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 HONBLE 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 2 nd 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 1 st 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
Also at its registered office at: 503,504 & 507, 5 th 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 HONBLE HIGH COURT OF DELHI AT DELHI TO THE CITY CIVIL COURT, BANGALORE OR TO ANY OTHER COURT OF COMPETENT JURISDICTION. To, THE HONBLE CHIEF JUSTICE OF INDIA AND HIS HONBLE COMPANION JUSTICES OF THE HONBLE 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble Court, the Affidavit-with-Annexures containing the Complaint of the Petitioner came to be returned to her by the Registrar General of this Honble 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 Honble 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 Honble Court, the Petitioner in January, 2014, filed a Writ Petition before this Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Petitioners 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Petitioners 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 Honble 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 Honble 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 Honble 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
William Martin McGurgan Jones v. James S. Gilmore, Iii, Attorney General of Virginia Darrell v. McGraw Attorney General of West Virginia, William Martin McGurgan Jones v. James S. Gilmore, Iii, Attorney General of Virginia Darrell v. McGraw Attorney General of West Virginia, 46 F.3d 1124, 4th Cir. (1995)