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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

Written by Utkarsh Anand |
Updated: February 18, 2021 12:00:56 pm
Image source: Indian Express
shahabuddin, shahabuddin jail, tihar jail, supreme court, shahabuddin trial, rjd leader shahabuddin, shahabuddin case, shahabuddin in tihar, tihar jail delhi RJD leader Mohammad Shahabuddin was brought from Bihar to be lodged in Delhi’s Tihar Jail earlier this month. Prem Nath Pandey/Archive

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.

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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.

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First published on: 18-02-2021 at 12:05:59 am
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