Violence following Dera chief conviction: Courts cannot ‘abdicate’, warns amicus

Senior Advocate Anupam Gupta, appearing as amicus curiae, opposed any move to refer the matter to a tribunal, describing it as “judicial self-abnegation”, a surrender of the High Court’s constitutional responsibility.

“This is not one of those routine cases where speed of disposal and pendency figures should dominate the court’s mind,” Gupta submitted. “It is a highly sensitive matter that goes to the heart of constitutional accountability. Violence in capital or near-capital cities has acquired a menacing resonance in South Asia. What happened in Panchkula shook not only its residents but the entire Tricity — Chandigarh, Mohali and Panchkula, including lawyers, judges and court staff who felt vulnerable”.

At one point, Chief Justice Nagu asked Gupta whether examining the state’s role in permitting mass gatherings, and its possible complicity, would amount to holding a trial against the government. Gupta submitted that this was not an ordinary trial but the constitutional duty of the High Court under Article 226. “Whether the outcome is absolution, exoneration or indictment, the duty is yours. How can subordinate judicial officers go about deciding questions of such gravity? They are subject to your administrative and constitutional control under Article 235. To outsource these issues would be abdication,” he said.

Gupta also highlighted that despite more than 240 FIRs registered after the violence, over 130 cases had reportedly ended in acquittals. “If all trials collapse in this fashion, it would only show that the self-organised collapse and self-induced paralysis of the state continues,” he warned, urging the court to call for the trial records.

The amicus then identified three key questions (No. 1, 3 and 6) framed in an earlier interim order passed by a full bench of acting Chief Justice S S Saron, and Justices Surya Kant and Avneesh Jhingan on August 29, 2017.

Gupta said the questions required urgent determination by the present bench: Firstly, whether the state of Haryana failed in its duty to prevent mass gatherings in Panchkula and other parts of the state on August 25–26, 2017. Whether, in consequence, there was any complicity on the part of the state with the Dera leadership.

Second, what is the jurisdiction of the High Court under Article 226 to award compensation directly or indirectly to members of the public affected by the violence.

Third, in what conditions and situations would preventive public interest litigation be maintainable before the High Court in a matter relating to law and order and public order which primarily is the domain of the law enforcing authorities?

Gupta said, “Normally PILs arise after the event. Here the question is whether intervention before the event is permissible to prevent breakdowns of public order”.

At one point, when Gupta said, “I must take my submissions to a logical conclusion by way of assisting my lord, so that I will definitely…by virtue of the affidavits… show complicity of the state”, Justice Bhardwaj pointed out the thin line between culpability and administrative lapse.

Chief Justice Nagu asked Gupta, “You are the amicus, why are you so passionately involved?”

While noting that he thought the Bench would pass an order in the case, the Chief Justice said he would hear Gupta’s contentions after Diwali vacation.

In its interim order of August 29, 2017, the court had directed for constitution of special investigation teams for monitoring cases registered in Punjab and Haryana following the violence on the day Gurmeet Ram Rahim was convicted of rape. It had also restrained the two governments in the two states from canceling any FIRs without its permission.