New Delhi: Additional chief metropolitan magistrate, Rouse Avenue Court, Delhi, Vishal Pahuja on Tuesday made a startling announcement before the proceedings began in Mobashar Jawed Akbar v Priya Ramani – that his court is not competent to hear the case in view of the Supreme Court’s order in Ashwani Kumar Upadhyay v Union of India. As per this order, special courts were created for the trial of cases against (emphasis by the Rouse Avenue court) MPs and MLAs.
Tuesday’s order by Judge Pahuja read as follows:
“In view of the aforesaid judgment of the Hon’ble Court vide circular no.760-804/DHC/Gaz./G-1/VI.E.2(a)/2018 dated, the 23rd February, 2018 designated the special courts for trial of the cases against MP/MLA. As the present matter is not filed against MP/MLA, hence, cannot be tried by this court and needs to be transferred to the Competent Court of Jurisdiction. Let this matter be put up before the court of Ld. Principal District and Sessions Judge (Rouse Avenue District Courts) for 14.10.2020 at 10.30 AM for further appropriate orders.”
In the criminal defamation case initiated by Akbar in October 2018, Ramani had pleaded not guilty. Akbar had approached the Patiala House Court under Section 499 of the Indian Penal Code, terming the sexual harassment allegations levelled against him as “false, frivolous, unjustifiable and scandalous”. Appearing for Akbar, senior advocate Geeta Luthra argued that due process was not followed when Ramani alleged sexual harassment by Akbar on social media. The allegations were per se defamatory, she contended.
The ACMM began hearing the case on May 4, 2019. Final arguments in the case began on February 7, 2020, after the completion of cross-examination. Since then, seven days of arguments have been completed on both the sides. Of these, Ramani’s counsel, Rebecca John made her oral submissions for four days. She pleaded truth, good faith, public interest and public good as her defence. She contradicted Akbar’s claim to “stellar reputation”, considering the avalanche of disclosures against him by several at least 14 women. On the last day of hearing, September 19, John had completed her submissions on why Ramani deserves to be acquitted.
According to Bar and Bench, John argued on September 19 that freedom of speech and expression was critical and intrinsic to a democracy, and Ramani was a “small part of a large movement (MeToo) in which several women had called out the sexually coloured behaviour of their male bosses”.
Also read: How Women Who File Rape Charges Have to Walk Through a Hazardous Journey of Securing Justice
On Tuesday, Luthra was to begin the rebuttal of John’s arguments, when the judge decided to transfer the case to another court.
The silence in Judge Pahuja’s order on Tuesday on the administrative lapse which was responsible for the listing of this case before the special court is eloquent. John has been arguing this case pro bono, and each day of argument meant months of preparation. Can the court take counsel like her for granted? Although John refused to comment on Tuesday’s decision, it wouldn’t be wrong to say that there is something more to this than what meets the eye.
But the official reason itself deserves to be examined closely.
The Supreme Court case, cited by Judge Pahuja, is a pending case since 2016. Some of the orders passed in this case from time to time are revealing.
On March 25, 2019, then Chief Justice of India Ranjan Gogoi and Justice Deepak Gupta directed the Registrar General of the High Court of Judicature at Madras to transfer all criminal cases related to (emphasis mine) MPs and MLAs pending under its jurisdiction to the special court for cases related to (emphasis mine) elected MPs and MLAs of Tamil Nadu, in Chennai.
The order passed by the bench of then Chief Justice Ranjan Gogoi and Justices Sanjay Kishan Kaul and K.M. Joseph, on December 4, 2018, held thus:
“Instead of designating one Sessions Court and one Magisterial Court in each district, we request each High Court to assign/allocate criminal cases involving (emphasis mine) former and sitting legislators to as many Sessions Courts and Magisterial Courts as the each High Court may consider proper, fit and expedient. This, according to us, would be a more effective step instead of concentrating all the cases involving (emphasis mine) former and sitting legislators in a Special Court(s) in the district.”
On November 1, 2017, the bench of Justices Ranjan Gogoi and Navin Sinha recorded the submission of additional solicitor general A.N.S. Nadkarni thus:
“The present (case) is not an adversarial litigation and the Union Government would not be averse to setting up of Special Courts to try criminal cases/offences involving (emphasis mine) political persons and for utmost expeditious disposal of the same.”
The last hearing of the case took place on September 16 when a bench of Justices N.V. Ramana, Surya Kant and Hrishikesh Roy made it clear that the objective behind issuing notice in this case was to ensure that criminal prosecutions against (emphasis mine) elected representatives are concluded expeditiously.
The court was of the opinion that such special consideration was required not only because of the rising wave of criminalisation that was occurring in the politics in the country, but also due to the power that elected representatives (sitting or former) wield, to influence or hamper effective prosecution. Additionally, as legislators are the repositories of the faith and trust of their electorate, there is a necessity to be aware of the antecedents of the person that is/was elected. Ensuring the purity of democratically elected institutions is thus the hallmark of the present proceedings, the Ramana bench clarified in Paragraph 14.
In Paragraph 17, the bench observed:
“The learned Chief Justices (of the high courts) while preparing the action plan should also consider, in the event the trials are already ongoing in an expeditious manner, whether transferring the same to a different court would be necessary and appropriate”.
In Paragraph 20, the bench requested the chief justices of all the high courts to list forthwith all pending criminal cases involving (emphasis mine) sitting/former legislators (MPs and MLAs), particularly those wherein a stay has been granted, before an appropriate bench(es) comprising of the chief justice and/or their designates and decide whether the stay should continue. The bench underlined that COVID-19 conditions should not be an impediment to the compliance of this direction, as these matters could be conveniently heard through video conferencing.
Also read: M.J. Akbar, Minister and Former Editor, Sexually Harassed and Molested Me
It is thus clear from the records of this case hearing that the Supreme Court has been using the words “involving” and “against” in the context of current and former legislators synonymously and interchangeably, and not in mutually exclusive terms. And if the clarification in the last order issued by the Ramana bench is any indication, the bench would not have meant the exclusion of the defamation case filed by Akbar from the purview of the special court, because of its reasoning in Paragraph 14.
Therefore, the question whether the designated special court at Rouse Avenue took a rather technical view of its jurisdiction so late in the day, in order to avoid expeditious conclusion of the trial involving (emphasis mine) Akbar, lingers.