Delhi HC Junks Swamy’s ‘Political’ Interest Litigation For SIT Probe Into Sunanda Pushkar’s Murder [Read Order]

The Delhi High Court on Thursday dismissed what it termed ‘political’ interest litigation filed by BJP leader Subramanian Swamy and advocate Ishkaran Bhandari seeking SIT probe into the “mysterious” death of Sunanda Pushkar, the wife of Congress MP Shashi Tharoor while stopping short of imposing cost on them for withholding information and facts from the court and also cautioning against making the PIL public even before the same comes up before the court.

“The Court is left with a distinct impression…that this is perhaps a textbook example of a ‘political interest litigation’ dressed up as a PIL. The Court should be careful in not letting the judicial process be abused by political personae for their own purposes, whatever the nature of the matter may be. That is not to say that no political person can file a PIL. It is only that, in such instances, particularly where the principal allegations are against political opponents, the Court should be cautious in proceeding in the matter. The Court has to be satisfied that the allegations are based on some credible material and are made with a sense of responsibility,” the division bench said.

A bench of Justice S Muralidhar and Justice IS Mehta pointed out three lapses on part of the petitioner and remained far from being persuaded that the case required CBI-SIT probe.

The bench also issued directions to the registry to issue practice directions that from now on whosoever files an affidavit is required to state as to which parts of the petition is true to the personal knowledge of the petitioner and which is based on legal advice.

Below are the three errors pointed out by the bench:

**Tharoor not made party

The bench noted that Swamy had nowhere mentioned in the petition that he is a BJP leader or Tharoor is Congress leader and not made him a party.

“Despite the above grave allegations against named persons, the Petitioners have not thought it fit to arraign them as Respondents. There is no valid explanation offered for the failure to do so. But the non-joinder of necessary parties is only one of the problems with this petition,” the court said.

** Non-disclosure of parent political party can’t be condoned

“Dr. Swamy, who appears in person, informed the Court that he is a member of the Bharatiya Janata Party which, he was candid to admit, is not stated anywhere in the petition. He was also candid in saying that the persons named above are members of the Indian National Congress which, he has not disclosed anywhere in the petition. Since the foundation of the petition concerns the alleged conduct of the named persons, and considering that this petition is projected as a PIL, the failure to disclose a material fact is a serious omission which cannot be easily condoned,” it added.

**Failure to disclose complete facts

The third issue concerns the failure to disclose the complete facts.

“Nothing has been placed on record to probablise, let alone substantiate, the vague and sweeping allegations made in the petition. Dr Swamy was asked whether he had any basis for alleging that the investigation was “botched” by the Delhi Police at the “behest of rich and influential”.

“He was also specifically asked if, indeed, he had any information in his possession as to who these persons are. In response, Dr Swamy stated that he would file a further affidavit to substantiate the above as well as other sweeping allegations referred to hereinbefore.  When the second Petitioner, Mr Bhandari, who also appears in person, was confronted with the same query, he was contrite and admitted to the lapse on his part in not paying attention to what was required under the law. Mr Bhandari describes himself as a lawyer with ten years standing,” it noted.

The bench also noted that neither the Delhi Police not the Centre subscribed to the view expressed by Dr Swamy and Mr Bhandari in “that the husband of the late Ms Sunanda Puskhar” has made attempts “to influence the Government to hush-up the case” and “remains even today in continuous interference in the police investigation”.

**The fatal lapse

The bench said the failure by Dr Swamy to disclose the full facts and information in his possession, assuming that his assertion in this regard is right, is the third, and perhaps fatal, lapse. It is contrary to the assertion made by him in the affidavit in support of the petition.

** PILs to conform to HC rules, affidavit stands amended

Noting that PILs filed in the Delhi High Court have to conform to the Delhi High Court (Public Interest Litigation) Rules, 2010, the bench observed that Swamy and Bhandari filed identical affidavits that they have not concealed any information from the court but went on to seek more time to file another affidavit when asked about the basis of allegations made in the PIL.

“Although Dr Swamy claims in the said affidavit that he has not concealed any data/material/information which may have enabled this Court to form an opinion as to whether it should entertain the petition, when asked specifically about the basis of the allegations made by him in the petition, his response is to seek further time to file another affidavit. This is a clear admission that what should have disclosed in the first place to this Court was not disclosed by him,” the court noted.

It said, “The credibility of the judicial process hinges upon the Petitioners in a PIL, including Dr Swamy, who likes to be thought of as a veteran PIL Petitioner, to act responsibly when they make averments in their petitions. The PIL-petitioner must, as should for that matter every writ petitioner, state on affidavit which part of the averments (with reference to para numbers or parts thereof) made (including those in the synopsis and list of dates and not just the petition itself) is true to the Petitioner’s personal knowledge derived from records or based on some other source and what part is based on legal advice which the Petitioner believes to be true. This is a basic requirement of any writ petition that is supported by an affidavit.”

**Affidavit proforma amended

Although the proforma affidavit devised by the Delhi High Court as part of the PIL Rules does not specifically require the petitioner to do so, the court considers this to be an appropriate occasion to direct that hereafter, if not already done, every writ petition (which includes a PIL petition) filed in the registry (and not obviously a letter or post card) should be supported by an affidavit which, apart from complying with the legal requirements in terms of the governing rules of the high court, should clearly state which part of the averments (with reference to para numbers or parts thereof) made (including those in the synopsis and list of dates and not just the petition itself) is true to the petitioner’s personal knowledge derived from records or based on some other source and what part is based on legal advice which the petitioner believes to be true.

**No need for SIT probe

On a careful examination of the status reports filed in the court in this petition, the court was unable to be persuaded that the investigation being carried out by the SIT is ‘botched up’ or under the influence of anyone.

The court took on record the assurance of Ishwar Singh, DCP heading the SIT “that no efforts shall be spared in taking the investigation of this case to its logical conclusion at the earliest”.

 **PIL up on the Internet before court’s consideration

Before concluding, the court adverted to the “disturbing feature” where that one day prior to the petition being heard by the court first on July 12, 2017, the entire petition was available on the internet.

“When the Court is seized of petition of this nature where allegations of a very serious kind are made against individuals the PIL petitioner should be extremely circumspect in placing such a petition in the public domain even before it is properly considered by the Court. Placing of such material on the net or in the social media can have irreversible consequences. This caution should be exercised particularly in matters where the reputation and privacy of the individuals may be involved,” it said.