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Chauhan Response To Prashant Bushan, Kanhaiya's PIL Filing
Chauhan Response To Prashant Bushan, Kanhaiya's PIL Filing
Chauhan Response To Prashant Bushan, Kanhaiya's PIL Filing
Kamini Jaiswal,
43, Lawyers, Chamber,
Supreme Court of India,
New Delhi 110001.............................................................Petitioner,
v.
1.
2.
3.
4.
5.
Union of India,
Ministry of Home Affairs
Thr. its Secretary
North Block
Central Secretariat
New Delhi 11000,
Delhi Police,
Thr. The Commissioner of Police,
I.P. Estate, ITO,
New Delhi
Vikram Singh Chuan,
Advocate
Through;
Bar Council of India
21, Rouse Avenue Institutional Area,
Near BalBhawan,
New Delhi 110002
Yashpal Singh,
Advocate
Through;
Bar Council of India
21, Rouse Avenue Institutional Area,
Near BalBhawan,
New Delhi 110 002
Om Sharma
Advocate
Through;
Bar Council of India
21, Rouse Avenue Institutional Area,
Near Bal Bhawan,
New Delhi 110 002 ............................................ Respondents.
TO,
THE HONBLE THE CHIEF JUSTICE OF INDIA AND HIS
COMPANION JUDGES OF THE SUPREME COURT OF INDIA:
3
and, if found guilty, take consequent action there upon in exercise of
the constitutional provisions; [and]
Pass such further and other orders as the Court may deem fit in
the interest of justice and circumstances of the present case.
Writ Petition (CRL) No. 32 of 2016 ("WP). And to provide gravity to this
PIL, Ms. Jaiswal on penalty of perjury affirmed with the following barebone statements:
That I have read the contents of the List of dates and
Synopsis (Pages B to I), Writ Petition (Pages 1 to 19, para 1-10) and
the contents of the same are believed to be true and correct to the
best of my knowledge and based on the records of the case.
I further state that all the Annexures to this Writ Petition
are true copies of their respective originals. The instant public
interest litigation is being filed without guided by any personal
interest, private motive or oblique reasons.
Ibid. P. 20. The Petitioner also attached some media and interested
parties' affidavits [including those who are counselors for the petition
subject, Kanhaiya Kumar]. With such gaunt media-fed impressions of
incidents and self-arrogated perception of factual background, Ms.
Jaiswal and her advocate Mr. Bhushan asserts this PIL. This PIL
requisitions a very dramatic relief, i.e. constitution of "Special
Investigation Team" ("SIT") and issuance of sua sponte contempt
proceeding against Vikram Chauhan (Chauhan), Yashpal Singh, and
Om Sharma. This is simply untenableprocedurally and substantively-in law and equity. And this PIL must be dismissed for abuse of process
of CourtThere have been, in recent times increasingly instance of abuse
of PIL. Even if someone is wronged, PIL is not a not a pill or a panacea
for all wrongs. Chairman & M.D. B.P.L. Ltd v. S.P. Gururaja (2003) 8 SCC
567. Moreover the subject of the PIL is not the Petitioner, but
vicariously, one Kanhaiya Kumar (Kumar).
Kanhiya Kumar Cannot be a PIL Subject
4
2.
5
III rights are neither assignable nor compromise-able as they inhere
constitutionally by virtue of being a citizen of Republic of India.
Proscribed are the laws that infringes on these Part III rights. And the
Supreme Court shall enforce such a Part III right when such
infringement occurs. Art. 32 (2). Also, jurisdiction conferred on this
Court by Art. 32 can be exercised for the rights conferred by Part III and
for no other purpose. Fertilizer Corporation Kamgar Union (Regd.),
Sindri v. UOI, (1981) 1 SCC 568: 1981) 2 SCR 52 [C.J. Chandrachud, 5
Judge Bench]. The violation of a fundamental right is the sine qua non
of the exercise of the right conferred by Art. 32. Id. The Court further
reinforced special limitation of Art. 32 which is the passport to this
Court and reiterated: The court cannot usurp or abdicate, and the
parameters of judicial review must be clearly defined and never exceeded.
Ibid. Thus, an individual can complain if his or her rights are impaired
without due process of law. However for vindication of such rights, it is
well established jurisprudence of common law and out country that a
litigant must have stakes in the outcome of the dispute. It must be his or
her rights. Impersonal and speculatory briefing will not do in a judicial
forumdirect legal interest must flow from the outcome of the dispute
before it is entertained. Northern Plastic Ltd. Hindustan Photo Films Mfg.
Co. Ltd., (1997) 4 SCC 452: Anand Mills Co. Ltd. State of Gujarat, (1975) 2
SCC 175: AIR 1975 SC 1234. Of course, under the rubric PIL, this
standing has a permissive tenor as opposed to individuated relief.
However, only when a helpless and disabled downtrodden community
or victims cause is espoused, Bandhua Mukti Morcha v. Union of India,
(1984) 3 SCC 161(bonded labor caused picked up on behest of a an
6
organization dedicated to the cause of release of bonded labourers in
the country). Or, when vagaries of a law or state grants is challenged as
running afoul of our constitutional scheme. See Sarbananda v. UOI
(2005) 5 SCC 665: AIR 2005 SC 2920 (allowing a member of Parliament
challenge to the migrants determination under Illegal Migrants
(Determination by Tribunals) Act, 1983); Piloo Mody v. Mahrashtra
(1975) Miscellaneous Petition No. 519 of 1974, decided by Gandhi J., on
October 22, 1975 (Unrep); Thus Courts do bend backward to
accommodate the pressing issues of times and needs:
The substance of the matter is obvious and formal defects, in
such circumstances, fade away. We are not dealing with a civil
litigation governed by the Civil Procedure Code but with an
industrial dispute where the process of conflict resolution is
informal, rough-and-ready and invites a liberal approach.
Procedural prescriptions are handmaids, not mistresses of
justice and failure of fair play is the spirit in which Courts must
view processual deviances. Our adjectival branch of
jurisprudence, by and large, deals not with sophisticated
litigants but the rural poor, the urban lay and the weaker
societal segments for whom law will be an added terror if
technical mis-descriptions and deficiencies in drafting
pleadings and setting out the cause-title create a secret
weapon to non-suit a party. Where foul play is absent, and
fairness is not faulted, latitude is a grace of processual justice.
Test litigations, representative actions, pro bono publico and
like broadened forms of legal proceedings are in keeping with
the current accent on justice to the common man and a
necessary disincentive to those who wish to bypass the real
issues on the merits by suspect reliance on peripheral
procedural short-comings.
7
careful to see that the member of the public, who approaches the Court in
cases of this kind, is acting bona fide and not for personal gain or private
profit or political motivation or other oblique consideration. S.P. Gupta v.
UOI, AIR 1982 SC 149. The Court further admonished that, it is not
every default on the part of the State or a public authority that is
justiciable. The court must take care to see that it does not overstep the
limits of its judicial function and trespass into areas which are reserved to
the Executive and the Legislature by the Constitution. Id. Also, in spirit
and stature it must be confined to its essential purpose,
8
The immediate cause of filing this petition is the facts which
have come light about the blatant violation of the rule of law
and also contempt on the face of court committed by certain
lawyers, including Respondent Nos. 3 to 5 on 15.02.2016 and
17.02.2026 in the Patiala House court premises and complete
inaction of the Delhi Police which has been exposed by the
report dated 18/02/16 of senior advocates appointed as court
commissioners by this court, report dated 19.02.2016 of the
National Human Rights Commission as well the sting operation
dated 22.02.2106 [sic] conducted by India Today news channel.
9
backing. Further, this Court can judicial notice of events or records being
established out of court, ( 57, The Indian Evidence Act, 1872) and is not
bound by the trial courts nitty-gritty however, no judicial notice could be
taken of a press vying with each other to be more sensational.
Sting Operation is Inadmissible
5.
Rajat Prasad v. Respondent: CBI (2014) 6 SCC 495. Further, it is true that
Article 32 and or 32 proceedings, PIL, can be instituted even by filing of
a letter. However when it is a counseled Petition, it must have more.
And that more means--pleading with traction, facts speaking for
themselves.
10
5.1. Further, restrictive of the PIL compass vis--vis Respondents
numbered 3 to 5 is the accusation against them, which is of a serious
genre--assault, grievous hurt to Mr. Kumar, criminal intimidation, petrol
bomb threats and a resulting contempt of this Court. Such accusation
are not a fit matter for the Apex Court, dealing with higher principles of
laws and appeals, namely appellate and judicial reviews. At this
appellate level, findings of fact are subjected to very limited review and
conclusion of law are usually granted deference unless nondiscretionary. This limited review might jeopardize the rights of the
respondents, who are equally entitled to due process. One right is
openly confronting witnesses, level play field and right to appeal.
Admitted that the jurisdiction under Article 32 is original, however
Supreme Court despite assistance of commissioners or other ad hoc
appointed masters cannot supplant the role of the The Code of Civil
Procedure, 1908 (CPC) and The Code of Criminal Procedure, 1973
(CrPc). Cf. Khatri v. State of Bihar, (1981) 2 SCC 493 (rejecting
application of CrPC application, finding Art. 32 proceedings as neither
inquiry nor a trial for an offense). CPC and CrPC are enacted to provide
a fair and right opportunity to the parties to a litigation. When prosecuting or
defending, or claiming individually against another party, our common law
system provides an adversarial system with the right to confront witness
before a neutral judgeCPC and CrPC ensures the same. Sidestepping such
due process rights of Respondents numbered 3 to 5 and putting them through
a PIL process wherein they have limited resources is indeed a denial of due
process and part III rights guaranteed under the Constitution.
Kumar has and availed Available Remedies
11
6.
Petitioner contends not that Mr. Kumar has not been given a
forum for redress, his bail hearing etc. but that there were extraneous
impediments created by omission and commission of Patiala House
security personals and some lawyers. Mr. Kumar had immediate access
and effective remedy with the High Court, which is primarily entrusted
with the functioning of the subordinate judiciary, Arts. 227 and 235. See
Mahamudal Hassan v. UOI, AIR 2010 SC (Supp) 23 (1). The Petitioner
sought refuge with the Supreme Court, for a candidate who had direct
access to Delhi High Court. The Petitioner reflects not that he did not
have his day in the court of law, but that he confronted very hostile
motley crowd of lawyers and or was assaulted by them. But, private
assaults are not grounds for invoking article 32 protection. Defining
the parameters or grounds for invoking jurisdiction of this Court under
art. 32, the constitutional bench quoting Ujjam Bai v. State of UP, (1963)
1 SCR 778: AIR 1962 SC 1621, reflected that in three class of cases a
question of enforcement of fundamental rights may rise; and if it does
arise, an application under article 32 will lie. These cases are:
(1)
(2)
(3)
12
PIL's Requisitioned Special Investigation Team Dilutes
Governmental Agencies Roles and their Accountability
7.
The petitioner request a constitution of a "Special Investigation
Team" ("SIT") to "investigate the incidents of attacks on 15.02.2016
and 17.02.2016 by some lawyers and others in the premises of Patiala
[H]ouse on the journalists, students, teachers, defense lawyers and the
accused person," and "if found guilty initiate action [against] them in
accordance with law." PIL, P. 19. (a). However, the Petitioner
pleading makes an abysmal ground for such a body, rather it shows no
ground, no facts for such an approach. A bald assertions praying for a
SIT with no backing factual or legal is inexplicable, especially coming
from the mavens of PILs, Mr. Bhusan and Ms. Jaiswal.
7.1. This Court clearly has the powers to constitute investigative body
or a special master/commissioner tasked with specific agenda on an ad
hoc basis. But that must not be done here, as it would be redundant.
First, there is an body extant for such investigation. Second,
investigation is already done and the alleged violaters have been
booked and released on bail. Third, there is no showing of futility of the
existing on-going investigation. Fourth, National Human Rights
Commission issued its own report. Fifth, Delhi Police, primarily tasked
(law and order) submitted its report. The Registrar General, Delhi too
submitted its report.
7.2. Adding another layer fact-finding body would not add any
credibility or unearth any other hitherto missed events or incidents. The
foregoing reports of Delhi Police and Registrar General are more
contemporaneous and are integral to their functions--such role cannot
be usurped barring very extra-ordinary circumstances. Intended SIT
13
formation here chips away the integral aspect of the governing
structure, and is an undesirable pressure on the judiciary to intrude into
other arms of the government.
7.3. Courts have indeed, though PILs formed investigative committee
on an ad-hoc basis. And it is understandable, for instance a fact-finding
committee appointed by Order of the Supreme Court dated 1 August
1991, in Writ Petition (Civil) No. 12125 of 1984 regarding violation of
bonded labor laws as well exploitation of Children; fact-finding
commission in May 2015 in PIL of Assam Sanmilita Mahasangha v. Union
of India to report on ground situation along the Indo-Bangladesh border
running through Assam. But these fact findings in PIL are more for a
sustained, continuous failure of the governing machinery and human
rights abuses. Not for one individual, but only when societal interests
were involved on a sustained basis, would this Court use its judicial
powers to create such fact finding bodies. For instance, see M.C. Mehta
v. Union of India, (1987) 4 S.C.C. 463 (establishing fact-finding
commissions to analyze air quality in Delhi, and issue recommendations
for improving air quality); Rural Litigation and Entitlement Kendra v.
State of U.P. 1989 SCC Supl. (1) 537 (appointing a Committee for
inspection of the mines with a view to securing assistance in the
determination as to whether safety standards laid down in the Mines
Act of 1952 and the Rules made thereunder have been followed).
However, here fact finding that too through PIL for one individual's
issue, who have allegedly been assaulted, with ultimate findings inuring
to the same individual does not create a basis enough to constitute SIT.
Systematic and rampant break down of a system on an recurring basis
14
clearly warrants such a relief, but it is one individual and his issue
without any macro-operational aspect. These fact findings, prosecution
etc. are clearly within the Executive domain operating through its police
force and other law and order maintenance agencies. This Court has
taken over the roles of Executive [Respectfully, to be done in very rarest
or rare and only upon complete break down of governmental
machinery]. For instance, Vineet Narain v. Union of India, (1998) 1 S.C.C.
226 (issuing directives blocking the Prime Ministers office from
controlling the Central Bureau of Investigation inquiry into the Jain
Hawala scandal, and directions to the Central Bureau of Investigation);
Subramanian Swamy v. Union of India, (2012) 3 S.C.C. 1 (cancelling 122
telecom licenses); Manohar Lal Sharma v. Principle Secretary, (2014) 9
S.C.C. 516 (India) (cancelling approximately 200 licenses for coal blocks
for mining granted since 1993). All the foregoing were those cases
wherein a larger public interest was involved and benefits sought were
for public at large and impacted parties again was a public at large. Here
it is one individual. The undersigned do not undermine or pooh-pooh
Mr. Kumar's rights, rather support his rights, but the mechanism
invoked and requested relief of SIT does not fit the history and
precedents of this Court. The local police entrusted with the task has
already accomplished the fact findings and investigation is on-going; Mr.
Chauhan has been arrested and is released on bail.
Relegation Rule Warrants Dismissal of this Case
8.
Despite different rules and procedures employed in CPC, and
also the presence of the "inherent powers" of this Court, Abdul Jalil v.
State of Uttar Pradesh, (1984) 2 SCC 138, for eliciting evidences etc., the
15
scenario here warrants remand or relegation of parties to the district
court for marshalling of facts. Steel Authority of India Ltd. v. National
Union of Waterfront Workers, (2001) 7 SCC 1 ( holding that
determination of the questions requires inquiry into disputed questions
of facts which cannot conveniently be made by High Courts in exercise
of jurisdiction under Article 226 of the Constitution. Therefore, in such
cases the appropriate authority to go into those issues will be industrial
tribunal/court); Gulabdas v. Assistant Collector of Customs, AIR 1957 SC
733 (holding that investigation into disputed facts and materials not
appropriate under Art. 32); Bokaro & Ramgar Ltd. v. State of Bihar,
1962 Supp (3) SCR 831 (undisputed facts alone makes a case for judicial
intervention by a constitutional court for vindicating fundamental
rights); Bishambar Dayal v. State of U.P. (1982) 1 SCC 39 (holding that
the "facts being controverted, the petitioners have no right to relief
under Article 32 of the Constitution"). The central gravamen of the
Petitioner is that Mr. Kumar was denied due process. Now he has been
given due process, he met the trial judge, and is released on bail now.
Due process rights, protection forming the core of Part III of the
Constitution are rights against the commissions and omissions
government and not against private individuals. The Respondents 3 to
5 have already been booked and being proceeded against, a parallel fact
finding entity, via article 32 would not inure to any benefit. Also, art. 32
cannot be a proceeding against individuals, unless they are a part of the
state machinery. One does not file assault charges against individuals
through art. 32 or 226 proceedings, nor is art. 32 or 226 a refuge in any
manner of charges against non-state entities. Golaknath, I.C. v. State of
16
Punjab, AIR 1967 SC 1643 ("Fundamental Rights are those rights which
the State enforces against itself."). Individuals have been arrayed as
party defendant, however only if they are holding governmental
positions, or influencing governmental course and entailing public
interest. M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. (Petition dealing
with country's former Environment and Forests Minister).
8.1. Mr. Chauhan, respondent herein has already been indicted,
arrested, released on bail with further prosecutorial steps being
executed. At this stage to have a SIT would be running afoul of a system,
where a constitutionally established governmental agency is fulfilling its
role--it must not be allowed to be snapped. What Petitioner contends
here and what FIRs etc. have been filed with the local police precincts
are emanating from the same incidents, a single occurrence, which
cannot be bifurcated as one exclusively for Police investigation and
other for SIT--that is nonsensical.
Article 227 and 235 demands that this Court either dismiss this
Petition or Remand it to Delhi High Court
9.
The control of Subordinate judiciary, like trial court in Patiala
House is vested with the Delhi High Court, pursuant to article 227 and
235. The petition complains:
The immediate cause of filing this petition is the facts
which have come to light about the blatant violation of the rule
of law and also contempt on the face of court committed by
certain lawyers, including Respondent Nos. 3 to 5, on
15.02.2016 and 17.02.2016 in the Patiala House court
premises and complete inaction of the Delhi Police which has
been exposed by the report dated 18/2/16 of 5 senior
advocates appointed as court commissioners by this court,
report dated 19.02.2016 of the National Human Rights
Commission as well the sting operation dated 22.02.2106
conducted by the India Today news channel. PIL 1.
And,
17
the
Also,
18
Court, a Court of competent jurisdiction vested with this home work, i.e
functioning of the trial courts.
9.1. Article 227 declaring " [p]ower of superintendence over all courts
by the High Court," reiterates that, '[e]very High Court shall have
superintendence over all courts and tribunals throughout the territories
interrelation to which it exercises jurisdiction . . . the High Court may
(a) call for returns from such courts, (b) make and issue general rules
and prescribe forms for regulating the practice and proceedings of such
courts . . . ." Art. 227.
9.2. This "power of superintendence" over lower courts is both
judicial and administrative. Waryam Singh v. Amarnath, AIR 1954 SC
215: (1954) SCR 565 (upholding power of judicial superintendence to
the High Court apart from and independently of the provisions of other
laws conferring revisional jurisdiction on the High Court). See also,
Achuthananda Baidya v. Prafulla Kumar Gayen, AIR 1997 SC 2077;
(1997) 5 SCC 76 (reinforcing High Court power under art. 227 in cases
of erroneous assumption of jurisdiction, error of law and procedure by
the lower courts).
9.3. Article 235 further bolster the position of the High Courts over its
subordinated lower courts in its territorial jurisdiction. Article 235 with
emphasis on "control" "vest[ing]" in High Court, the subordinate
judiciary speaks in most unequivocal terms that the it is the Delhi High
Court here, that has first and complete authority over the functioning or
breakdown of "law and order" of its lowers courts and respectfully, not
this Court. Control under art. 235 is expansionist, exclusive and
subsuming within its ambit, matters related to disciplinary, suspension
19
from service, transfer, promotion, retirement, including administrative
ones. Chief Justice of Andhra Pradesh v. L.V. A. Dikshitula, AIR 2002 SC
1589 ("the control over the subordinate judiciary vested in the High
Court under Article 235 is exclusive in nature, comprehensive in extent
and effective in operation"). Also, "[i]n Article 235, the word 'control' is
accompanied by the word "vest" which shows that the High Court alone
is made the sole custodian of the control over the judiciary. The control
vested in the High Court being exclusive, and not dual, an inquiry into
the conduct of a member of the judiciary can be held by the High Court
alone and no other authority." Id. citing State of West Bengal v.
Nripendra Nath Bagchi, 1966 SCR (1) 771; Shamsher Singh v. State of
Punjab, 1975 SCR (1) 814. High Court ensures the day to day workings
of its subordinate courts, including disciplinary control. G.S. Naggamoti
v. State of Mysore, (1969) 3 SCC 325. Also, Baradakanta Mishra v. H.C. of
Orissa, (1976) 3 SCC 327; In State of Haryana v. Inder Prakash Anand
H.C.S. & ors., [1976] (Supp) S.C.R. 603 ( holding that "control" of article
235 includes both disciplinary and administrative jurisdiction).
Petitioner contends about misbehavior of the advocates from
Respondent 3 to 5, however same also falls under the supervision and
control of the High Court as the subordinate court was engaged in the
overseeing the case of Mr. Kumar. Ishwar Chand Jain vs High Court Of
Punjab & Haryana, 1988 SCR Supl. (1) 396 ("Under the Constitution the
High Court has control over the subordinate judiciary. . . . it is under a
constitutional obligation to guide and protect judicial officers. . . . An
honest strict judicial officer is likely to have adversaries in the mofussil
courts. . . . ."). This power under article 235 is a constitutional power
20
and it "cannot be circumscribed by any rule or order." Chandra Singh v.
State of Rajasthan, (2003) 6 SCC 545. Any thing abrogating that power is
unconstitutional and not tenable. Ghouse v. State of Andhra, AIR 1955
Andhra 65 (68), affirmed, AIR 1957 SC 246, accorded State of West
Bengal v. Nripendra, (1966) 1 SCR 771 (art. 235 vests power of control
over members of subordinate courts exclusively in the High Court). It
also extends to protect judicial officers from unscrupulous litigants and
lawyers. Yoginath D. Bagde v. State of Maharashtra , AIR 1999 SC 3734;
Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. (1999) 1 SCC 37. Control,
superintendence implies protection and protection of its core function,
i.e. administration of justice.
9.4. Clubbing these two articles, 227 and 235, a clear picture emerges,
i.e. the High court alone has the power, "control" and "superintendence"
over the lower courts. And this complained of conduct of lawyers, break
down of law and order is within the High Court domain. This Court has
emphasized the power of the High Courts over the administration of
justice in lower, in precise situation as happened here in Patiala House.
R. K. Anand v. Delhi High Court, (2009) 8 SCC 106. Our Supreme Court,
was indeed prescient when it made following very relevant and
powerful observation, reflecting upon the role of High Courts:
We must add here that this indifferent and passive attitude is
not confined to the BMW trial or to the Delhi High Court alone.
It is shared in greater or lesser degrees by many other High
Courts. From experience in Bihar, the author of these lines can
say that every now and then one would come across reports of
investigation deliberately botched up or of the trial being
hijacked by some powerful and influential accused, either by
buying over or intimidating witnesses or by creating
insurmountable impediments for the trial court and not
allowing the trial to proceed. But unfortunately the reports
would seldom, if ever, be taken note of by the collective
consciousness of the Court. The High Court would continue to
carry on its business as if everything under it was proceeding
21
normally and smoothly. The trial would fail because it was not
protected from external interferences. Every trial that fails due
to external interference is a tragedy for the victim(s) of the
crime. More importantly, every frustrated trial defies and
mocks the society based on the rule of law. Every subverted
trial leaves a scar on the criminal justice system. Repeated
scars make the system unrecognisable and it then loses the
trust and confidence of the people. Every failed trial is also, in a
manner of speaking, a negative comment on the State's High
Court that is entrusted with the responsibility of
superintendence, supervision and control of the lower courts.
It is, therefore, high time for the High Courts to assume a more
pro-active role in such matters. A step in time by the High
Court can save a criminal case from going astray. An enquiry
from the High Court Registry to the concerned quarters would
send the message that the High Court is watching; it means
business and it will not tolerate any nonsense. Even this much
would help a great deal in insulating a criminal case from
outside interferences. In very few cases where more positive
intervention is called for, if the matter is at the stage of
investigation the High Court may call for status report and
progress reports from police headquarter or the concerned
Superintendent of Police. That alone would provide sufficient
stimulation and pressure for a fair investigation of the case. In
rare cases if the High Court is not satisfied by the
status/progress reports it may even consider taking up the
matter on the judicial side. Once the case reaches the stage of
trial the High Court obviously has far wider powers. It can
assign the trial to some judicial officer who has made a
reputation for independence and integrity. It may fix the venue
of the trial at a proper place where the scope for any external
interference may be eliminated or minimized. It can give
effective directions for protection of witnesses and victims and
their families. It can ensure a speedy conclusion of the trial by
directing the trial court to take up the matter on a day-to-day
basis. The High Court has got ample powers for all this both on
the judicial and administrative sides. Article 227 of the
Constitution of India that gives the High Court the authority of
superintendence over the subordinate courts has great
dynamism and now is the time to add to it another dimension
for monitoring and protection of criminal trials.
Similarly Article 235 of the Constitution that vests the High
Court with the power of control over sub-ordinate courts
should also include a positive element. It should not be
confined only to posting, transfer and promotion of the officers
of the subordinate judiciary. The power of control should also
be exercised to protect them from external interference that
may sometime appear overpowering to them and to support
them to discharge their duties fearlessly.
9.5. This Court taking over the basic powers , to supervise Pataila
House trial, etc. is indeed trammeling over High Court independence
and its core power and functionalities. When the Constitution speaks
and vests particular roles, then it must be fully respected. Nor can any
provision of the Constitution be read in such a manner as to sap it of its
22
vitality. This Court has emphasized on the freedom of the High Court in
supervising matters of subordinate courts functioning. See, Gauhati
High Court & Anr vs Kuladhar Phukan, (2002) 4 SCC 524, Here the Court
was very sensitive about the scope of article 235,
The doctrine of separation of powers and the need for
having an independent judiciary as a bulwark of constitutional
democracy persuaded the founding fathers of Constitution
assigning a place of distinction to judiciary. Chapter VI of the
Constitution dealing with subordinate courts seeks to achieve
the avowed object of insulating even the subordinate udiciary
from the influence of the executive and the legislature.. . .
Article 235 vests in the High Court the control over district
courts and courts subordinate thereto. All the matters touching
the service career of incumbents in subordinate judiciary
including their posting and romotion are subject to the control
of the High Court. Once a person has entered in the judicial
service, he cannot depart there from save by the leave of the
High Court. It is settled by a catena of decisions that the word
'control' referred to in Article 235 of the Constitution has been
used in a comprehensive sense and includes the control and
superintendence of the High Court over the subordinate courts
and the persons manning them, both on the judicial and the
administrative side. Even in such matter in which the Governor
may take a decision, the decision cannot be taken save by
consultation with the High Court. The consultation is
mandatory and the opinion of the High Court is binding on the
State Government; else the control, as contemplated by Article
235, would be rendered negated. Such control and consultation
are not a matter of mere formality; they are the constitutional
power and privilege of the High Court, also its obligation, and
cannot be diluted by sheer inaction or failing to act when the
High Court must act. The Governor cannot proceed to act in
any matter relating to subordinate judiciary and bypass the
process of consultation merely because the High Court, though
'informed', did not act or respond. The consultation here
means meaningful, effective and conscious consultation. In Tej
Pal Singh Vs. State of U.P. & Anr., (1986) 3 SCC 604, it was held
that in a matter affecting the service career of a judicial officer
ordinarily the initiative for an action must come from the High
Court and even otherwise in the absence of recommendation of
the High Court an action taken by the Governor would be
illegal and devoid of constitutional validity. Such error, if
committed, would be incurable and even an ex-post facto
approval would not cure the invalidity.
23
India, AIR 1980 SC 1789; Sanjeev Coke Mfg. Co. v. Bharat Coking Coal
Ltd., AIR 1983 SC 239; L. Chandra Kumar v. Union of India, AIR 1997 SC
1125. Constitution applies with equal force on all three, Executive,
Legislature and Judiciary. This Court is the final expositor or laws of
the land. It has championed for the freedom of the different chapters of
the Constitution. Qua the Executive and Legislature, this Court has
given very emphatic and positive assertions to different provisions of
the constitution. Intergovernmental structure, the Supreme Court has
shown very strict adherence to the separation of powers, compliance
with constitutional mandate, it must follow the same, when it comes to
use of judicial powers, vis--vis powers and basic functionaries vested
with the High Court. What is sauce for the goose is sauce for the gander.
When constitution mandates, article 227 and 235, a full
superintendence and control of the lower courts, then this Court must
let the Delhi High Court rise to the occasion. This Apex court being
rushed into this local happenings of the lower court not only
unnecessarily clog our ever increasing docket, it takes away precious
time of this Court to rule on other demanding constitutional issues. If all
and everything will fly in the name of original, art. 32, appellate, arts.
132(1), 133(1) or 134 and or advisory jurisdiction, art. 143, then the
prestige of this august institute shall certainly be watered down and
lower courts, which are but to assist this Court shall be sapped of their
vitality and opportunity to grow into matured institution.
24
Facts pleaded does not warrant citation for Contempt of Court
either under Statute or Inherent Powers
10. Undeniable is the power of this Court to punish for contempt
either under article 129 of the constitution, Contempts of Courts Act,
1971 or under its inherent powers. And this Courts power to punish
for contempt is deemed to be a constitutional onenot subject to
diminution by any laws. R.L Kapur v. State of Madras (1972) 1 SCC 651.
See also, In re Vinay Chandra Mishra, (1995) 2 SCC 584. This Court has
expanded the reach of article 129 protection to the subordinate
judiciary. Delhi Judicial Services Association v. State of Gujarat, (1991) 4
SCC 406 (Court's jurisdiction and power to take action for contempt of
subordinate courts would not be inconsistent to any constitutional
scheme.). However, this Court, out of concerns for not depriving the
appeal rights, has deferred to the lower court to take action on
contempt issues, especially when the locus of the said contempt is the
lower court. See Income Tax Appellate Tribunal v. V. K. Agarwal, (1991) 1
SCC 16.
10.1. Before the Court exercise its power either under the statute or
inherent powers, the petitioner must meet an extremely high burden of
proof, which, she cannot. Ms. Jaiswal invokes, Suo Moto powers of this
court to levy serious punishment, however her contentions alone
without factual basis cannot be reason enough. Further, the facts
pleaded here does not warrant this Court intervention for issuance of
contempt, as she does not meet her burden. The petitioner failed to
specifically identify, and factual plead, each element of a viable
contempt claim on an individuated basis. Our Court at the apex level is
25
not obligated to construct a cause of action for contempt from allegation
and complaint filed by the petitioner who is unwilling and unable to
plead the cause of action herself.
First, from the pleading liability or culpability does not appear
clearly. The Petitioner to buttress a ground for contempt posits the
following:
That on 16.02.2016, the above-mentioned events of
15.02.2016 led to the filing of a writ petition before this
Honble Court. . . . 17.02.2016 after a detailed hearing, this
Honble Court issued detailed orders to ensure safety of
the accused namely Kanhaiya Kumar . . . . ensure that the
court proceedings were concluded without any disruptions. . . .
That on 17.02.2016, at around 2 pm,the Petitioners counsel got
a call . . . . was told that total pandemonium had broken out
at the court premises and the defense lawyers had been
forced to lock themselves inside the court room in order to
save their lives from the unruly mob of lawyers. . . . it
was brought to the notice of the Honble Court by the
petitioners counsel and some senior lawyers that the
accused person was beaten up and journalists assaulted again
despite the order passed by this Honble Court in the
morning. This Honble Court directed a team of lawyers
to inspect the Patiala House Courts and give a report. . . .
That on 17.02.2016, at 4.05 pm the court appointed
committee submitted its oral report that the accused
was badly beaten up, journalists bashed up and police
again failed to maintain law and order. . . . also informed
that lawyers and journalists were locked inside the court room.
. . . That on 18.02.2016; News reports showed that the
lawyers leading the assaults on 17.02.2016 and
15.02.2016 were the same and that the said assaults
were premeditated.
26
taken place in the room that they were standing, to which the DCP
responded that It did not take place, meaning the Court room where
we were standing. Ibid. Also, . . . what is remarkable is that he stated
that he had repeatedly brought to the attention of the personnel that the
person who had assaulted him at an earlier occasion was inside the
Court Room, despite which no action was taken either by the Police or
the Registrar General. Ibid at 69. Incredulously, Mr. Kumar responded
on being asked if he could identify the attacker that even the policemen
were being assaulted and he could not identify the assailants as he was
being beaten. Id. Then there is Annexure P-7 of the PIL, a narration of
allegedly a firsthand account, which claims someone, an average built
man wearing dark glasses, PIL. P. 109, however the PIL pleadings
complains about three lawyers, Respondent 3 to 5. To the Registrar
General, Mr. Kumar complained that he was assaulted while he was
being brought to the court. PIL. P. 114. Mr. Ajit Kumar Sinha, Sr.
advocate submits his own incident report, wherein he claims that, they
were informed that Kanhaiya Kumar was abused, heckled, manhandled
while he was brought to the Court by the lawyers. Further, they
witnessed, slogan shouting and abusive languages being used about 10
meters away from the Court room. PIL, P. 121 (Annexure P-9). Police
Officer, M. Meena statements or rather his report is the only one with
detailed notes and descriptions providing a cogent and coherent
account of what transpired. Barring the police report, other declarants'
accounts [inconsistent statements] when taken together, testimony or
statements made by different parties does not provide a coherent
narration, but disparate impression, a cacophonous recollection and a
27
discordant note. No credibility can be attached to the Report or its
statements. With such glaring gaping chasms, not just gaps, it all
contradicts the Petitioners claims of contempt against respondents 3 to
5. Vague and conclusory allegations are insufficient to satisfy the
particularity for levying of contempt sanctions. Moreover, this Court
with its very heavy docket, and limitations of not being a trial court to
adduce evidence, must not entertain such dubious indictments of
lawyers. Thus, at this apex level, a Petitioner must anchor her complaint
in a bed of facts, not allowed to float freely on a sea of bombast, mediafed speculation. Despite deferential attitude by the bar and the bench to
the senior counsel, and a public spirited filing of PIL, this Court does not
and need not credit media-funneled bald assertions, periphrastic
circumlocutions, unsubstantiated conclusions or outright vituperation
against the respondent as espoused here. The self-serving affidavits of
the petitioners, subject Mr. Kumar's advocates declarations,
inconsistency laden Report, indicting the lawyers, police and entire
lower court with lawlessness does not merit any consideration. In
essence the Petition demands sanctions of contempt against phantoms,
then conjecturally wants respondents 3 to 5 to bear the responsibility.
Why phantoms? The Pled facts does not rise above guesstimates:
a.
"On 17/2/16, an Associates Professor at Center
for Economic Studies and planning, JNU, Mr. Himanshu, had
accompanied the defense lawyers to attend the court hearing
as a faculty member, as per the direction of this Hon'ble Court,
and he has also given his eye-witness accounts. He confirms
that the accused was attacked by a person wearing dark sun
glasses inside the court room . . . ." PIL P. 13-14;
b.
"She stated that while she was in the court room
on the other side she sensed something in other court room
and a man came out of the court room where the accused was
produced, wearing a suit and dark glasses and when he was
asked-his name by the police, he took off his glasses and
questioned the police as to why he should disclose his name
and he walked passed the police officers and nobody stopped
28
him. She wondered as to how this man could come in and
exit." PIL, P. 66 (Committee Report);
c.
Unidentified voice: Pani zara lao (get some
water) and get a soft drink (for Kanhaiya Kumar). This man is
wearing dark glasses. He is wearing a coat. It is not a lawyer's
coat. It is just a black coat. He asks him court ein "aapka naam
kya hai" (what is your name). This man takes off his dark
glasses and says "mein apna kyun batoon?" (why should I
disclose my name). And he huffs him away and he walks pass.
Nobody stops. How did that man came in through the security
and how did he exit? PIL P. 78 (Transcript of Video
Recording);
d.
Thereafter we saw Kanhaiya being brought to
Court Room 4 and lot of policemen being present outside the
court hall. Soon, thereafter we notice an average built man
wearing dark glasses exiting Court Room No. 4 where DCP ask
him to disclose his identity to which he wear him saying, "you
will ask me my identity? Why should I tell you who I am" (tum
mujhse mera naam poochogey, mai kyu batautu mhe
maikaunhu), after which he is allowed to leave the hallway."
PIL P. 109 (Transcript of Video Recording).
e.
The assailant who was wearing a dark coloured
coat, black trousers and dark glasses then got up and started
moving towards the door of Court room no. 3. Meanwhile, I
continued to plead with judicial Officers and the Police to
restrain and arrest him. Unfortunately there was no response,
and this assilant easily walked out of the door of Court-room
no. 3. PIL. P. 133. (Himanshu Affidavit)
29
regardless of the result of the trial, in public perception the
accused is already held guilty and would not be able to live the
rest of their life without intense public scrutiny."
30
PIL Issues are Moot
11. The Petitioner's other grievances included are: Respondent NO.2
is Delhi Police. It is the duty of the Respondent to ensure that there is
law and order maintained in the state of Delhi including Court premises.
That the Respondent No.2 has grossly direlected [sic] in its duties in
failing to provide safety and security to the litigants, journalists others
in the Patiala House Court premises on the day when the incident of
took place. Now, Mr. Kumar had his day in the court, bail being set and
released with due process claims constituting gravamen of the Petition,
having been met; miscreants have been questioned, arrested etc.; law
and order being restored, the issues are moot.
PIL Admonishment
12. Mr. Bhushan very recently stood chided by the Chief Justice and
his bench and it was widely reported. For instance, Times of India
reported:
"Prashant Bhushan, you have an image of a crusader. But can
you become the centre for public interest litigation? Can the
system be taken for a ride in such a manner? We cannot allow
this. We must be satisfied that you have a committee which
scrutinizes the complaints and allows only genuine ones to be
converted into public interest litigations.
http://timesofindia.indiatimes.com/india/SC-to-Prashant-Bhushan-How-canyou-become-the-centre-for-public-interestlitigation/articleshow/50553688.cms
31
Janata Dal vs H.S. Chowdhary And Ors., (1992) 4 SCC 305 accorded,
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349. While
the undersigned do not advocate foreclosing Mr. Bhusan from pursuing
lofty aims, but he must exercise restraint. It is understandable that filing
such petition one could steal publicity thunder, but then not all thunder
must or should rain. Public Interest Litigation, a Judge made justiciable
vehicle, must remain, a "Public Interest" effort and not morph into
"Publicity Interest Litigation."
CONCLUSION
Wherefore, under the foregoing, it is respectfully submitted that
in the interest of tasking the High Court with supervision and control of
the subordinate judiciary, case being unsuitable for Apex Court
adjudication, issues being moot with no live controversy, this PIL under
article 32 be dismissed forthwith or in the alternative, remanded to the
Delhi High Court consistent with the aforesaid assertions.
Respectfully submitted,
Dated: New Delhi, Delhi
March 22, 2016
By:__________________________
Karamvir Dahiya, Adv.
___________________________
Ajay Pal, Adv.