Narada Case : 'Question Is Whether Protests Had Any Impact On Judicial Administration', Singhvi Argues For TMC Leaders In Calcutta HC

A 5-Judge Bench comprising of Acting Chief Justice Rajesh Bindal, and Justices IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee is seized of the matter.

Today, Senior Advocate Dr. AM Singhvi, appearing for the accused TMC leaders, opposed the arguments made Solicitor General Tushar for CBI reading vitiation of Trial Court proceedings on account of public perception of bias allegedly created due to May 17 protests which Mehta dubbed as 'mobocracy'.

"Imagine the implication of perception argument- consequence is that mobocracy will become a self-fulfilling measure in every trial… If this is accepted, any protest on the streets of Kolkata would be obstruction. No actual obstruction will need to be shown. Only perception of common man would be required," he submitted.

Singhvi's Arguments on Mobocracy

He stated that the alleged protests were peaceful and whether it could be termed as 'mobocracy' is a question of fact that has to be determined. He insisted that if democratic protests become a ground to say that Court proceedings are vitiated, no Judgment will be safe.

"There is no material to show mobocracy. Even CBI's letter dated May 17 addressed to the Chief Justice is neither an appeal nor a PIL. CBI is under some super jurisdiction," Singhvi argued.

He stated that when people are outraged, they protest and that is the sign of a democracy. He also clarified that the Law Minister was not present in the Courtroom and thus, there was no interference with the administration of justice.

At this juncture, Acting Chief Justice Bindal  asked why did the Law Minister go the Court that day. "Does he go there everyday?" the Judge asked.

To this, Singhvi responded, "Presence of the Law Minister in Court complex is an indication of his faith in the Courts and an expression of solidarity."

ACJ Bindal pointed out that it is not a case of mere public protest or protest by political supporters. "This is a protest led by a Constitutional functionaries. That has to be kept in mind," he said.

However, Singhvi pointed out that there is nothing in the bail order to indicate that the Special Judge was under duress due to presence of the Law Minister.

"Have you seen any case where Judge says that he is influenced? Can you cite any Judgment? We have not seen any such case," Justice Bindal asked.

Singhvi responded,

"Yes. Judges do that. They state that conduct of this party or an Advocate in the case is not good and then they proceed to write the order. Disruption of proceedings call for comments," he said.

He also cited the Land Acquisition case before the Supreme Court where Justice Arun Mishra refused to recuse himself.

Singhvi's Arguments on Perception of Bias

Sighnvi argued that peaceful protests outside the Court cannot be a ground to say that judicial proceedings are vitiated.

"These days emotions are high for film cases. When Sanjay Dutt was brought to Supreme Court under TADA charges, emotions were seen outside Court. But considering that subjective perception will be a travesty," he submitted.

To vitiate Court proceedings, he said, three elements must be satisfied:

1. Such actions must affect administrative running of Court;

2. It must make functioning of the Court impossible;

3. It must render a direct impact on judicial adjudicatory process.

"Legal question is not whether they should have protested. Question is whether their protest had any impact on administration of justice," he argued.

Can Judicial Order Be Set Aside On Public Perception?Calcutta High Court Asks CBI In Narada Case

Justice Soumen Sen pointed out that the issue raised by CBI is that mere presence of the Law Minister in the Court complex will lead to a public perception that administration of justice was averted. "We are only concerned with whether circumstances were such that will give a reasonable doubt in mind of public that justice system was influence," he said.

Justice Mukerji said that looking at the matter academically, public is likely to have a reasonable suspicion of bias and influence if it sees a person going into the Judge's chambers. He stated that in such cases, the question of actual bias may take a backseat.

Justice Harish Tandon asked that if an elected constitutional functionary assembles and protests outside the Court, can the public perception argument be said to be diluted.

Responding to these queries, Singhvi cited the Coimbatore Bomb Blast Case (Abdul Nazar Madani v. State of Tamil Nadu) where it was held that, "Mere existence of a surcharged atmosphere without proof of inability for holding fair & impartial trial cannot be made a ground for transfer of a case."

The Top Court had also observed in this case that it will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged communal atmosphere, the case should be transferred from the area where existence of such surcharged atmosphere is alleged.

He also cited the Narmada Bachao Andolan case where despite facing an attack, the Court held that public protests will not weigh in deciding the merits of the case.

Singhvi's Arguments on Triple Test for Bail

Singhvi also cited the triple test for grant of bail as per which liberty will not be impeded unless the Court thinks that accused is (i) at a flight risk or (ii) is not cooperating or (iii) is likely to tamper with evidence.

He stated that the accused are MLAs/ Ministers and have deep roots in the society thus, they cannot be said to be at flight risk. He further argued that the matter is seven years old and there is no scope for non-cooperation or tampering of evidence by the accused.

He referred to the case of P. Chidambaram v. CBI where the Supreme Court had applied the triple test to grant bail to P. Chidambaram, key accused in the INX media case

Singhvi further referred to Section 41A of CrPC which provides that if the accused person complies and continues to comply with the notice of appearance, he shall not be arrested unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

"Casual arrest is a Draconian thing. There must be cohering reasons for arrest. It has four elements- (i) existence of material, (ii) application of mind on existing material, (ii) recording of formation of opinion and (iv) consequence from that record should be that Arrest is the only way," he submitted.

State's affidavit

During the hearing, Advocate General Kishore Dutta informed the Bench that the State has filed an affidavit on the law and order situation on May 17.

Both the Solicitor General and ACJ Bindal expressed their reservations on this, stating that arguments for CBI have already concluded and filing of affidavits at argument stage is not appreciated.

"We are not on contents of affidavit. The question is on stage of filing," ACJ Bindal said.

Read full Courtroom Exchange here.

Read previous reports here:

• 'Procedure Becomes Important When People's Rights Are Involved': Calcutta High Court Tells CBI In Narada Case
• 'Solitary Incident Not Justifiable Ground For Transfer': Calcutta High Court Tells CBI In Narada Case
• If Hearing Was Virtual & Judge Didn't Know People Were Protesting Outside, How Is There An Influence? Calcutta HC Asks CBI In Narada Case
• Narada Case : Judges Of Division Bench Can't Be Part Of 5-Judge Bench, Argues WB Advocate General