‘Granting of bail, once a routine matter, is now subjected to magnified judicial scrutiny coupled with the mounting fear of justifying the grant of bail with valid reasons.’ – Prof (Dr) Shruti Bedi

Shruti Bedi is Professor of Law at the University Institute of Legal Studies, Panjab University. She teaches the core course on Indian Constitution Law and elective course on Internal Security Law in addition to the Master’s course on Comparative Public Law (LL.M). Her areas of research are constitutional law, counter-terrorism law and comparative public law. She has been a gold medalist for eight consecutive years in her B.Com (Hons), LL.B and LL.M. Her doctoral work was on counter-terror law. She has authored two books and co-authored four books.   

Q. In addition to being a Professor of Law, you are Director at the Centre for Constitution & Public Policy at Panjab University. Could you tell our readers about the Centre and its functions? 

At the heart of the Indian legal regime lies the Constitution of India, which promises justice, liberty and equality to its people. With the intention to lead research in contemporary issues of constitutional law and public policy, CCPP engages with the academia, advocates, professionals, policy makers, legislators, researchers etc. It seeks to develop interdisciplinary interests in issues concerning constitutionalism, constitutional philosophy, comparative public law and law in general including diverse concerns on justice, equality and accountability. To further the same the Centre conducts national/international conferences, seminars, webinars, discussions in addition to publication of research work. It is a forum for the faculty, scholars and public intellectuals to pursue assorted interests in relevant areas concerning constitutional law. 

Q.  You have co-authored a book titled Law and Media. ‘Trial by media’ has been a topic of critical contention for many years now. Would you agree that the media’s invasive gaze, especially in sensitive cases, tends to put pressure on law enforcement agencies and causes unfair negative public perception of the legal system? What can be done to prevent this?

It is a proven fact that ‘trial by media’ results in prejudice being caused to sub judice matters and interferes with the administration of justice. In a time when free speech rights need to be zealously guarded, there is also a commensurate requirement for regulating media speech in view of the accused’s right to a fair trial. Undoubtedly, media has played a significant role ensuring justice. Some examples for cases where the guilty would have gone unpunished but for media intervention are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case etc. As opposed to this an instance where the media had an adverse impact is the reporting of the Aarushi Talwar case.

Except for the restrictions imposed on the fundamental freedom of speech and expression under Article 19(2) of the Indian Constitution, there is no specific legislation in India for regulating media trials. A legislation which has been used obliquely in this regard is the Contempt of Courts Act, 1971. Under this Act, pre-trial publications are sheltered against contempt proceedings. Any publication that interferes with or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding, which is actually ‘pending’, only then it constitutes contempt of court under the Act. The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the Contempt of Courts Act, 1971), has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of arrest to investigation and trial. 

Additionally, the Press Council Act, 1978 has established a set of suggested norms for journalistic conduct. These norms emphasize the importance of accuracy and fairness and encourage the press to “eschew publication of inaccurate, baseless, graceless, misleading or distorted material.” The norms urge that any criticism of the judiciary should be published with great caution. But significantly, these norms cannot be legally enforced, and are largely observed in breach. Lastly, the PCI also has criminal contempt powers to restrict the publication of prejudicial media reports. However, the PCI can only exercise its contempt powers with respect to pending civil or criminal cases. This limitation does not consider the extent to which pre-trial reporting can impact the administration of justice. Therefore, the legal norms regulating journalistic conduct remain ineffective till the time we have a specific legislation on the issue.

Q. You recently wrote an article ‘Bail Jurisprudence remains a Blurred Legal Arena’. Could you briefly elaborate on the topic?

The law of bail seeks to harmonize two conflicting demands, one the necessity of society to be shielded against the dangerous propensities of an accused and second, the fundamental canon of criminal jurisprudence – the presumption of innocence. Clarifying the law, the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs (1973), observed that “in a barbaric society you can hardly ask for bail; in a civilised society you can hardly refuse it are more than an epigram, subject only to the tests of considerations laid down from time to time by the imprimatur of judicial decisions…”

Questions, therefore, arise as to the circumstances of denial of bail. Is it to prevent flight from justice, tampering of evidence, protection of society from further crime or to inflict pre-trial punishment? The legal framework within which the judges must operate, is ambiguous. The large variance in the decisions remains unexplained. Since the jurisdiction of the courts in matters of bail is discretionary, there are conflicting opinions given by the Supreme Court on whether reasons are to be provided by the lower courts for grant/refusal of bail. Granting of bail, once a routine matter is now subjected to magnified judicial scrutiny coupled with the mounting fear of justifying the grant of bail with valid reasons. Care and caution must be exercised by balancing the valuable right of liberty of an individual and the interest of the society in general.  

Q. Alternate Dispute Resolution is definitely the way forward. There has been a huge emphasis on mediation and arbitration in the recent times and for good reason. But the Arbitration scenario in India faces criticism for not being up to the mark especially in comparison to some other countries. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?

Arbitration in India has gained significance as a preferred mode of dispute settlement. However. in comparison to other countries India may not be the preferred international arbitration destination. This is due to factors such as the time taken in resolution, considerable judicial intervention, cost factor, difficulty in enforcing both domestic and international awards, and the subjective grounds for appeals based on public policy. These are major issues that deter foreign investors and parties from choosing India as an international arbitration destination. The 1996 Act specifically prohibits judicial intervention in Indian arbitration. Despite this, the courts in India frequently intervene with arbitrations, from adjournments to appeals. This acts as a huge deterrent and makes India an unenviable option for arbitration. 

Q. Counter terror laws across the world are often criticised for causing rights violations (such as keeping suspects in detention without charges or trial for long periods of time; making security and probe agencies less accountably for unlawful behaviours towards suspects/accused, etc). Since terrorism is a crucial issue, how can a balance be maintained in anti-terror laws to ensure that the human rights of suspects and accused persons are not violated? 

In an age where threat to security and safety of citizens of the world is at its highest peak, the enactment of anti-terror laws is inevitable. However, in the process of securing individuals and offering them protection, governments often take liberty with the rule of law in a democracy. However, if we do not protect democracy, democracy will not protect us. Accordingly, we must exercise caution and legislations which violate the non-derogable rights should not be enacted. Laws which allow shoot to kill powers, or those which enable confessions obtained through the use of torture or cruel, inhuman or degrading treatment to be admitted as evidence, should not make it to the drafting table. Additionally, respecting the role of an independent judiciary along with incorporating mechanisms for periodic review of the operation of counter-terror legislations is an essentiality. Introducing stronger human rights protections will sustain the vigil for democracy and rule of law, which will be a resilient move towards achieving the balance between liberty and security.

Q. You often interact with faculties at law schools and other institutes abroad, especially in the UK. Do you think there is a difference between the way academics in the legal profession function in India and the West? 

As a result of my interactions with international academics, I have come to appreciate the existence of a sagacious work culture and certain work ethics amongst the faculty abroad. There is a high level of dedication towards work in these institutions, which is an expected norm amongst the academic world in general. The quality of education being imparted is not compromised for any reason, and this attitude helps in sustaining the desired standards. Further, the level of competitiveness present amongst the academia ensures an increased level of efficiency.

Producing quality research work in any area is a reflection of the rank and level achieved by any institution. In UK, the faculty is provided with clear dedicated hours during the week for research work. The institution divides the faculty time into teaching hours and research hours. Most importantly, the faculty cannot be disturbed during research hours and this allocation of devoted time for research is a part of their schedule. This is a significant factor in ensuring quality research. As opposed to this, in India the faculty members are required to juggle regular teaching along with inane administrative work which may not even be a part of the job structure, but it falls on their shoulders on account of the inefficiency of the administrative staff. Any research undertaken by academics in India, is carried only during their personal time. This resultantly impacts the quality of work produced and leaves the faculty with a feeling of dissatisfaction. 

Q. The coronavirus pandemic has changed the way we live and work, and the change has probably hit educational institutions the most. How have you adapted to the lifestyle changes, both personally and professionally, that have been brought about by the pandemic? 

It is an accepted fact that change is the only constant. The pandemic has left the world grappling with the destruction of life and lifestyle. It is time to wake up and proactively participate in resolving the evils that the virus leaves behind. The state and society must join hands to combat the new challenges. At a professional level, I have tried to meet new goals of quality research work accompanied by academic reading and writing. The advantage that the pandemic has brought is the easy accessibility to the international academia. It is easy to publicly participate and reach out to the citizens of the world through online platforms. I have been fortunate to interact and share knowledge with academics from 16 different countries during this time. At the personal level, there has been a pleasant increase in time spent with family and helping different members achieve distinct targets. Waking up as usual at 5 a.m., followed by exercise and work has helped me to meet my mission with ease and enthusiasm.

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