The petition, filed by advocate Anindita Pujari for Ms X, who is also advised by advocate Vrinda Grover, asked for transfer of the case to Bangalore’s City Civil Court because X “has absolutely no chance of equal or near equal legal representation in Delhi and hence a fair trial will be jeopardized” and she “genuinely apprehends that she will not get fair trial in the Delhi High Court”.
“Free and fair dispensation of justice is a component of Article 21 of the Constitution of India and any reasonable apprehension of bias would shake the confidence of the general public in the judiciary as a whole and seriously undermine the rule of law,” stated the petition. “Hence the question is not whether there will be actual bias in the dispensation of justice but whether there is a reasonable apprehension of that there will be a denial of fair trial in the mind of petitioner.”
Kumar, who has denied the allegation claiming it was a malicious “planned conspiracy”, continued to be represented by seven senior advocates and 11 advocates many of whom have appeared before Kumar in the past or may “potentially” appear before him at the National Green Tribunal (NGT), where he is chairman, according to the petition. “The entire effort of the Respondent No. 1 is to overawe the Petitioner in her effort to seek redressal of the sexual harassment that she faced by the Respondent No. 1.”
The plaint was “carefully engineered to invoke” Kumar’s influence, stated the petition, adding that “in contrast, the Petitioner has learnt that the other Defendants [the Indian Express, Times Now and CNN-IBN] who appeared at the hearing were hard pressed to secure a senior lawyer till the last moment to appear for them as most of them had already been retained”, while X herself “has contacted many senior lawyers, seeking that they represent her in the suit before the Delhi High Court. All of them have refused to do so… on various grounds including that the Respondent No.1 has already approached them for support, assistance and advice and hence they are not in a position to represent her”.
She had faced similar difficulties finding senior lawyers to represent her in her public interest litigation before the Supreme Court, seeking the institution of a permanent mechanism to examine sexual harassment complaints against judges in future, which senior lawyer Fali Nariman recently produced a report on for the court.
The petition stated that as a result, “the Petitioner is faced with a hopelessly one sided situation, which is wholly loaded for one reason or the other in favour of” Kumar.
“The entire atmosphere required for a free and fair trial does not exist in the High Court of Delhi”, said the petition, which was “borne out by what transpired in the present suit and the manner in which interim order that was passed ex-parte” in January by Justice Manmohan Singh. The order restrain X and the three defendants from publishing Kumar’s photo and from publishing the allegation against Kumar without also stating that they were mere allegations.
The petition also argued that the forum of Delhi was inconvenient to X, who is based in Bangalore, and who can not find adequate legal representation in Delhi - “it is imperative to transfer the case to a neutral venue, even if it may cause some inconvenience” to Kumar.
“The ability of the Petitioner to mobilize the Bar of which he was a part of the High Court, of which he was a significant judge is also evident from the show of strength in the court on each date of hearing which is intended to intimidate Defendant No. 5 and or her legal representatives. Further having regard to the need for the Defendant No.5 to suppress her identity, to protect her dignity and well-being she is unable to enter the court room as all eyes will be fixed on her leading to great embarrassment and intimidation.” [emphasis added]
“Justice in a court of law must not be done but also be seen to be done and it cannot be seen to be done if the suit is tried in New Delhi,” said the petition, and the “appearance of impartiality in the mind of a reasonable person” must be maintained.
Furthermore, the claimed that Kumar’s lawyers have recently filed copies of personal blog posts written by her in court, which are unrelated to the sexual harassment allegation to “malign her character” and are understood to contain social media profiles, emails, articles written for third parties, comments online and other documents:
“the manner in which documents have been tendered in Court, is a manner unknown to law in as much as that no application to further seeking permission for filing additional document or showing the relevance of the documents was made. At an interim stage documents have been permitted to be filed of a completely irrelevant nature which speak about the personal preferences of the Petitioner taken from her blog and the issues and causes that she stood for having no relevance on the subject matter of the suit only in an attempt to malign her character and cause prejudice to her. [emphasis added]
The matter had been most recently listed again on 7 May before the Delhi High Court before Justice Manmohan Singh, with the next hearing scheduled for 15 May.
Kumar’s lawyers, who have included Karanjawala & Co, more than a dozen advocates as well as senior counsel including Mukul Rohatgi, AS Chandhiok, Rajiv Nayar, Neeraj Kishan Kaul, Vinay Bhasin, Maninder Singh, Kirti Uppal, Sandeep Sethi, Aman Lekhi, have also not been giving enough time to the respondents to respond to the latest submissions and pressed for speedy continuation of the matter, alleged the petition:
The Respondent No. 1 was again represented by 7 senior lawyers and 11 other lawyers. The lawyer appearing for the Petitioner sought an adjournment as she had just been served a copy of the replication and been served with the fresh documents which ran into hundreds of pages just the day before at 4.00 p.m.
The senior lawyer appearing for the Respondent No. 5 also sought an adjournment because he was not served with a copy of the written statement of the Petitioner. The Petitioner has not been served by the Defendant No. 1 with the copy of the written statements filed by other Defendants. Despite an interim injunction operating against the Defendant the lawyers appearing for the Respondent No. 1 vehemently sought to proceed with the matter.
The petition also set out the history of the allegation, which was made following the Supreme Court having decided to inquire into a similar allegation made against former Supreme Court Justice AK Ganguly in November 2013.
The transfer petition will most likely be heard by a vacation bench at the Supreme Court.
InternJudge Transfer Petition vs Swatanter Kumar
Comments
If what's said in the petition it's a pretty sad situation and you are an ass.
And how do you know it was leaked by her?
I wish Ms. X all the best. I hope the three media respondents don't oppose the transfer petition. All said and done, since the transfer petition is sub-judice, the Delhi HC case is likely to go dormant till the SC rules on the transfer petition. Nothing stops the Delhi HC from proceeding on merits though, unless there is a stay. Nonetheless, if the Delhi HC demonstrates a hurry in proceeding with this matter, it will only substantiate Ms. X's apprehensions.
Her apprehensions are reasonable or not will be decided by SC, but my views is that , there will not harm to other parties if SC transfer case to Bangalore. as they are capable enough to defend or pursue the case in Bangalore.
The Woman is not named so far, hence the failure of justice here is actually against the Man-Molestor.
[quote name="DBS"]All those Counsel's who appeared for Justice Kumar in the Delhi HC should no longer appear before him in the Tribunal !!!![/quote]
@everyone - I think we must trust out judiciary. how will the judge decided without fear and favour, if the litigants even before approaching the court approach the media and ensure a media trial! and for those who think she cannot get justice in Delhi, how do you think it is ok for her to approach the supreme Court?
LET'S GET THE MATTER TRANSFERRED TO HAGUE
@Advocate: you simply ignored @ass focussing only on the name calling. The easy way out. And "And how do you know it was leaked by her?" you conveniently ignored.
A petition is in public domain once it is in court. There is no bar to "leaking it". In fact the word "leaking" is not to be used for publishing a public matter. I think @ass was fully justified in applying the unkind epithet.