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Letter of the law vs its spirit: SC doesn't intervene on Kanhaiya's bail plea

Saurav Datta | Updated on: 14 February 2017, 5:43 IST

The plea

  • Kanhaiya\'s lawyer Vrinda Grover had petitioned to the Supreme Court, pleading for his bail
  • Grover said the atmosphere at the Delhi High Court and Patiala House courts wasn\'t conducive for a fair trial

The decision

  • Advocate Ranjit Kumar, arguing for the police, said there was no reason to bypass established procedure
  • Justices Chelameswar and Sapre agreed, directing Kanhaiya\'s lawyers to file the plea in the Delhi HC

More in the story

  • Did the Supreme Court uphold the letter of the law over its spirit?
  • Is there a precedent for the SC to intervene in extraordinary cases

The Supreme Court may have just let the letter of the law prevail over its spirit.

On Friday, 19 February, the apex court denied JNUSU president Kanhaiya Kumar bail, directing his lawyers to approach the Delhi High Court instead.

Just a day before, lawyer Vrinda Grover, representing Kanhaiya, had moved the SC, pleading for his bail and contending that the atmosphere around the Delhi High Court and the Patiala House courts was not conducive to a free and fair trial.

Also read - Meet Kanhaiya; the student icon in jail for the next 14 days

Grover's petition was argued by senior advocate Raju Ramachandran and former Solicitor-General Soli Sorabjee. The duo submitted that Kanhaiya's lawyers were being singled out and hounded for defending what an unregistered cabal of 'patriotic' lawyers have labelled 'anti-national' and 'treacherous' elements.

However, Additional Solicitor General Ranjit Kumar, representing the Delhi Police, submitted that Kanhaiya's lawyers were trying to bypass established procedure, and trying to adopt a short-cut by moving the Supreme Court instead of the Delhi High Court.

Kumar also contended that when Bollywood stars and high-profile politicians appear before courts, there is surely a considerable degree of pandemonium and commotion, but that in no way gives the apex court the leeway to intervene directly.

Extraordinary circumstances

Kanhaiya's plea, filed under Article 32 of the Constitution and invoking 'extraordinary circumstances', urged the Supreme Court to urgently intervene. It was heard by a Division Bench of Justices Jasti Chelameswar and Abhay Manohar Sapre.

Must read - 10,000 protestors. 2 top lawyers. 1 mission: #FreeKanhaiya

During the course of the hearing, Justice Sapre remained silent and Justice Chelameswar did the talking.

Echoing Kumar, Justice Chelameswar observed that a direct intervention by the apex court would set a 'dangerous precedent', and could also be interpreted as an instance of the top court's erosion of faith in the high court and the other courts under its jurisdiction.

Kanhaiya's legal team, whose members are in the process of moving the Delhi High Court expeditiously, remained disappointed with the outcome of Friday's proceedings.

Previous interventions

Legal experts say that on earlier occasions, the Supreme Court hasn't hesitated from exercising its extraordinary powers. But this time, for some unfathomable reason, it has held back from doing so.

One lawyer gave the example of the Supreme Court's ruling in the Meenakshi Kumari case.

On 17 September last year, the apex court had invoked its power 'to do complete justice' under Article 142 of the Constitution to come to the aid of a young woman in Baghpat, Uttar Pradesh. The woman had allegedly been ordered by a Khap panchayat to be gangraped, and the SC directed the police to offer her complete protection.

Kanhaiya's lawyer Vrinda Grover had moved the SC on Thursday, pleading for his bail

Senior advocate Indira Jaising wondered what could have stopped the Supreme Court from acting with alacrity, especially when the political situation it as charged as it is at present.

Kanhaiya's lawyers are likely to move the Delhi High Court next week. They are gearing up for a no-holds-barred legal (and political) battle, and have stated that Delhi Police commissioner BS Bassi's statement that the police wouldn't oppose Kanhaiya's bail application, has the potential to interfere with his right to a free and fair trial.

How the Delhi High Court deals with this contention remains to be seen, but undoubtedly, a cloud of questions hangs over Friday's Supreme Court ruling.

NHRC indicts cops

The National Human Rights Commission came down heavily on the Delhi Police, and the passive onlooker's role that cops played while lawyers at the Patiala House courts attacked Kanhaiya and his legal defenders.

The NHRC indicted outgoing commissioner BS Bassi's men for "serious dereliction of duty", and coercing Kanhaiya into putting out a public appeal disowning and distancing himself from the public statements he made earlier.

Lawyers protest

Meanwhile on Friday, scores of lawyers, including those who assaulted journalists, and JNU students and teachers on two occasions, held a protest march demanding action against those 'indulging' in 'anti-India' activities.

PTI reported that the lawyers, mostly from Patiala House and several other district courts, marched aggressively around the India Gate circle, shouting slogans and waving the tricolour, in presence of heavy police security.

Some of the lawyers who were caught on camera leading brazen assaults on journalists and JNU students on Monday and Wednesday were part of the protest, and appeared to be unfazed by the outrage due to their acts.

"We will keep attacking the anti-nationals, no matter what. We will not tolerate any insult to our motherland. Let police issue summons against us," said a lawyer involved in the assaults.

Another lawyer claimed those who attacked the mediapersons were outsiders and do not belong to the legal fraternity.

"They were not lawyers. Lawyers do not cross limits set by the rule books. Outsiders may have been there. Media is defaming the community," he said.

More in Catch - Which part of JNUSU president Kanhaiya Kumar's speech is seditious?

It's not about him alone: How Kanhaiya's poor parents put things in perspective

Kanhaiya Kumar attacked by lawyers; SC rushes team to Patiala House Court

First published: 19 February 2016, 9:36 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.