President of the JNUSU, Kanhaiya Kumar has approached the Supreme Court for bail today, February 18, 2016. It will be heard tomorrow.
Senior counsel Raju Ramachandran mentioned the matter before Chief Justice, TS Thakur who permitted it to be raised before justice Chalmeshwar and Sapre hearing the petition filed by activist ND Jayaprakash on February 16, 2016. The matter will be heard on an urgent basis on February 19, 2016.
In the petition filed under Article 32 of the Constitution of India, Kanhaiya Kumar has sought the grant of bail and release from custody under Article32 of the Constitution of India based on the exceptional and unprecedented break down of justice delivery mechanism and administration of justice in the Sessions Court at Tees Hazari, even after the Supreme Court of India had been seized of the matter (February 15, 2016).
The petition submits that it is evident that there is a threat to the life and limb of the petitioner, which also extends to the counsels appearing on his behalf, as well the person(s) who would be required to stand as surety/sureties on his behalf, in the event of appearance before the Patiala House Court. The petition has been filed through professor Himanshu Pandey, resident warden of the Jhelum hostel at the university. The respondents is the NCT, Delhi.
The petition states that the reason for approaching the Supreme Court of India, invoking Article 32 directly (for bail and release of custody) is due to the surcharged atmosphere of violence at the Patiala House Courts, New Delhi, within whose jurisdiction the present case is pending, and the physical violence and intimidation faced by the Kanhaiya Kumar, the petitioner and a large number of students, teachers and journalists while attending a judicial proceeding before the Court of Sh. Loveleen, Metropolitan Magistrate, Patiala House Courts, Delhi, as well as in the court complex.
During these proceedings, between February 15 and 17, 2016, the petitioner and other students belonging to JNU, as well as journalists, were physically assaulted by a group of lawyers. Kanhaiya Kumar states in his petition that the manner in which physical harassment of the petitioner was allowed to take place, was in clear violation of the fundamental right to access to the justice system. This petition therefore raises issues regarding the violation of rights under Article 21.
Kanhaiya Kumar is a citizen of India and a student of Jawaharlal Nehru University, Delhi (“JNU”), and the President of the JNU Students Union.
Brief Background
FIR No. 110/2016, under Sections 124A/120B of the Indian Penal Code was registered against the petitioner, Kanhaiya Kumar, and other unknown persons. The same day, the Petitioner was arrested by the police.
On February 12, 2016,Kanhaiya Kumar was remanded to police custody for 3 days, by the order of Shri Loveleen, Metropolitan Magistrate, Patiala House Court, Delhi.
On February 15, 2016, Kanhaiya Kumar was sought to be produced before the Metropolitan Magistrate. However, due to the incidents of violence that took place at the court premises, carried out by members of the legal fraternity, in which journalists, students and senior faculty members of the Jawaharlal Nehru University were physically assaulted, the petitioner was produced before the Metropolitan Magistrate, at another location, and was remanded to two days’ police custody.
Again, on February 16, Writ Petition Criminal No. 25/2016, titled as ‘N.D. Jayaprakash v. Union of India &Anr.’, was filed before this Hon’ble Court, seeking appropriate directions to the Respondents to ensure a proper and decorous conduct of the remand proceedings, in light of the incidents that took place on February 15, 2016.
On February 17, 2016, after hearing the counsels for Jayaprakash in the abovementioned Writ Petition, the Supreme Court passed directions instructing the Commissioner of the Delhi Police to ensure the safety of the Petitioner (Kanhaiya Kumar) at the time of the remand proceedings to be held that day.
However, despite the specific directions by the Supreme Court, the Delhi Police failed to adequately protect the petitioner, a student leader, at the time of his production for remand proceedings, and he was violently assaulted by the gathered crowd of lawyers, while being taken for remand proceedings, and later by one person inside the courtroom. Following the incidents of the assault, as well as the observable threat to the life and security of the petitioner, his counsels, and the journalists present inside the court, the matter was mentioned before the Supreme Court at 2:15 pm on an urgent basis, following which the Supreme Court deputed five senior members of the Bar to observe the situation at Patiala House and report back to it, that is the Supreme Court.
As was widely reported by the media that even at the time when the senior members of the Bar (appointed as Commissioners of the Supreme Court) visited the Patiala House Court premises, the atmosphere of violence and intimidation continued unabated, and that the visiting team was also attacked by a group of lawyers and other persons while returning to the Supreme Court after, the Metropolitan Magistrate remanded the Petitioner to judicial custody for a period of 14 days.
Kanhaiya Kumar has relied on the following grounds to justify his plea before the Supreme Court:
On the need for an Article 32 Petition:
— That the environment at the Patiala House Courts complex is not conducive for fair hearing, much less for a fair trial. In these circumstances, the petitioner, his next friend (pairokar) as well as his lawyers fear the safety of their life and limb and are unable to present his case before the concerned court of law.
—That there are elements bent upon intimidating the lawyers and next friend of the petitioner and preventing them from doing their duty. It was for this reason that while the petitioner was brought to the Patiala Court house, he was thrashed inside the court room (adjacent to Court room no. 4) as well as in the Court premises. This also shows a grave dereliction on part of those who are generally responsible for ensuring free access to justice and fair trial, and specifically those who were under the writ of the Supreme Court to obey, comply and carry out the orders of the Supreme Court.
–The failure on part of these authorities in their peremptory and most sacrosanct duty to carry out the orders of the Supreme Court is a clear violation of the fundamental rights of the Petitioner as well as Art. 144 of the Constitution of India (which mandates and enjoins all authorities civil and judicial to act in aid of the Supreme Court of India).
–The situation prevailing yesterday (February 17, 2016) in the Patiala House Courts, is an affront to a citizen’s fundamental and human right of access to justice. It is also clearly a violation of the fundamental rights of lawyers to represent their client.
–The petitioner is an innocent person, and his presumption of innocence is sacrosanct. However, the mob at the Court complex was ready to lynch the petitioner as if the petitioner is guilty, which erodes a citizen’s faith in the justice delivery mechanism established under the laws by our Constitution. It is incumbent on the Supreme Court as the Guardian of the rights of we the people, to safeguard these rights and to reinstate such faith of a citizen of India.
–That since the security granted by the Supreme Court was limited to Court room no. 4, and given the prevailing situation; the lawyers representing the petitioner were in no position to move the Sessions Court for his bail. His lawyers remained under seige till 7 pm, as the Delhi Police was not able to provide security to them for safe exit and kept saying that they are waiting for “enough force” before they could provide a safe exit to lawyers.
–That there has been a repeated break down of law and order machinery at the Patiala House Court complex, both before and after the order of the Supreme Court. It is most serious and egregious that such breakdown did not cease even after the Supreme Court had been seized of the matter. The situation as it prevails, does not inspire any confidence in the petitioner and violates his right and aspiration of Justice not only be done, but seem to have been done. The petitioner’s right of access to justice is gravely and severely impeded.
–That therefore the present circumstances are exceptional and call for an exceptional remedy. No other remedy virtually remains for the Petitioner, for the fear of the safety of his life and limb, and it is under these exceptional circumstances that he has directly approached the Supreme Court of India.
On petitioner Kanhaiya Kumar’s release the petition states:
–That the petitioner is an innocent person and has been falsely implicated.
–The police does not require the custody of the accused for any further investigation and he has been presently been sent to judicial custody.
—There are reports in public by the Delhi Police which state that no concrete evidence has been found against the petitioner.
—Under these circumstances, the petitioner prays for his release by the order of the Supreme Court by its extraordinary and most exceptional writ under Article 32 of the Constitution of India.
—That the petitioner had moved application before the Court concerned intimating the threat to his life and limb. The situation of dire threat to life of the petitioner still prevails and further incarceration of the petitioner in these circumstances is a constant threat to his life. The petitioner perceives a threat to his life in the prison where there is a great likelihood of an attack on him by his co-prisoners.
–That the petitioner is a student of the Jawaharlal Nehru University, Delhi and not some hardened criminal. No prejudice would be caused to any one, much less the prosecution if the petitioner is released on bail.
–That the petitioner is willing to abide by all conditions as may be imposed in the interest of justice, for his release on bail.
It is under these peculiar and unique circumstances that Kanhaiya Kumar has prayed for the grant of bail to him to the satisfaction of the Registrar of this Hon’ble Court;
Besides he has prayed for necessary directions to be passed to ensure and safeguard his life and limb.