreme Court of India and discussed with him his views on various topical issues related to amendments to the Cr.PC which are being proposed by the government.
Ques: Recently the union cabinet had decided to bring amendments to the Cr.P.C. The first proposal is to help rape victims by having women judges and conducting the trial in the home of the victims to prevent them from getting embarrassed. What are your views on this?
Ans: The Criminal Justice System has to ensure that the rights of both the accused and the victim are considered, as the accused is entitled to a free and fair trial. Judges, irrespective of gender are duty bound to look at all matters including matters of rape with utmost sensitivity, while upholding the rights of both, the victim and the accused. In cases of sexual offences, there is a viewpoint that a victim is likely to find a female judge, more sensitive and less intimidating. What is really required is sensitization of judiciary for all offences and specially offences relating to violations of the human body such as rape.
Ques: Another proposal is to conduct an in-camera trial of rape cases, video recording of the statement of witnesses and the presence of a lady police officer for the same? Do you feel that this proposal if implemented would be purposeful?
Ans: In my view they would help in ensuring that victims of rape are provided with an environment where they can depose without fear or pressure. However the right of an accused to effective cross examination would need to be ensured and likelihood of tutoring by the police officer or third parties ruled out.
Ques: Do you think that the judiciary gets pressurized on giving its verdict when the media interferes like in the Jessica Lal case or the Nitish Katara case?
Ans: In my view, at the final stage, the Judiciary does not and ought not to get affected by media reporting such matters. What gets affected by media pressure is the public perception of such cases that may result from the various interpretations by the media which may or may not be accurate. Judges decide matters based on evidence and the principles of law in relying on the evidence to adjudge innocence or guilt. If evidence of guilt or innocence is overlooked by the trial court, the right of appeal and the remedies of revision (if applicable) as also under Article 136 of the Constitution (Special Leave to appeal) exist and can be used to set right such decisions.
Ques: What are your views on the independence of the judiciary and do you feel that the judicial shelter is focused on activism or overreach?
Ans: The Judiciary is an independent body that has its own views and counter views. It is a dynamic body, the actions of which may certainly be focused on Activism at some points of time and in some areas of the law, as also conservatism in other cases in given fact situations. The judicial system is made up of individuals and just as society changes its views and perceptions, similarly judicial views are dynamic and within the ambit of the Statutory law Courts apply and interpret the law in the context of issues that arise before them.
Ques: Why is it that very few women are appointed as Senior Advocates taking into account that Ms. Indu Malhotra who is currently a Senior Advocate in the Supreme Court is only the 2nd woman to have become a senior advocate in the Supreme Court?
Ans: The ratio of men and women enrolled in the Bar would show that men definitely traditionally had constituted a far larger section in the litigation community. In recent years various High Courts too have designated lady lawyers as Senior Advocates. However, there is certainly a greater need for more lady lawyers to be designated as Senior Advocates, based on their merit and professionalism, which is no different from their male colleagues. With greater women joining the profession and excelling at litigation the number of lady Senior Advocates should increase in the coming years. "