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"This Is A Shocking Incident": Chief Justice On Hathras Case [Read Courtroom Exchange]

Mehal Jain
6 Oct 2020 2:27 PM GMT
This Is A Shocking Incident: Chief Justice On Hathras Case [Read Courtroom Exchange]
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"We have filed the affidavit and are not opposing the petition. We have narrated the incident which has assumed importance....there are narratives and narratives surrounding the incident in public domain. We can't lose sight of the fact that a young, innocent girl has lost her life. The incident can't be sensationalised. There must an investigation into it which is fair and impartial and it...

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"We have filed the affidavit and are not opposing the petition. We have narrated the incident which has assumed importance....there are narratives and narratives surrounding the incident in public domain. We can't lose sight of the fact that a young, innocent girl has lost her life. The incident can't be sensationalised. There must an investigation into it which is fair and impartial and it must also appear to be fair and impartial...the investigation is underway...if Your Lordships want we can even constitute an SIT....Your Lordships can direct the CBI to investigate...the only thing is that the investigation must be under the supervision of this court...so that amidst the different narratives by political parties and various other people, the purpose of the investigation is not lost" began the SG.

"We are on the same page as the SG. We are only pressing for protection for the victim's family...that is critical for fair investigation", interjected Senior Advocate Indira Jaising.
"We understand. We are not saying that the incident is not shocking or that such things should be allowed to happen, or that someone should be held responsible and there should not be an investigation...we are only on the phenomena in this case before the court...we are not on the case but on the invocation of our jurisdiction", said the CJI.
"None of our prayers interfere with the jurisdiction of the Allahabad HC", clarified Ms. Jaising.
"We know our HCs...we have all been HC judges", said the CJ.
"Your Lordships may hear us and take appropriate decision...we are on the manner of disposal of the body....there is a certain jurisdiction which only the SC has and no other court does, and that its the jurisdiction to transfer cases...without casting any aspersions or siding with any narratives, I wish to submit that the situation is very tense...some 20 FIRs have been registered by the state against the protesters..so we are seeking a transfer to Delhi, as was done in the Unnao rape case...a special Court under the SC/ST Act can look into all issues, from the trial for rape, death and protection...and we are seeking protection for the family by way of witness protection. Sections 15 and 17 of the SC/ST Act grant certain special rights of witness protection, the right to be informed of all proceedings etc", argued Ms. Jaising.
"She may not know that the family is already under witness protection...", pointed out the SG.
"Also, we want no lawyer to solicit the case. We want NALSA to nominate a lawyer to represent the family, provided the kith and kin agree", she added.
"Why NALSA? We can appoint a lawyer", ventured the CJ.
"And then we are praying for Your Lordships to do complete justice by invoking your jurisdiction under Article 142! The Transfer jurisdiction!", she continued.
"Transfer of? Investigation or the trial?", asked the CJ.
"A SIT could be constituted by this court, which would also be monitored by the court...the family has clearly said that they don't want the matter to go to the CBI", replied Ms. Jaising.
"This is a shocking incident. That is why we are hearing you. We don't know if you have locus...", noted the CJ.
"This is an extraordinary case...100s have written letters,...", urged Ms. Jaising.
"We are not on your bonafides, but your locus in a criminal matter", clarified the CJ.
"We are not interfering in what is the sole privilege of the family as regards the trial", said Ms. Jaising.
"But you are not family. We understand and appreciate your presence. We are not saying that the incident is not shocking or that you're unnecessarily interfering ...we are only saying there may be no locus of your client", observed the CJ.
"We are not going beyond what we should..we are only craving your indulgence", said Ms. Jaisng.
"And we are giving it to you. Your assistance is appreciated. Now let us listen to the petitioner...", said the CJI.
"If I don't have locus, then how do the petitioners?', asked Ms. Jaising.
At this point, the advocate for the petitioners began,"I am for 3 petitioners, the first is a lady..."
"We know you are representing the petitioners. But who are the petitioners? Who are you? Everybody is shocked by this incident, but when a court asks you this, it means what is your locus?", demanded the CJ.
"I am a woman. If I can't do something, I am requesting Your Lordships....if in the future...", the counsel sought to submit.
"We are sorry, we are not understanding...what did you say will happen to you? And 'in the future'? You are looking for anticipatory relief? You are appearing for all the women? The whole society? We understand your anxiety but keep quiet for now..", said the CJ.
Next, Advocate Kirti Singh advanced, "We are 100 women lawyers who have been working on the issue of rape. We are looking for immediate protection for the family for the trial, and for the supervision of this court...we may not have the legitimacy of the family, but we are concerned. Your Lordships have allowed PILs in the past"
"We see your concern, that is why we are hearing you. But in court, there is no need to duplicate arguments. The same argument by everyone who wants to say? But we are not in any way condoning the incident...it was a horrible incident...we are only on identical arguments before the SC and not on the incident", reflected the CJ.
"We have filed several PILs in such matters. But Your Lordship even take suo motu cognisance", said Ms. Singh.
"We are not questioning your credentials or your motives or saying you are a busybody! And this is also not a comment on the incident! We have heard you and are hearing you. We only want you to understand our point of view", clarified the CJ again.
"We only are asking for the scope of inquiry to be expanded", said Ms. Singh.
'Why can't you go to the Allahabad HC with this?", asked the CJ.
As Ms. Jaising sought to answer the query, the CJ insisted that Ms. Singh answer.
"The matter is going to the CBI. We only want to go outside the seat of UP but it is possible only by this court", said Ms. Singh.
"The Allahabad HC is a constitutional court, It is hearing the matter. We can have the benefit of the views of the HC. You can also have the benefit of two hearings- we are not shutting you out. Every argument you made here can be made there. If the HC commits an error or if you don't get relief there, you have a safeguard here. We can then take care of it here", said the CJ.
Indicating section 15A of the SC/ST Act, Ms. Jaising advanced that the court may in its suo motu capacity, grant witness protection. Also, she repeated that there be no outside lawyers and that the NALSA may dedicate a lawyer.
"There is no statute for witness protection! They are required to be protected", advanced the SG.
"Also, the CJI is the patron-in-chief of NALSA. So why do you want NALSA?", asked the CJ.
"Your Lordships are here in your judicial capacity. You may also appoint a lawyer of your choice", said Ms. Jaisingh
"We will do so and take the names from you only. Why are you diverting the matter and bringing in a new authority?", asked the CJ.
"Your Lordships may appoint a senior advocate with experience in matters like this", suggested Ms. Jaising.
"We will appoint one senior and one junior. Give us names", asked the CJ.
"As a junior, Shobha Gupta could be appointed. She wrote a letter...", began Ms. Jaising.
"Not just Ms. Jaising, but we also have a right of audience", cut across the SG.
"For me, this is not an adversarial litigation. All are bonafide, but outside the court, the incident has come to be magnified! There are several narratives with hidden purposes...but obviously neither I nor Your Lorshops can do anything about this....this can be solved only by an investigation and the court's supervision", he advanced.
"There is no reason to not trust the investigation by a central agency, which shall also be under Your Lordship's supervision...Ms Singh says she is appearing for 100 lawyers. She says the child requires protection. What she doesn't know is that the child has been killed and that is the issue!', he continued.
"Ms. Jaising speaks of witness protection. But she doesn't know that the family is already under the protection of the police. My affidavit has pictures of an individual sitting with the CM, who has been projected as the father of the accused..", pressed the SG.
"Please don't politicise the matter...no mentions of CM etc", intervened Ms. Jaising.
"I am also saying that the matter must not be sensationalised. ...a reporter was recorded instigating the family to not do something until money is paid! ", argued the SG.
As Ms. Jaising dismissed this as an "allegation", while others called it a "a matter of opinion".
"I am a respondent. And I can't talk even when Ms. Jaising is an intervenor! The victim's family is not here. Who they have chosen as a lawyer, we don't know. There are lawyers who have volunteered but I agree that such soliciting can't be allowed! But we can't even enforce a lawyer on the family", he continued.
"Yes, we can't enforce a lawyer contrary to the victim's family. So we can issue notice or defer the matter. We want to know if the Witness Protection Plan is in force?", asked the CJ.
The SG replied that he shall file an affidavit in this behalf by tomorrow.
As the lawyers started taking over each other, the CJ reprimanded, "The court has the right to complete the sentences they start! You may interrupt each other but not us! We don't need permission to speak!"
"We want an affidavit from you, telling us one, how these witnesses are protected; two, ascertain whether the family has as yet chosen an advocate; and three, think over and tell us about the present scope of the matter before the HC..there is a 7-8 page order which nobody seems to have read...we want suggestions from all of you on scope of the proceedings and how to widen them...we'll ensure that the investigation is smooth, of course", observed the CJ.
"And also insulated from extraneous considerations, and under your supervision and monitoring", added the SG.
When the bench showed the inclination to grant the SG a weeks' time, he assured the court he can bring on record the affidavit by day after tomorrow.
As requests were made for the letters to be tagged with the petition, the CJ repeated that the court would not hear everybody.
Advocate Shobha Gupta sought the permission to share notes, raising the concern regarding a protocol for hospitals for disposal of bodies.
"The SG said this is not an adversarial litigation. You can share notes with him which he gives to us", said the CJ.
"I can only hope that all concerned and unconcerned show a sense of responsibility and not sensationalise the matter outside the court", repeated the SG.
"Mr. Mehta, nobody is...', countered Ms. Jaising.
"This matter has shocked the conscience of the sense of civilisation And we are maintaining decorum", said Ms. Gupta.
"I meant outside the court", said the SG, as the court deferred the matter to the next week.

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