Unwilling to Set ‘Dangerous Precedent’, SC Transfers Kanhaiya’s Bail Plea to HC

New Delhi: Observing that entertaining a bail petition directly bypassing sessions court and high court would open the floodgates for similar petitions, the Supreme Court on Friday transferred the petition of JNU Students’ Union leader Kanhaiya Kumar seeking bail in the ‘sedition case’ filed against him to the Delhi high court.

The apex court in showing restraint in exercising its extraordinary jurisdiction gave liberty to the lawyers to amend the petition as per the requirements of law and move the high court today itself. It asked the high court to expeditiously hear the petition.

A bench of Justices J Chelameswar and AM Sapre while agreeing with the submissions that Kumar’s plea was not one of those ordinary cases, however, observed that if in every case it is said that only the Supreme Court should hear, it will set a dangerous precedent and open the floodgates for others. A wrong message should not be sent that constitutional courts cannot manage their own functioning, it added.

Soon after the matter was taken up senior counsel CU Singh appearing for advocate Subash Chandran alleged that the complaint filed by his client was not registered as an FIR and that extremist organisations like the RSS were involved in the incidents.

This was strongly objected by senior advocate RP Luthra who argued that the entire case was ‘created and designed’ by Kumar and his lawyers to get an audience in the Supreme Court. Luthra said he was pained by the portrayal of the RSS as an extremist organisation and wanted the remarks to be expunged from Chandran’s petition. He said “RSS has taught me that all women are my mother and sisters. I am hurt, pained. This should not be allowed by this court.”

Justice Chelameswar told the counsel “we are not interested in who created or designed this. We are interested in their safety and life”. The bench then asked Singh to file a fresh petition confining the averments to the relief sought. It then proceeded to hear the Kumar’s bail plea.

Justice Chelameswar told a battery of senior lawyers arguing for entertaining the bail plea to “Remember, this is not the only case of this type. Assuming exclusive jurisdiction over the case will send a wrong impression to lower courts that they are incapable of handling it. I personally believe that if we hear this matter, we will give the impression that other than the Supreme Court, other courts are incapable of handling this situation.”

The bench agreed with senior counsel Soli Sorabjee, Raju Ramachandran, Rajeev Dhavan and Vrinda Grover that the apprehension to the life and security of the student, his lawyers and journalists is not fanciful but genuine. Sorabjee argued that the fears are genuine as lawyers behind the attacks at the Patiala House court were being feted and garlanded. He said “There is no repentance among the lawyers who indulged in violence. They considered it their duty to have done what they did.”

Dhavan also justified the petitioner approaching the apex court directly for bail as he feared for his life and his apprehensions are bonafide and based on facts. Ramachandran submitted that there is a simmering local situation and the Supreme Court already has institutional knowledge of the case as it is already seized of a petition by JNU alumni on the Patiala House violence.

However, Justice Chelameswar told the counsel “Both are two different things. A bail plea is different from our enquiring into the violence and frustration of free access to justice.”

Grover, representing Kumar in the trial court, said the lawyers appearing for the accused were ‘marked’ for violence. There was a breach in security on February 17 despite the presence of the Delhi high court registrar general at Patiala House courts, she added.

Solicitor General Ranjit Kumar, appearing for Home Ministry and Delhi Police said commotion in courts is a common phenomenon in cases involving politicians, stars and terrorists. “Yet the courts function. Besides in this case the accused persons need not appear in court for his bail hearing. A constitutional court like the high court is capable of looking after itself. There was a blast there some years ago and security has been increased several fold. On providing security to the lawyers and journalists, I will speak to the Delhi Police Commissioner personally,” he submitted.

Justice Chelameswar told the counsel “This is not a usual case. A member of a Legislative Assembly was arrested. This is not a normal or usual happening in this country. No, we believe there is something more to it and that is why we do not want them to go back to Patiala House courts for bail.”

Additional Solicitor General Tushar Mehta and senior counsel Ajit Sinha submitted the report of the Commissioner of Police relating to the Patiala House court incidents. The bench said it would examine all the reports on Monday.

In its order shifting the case, the bench said “Having regard to the background in which the instant application came to be filed, certain apprehensions were expressed at the Bar on behalf of the petitioner and other learned members of the Bar that some special precautions are required to be taken while the proceedings are taken by the Delhi high court to ensure the safety of the learned counsel appearing for the petitioner and also the journalists.”

It said “Having regard to the history of the case, we deem it appropriate to request the high court to take such appropriate steps as it deems fit and proper to ensure the peaceful conduct of the proceedings. We also place on record that the learned Solicitor General appearing for the Union of India as well as the Commissioner of Police, Delhi assure that all necessary precautions will be taken in consultation with the Registrar General of the Delhi high court for the peaceful conduct of the case.”