On Friday, the Supreme Court said there was no basis to entertain a request made by Bharatiya Janata Party (BJP) leader Suvendu Adhikari to shift the election petition filed by chief minister Mamata Banerjee against his Nandigram victory in 2021 to a high court outside the state.
Allowing Adhikari, also leader of opposition in the West Bengal assembly, to withdraw his plea, the bench of justices Dhananjaya Y Chandrachud and Hima Kohli said that any order to this effect would be treated as an expression of “lack of faith” in the high court and it was wrong to assume that the high court was not capable to deal with any complaints regarding the safety of witnesses or fairness of the trial.
“If we transfer, it will be seen as an expression of lack of faith in the high court. We will not allow you the choice of the high court. Let the trial start. At that time if the witnesses state that I can’t appear, then you can move the high court. Let us allow the high court to control their litigation. We have to have faith in our high courts.”
In July last year, Suvendu Adhikari petitioned the Supreme Court to transfer Mamata Banerjee’s election petition against his victory in the 2021 state elections from the Nandigram seat to a high court outside the state for a fair trial. Mamata Banerjee, who lost to Adhikari by 1,965 votes, wants his victory to be set aside.
Adhikari, in his petition filed through advocate Surjendu Sankar Das, said, “It cannot be ignored that the respondent has served as the chief minister of the state of West Bengal since 2011…Therefore, a majority of the judges of the Calcutta high court would have either a favourable or unfavourable opinion of the respondent…the petitioner apprehends that the election petition may not be fairly adjudicated in an unbiased manner before the high court of Calcutta.”
Senior advocate Harish Salve, who appeared through videoconferencing for Adhikari, pointed out several circumstances to present the reason for filing the transfer petition.
“What is going on in the state is distressing. One judge who was hearing the matter had to recuse (withdraw) on the ground that the chief minister did not support his appointment while making him permanent. Yesterday, the high court bar association has moved a representation to withdraw cases from another high court judge who gave a favourable order for Adhikari.”
Salve was referring to the order of June 24 last year by which justice Kausik Chanda refused to hear the matter after Banerjee claimed that as chief minister, she refused her consent to make justice Chanda a permanent judge of the high court. “Will I be able to conduct the case in such a scenario. We have nothing against the judge, but the judges are at the receiving end.”
The bench responded: “We are sure, the shoulders of the high court are broad enough. Judges are quite capable of dealing with this.”
The bench told Salve that it was only concerned with the election petition. “What is there other than the judge having recused. Your apprehension has to have a basis. If the judge perceives the atmosphere is not congenial for fair trial, the judge is within his powers to make it congenial.”
The bench, in its order said, “The petitioner seeks permission for withdrawal of the transfer petition stating that the petitioner may move the judge presiding over the trial of the election petition in the high court if the need arises in future for any administrative order to facilitate orderly conduct of the trial.”
Salve requested the top court to make a request to the chief justice of the Calcutta high court to consider their request to ensure appropriate safety to the petitioner and witnesses. The bench turned down the request. “The moment we say that, it amounts to accepting the position that atmosphere is not congenial. You are free to approach the presiding judge who in turn can request the Chief justice to pass orders on the administrative side.”
Salve, who was assisted by advocate Surjendu Shankar Das, referred to CM’s letter wondering how this could be used to seek a judge’s recusal. “Should or should not a judge recuse from hearing a case is a different matter. Even the election of a Prime Minister has been challenged before this court.”
“We are today living in a different culture and ethos. It is a sorry fact that a letter was written by the CM,” said Salve as he also referred to a September 1 letter by members of the Bar Association of the high court objecting to another judge, justice Rajasekhar Mantha hearing matters related to police inaction alleging that the judge “favoured BJP in his judicial rulings“. “Look at what they are doing to him (judge) if a judge passes an order not convenient for the administration.” The judge in question had in September 2021 stayed further investigation against Suvendu Adhikari in an alleged murder case.
The election petitioner, Mamata Banerjee opposed Adhikari’s attempt to avoid the high court. Senior advocate Abhishek Manu Singhvi, appearing for Banerjee, said, “Nowhere in his petition has he stated any apprehension to his security. You are simply trying to avoid the high court. His petition needs to be dismissed as it is a vote of confidence against the entire high court.”.
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