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When an accused gets attacked on the way to court, and again within the court premises, with no intervention by a judicial officer, which space is safe, asks Jyoti Punwani.
Disorderly scenes inside courtrooms are not new in India. Some of those men in black coats are rowdier than one would think, not hesitating to beat up colleagues for fighting for unpopular clients, or go on the rampage at perceived affronts to them.
Just 10 days ago, lawyers in Lucknow damaged 300 vehicles after the police lathi-charged them. The lawyers were protesting against the murder of one of their colleagues.
Some magistrates have asserted their authority over lumpen, not just rowdy, lawyers.
And often, courts have taken suo motu notice of incidents that threaten Fundamental Rights.
Alas! Neither of these two things happened last week, when courts in Delhi were turned into arenas for street-style bullying, and the judicial process had to be conducted in police premises.
The police remand of JNU student Kanhaiya Kumar was extended for two days by Metropolitan Magistrate Lovleen in a deputy commissioner of police's office after Kumar's professors, fellow students and journalists were assaulted inside the magistrate's court.
In Mumbai, Shiv Sainiks have been allowed by the police to impose mob rule for decades. They rarely had to show their muscle inside court because in his entire political career over 40 years, with many cases filed against him, their supremo Bal Thackeray appeared in court just thrice.
One occasion was in 1997. Magistrate K H Holambe Patil had not only rejected a plea by the then Shiv Sena-Bharatiya Janata Party government to withdraw a case against Thackeray, but also ordered that he appear in court.
Thackeray was, at that time, the 'remote control' of the government.
Given the trouble expected, Magistrate Holambe Patil had ordered that apart from Thackeray, only his lawyer, the public prosecutor, and registered journalists be present in court. He had also ordered that the court compound be cleared of all outsiders.
Yet, as the slogans being shouted by hundreds of Shiv Sainiks outside the court premises overwhelmed the court, the magistrate expressed his displeasure to Thackeray's lawyer, and asked his lawyer to ensure that the slogan shouting be stopped. It was done.
Almost a decade later, similar scenes took place when Thackeray's nephew Raj Thackeray was arrested for instigating violence against North Indians. But at that time, it was a brave officer, Additional Commissioner of Police Ashok Kamte, who ordered a lathi-charge on members of the Maharashtra Navnirman Sena as they blocked the highway near the court.
Delhi's police seem afraid of disciplining lawyers, citing the 90-day lawyers' strike that took place in 1988, after then deputy commissioner of police Kiran Bedi ordered a lathi-charge on lawyers protesting outside her office against the handcuffing of a lawyer. She was later indicted by a committee headed by a judge.
So can no one prevent lawyers from going berserk inside courts?
The person who presides over a court is king. From a magistrate to a Supreme Court judge, s/he can order everyone to clear the court, including lawyers and petitioners waiting for their cases to be heard. Court reporters have often been told to leave, at the behest of either the defence or the prosecution.
A magistrate is dependent on the police personnel deployed in court, says Holambe Patil, now a lawyer. S/he can, however, call up the head of the local police station and ask for reinforcements. But they may take time to arrive.
From all accounts, about a dozen police personnel did nothing as 40 lawyers assaulted JNU professors and students inside a courtroom in the Patiala House courts on February 15. In fact, over a dozen policewomen pushed the female victims out of the room.
As for calling for reinforcements, it was advocate Vikram Singh Chouhan, who reportedly led the lawyers' assault, who called the local police that morning itself to alert them about JNU students being present in court!
The hooliganism of the Patiala House court lawyers took place not just inside one courtroom, but outside too. The entire court complex was witness to the way lawyers beat up students and the media. The principal judge of the court could not have been unaware of what was happening.
But, writes Times of India reporter Sana Shakil, she and three other lady reporters ran to the district judge's court for help (external link), only to be told 'he was sitting with a very senior cop.' And, while waiting inside the district judge's court, they were again surrounded and threatened by lawyers.
What happened in Patiala House then, was, as senior lawyer Niloufer Bhagwat told Rediff.com, a 'complete breakdown of the justice system.'
This breakdown, in the capital's courts, got full media coverage. Surely the higher courts could have taken suo motu notice of it?
It is not as if this has not happened before.
Last year, the Gujarat high court sent notices (external link) to 22 sitting and ex-high court judges, their own colleagues, in a case involving the granting of plots of land to them by the government at lower than market rates.
In 2012, the Delhi high court took suo motu cognisance of the December 16 gang-rape, and asked the city police to explain why the Supreme Court order banning tinted glasses on vehicles had not been implemented.
And what of the final hope in our dysfunctional democracy -- the Supreme Court?
In 2011, the Supreme Court took suo motu notice of the police crackdown on Baba Ramdev and his followers at the Ram Lila Maidan. It asked the Centre and the city police to explain why tear gas and lathis had been used on sleeping protesters.
The apex court has even taken notice on its own of events outside the capital.
In 2014, on the basis of news reports, it issued suo motu notice to the West Bengal government on a gang rape in Birbhum and asked the district judge for a report.
Last year, a seven-judge bench headed by Chief Justice Dhananjaya Y Chandrachud of the Allahabad high court issued suo motu notice to the secretaries of bar associations in all 75 districts of UP for going on strike (external link), an action far less serious than what lawyers did last week in the Supreme Court’s own neighbourhood.
It was only after a petition was filed asking the Supreme Court to intervene and direct the Delhi police to ensure the safety of people inside the court's premises during the hearings of Kanhaiya Kumar's case, that the Supreme Court took charge of the matter.
The violence in Patiala House had taken place on Monday, February 15. The petition was filed on Tuesday, February 16, and taken up for urgent hearing on Wednesday morning.
After hearing it, the Supreme Court ordered the police to ensure the safe passage of Kanhaiya Kumar to Patiala House, where he was to be produced later. The court also ordered that only those connected with the case be permitted inside the courtroom.
But the police didn't obey the Supreme Court. Kanhaiya was assaulted both on his way to the court and inside a room adjacent to the court, despite the police surrounding him. The assailants, again, were lawyers, including those who had assaulted him two days earlier.
The latter knew that whatever they did, it was the police who would be held responsible. Had the Supreme Court taken suo motu notice of Monday's violence by the lawyers, would they have dared to repeat it two days later?
In fact, they even mocked the apex court as they assaulted journalists, asking them: 'Kahan gaya Supreme Court is waqt? Bula lo ab Supreme Court ko (where is the Supreme Court now, call them!).'
Chairman of the Law Commission and former chief justice of the Delhi high court, A P Shah, put it well: 'It is terrible if the judges failed to protect the media or litigants. It is (their) duty to ensure the police are called in immediately if decorum of court is disturbed. Here the judges failed in their duty...'
Only two organisations took suo motu action: The National Human Rights Commission, and the Bar Council of India. The NHRC met Kanhaiya in jail; the latter announced the appointment of a committee headed by an ex-high court judge to probe the conduct of its own members.
The incident has left one wondering: Can an accused who is being hunted by the highest powers, feel confident that s/he will be safe in court?
Police lock-ups are notorious. As for jails, accused have been killed inside them. The court becomes the only refuge then.
But when an accused gets attacked on the way to court, and again within the court premises, with no intervention by a judicial officer, which space is safe?
In this case, it is important to keep in mind that Kanhaiya Kumar is just a student, charged with sedition, but not of having indulged in any violence. And those attacked by lawyers include his teachers.