"Can Kerala Govt Seek Transfer Of Siddique Kappan From UP, A State Can't Invoke Art 32 Against Another State":Dushyant Dave Tells SC In Mukhtar Ansari Case

"A State cannot invoke Article 32 against another State", submitted Senior Advocate Dushyant Dave, appearing on behalf of State of Punjab and Jail Superintendent, to the Supreme Court in Uttar Pradesh Government's plea seeking transfer of BSP MLA Mukhtar Ansari from Ropar Jail in Punjab to Uttar Pradesh's Ghazipur Jail. 

A Bench headed by Justice Ashok Bhushan was hearing the matter, and heard the submissions of Senior Advocate Mukul Rohatgi, appearing for Ansari, Dave, who was appearing for Punjab and the Jail Superintendent, and Solicitor-General Tushar Mehta, who appeared for the State of UP.The matter will continue on Thursday.

COURTROOM EXCHANGE

In today's hearing, Rohatgi commenced his arguments by submitting that he had earlier applied for transfer and that the Court had passed an order stating that transfer would not be necessary and that Ansari could go for video-conferencing.He requested the Bench to send him to Delhi on account of the existence of threats to his life in case he was transferred to UP.

"Shifting me to Delhi would probably be the best. The government of UP also says that there is a problem with me being in Punjab. This can be resolved if the cases are shifted to Delhi and I am also shifted to Delhi", submitted Rohatgi.

The Bench informed him that they would consider the request.

Solicitor-General Tushar Mehta then made submissions on behalf of UP.

He averred before the Court that Ansari was following a script that could be seen in Hindi movies, and was merely mocking and taking the entire judicial system for a ride.The SG then went on to delineate how the Criminal Procedure Code had been flouted by him being taken out of custody in UP and being handed over to the Punjab Police.

"First of all, he could not have been brought out without order of the judge. Then he was taken to Punjab and produced there. Then instead of bringing him back to UP, he was housed in Punjab", submitted the SG.

He went on to aver that the Punjab Police had not done anything even after two years; they had not placed any material before the Court. "The Punjab Police in collusion with this man are dodging the judicial system. He procured a medical certificate saying that he cannot travel, but he has been travelling to Delhi. True facts are being suppressed", stated the SG.

The SG further submitted that Ansari had been operating his illegal activities from within the jail and the authorities in Punjab were willingly ignoring the same. Additionally, whenever summons were issued to Ansari by the trial court, the Punjab Police justified his non-production by stating that he was medically unfit when all that medical certificate recorded was that he had sore throat, backache, skin diseases etc. 

The SG concluded his arguments by stating that the Article 32 petition before the Supreme Court was maintainable as the State had a duty to ensure that justice was done and that there existed a duty towards the citizens.

Senior Advocate Dushyant Dave then commenced his submissions on behalf of the State of Punjab and vociferously stated,

"This matter has far-reaching consequences. This has nothing to do with Ansari. If he is a criminal, he is a criminal".

Dave went on to highlight that a State filing an Article 32 petition was bad in law and allegations were being made by one State against another. 

"Can Articles 14 and 21 be utilized by the State? Can they invoke it? Journalist Siddique Kappan was arrested by the UP Police. Can State of Kerala seek for him to be brought back to Kerala?", questioned Dave.

On that note, the matter was adjourned and will continue tomorrow.

BACKGROUND

The writ petition, filed by the State of UP for the transfer of the BSP MLA from his current lodging in Ropar Jail in Punjab to UP's Ghazipur Jail, alleges that many serious offences are presently pending in the State against Ansari and that his transfer is crucial owing to his appearance in those appearances. However, it is submitted, that the Superintendent of Ropar Jail has refused to hand over Ansari on medical grounds.

It had been submitted by Solicitor-General Tushar Mehta, appearing for Uttar Pradesh, that State of Punjab was vociferously defending and supporting a terrorist.

Ansari had filed a Counter-Affidavit in the plea by the State, objecting to the maintainability of the petition on the ground that there was no violation of rights mentioned under Part III of the Constitution and therefore, a petition under Article 32 would not lie.

"A State has no fundamental right guaranteed to it under the Constitution and one State cannot prosecute another State in a writ petition under Article 32 of the Constitution as it is against the federal scheme", he said in the Counter-Affidavit.