IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. OF 2014

(Transfer Petition under Article 139A of the Constitution of

India read with Section 25 of the Code of Civil Procedure)

IN THE MATTER OF:

BEFORE THE   BEFORE THIS

  HIGH COURT HON’BLE

COURT

Ms. X              

Local Camp address

C/o N-14A,

Saket, New Delhi

110017.         Defendant No. 5   Petitioner

Versus

   

1. Swatanter Kumar          

Son of late Om Prakash

Resident of 9 Tyagraj Road,

New Delhi – 110001     Plaintiff   Respondent No. 1

 

2. The Indian Express      

Through Editor-in-Chief

and Publisher

2nd Floor, Express Towers

Nariman Point

Mumbai – 400021     Defendant No. 1 Respondent No. 2

Also at:

Corporate Office

Through its Resident Editor,

Express Buidling

9-10 Bahadur Shah Zafar Marg,

New Delhi – 110002

3. Mr. Maneesh Chibber    

Reporter

The Indian Express Ltd.

Express Building

9-10 Bahadur Shah Zafar Marg,

New Delhi - 110002   Defendant No. 2 Respondent No. 3

4. Bennett, Coleman and Company Limited

The Managing Director

 

The Editor-in-Chief of ‘Times Now’

Dr. D.N. Road

Mumbai – 400 001   Defendant No. 3(a)   Respondent No. 4

Also at:

Corporate Office:

Times House

7, Bahadur Shah Zafar Marg

New Delhi – 110 103

5. Times Global Broadcasting    

Company Limited

Through its Managing Director

1st floor, Trade House

Kamla Mills Compound

Senapati Bapat Marg

Lower Parel

Mumbai – 400 013   Defendant No. 3(b) Respondent o. 5

6. TV18 Broadcasting Limited  

Through its Managing Director

Editor-In-Chief of “CNN-IBN”

Express Trade Tower

Plot No. 15-16

Sector 16-A

NOIDA

 

Uttar Pradesh

– 201301   Defendant No. 4(a) Respondent No. 6

Also at its registered office at:

503,504 & 507, 5th Floor,

Mercantile House,

15 Kasturba Gandhi Marg,

New Delhi – 110001

7. Turner International      

Through its Managing Director

Express Trade Tower

Plot No. 15-16

Sector 16-A

NOIDA

Uttar Pradesh –

201301       Defendant No. 4(b) Respondent No. 7

8. Union of India        

Through the Secretary

Through the Ministry of

Information and Broadcasting

Shastri Bhawan

New Delhi     Defendant No. 6 Respondent No. 8

 

PETITION FILED UNDER ARTICLE 139 A OF THE

CONSTITUTION OF INDIA READ WITH SECTION 25 OF

THE CODE OF CIVIL PROCEDURE FOR TRANSFER OF

THE SUIT FILED BY THE RESPONDENT NO. 1 HEREIN

BEING C.S. (O.S) 102 OF 2014 TITLED AS ‘SWATANTER

KUMAR VERSUS THE INDIAN EXPRESS LTD. AND ORS.’

PENDING BEFORE THE HON’BLE HIGH COURT OF

DELHI AT DELHI TO THE CITY CIVIL COURT,

BANGALORE OR TO ANY OTHER COURT OF

COMPETENT JURISDICTION.

To,

THE HON’BLE CHIEF JUSTICE OF INDIA AND

HIS HON’BLE COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA

THE HUMBLE TRANSFER PETITION OF

THE PETITIONER ABOVE NAMED.

MOST RESPECTFULLY SHEWETH:

1. That the present petition under Article 139A of the

Constitution of India read with Section 25 of the Code

of Civil Procedure is being filed by the Petitioner above-

named, seeking transfer of suit filed by the Respondent

No. 1 herein being C.S. (O.S) 102 of 2014 titled as

 

‘Swatanter Kumar versus The Indian Express Ltd. and

Ors.’ pending before the Hon’ble High Court of Delhi at

Delhi to the City Civil Court, Bangalore or to any other

court of competent jurisdiction.

2. That the brief facts giving rise to the present petition

are as follows:

a. That the Petitioner is presently 25 years of age. She

graduated as a lawyer in 2012 and is presently working

with an NGO in Bangalore for the last one and a half

years. She has no real connections with the legal

fraternity in India, including in Delhi.

b. That the Respondent No. 1 is a former Judge of this

Hon’ble Court. He practiced as a lawyer in the Delhi

High Court for a period of 23 years, during which time

he was designated a senior counsel by the Hon’ble

Delhi High Court on February 8,1994. He was

appointed as an Additional Judge of the Delhi High

Court on November 10, 1994. He was subsequently

transferred to Punjab and Haryana Court on November

30, 1994 and was appointed as permanent Judge on

November 30, 1995. He was then transferred back to

the Delhi High Court on October 4, 2004 and then

elevated as the Chief Justice of the Bombay High Court

with effect from March 31, 2007. On December 12,

 

2009, the Respondent No. 1 was appointed/ elevated

as a judge of this Hon’ble Court, from which he

resigned on December 19, 2012 and assumed office as

the Chairman of the National Green Tribunal, New

Delhi, a post he currently holds.

c. That the Respondent Nos. 2 – 8 are Defendants

arraigned by the Respondent No. 1 in the above-

mentioned suit filed by him. The Respondent Nos. 2 –

7 are entities/members of the media and the

Respondent No. 8 is the Union of India, through the

Ministry of Information and Broadcasting.

d. That the Petitioner, a law student at the time, was

scheduled to work as a judicial-intern under

Respondent No. 1 herein, in his capacity as a judge of

this Hon’ble Court, from May 16, 2011 – June 25, 2011.

She joined the office of the Respondent No. 1 and

began the internship on May 16, 2011. It was during

this time, that Petitioner was subjected to sexual-

harassment at the workplace by the Respondent No. 1.

e. That as a result, the Petitioner, fearing her safety,

immediately informed her parents and asked her father

to arrange travel for her to return to Kolkata. She also

 

informed her friends about the incident. She

discontinued her internship on May 29, 2011, citing a

family emergency as the reason for her immediate

departure, as she was afraid she would be compelled

to confront the Respondent No. 1, something she was

reluctant to do at the time.

f. That the Respondent No. 1 resigned as a judge of this

Hon’ble Court on December 19, 2012, to assume office

as the Chairperson of the National Green Tribunal,

New Delhi, a post he currently holds.    

g. That in November 2013,a complaint of sexual

harassment formally came to be made to the Chief

Justice of India, against Justice A.K. Ganguly (retired),

by an intern (hereinafter ‘the first intern’). In response

to the complaint, the then Chief Justice of India, on

November 12, 2013, constituted a 3-judge Committee

to conduct an enquiry into the Complaint of the first

intern, comprising Their Lordships Justice R.M. Lodha,

Justice H.L. Dattu and Justice Ranjana Prakash Desai,

as they then were.

h. That in light of the setting-up of a Committee to probe

into allegations of sexual harassment by the first intern

 

against a retired judge of the Supreme Court, the

Petitioner on November 30, 2013, submitted an

Affidavit-with-Annexures as a Complaint against

Respondent No. 1, containing details of sexual

harassment that she faced by him, addressed to the

Chief Justice of India.

i. That The Committee established by the Chief Justice of

India to conduct an enquiry into the complaint by the

first intern, on December 5, 2013, found that a prima

facie case of sexual harassment was established

against Justice A.K. Ganguly (retired). On the same

day, that is, December 5, 2013, the Full-Court of this

Hon’ble Court resolved that it would not entertain any

complaint of sexual harassment against retired judges,

while recommending no further action as the accused

person had demitted office on the day of the

commission of the offence.

j. That in light of the decision of the Full Court of this

Hon’ble Court, the Affidavit-with-Annexures containing

the Complaint of the Petitioner came to be returned to

her by the Registrar General of this Hon’ble Court in

December 2013.

 

k. That in January 2014, news articles were published in

various newspapers citing the differential treatment in

dealing with the complaint of the first intern and the

Petitioner.

l. That on January 10, 2014, a news item written by the

Respondent No. 3 was published by the Respondent

No. 2 newspaper stating that another intern had made

allegations against another judge of this Hon’ble Court.

The same evening, the Respondent Nos. 4 and 6,

telecast news programmes, naming the Plaintiff as

being the judge against whom allegations of sexual

harassment were made.

m. That on January 11, 2014, the Respondent No. 2,

published an article naming the Respondent No. 1 as

being the judge against whom a complaint of sexual

harassment had been made.

n. Having being returned her complaint by the Registrar

General of this Hon’ble Court, the Petitioner in January,

2014, filed a Writ Petition before this Hon’ble Court,

under Article 32 of the Constitution, being W.P. (C) No.

15/2014, seeking inter alia, the setting-up a permanent

mechanism in this Hon’ble Court to redress sexual-

 

harassment at the workplace for women by all judges,

retired or occupying-office.

o. That by way of an order dated January 15, 2014, this

Hon’ble Court was pleased to issue notice in W.P. (C)

No. 15/2014 to all parties to the said Writ Petition with

respect to the setting up of a permanent mechanism in

this Hon’ble Court to redress sexual-harassment at the

workplace for women by all judges, retired or

occupying-office.

p. That on the same day, that is, the afternoon of January

15, 2014, unknown to the Petitioner, the Respondent

No. 1 moved a suit, being C.S. (O.S.) No. 102/2014,

before the High Court of Delhi, inter-alia, seeking

damages on grounds of defamation and a permanent

and interim injunction order against all Defendants

arraigned therein, including the Petitioner, in respect of

the alleged defamatory imputations, which flowed from

the Affidavit-with-Annexures of the Petitioner sent to

the Chief Justice of India. Along with the suit, an interim

application, I.A. 723 of 2014, was moved (hereinafter

‘the interim application’). A true copy of the plaint in

C.S.(OS) 102/2014 dated 14.01.2014 filed before the

Hon’ble High Court of Delhi is annexed herewith and

 

marked as Annexure P-1 (pages __ to __). A true

copy of I.A. 723 of 2014 filed by the Respondent No. 1

dated 14.01.2014 before the Hon’ble High Court of

Delhi is annexed herewith and marked as Annexure P-

2 (pages __ to __).However the Petitioner did not

know she had been arraigned as a party Defendant.

Unlike the other Defendants she had not been issued

any legal notice prior to the filing of the suit and no

legal notice about the filing of the suit and the IA 723 of

2014 for interim reliefs.

q. That on January 15, 2014, at around 3.00 p.m., the

interim application under Order XXXIX, rule 1 and 2,

Code of Civil Procedure, 1908 came to be heard ex-

parte as against the Petitioner. No prior notice was

served on the Petitioner. The Respondent No. 1 was

represented by no less than 10 senior lawyers and 17

other lawyers formally appearing for him. The Petitioner

has reliably learnt that in actual fact he had a large

number of lawyers in the Court at the hearing such that

the court was packed with his lawyers/supporters. The

Petitioner is reliably informed that the Senior Lawyer for

the Respondent No. 1 was heard at length and was

repeatedly supported by the oral submissions of other

senior lawyers representing the Respondent No. 1.

 

The Ld. Single Judge reserved the matter for orders

and directed that the Defendant Nos. 1 to 4 therein only

publish/ telecast content relating to court orders till the

pronouncement of the interim orders. A true copy of the

order dated 15.1.2014, passed by the Hon’ble High

Court of Delhi in C.S.(OS) 102/2014 is annexed

herewith and marked as Annexure P-3 (pages __ to

__).

r. That on January 16, 2014,The Ld. Single Judge of the

High Court of Delhi did not sit in the morning in Open-

Court. At around 1.00 p.m., the Ld. Single Judge was

pleased to pass an injunction, whereby he, restrained

all Defendants in the suit, as well as those who were

not made parties or named in the suit, from

publishing/telecasting any information relating to the

complaint of sexual harassment made by the

Petitioner; directed that they remove the content held to

be offensive and further restrained all persons from

publishing the photograph of the Respondent No. 1 in

any manner which may suggest his connection with the

complaint of the Petitioner. A true copy of the order

dated 16.01.2014 passed by the Hon’ble High Court of

Delhi in C.S.(OS) 102/2014 is annexed herewith and

marked as Annexure P-4 (pages __ to __).

 

s. That on February 24, 2014, C.S. (OS) 102/2014 was

listed before the Ld. Single Judge. Again the

Respondent No. 1 was represented by 6 senior lawyers

and 10 other lawyers. The interim orders were directed

to continue. A true copy of the order dated 24.02.2014

passed by the Hon’ble High Court of Delhi in C.S.(OS)

102/2014 is annexed herewith and marked as

Annexure P-5 (pages __ to __).

t. That subsequently, after being served with the suit

proceedings, in March 2014, the Petitioner filed her

written statement, pleading justification, that is, the

truth of the averments made in the Complaint

submitted to the Chief Justice of India. A true copy of

the written statement filed by the Petitioner in C.S.(OS)

102/2014 is annexed herewith and marked as

Annexure P-6 (pages __ to __)

u. That on May 5, 2014the Petitioner filed an application

under Order XXXIX Rule 4, seeking the vacation of the

interim injunction granted by the Ld. Single Judge in

C.S. (O.S) 102 of 2014 on January 16, 2014. On the

same day, the Respondent No. 1 filed their replication

to the written statement of the Petitioner. The next day,

on May 6, 2014, the Counsel for the Petitioner was

 

served with two volumes of additional documents which

were filed in the matter at around 4.00 p.m.

v. That on May 7, 2014, C.S. (O.S.) 102/2014 was listed

before the Ld. Single Judge of the Delhi High Court

again. The Respondent No. 1 was again represented

by 7 senior lawyers and 11other 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.

w. The Ld. Single Judge adjourned the Application under

O 39 R 1& 2 to May 15, 2014. A true copy of the order

dated 7.5.2014 passed by the Hon’ble High Court in

 

C.S.(OS) 102/2014 is annexed herewith and marked as

Annexure P-7 (pages __ to __).

GROUNDS

3.   The Petitioner approaches this Hon’ble Court for

transfer of the abovementioned suit, C.S. (OS) 102 of

2014 as prayed for, on the following, amongst other,

grounds which are taken without prejudice to one

another:

A. Because the Petitioner has a fundamental right to a fair

trial and genuinely apprehends that she will not get fair

trial in the Delhi High Court.

B. Because the Respondent No. 1 has been a judge of the

High Court of Delhi and on his own showing, after 23

years of practice in the Delhi High Court, the

Respondent No. 1 was a judge of the Punjab and

Haryana High Court, a judge of the Delhi High Court,

the Chief Justice of the Bombay High Court and the

judge of this Hon’ble Court and at present he is the

Chairperson of the National Green Tribunal. During his

judicial career he has obviously developed good

 

relations with his colleagues, particularly the lawyers

and judges. The Senior Counsel representing him

have all invariably appeared before him either as a

High Court Judge or a Supreme Court Judge and in all

probability and potentially even before him as Chair of

the Green Tribunal. In the circumstances, the petitioner

reasonability apprehends that there is likely to be an

institutional bais operating in his favour. It is not the

submission of the petitioner that there will in fact be a

bais, but the law as laid down by this Hon’ble Court is

that justice must not only be done but also be seen to

be done.

C. Because, in contrast, the Petitioner graduated as a

lawyer in 2012 and is working in an NGO in Bangalore

for the last one and a half years with no real

connections to the legal fraternity in India, including in

Delhi. The Petitioner is hopelessly in a subordinate

position qua the Respondent No. 1 in the legal battle

between them in the Delhi High Court, which is

completely unequal.

D. Because the Plaint has been carefully engineered to

invoke the influence of the Respondent No. 1, in as

 

much as it records that it has been settled and “re-

settled” by four senior lawyers of high repute, all of

whom have been designated senior lawyers by the

Delhi High Court demonstrating a show of strength and

support of the Senior advocates that he enjoys.

E. Because at the hearing of the interim Application on

January 15, 2014, the Respondent No. 1 was able to

have at least 10 senior lawyers and 17 other lawyers

formally appearing for him. The Petitioner has reliably

learnt that in actual fact he had a large number of

lawyers in the Court at the hearing such that the court

was packed with his lawyers/supporters. This was

done to show that the overwhelming members of the

Bar were in his favour, thus leading to a complete

imbalance of power between the Petitioner and the

Respondent, and making a fair trial impossible.

F. Because in contrast, the Petitioner has learnt that the

other Defendants 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 by the Respondent No. 1.

 

G. Because even at the hearings on February 24, 2014

and May 7, 2014, the Respondent No. 1 was formally

represented by 7 senior lawyers and 11 other lawyers

respectively, in a show of strength intended to overawe

the Petitioner’s lawyer and create the impression that

the Respondent No.1 has the support of the entire bar.

H. Because on the other hand, the Petitioner 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. As result, the

Petitioner is faced with a hopelessly one sided

situation, which is wholly loaded for one reason or the

other in favour of the Respondent No. 1.

I. On May 7, 2014, when the suit was taken up by the

Delhi High Court, the senior lawyers appearing on

behalf of the Respondent No. 1 sought to overawe the

lawyers for the Defendant No. 5, the Petitioner herein

by vehemently opposing the request for adjournment

even when the prejudice was caused to the

Respondent no. 1 since there was an injunction

operating against the Defendants.

J. Because the Petitioner reasonably apprehends that she

will not gat a fair trial in the Delhi High Court.

 

K. Because the apprehensions of the Petitioner are borne

out by what transpired in the present suit and the

manner in which interim order that was passed ex-

parte by the Delhi High Court on January 15, 2014.

L. Because the Petitioner was neither served with a legal

notice prior to filing of the suit nor with the papers and

proceedings in the suit, before the Interim Application

was moved on the January 15, 2014. This is despite

the fact that in a suit on defamation the Defendant can

plead justification (that is the truth of the allegations) as

a defence, in which case no interim injunction can be

granted. That is the settled law in common law

countries, including England and India.

M. The Learned Judge had ample time to give notice to

the Petitioner herein to ascertain her stand and if

necessary to keep the matter the following day for

arguments as is evident from the fact that the Learned

Judge did not in fact sit in court and

passed/pronounced the order only around 1.00 p.m.

the next day.

 

N. The purpose of the notice to the present Petitioner was

to obviously to ascertain her stand and if she pleaded

justification not to grant the injunction, which is the

settled legal position both in England and in India.

O. Because contrary to the legal position, the Learned

Single Judge before whom the Interim Application was

moved in the said suit, at the instance of the

Respondent No.1, by way of the order dated January

16, 2014, has erred in law and relied on the judgment

of this Hon’ble Court in Sahara India Real Estate

Corporation Limited &Ors. v. Securities and Exchange

Board of India, (2012) 10 SCC 603, which is on the

issue of sub judice and contempt and has no bearing

to the law of defamation.

P. Because, further, the Learned Single Judge, by way of

the order dated January 16, 2014, gave orders beyond

the prayers, which is impermissible in a suit.

Q. Because the Learned Single Judge, by way of the order

dated January 16, 2014, commented on the delay in

filing the complaint to the Chief Justice of India by the

Petitioner, and in effect commented on the merits of

 

the matter which was not before it and in fact were

sub-judice before this Hon’ble Court.

R. By way of the said order dated January 16, 2014, the

Learned Single Judge has granted an over-broad and

sweeping temporary injunction order against

unidentifiable, and every conceivable, person from

reporting on the subject of the allegations directed

against the Plaintiff. The enhancement of the scope of

injunction orders to cover within it and bind unidentified

persons, who have not, on the date of seeking relief for

the alleged cause of action, participated in giving rise

to the alleged cause of action, is alien to suits relating

to defamation.

S. Because 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.

T. Because the entire atmosphere required for a free and

fair trail does not exist in the High Court of Delhi.

U. Because, in addition, it is submitted that Delhi is an

inconvenient forum for the Petitioner, as she has no

access to lawyers to provide her with adequate legal

 

representation. The Petitioner is living and working in

Bangalore and it would be not just be inconvenient for

her to attend the proceedings of the trial in Delhi, but

also threatening and intimidating in which the

Respondent is represented by 22 lawyers including

Senior Lawyers.

V. Because it is imperative to transfer the case to a neutral

venue, even if it may cause some inconvenience to the

Respondent No. 1.

W. Because it is therefore in the interest of justice to

transfer the said suit to a neutral venue.

X. That the Defendant resides in Bangalore and since she

has pleaded the justification of the truth of the

allegations in her affidavit, she will be the primary

witness in the suit against her. Considering that the

balance of power between the Plaintiff and her is so

unequal and considering that the Plaintiff is well-

networked in Delhi having regard to the factors

mentioned hereinabove the Defendant has absolutely

no chance of equal or near equal legal representation

in Delhi and hence a fair trial will be jeopardized. The

 

petitioner is employed in Bangalore and has the

support of her friends and colleagues in Bangalore

which said support is critical for her to carry through

the litigation which is of a complex nature and pursue

her complaint against the judge.

Y. Notwithstanding that the Defendant is a qualified

lawyer, she has barely put in a year or two into her

practice and is not able to mobilize adequate and

appropriate legal services at senior levels of

representation as compared to the Plaintiff who is over

66 years of age, been a Chief Justice of various High

Courts and a judge of this Hon’ble Court and currently

holds the position of Chairperson of the Green

Tribunal. These factors will jeopardize a fair trial. It is in

the interest of public justice that the suit be transferred

to Bangalore.

Z. The overarching consideration for transfer of a suit

under Article 139 A of the Constitution read with

Section 25 of the Code of Civil Procedure is that the

transfer is expedient for the ends of justice. Hence

because of the circumstances of this case, and having

regard to the huge inequality in the balance of power

 

between the Petitioner and the Respondent No. 1

transfer is expedient to meet the ends of justice.

AA. The transfer is also expedient to meet the ends of

justice for the reason that the Respondent No.1 has

been on his own showing a distinguished judge of the

Delhi High Court, the Chief Justice of the Bombay

High Court and a judge of the Supreme Court, and now

the Chairperson of a very important Tribunal namely,

National Green Tribunal.

BB. 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.

CC. That 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.

 

DD. That the Plaintiff have claimed a damage of 5 crore

against the Defendant jointly or severally including

Defendant No.5 and considering that it is the Petitioner

who is alleged to have made the defamatory

allegations which have been published by the

Defendants No.1-4, the Defendant No.5 is in danger of

being held liable to pay compensation of an amount

way beyond her means and hence the justice of the

situation demands that she is given an appropriate

opportunity to defend herself. That on the other hand

no prejudice will be caused to the Plaintiff if the suit is

transferred to Bangalore having regard to his

enormous means and the ability to mobilize all manner

of support including legal support.

EE. That for the assurance of a fair trial is an imperative of

dispensation of justice and the natural criteria for the

court to decide whether a suit of the present nature

should be transferred is not only that the assurance of

impartiality be guaranteed but also that the

appearance of such impartiality be guaranteed and

any violation of that assurance is a violation of Article

21 of the Constitution of India. In the circumstances,

there is a danger that that appearance of impartiality in

 

the mind of a reasonable person as also in the public

may not be assurance is not available to Defendant

No.5. That the ends of justice demand that the present

suit be transferred by this Hon’ble Court in exercise of

its powers under Section 25 of the Civil Procedure

Code and or Article 139-A of the Constitution of India.

FF. That in any event the Petitioner entertains a reasonable

apprehension that justice will not be done having

regard to the institutional position of the Respondent

No.1 and the position which Respondent No.1 has

occupied in the High Court of Delhi where several

sitting judges are known to him personally and where

many of the lawyers representing him are likely to have

appeared before him in a judicial capacity both in the

High Court and in the Supreme Court and potentially

and possibly even now in the National Green Tribunal.

That having regard to the circumstance mentioned

above, it can be said that Defendant No.5 entertains a

reasonable apprehension that justice will not be seen

to be done. As has been well said on innumerable

occasions that justice is not only to be done but is also

to be seem to be done.

 

GG. That the Petitioner has approached several senior

lawyers in Delhi with the request that her case in the

suit be pleaded pro bono but the request has been

declined 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. That the Petitioner has

also filed a petition against the Respondent No.1

before this Hon’ble Court for an enquiry into the

allegation of sexual harassment against the

Respondent No 1, and at that stage , she had

approached several lawyers appearing in the Supreme

Court of India and several of them had declined on the

ground that the Respondent No 1 had already

approached them.

HH. The Petitioner approached several senior counsels to

represent her in the High Court but all of whom

declined stating that they had already been

approached by Respondent No.1 to represent them in

the Supreme Court and or on the ground that they

have either or otherwise been consulted by

Respondent No.1. The Petitioner submits that this is a

well known practice of disabling seniors to represent

 

an opponent. Similar trends have been observed by

the Petitioner both in her petition in the Supreme Court

and in the present suit. All these factors create a

reasonable apprehension in her mind that justice may

not be and will not be done.

II. That the apprehension of not getting a fair trial and an

impartial trial is reasonable and not imaginary and

hence the present suit is required to be transferred.

That it is imperative that every justice system must

function impartially and without any bias and that

reasonable apprehension that they may not so function

is sufficient ground to transfer the present suit.

JJ. That the contention of Petitioner who has made

allegation of sexual harassment against Respondent

No.1 is of a serious nature and that also has to be

taken into consideration while deciding the transfer of

suit.

KK. That 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. 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.

LL. In the facts and circumstances of the case, the facts

have created a reasonable apprehension in the mind of

Petitioner that there will be a denial of fair trial.

MM. That 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.

NN. That in any event the Defendant would have a right to

remain present during the arguments to give

 

instructions to her lawyers or and the manner in which

the Respondent is represented by 22 and more

lawyers such a fair and unbiased trial is not possible

which will ensure her dignity and privacy.

OO. That the paramount consideration in deciding an

application for transfer has to be that public faith has to

be maintained in the judiciary, and given the stature,

and the institutional position that the Respondent

occupied and continues to occupy and the gravity of

the allegations made by the Petitioner herein against

him it is expedient that the trial be transferred out of the

High Court of Delhi.

PP. The Petitioner’s reasonable apprehension that she will

be denied of a fair hearing in the intimidating

atmosphere that prevails in the court-room on each

date of hearing having regard to the large number of

lawyers who are present in the court in support of the

Respondent No.1.

QQ. That the possibility of bias must be judged by strict

standards for the reason that the law attaches great

importance not only to whether justice has been done

but also to the appearance of impartiality both to the

 

party and to the community. From the point of view of

public policy, the foundation for the strict standard

which focuses on the appearance of impartiality lies in

the obligation of the Court to defend the purity of the

administration of justice and thereby sustain the

confidence of the public in the system.

RR. That it is an abiding value of the constitutional system

that the adjudicator must be free from bias which

requires this Hon’ble Court to have a vigilant approach

to the possibility that the parties or the public may

entertain reasonable apprehension that adjudicator

may not be biased or impartial.

SS. Article 14.1 of the International Covenant of Civil and

Political Rights is to the effect “all persons shall be

equal before the Court and Tribunal”. In the

determination of criminal charge or his rights and

obligation in a suit at law. Every one shall be entitled to

fair trial by a competent, independent and impartial

Tribunal established by law”.

TT. That from the point of view of public at large the

foundation of strict approach lies in the application of

 

Court to defend the period of administration of

justice and thereby ensure confidence in the system.

4.   The Petitioner states that no other petition seeking the

same or similar relief has been filed by the Petitioner

either in this court or before any other court.

PRAYER

It is therefore most respectfully prayed that this Hon’ble

Court may be graciously be pleased to:

a. transfer the suit filed by the Respondent No. 1 herein

being C.S. (O.S) 102 of 2014 titled as ‘Swatanter

Kumar versus The Indian Express Ltd. and Ors.’

pending before the Hon’ble High Court of Delhi at Delhi

to the City Civil Court, Bangalore or to any other court

of competent jurisdiction; and

b. pass such other and/or further order(s) and/or

direction(s) as may be deemed just and proper in the

facts and circumstances of the case.

 

AND FOR THIS ACT OF KINDNESS THE PETITIONER

SHALL EVER PRAY AS IN DUTY BOUND.

Drawn and Filed By:

            Anindita Pujari

Advocate for the Petitioner

NEW DELHI

DRAWN ON: 9.5.2014

FILED ON: 12.5.2014