Kerala HC Dismisses ‘Political’ Interest Litigation Seeking CBI Probe In BJP-RSS Activists’ Murders [Read Judgment]

"Public, Private, Political, Promotional: all have the same initial letter—P. But which of these stands for the ‘P’ in this self-proclaimed PIL? We shall see.

The ‘P’ in PIL here stands, of all the expression—Public, Private, Political, Promotional—for Political" the bench said.

Terming it a ‘political’ interest litigation, the Kerala High Court has refused to order CBI probe into the murders of BJP-RSS activists in Kannur district.

The Gopalan Adiyodi Vakkeel Smaraka Trust, claiming to be a charity organization, had approached the high court complaining of political murders in Kannur district. It claimed that it espouses the cause of the victims’ relatives, for “they are unable to proceed against the politically influential culprits, fearing a backlash from them”. The writ petition also highlighted seven murders of recent past and also alleged an unholy nexus between the police and the ruling political class.

The High Court has farmed the following issues;

(1) Has the Trust got the locus to file the writ petition probono publico?

 (2) Should the writ petition fail for not bringing on record those it has accused against—the necessary parties?

 (3) Has the Trust established sufficient grounds justifying this Court to transfer the investigation to an outside agency—CBI?

Justice Dama Seshadri Naidu, who authored the judgment for the bench headed by then Chief Justice Antony Dominic, said the trust lacks the locus and bonafides to espouse the cause in the name of public interest when it concerns with only parochial political score-settling.

“Here, the petitioner is a Trust, represented by its Secretary. In one of the seven cases the Trust talks about, the Secretary’s brother is the de facto complainant. In all cases, first, the Trust has not pleaded why any of the affected persons—the victims’ families or their relatives—could not approach the Court. Attacked on this front in the counter-pleadings, the Trust filed a reply, belatedly justifying, that they have all been terrified. Yet some seem to have given affidavits to the Trust; those affidavits were collected only in the face of the respondents attacking the Trust’s locus”

“So we are constrained to conclude that the petitioner Trust lacks the locus and bona fides to espouse the cause in the name of public interest when it concerns with only parochial political score-settling”.

 The bench, taking note of the tone of the pleadings, observed: “We may add: pleadings are not playthings; they are like loaded pistols. Words can wound. In fact, they do many things: they edify, deify, vilify, or even destroy—lives and reputations. They can stoke emotions, provoke violence, throw values into turmoil, affect lives, in many inconceivable ways. Pleadings—their tone and tenor, more so—can make or mar the case prospects and fortunes. While drafting the pleadings, counsel must be on guard; decorum and deference, precision and circumspection are the watchwords. Rather they are the cardinal virtues and primary attributes. A life may hang on a comma; a fortune on an infelicitous expression; a disaster on a misspelt word. To conclude, we may add, it takes cognitive toil and literary skill to plead correctly, clearly, cogently, and concisely: the four Cs.”

The bench also said the writ petition also suffers from non-joinder of necessary parties. It said: “From the Chief Minister to the grassroots party cadres, many names pop out in the pleadings. They all allegedly have played a part in the violence and deaths. The Trust wants an investigation by an independent agency—CBI—into these allegations and into the crime or complicity of all those named persons. But the Trust did not array them. Allegations galore, rampaging accusations threatening to tear their reputation, and even freedom, apart; are they not entitled to notice, prior hearing?”

Has the State Machinery Failed, Warranting Transfer of Investigation?

 “We do abhor violence, we do detest murders, and we do feel devastated at the wanton destruction and loss of human life. Yet the question is, has the State and its machinery—especially its law-enforcing one—have abdicated their constitutional obligation of containing crime and conducting a fair investigation to bring the culprits to book?”

 The High Court has answered the question as follows;

 “To a telling effect the Supreme Court observes that the Courts should exercise this extra-ordinary power sparingly, cautiously, and exceptionally, to provide credibility and instil confidence in the investigation, or when the incident may have national or international ramifications, or when such an order may be necessary for doing complete justice, and for enforcing the fundamental rights. Otherwise the CBI would be flooded with many cases. And with limited resources, it may find it difficult to properly investigate even serious cases. In this process, it may lose its credibility and purpose with unsatisfactory investigations”.

 “Extraordinary as the power is, this Court can transfer investigation to CBI, illustratively under these circumstances: (a) when the investigation by the State police authorities is deliberately delayed, flawed, or perverted; (b) when the investigating agency acts to the dictates of the superior officials or political bosses; or (c) when the Court feels that the investigation will not enable the Court to do complete justice, or to instil confidence in the public”.

 But we regret our inability to hold that the Trust has placed any material making out any of the above contingencies, warranting our exercising that extraordinary power, in a federal set up, of transferring the investigation to an external agency: CBI. The ‘P’in PIL here stands, of all the expression—Public, Private, Political, Promotional—for Political”

 The bench, dismissing the plea, clarified that it has not considered the crimes on merits, nor have endorsed any plea on either side as right or wrong. “We have considered, apart from the jurisdictional questions, only one substantial issue: Has the petitioner made out any case to have the investigations transferred to CBI. Our answer is a ‘No’,” the bench added.