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In the Supreme Court of India
Criminal Original Jurisdiction
------------------------WRIT PETITION (CRL) NO. 32 OF 2016

(Petition under Article 32 of the Constitution of India)

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

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.

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In the Supreme Court of India
Criminal Original Jurisdiction
REPLY BRIEF FOR THE RESP. 5, VIKRAM S. CHAUHAN IN OPPOSITION

TO,
THE HON‘BLE THE CHIEF JUSTICE OF INDIA AND HIS
COMPANION JUDGES OF THE SUPREME COURT OF INDIA:

Respondent, Vikram Singh Chauhan (“Chauhan”) through his

advocates, Karamvir Dahiya and Ajay Pal, respectfully submit the
following Reply to the Writ Petition ("Writ"):

This writ under article 32 of the constitution is not maintainable

and if not dismissed, it must be remanded to Delhi High Court, pursuant
to articles 227 and 235. Entertaining requested relief by the Petitioner
vis-à-vis Public Interest Litigation (PIL) in this forum based on
delineated unique facts results in erosion of independence of the
subordinate judiciary and the pleadings also clearly do not comport
with the standard required for issuance of "suo motu" contempt
initiation. This petition opens an undesireable litigation front, likely to
reach inconsistent outcomes, as the lowers courts are seized with the
matter, administratively and judicially.
Brief Narrative:
1.

Adduced from the disparate media outlets--print and online--the

Petitioner, advocate Kamini Jaiswal (“Jaiswal”) along with her colleague
advocate Prashant Bhusan (“Bhusan”) moved this Court to,
Issue an appropriate writ, order or direction to constitute a
Special Investigation Team to investigate the incidents of attack on
15.02.2016 and 17.02.2016 by some lawyers and others in the
premises of Patiala house [sic] court on the journalists, students,
teachers, defense lawyers and the accused person, and, if found
guilty, initiate action them [sic] in accordance with law.

Issue suo moto contempt proceeding against the Respondent
Nos. 3-5 for interfering in the administration of justice and for
willfully violating the orders dated 17.02.2016 of this Hon’ble Court,

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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 untenable—procedurally and substantively-in law and equity. And this PIL must be dismissed for abuse of process
of Court—“There 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

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2.

Mr. Kumar is someone “who has claimed himself to be a public

figure and member of AISF Students Political Party affiliated to
Communist Party of India. He is also President of Jawaharlal Nehru
University Students Union and “actively involved in various activities
carried out in the University.” Also, he is “pursuing Ph.d. at School of
International Studies, Jawaharlal Nehru University.” See Justice Pratibha
Rani’s oral decision in W.P. (CRL) 558/2016 & Crl. M.A. Nos. 3237/2016
& 3262/2016, High Court of Delhi setting conditional release of Mr.
Kumar confronting sedition charges. Thus factual projection of PIL, or
finding of Justice Pratibha Rani militates against according a PIL relief
candidature to Mr. Kumar. None of the established precedents of this
Court had such a person seek judicial relief vicariously through third
party crutches. Indeed established guidelines had and have only those
infirm, ignorant, poor, downtrodden ones who were provided this
window of PIL, or others espousing a bigger challenge to vires of laws or
public policies. Unlike Part III of the Constitution, PIL is not a right but a
judicial privilege—Mr. Kumar does not qualify for it. If we accord such a
privilege for a doctoral scholar, leader of student body who has now
picked up the gauntlet to change the entire political and social
landscape of India, then we have lost the meaning of downtrodden and
helplessness.
Standing and Genesis of PIL does not Warrant Relief Here
3.

Article 32 guarantees, “the right to move Supreme Court” for

“enforcement of rights conferred by this part [III].” Art. 32 (1). However
the rights are not vicariously “conferred,” they are vested in each person
on an individuated basis per as part III of the constitution. These Part

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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
forum—direct 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

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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.

Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai & Ors, (1976)
3 SCC 832, 837 (Justice Iyer). However, not every issue or filer of PIL is
viable or shall stay. This Court addressing the standing issue, quoting
Justice Krishna Iyer--“In a society where freedoms suffer from atrophy,
and activism is essential for participative public justice, some risks have
to be taken and more opportunities open-ed for the public minded
citizen to rely on the legal process and not be repelled from it by narrow
pedantry now surrounding locus standi,”—made it clear—“we must be

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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,

Public Interest Litigation is a weapon which has to be used with
great care and circumspection and the judiciary has to be
extremely careful to see that behind the beautiful veil of public
interest an ugly private malice, vested interest and/or publicity
seeking is not lurking. It is to be used as an effective weapon in
the armory of law for delivering social justice to the citizens.

R. M. Trust v. Kora Mangla Vigilance Group, AIR 2005 SC 894 quoting
Justice Hon'ble Pasayat J from Dattaraj Nathuji Thaware Vs. State of
Maharashtra & Ors. (S.L.P.(c) No.26269 of 2004). One essential aspect
of this PIL overlooked is that the subject of the PIL already has a pool of
popular lawyers assisting him through the legal maze as is seen from his
obtaining of inter-im bail from Delhi High Court. Also, Mr. Kumar, a bare
google of and other media would shows that he is an active politician
now, campaigning countrywide for social justice. He cannot be a
candidate of a third party espousing through a PIL, his judicial redress.
He must do it himself, in his own name or through his counsel.
Bereft of Admissible Facts, Laden with Conjectures, this PIL Merits
Dismissal in limine

4.
Mr. Bhusan via Ms. Jaiswal, the petitioner, provides the basis for
this PIL filing:

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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.

PIL P # 3, ¶ 1. The source of “facts which have come to light” qua
respondents Vikram Singh Chauhan, Yaspal Singh and Om Sharma is
none other than, “various reports including media reports and the sting
operation aired on the India Toda news channel.” Supra PIL, ¶ 5.
Petitioner, further advances exhibits, as Annexure , interalia, P-1, 5, 11,
12, 13, 14, and 15. The undersigned do not wish to dispense in toto, the
role a press might play. Laudable indeed is the sensitivity of the
Petitioner to the press—press had been a source of the PIL in the past—
for instance, Bhagalpur Jail’s blinding of inmates, by virtue of
competitive journalism of Sunday Weekly and Indian Express; abject
predicament of bonded labors, once again exposed by the media and
judicial scepter picked up by the Supreme Court to excise evil. Jurist like
Upendra Baxi has vouched and eulogized their role. See Baxi, Upendra
(1985) "Taking Suffering Seriously: Social Action Litigation in the
Supreme Court of India," Third World Legal Studies: Vol. 4, Article 6.
But all this has to be a product of competent “investigative journalism.”
Despite such reliance, it is clear: A trial by press, electronic media or
public agitation is the vey antithesis of rule of law.” Sahara India Real
Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603 quoting State of
Maharashtra v. Rajendra J. Gandhi (1997) 8 SCC 386. Emphasis added.
This is precisely what Mr. Bhusan and Ms. Jaiswal have embarked
upon—solely creating their own judicial nuance with nominal factual

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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.

Ms. Jaiswal contends that a purported “Sting Operation” executed

by India Today is material enough to indict the Respondents for a “suo
motu” contempt. Petitioner Ex. P-14. Further, the Sting Operation,
proffered in evidence here is not by a law enforcement agencies, but a
private party, a media company, India Today. This non-governmental,
offered heft must be discarded as we stand counseled by this Court,
Being essentially a deceptive operation, though designed to nab
a criminal, a sting operation raises certain moral and ethical
questions. The victim, who is otherwise innocent, is lured into
committing a crime on the assurance of absolute secrecy and
confidentiality of the circumstances raising the potential
question as to how such a victim can be held responsible for the
crime which he would not have committed but for the
enticement. . . . Nonetheless, the question that arises in the
present case is what would be the position of such operations if
conducted not by a State agency but by a private individual. . . .
The doctrine of mens rea, though a salient feature of the Indian
criminal justice system, finds expression in different statutory
provisions requiring proof of either intention or knowledge on
the part of the accused. Such proof is to be gathered from the
surrounding facts established by the evidence and materials
before the Court and not by a process of probe of the mental
state of the accused which the law does not contemplate. . . .
The inherent possibilities of abuse of the operation as
videographed, namely, retention and use thereof to ensure
delivery of the favours assured by the receiver of the bribe has
to be excluded before liability can be attributed or excluded.

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.

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5.1. Further, restrictive of the PIL compass vis-à-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 judge—CPC 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

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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)

where action is taken under a statute which is ultra vires the
Constitution;
where the statute is intra-vires but the action taken is without
jurisdiction; and
where the action taken is procedurally ultra vires as where a quasijudicial authority under an obligation to act judicially passes an order
in violation of the principles of natural justice.

Naresh Shridhar Mirajkar v. State of Maharashtra, (166) 3 sCr744: AIR
1967 SC 1 [9 Judge Bench]. Here, Mr. Kumar finally had his day in the
Court, had his bail set and released. As far as private assault etc. are
concerned, Mr. Chauhan has been arrested upon filing of FIR and he is
cooperating with the investigation, rendering moot Petitioner claims
that there is no charges filed against the respondents.

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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

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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

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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 Minister’s 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

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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

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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,


That the Respondent No. 2 has grossly direlected in its
duties in failing to provide safety and security to the litigants,

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the

Also,

journalists and others in the Patiala House Court premises on

day when the incident of took place. PIL ¶ 4.
On 15.02.2016 when Kanhaiya Kumar was to be
produced before the Magistrate at Patiala House Courts,
students and teachers from JNU and journalists were attacked
by some criminal elements, including advocates and a sitting
member of the Delhi legislative assembly, in Patiala House
Court. The injured journalist and defense advocates
approached the police to register FIRs on the basis of a written
complaint and to give the names of the advocates who were
leading the attack but even though the facts of the said event
were in public domain and the pictures and videos of the said
advocates and MLA were being circulated in the media, still the
Delhi police refused to register FIR on the basis of the said
complaint. . . . Despite the fact that the entire incident was
widely reported in newspaper reports and some of the
lawyers, including the Respondent Nos 3 to 5 were not only
identified but they also admitted their involvement, still the
police did not make any attempt to arrest them. PIL ¶ 8.3.

Referring to a subsequent event, it alleges,

That on 17.02.2016, at around 2 pm, the Petitioner’s
counsel got a call from one of the defense lawyers who had
been permitted by this Hon’ble Court to be present at the Court
of the Shri Loveleen, Metropolitan Magistrate, Patiala House
Court. The Petitioner’s counsel 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. The petitioner’s counsel immediately mentioned the
events which were being transpired at the Patiala House Court
premised before the accused Kanhaiya Kumar could be
produced the MM. While this Hon’ble Court was waiting to get
the version of the Delhi Police on this, it was brought to the
notice of the Hon’ble Court by the petitioner’s counsel and
some senior lawyers that the accused person was beaten up
and journalists assaulted again despite the order passed by this
Hon’ble Court in the morning. This Hon’ble Court directed a
team of lawyers to inspect the Patiala House Courts and give a
report. . . . That on 17.02.2016, at 4.05pm, 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. The committee also mentioned that
they were abused in filthy language and pelted with flower
pots, pebbles and water bottles. It was also informed that
lawyers and journalists were locked inside the court room. PIL
¶ 8.5-6.

Irrespective of the type of narration, the Petitioners herein complains
about nothing more than a "law and order" situation. PIL. There is no
challenge to law, policy or interpretation of law, but of law enforcement.
Ibid. This being a "law and order" situation, it belongs to the High Court.
It would be a structural error to transgress or usurp the role of High

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.

Id. The separation of power, indeed, is hall mark of our constitution.
The constitution is supreme as law of the land. Its supremacy is "basic
structure" of the constitution. Kesavananda Bharati v. State of Kerala
AIR 1973 SC 1461. See for theory of "basic structure." Indira Nehru
Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of

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-à-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.
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,

24
1971 or under its “inherent powers.” And this Court’s power to punish
for contempt is deemed to be a constitutional one—not 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
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.

25
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
Hon’ble Court. . . . 17.02.2016 after a detailed hearing, this
Hon’ble 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 Petitioner’s 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 Hon’ble Court by the
petitioner’s counsel and some senior lawyers that the
accused person was beaten up and journalists assaulted again
despite the order passed by this Hon’ble Court in the
morning. This Hon’ble 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.

PIL ¶ 8-4-7. Second, none of the allegations, points to Respondent
3 to 5. Third, also, very telling is the Annexure P-6, a report of the
lawyers committee (“Report”): Its findings, in essence are unreliable,
being perfunctory, replete with contradiction, with most purported
witness either denying or claiming no knowledge, though they were
present at the alleged incident place and time, for instance—“It was
surprising though he was in the Court room with the accused and yet he
could not ascertain whether the accused in fact beaten up or not.”
Report. P. 68. Further, “Mr. Dave asked as to whether the assault had
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

26
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
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 Petitioner’s claims of contempt against respondents 3 to

27
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
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

28
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)

Going by such confrontation, and among so many policemen and other
staff members, it is incredulous that the identity of this character
supporting "dark glasses" could not be identified. It remained a
phantasm. Thus the resulting muddled and unwieldy Petition so
adorned with unnecessary surplusage and conjectures that the neither
the undersigned nor this Court can identify the crux of contempt claims.
10.2. To cement their shaky claims of contempt, the Petitioner attempts
to fasten respondents 3 to 5 with a sting operation by India Today,
wherein according to media, the said respondents boasted of their
doings. This is not an unflinching evidence, it is a “trial by media”
dismissible promptly, as this Court has cautioned,
“[T]he impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of
guilt regardless of any verdict in a court of law. During high
publicity court cases, the media are often accused of provoking
an atmosphere of public hysteria akin to a lynch mob which not
only makes a fair trial nearly impossible but means that,
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."

29
R.K.Anand vs Registrar,Delhi High Court, (2009) 8 SCC 106, 198. Thus
based on a based on sting operation, its reliability has no traction. Facts
and liability must be clear before imputing contumacious conduct.
Sushila Raje Holkar v. Anil Kak, (2008) 14 SCC 392 (“Whether the alleged
contemnor has willfully committed breach of the order passed by a
competent court of law or not having regard to the civil/evil
consequences ensuing thereforer require strict scrutiny. . . . A
contemnor, thus, may be punished only when a clear case for
contumacious conduct has been made out. ”). Only when the facts are
very unequivocal in its reference, and proof unflinching in all aspects
that a contemnor is punished. Debabrata Bandyopadhyay v. State of West
Bengal, AIR 1969 SC 189; Gurnam Singh, Sub-Divisional Engineer, Public
Health v. Rakesh Singh, I.A.S. Secretary, Local Government (2002) 7 SLR
771. This Court in In Re P.C. Sen, alluding to Legal Remembrancer v.
Matilal Ghose, AIR 1914 Cal 69 (SB) opined that,

Proceedings for contempt should be initiated with
utmost reserve and no court in the due discharge of its duty
can afford to disregard them. It was also observed that
jurisdciton to punish for contempt was arbitrary, unlimited
and uncontrolled and should be exercised with the greatest
caution: that this power merits this description will be
realized when it is understood that understood that there is no
limit to the imprisonment that may be inflicted or the fine that
the may be imposed save the Court’s unfettered discretion, and
that the subject is protected by no right of general appeal. . . .
does not justify the court in commencing proceedings without
due caution and reserve.

Rather than contempt, it is a breakdown of law and order which
is an administrative matter. Local Police is already seized with
the matter and law is taking its own course with the Delhi High
Court supervising and controlling the situation.

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

This admonishment is clearly reminiscent of,

"While this Court has laid down a chain of notable decisions
with all emphasis at their command about the importance and
significance of this newly developed doctrine of PIL, it has also
hastened to sound a red alert and a note of severe warning that
Courts should not allow its process to be abused by a mere busy
body or a meddlesome interloper or wayfarer or officious
intervener without any interest or concern except for personal
gain or private profit or other oblique consideration."

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

31
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.

Dated: New Delhi, Delhi

March 22, 2016




















By:__________________________
Karamvir Dahiya, Adv.

___________________________
Ajay Pal, Adv.

Respectfully submitted,