On the 17th of May, the Calcutta High Court had overruled the judgement passed by a trial court to grant bail to the TMC leaders who have been accused in the case. The basis of the judgment was that the protests held outside the courtroom and the CBI office had been led by the Law Minister as well as the Chief Minister of the state. Therefore, it had the capability to influence the decision of the presiding judges.
On Thursday, the Calcutta High Court was hearing further arguments from Senior Advocate Dr AM Singhvi in response to the questions raised by Solicitor General Tushar Mehta as well as the five-bench judges: Justices Rajesh Bindal, IP Mukherjee, Harish Tandon, Soumen Sen and Arijit Banerjee.
Mehta had earlier argued that the protests had had the effect of mobocracy and thus vitiated the court proceedings.
Responding to that, Singhvi argued that if peaceful protests are taken to be mobocracy, the entire existence of democracy needs to be questioned. It has clearly been mentioned that gathering peacefully without arms is a part of the fundamental right to freedom of speech and expression according to Article 19 (1) (b) of the Indian Constitution. Even in the letter submitted by the CBI to the Chief Justice is neither a petition nor a PIL. It seems like the body is under a superior authority. Since the protesters were not inside the court during the proceedings, we cannot say that there have been attempts to tamper the judgement.
Justice Bindal questioned why the Law-Minister was present in the court premises at all on that day and if he visits to court on a daily basis usually.
To this, the Senior Advocate answered that the presence of the Law-Minister in the court is a sign of his integrity and dedication towards his job as a law-minister is definitely expected to be abreast with recent and important judgments in order to legislate better.
Justice Bindal noted that the protest was not an ordinary one because it had been led by constitutional functionaries and therefore can be said to have had the power to pressurize the judges.
Singhvi answered that the mere presence of the legislators cannot be said to have vitiated the proceedings as there can be seen nothing in the bail order which even implies that the judges were under pressure or influence while passing the judgement.
The Judge asked if the counsel had ever seen a judge, admitting himself that he has been under pressure
Singhvi pointed out the famous land acquisition case before the Supreme Court where Justice Arun Mishra had clearly said that he was not comfortable with the demeanour of the ones present in court. this is exactly why the charges of contempt of court exist. So that the judges can clearly mention if anything in the court is disrupting the proceedings. Outward assumptions cannot be made regarding the mental status of the judges while they give a judgement. The same can be inferred from the Sanjay Dutt TADA case and the Salman Khan case where the public outrage was at its worst and yet the judgement had not been vitiated clearly.
Even the assumptions of vitiation can be made if the following three criteria are fulfilled:
- The actions must affect the administration of the court
- Must make the proceedings of the court impossible to function
- Must have a direct impact on the judgement passed
Justice Soumen Sen raised the question as to whether the mere presence of the Law-Minister will not raise a question in the minds of the people about the system of adjudication.
Justice Mukherjee supported this question by stating that the entry of any person in the chamber of the judge is most likely to have an impact on the minds of the people, creating suspicion thereby.
Justice Tandon also followed the same line of questioning.
Advocate Singhvi cited the Coimbatore Bomb Blast Case: Abdul Nazar Madani v State if Tamil Nadu where the judges had clearly stated that just the existence of a hostile ambience or the presence of influential bodies will not render the judgement tampered in any way. The same was held in the Narmada Bachao Case. If the atmosphere in the court becomes difficult for the judges to function within, the case is either transferred or disciplinary actions are taken duly.
The Senior Advocate also questioned the denial of bail to the MLAs and laid down the criterion for doing so.
- There should be a possibility of flight of the accused
- There should be a possibility of the accused wanting to tamper the evidence
In this case, the possibility of flight of ruled out by the fact that the accused are MLAs and have a position in the society that cannot be hidden. Tampering of evidence is not possible because the evidence Is already lying with CBI and the case is several years old and there have been no instances of non-co-operation as well.
Citing section 41A of CrPC, he argued that an accused will not be arrested unless he refuses to comply with the orders of the authorities or there is a requirement for the recording of statements. The casual arrest is not a part of a democratic system. The existence of substantial material, application of reasoning upon it and the results of the recording of opinion on the material should result in an imperative need for the arrest in order to make such an arrest legitimate.
Although the final judgement is yet awaited, it can be concluded from the arguments and counter-arguments above, that the question is not whether the protests had taken place or not but whether such an outrage influenced the judicial administration, raised questions related to the same in the minds of people and if the judgement of the trial court to grant bail to the accused MLAs hold validity or not.