Aggrieved with the Supreme Court registry for not allowing him to file a reply as propria persona (party in person), Ashok Khemka, IAS officer serving Haryana Government, has written to the Chief Justice of India, S A Bobde, seeking clarifications on the Supreme Court Rules, 2013.
The issue pertains to a Special Leave Petition filed by the State of Haryana, challenging a March 2019 judgment of the P&H HC which expunged adverse remarks made by Chief Minister ML Khattar in his Personal Appraisal Report (PAR).
On receiving notice on the SLP, Khemka dispatched his reply along with an application to appear propria persona through registered post. He asserted that he was following the same practice which he had adopted earlier in another SLP in 2018. The Registry had then duly accepted his reply. Contrary to such precedent, the Registry refused to accept the reply in the SLP filed by Haryana Government.
Refusing to accept the reply sent by post, the Assistant Registrar sent him a letter stating that the reply had to be filed at the Filing Counter. Order VIII, Rules 6(1) and 6(2) of the Supreme Court Rules 2013 were cited in support of the letter.
Following that, Khemka appeared before the Filing Counter to submit the reply. However, the Registry refused to accept stating that to file reply as party-in-person, he had to first get permission to appear as prorpria persona in terms of Order IV, Rule 1, proviso of the SC Rules 2013. He was also refused entry pass to enter the Registrar's Court citing the same reason.
Though he filed the application seeking permission to move as prorpria persona, the Registry refused to accept it stating that the copy of the application had to be served on the opposite side.
In such circumstances, Khemka had to engage an Advocate on Record, "under duress", to submit the reply.
After that, he sent a representation to the CJI, stating that the actions of the Registry were based on a misinterpretation of the SC rules. He highlighted that the SC Registry had earlier interviewed him in 2018 and found him fit to present the case himself.
Khemka's representation was summarily rejected by the Assistant Registrar as per communication dated March 18, 2020, asking him to "take necessary steps as per the provisions of Supreme Court Rules, 2013".
P&H HC approached
This action of SC Registry was challenged by him before the Punjab and Haryana High Court, primarily raising three legal arguments.
Firstly, Order VIII, Rule 6 applies only to "plaints, petitions, appeals or other documents", and does not cover the "reply" filed by the respondent. Therefore, there is no requirement of filing at the counter as regards a "reply" is concerned. He argues that the expression "other documents" in the Rule pertains to annexures, exhibits etc, and does not cover pleadings such as "reply". Hence, the insistence of Registry for filing at counter is not in accordance with the said Rule. He also mentions the earlier precedent of SC Registry allowing him to file reply through post. It is underlined that the Rules have remained the same then and now.
Secondly, the application seeking permission to move propria persona in terms of Order IV, Rule 1, proviso of the SC Rules 2013 is applicable only to the petitioner/appellant and not to the respondent. Also, there is no requirement of serving the copy of such an application on the opposite side, as the opposite side cannot have any say on allowing one to move as party-in-person.
Thirdly, no prior permission to file reply as propria persona. Order IV, Rule 1 proviso states that the application for arguing propria persona is to be filed alongwith the petition. Also, such permission is required to "appear and argue" before the Court and not for filing at the counter.
He sought a writ in the nature of certiorari to quash the letter of Assistant Registrar on March 18, 2018.
Further, he sought a writ in the nature of mandamus to direct the consideration of his representation by the Supreme Court on the administrative side.
He also sought to strike down the condition that application to appear as party-in-person must be served on the opposite side.
He stated that his representation was never placed before the CJI, as per the information revealed through RTI Act.
The petition was later withdrawn from the High Court, with liberty to submit a representation before the CJI on the administrative side.
'Unkind predisposition towards intellect and temperance of fellow humans'
Following the withdrawal of the petition from HC, he submitted the representation before CJI SA Bobde on June 11, stating that the denial to present his case prorpria persona amounts to an "unkind predisposition towards the intellect and temperance of fellow humans", he said in the representation.
"Any restriction placed upon an individual to represent his own case before a court of law, by placing burden upon him to demonstrate his ability and candour is an impediment upon his right to self defence", stated the 1991 batch IAS officer in the letter to CJI.
"Such procedures distance the accessibility of institutions from their intended beneficiaries and encourage doubts over 'ivory tower tribunals' hegemonized by a few", he stated, highlighting the fact that he is qualified to be an Advocate, having secured LL.B degree.
Seeking necessary clarifications on the ambit of the rules, Khemka stated in his representation to the CJI that the "blanket presumption under Order IV Rule 1 of the SC Rules encompassing senior public officials as not being competent to argue in propria persona is logically absurd".
"Once such public officials are presumed to be competent for the nations administration and held accountable for executing the orders of the court, then they must necessarily be presumed capable of assisting the court in their own cases", read the representation.
He raises three points before the CJI :
- It must be noted that Order IV, Rule 1 proviso mandates the Application for arguing proprio persona to be filed "along with the petitioner", and not prior to it.
- Furthermore, the mandate under Order IV, Rule 1, exists only when a party chooses to "appear and argue" before the Court, and not for filing a reply.
- A party has the processual right to place pleadings and documents before the Court proprio persona, without electing to "appear and argue" propria persona.
"It is my audacious hope that you will consider amendments to the Supreme Court Rules 2013, or issue necessary clarifications on the administrative side", Khemka said concluding his representation.