Punjab and Haryana High Court agrees not to close Dera violence case after vehement arguments by Amicus

The Punjab and Haryana High Court on Friday agreed not to close a public interest litigation (PIL) case relating to the violence that broke out in various areas of Punjab and Haryana in 2017 following the conviction of Dera Sacha Sauda Chief Gurmeet Ram Rahim in a rape case.

A full bench of Chief Justice Sheel Nagu, Justice Vinod S Bhardwaj and Justice Vikram Aggarwal initially expressed inclination to close the matter, observing that it has become infructuous due to efflux of time.

However, Senior Advocate Anupam Gupta, the Amicus Curiae in the case, strongly opposed the move and urged the Court to answer the questions that were framed in the matter in August 2017.

"I suspect there is an overwhelming anxiety to close the case feeling this is adding to the Court's docket. It is an important, extremely sensitive matter," Gupta said.

He asked the Court to look into the acquittals of accused in the cases of violence and how the State of Haryana was backing the Dera Sacha Sauda. The State is "bending over backwards" to help the Dera for political reasons, he added.

This prompted the Court to continue hearing the case instead of disposing it off.

36 people were killed and property worth lakhs of rupees was damaged in the arson that followed Ram Rahim's conviction in 2017. Ahead of the pronouncement of verdict in Rahim' trial, a lawyer had approached the Punjab and Haryana High Court for public safety as Dera followers surrounded the Panchkula city, particularly the district court.

The High Court had intervened in the matter and later framed larger questions of law to deal with such situations in future. The questions pertained to the police action, damage of property and Haryana government's failure in preventing the crowd from gathering in Panchkula.

Today, the Court expressed reservations that its intervention at this stage could amount to holding a trial.

“Can we decide this in 226? It will be virtually holding trial,” Chief Justice Nagu remarked.

However, Gupta responded that the matter was not limited to quantification of damages but also covered principles of culpability and accountability.

"Otherwise, it will be completed self-abnegation of judicial power, nothing less than a tragedy. Abdication of judicial power at this stage will be a self-inflicted moral wound on the credibility reputation of the Court. This Court has a responsibility to the future," Gupta said.

He added that one of the questions framed pertains to complicity of State with the Dera Sacha Sauda.

“It would be distressing and dismaying if the court treats it as just another case in a situation clogged with arrears. It would be nothing less than a tragic abdication of judicial responsibility," he added.

When Gupta asked "how can basic fundamental constitutional perspective be bypassed in the interest of convenience or speed or lack of time," the Court objected and said the bench was hearing him with patience.

When the bench again asked whether its intervention would not amount to holding trial, Gupta said the questions are not academic and the Court should not be dismissive of the relevance and potency of the questions.

"The main question is whether the State had failed in preventing violence," he added.

The Court asked how it can answer when the State will say it did not fail and someone else would say that the State had in fact failed in its duty. That is a disputed question of fact, Chief Justice Nagu remarked.

Gupta said the Court can even answer in negative.

"Whatever be consequences of my lords' opinion, whether absolution or an indictment, it must be faced," he added.

The Court then said it will hear the amicus after Diwali vacation.

“If you want to address on these issues, go ahead. Then we will have to place it on another day,” the Court said.

On August 29 in 2017, a bench of Acting Chief Justice SS Saron (who has since retired), Justice Surya Kant (currently a Supreme Court judge) and Justice Avneesh Jhingan (currently a Rajasthan High Court judge) had formulated eight questions in the matter. The Court today agreed to hear the amicus on at least four of those questions:

(1) In what conditions and situations would preventive public interest litigation be maintainable before the High Court in a matter relating to law and order and public order which primarily is the domain of the law enforcing authorities?

(2) What would be the scope of jurisdiction of this Court in exercise of powers under Article 226 to determine the compensation payable for the damages, directly or indirectly, to the public at large and the private property on account of acts of violence and arson in Panchkula and other parts of the States of Punjab and Haryana?

(3) Whether the expenses for the loss and damages that have been caused are liable to be recovered from the defaulter and if so, whether it would include expenses incurred in damage to public and private properties, harassment, costs and the arrangements for mobilization of security forces and the actual security operations?

(4) Whether the State of Haryana has failed to perform its duty in preventing mass scale gathering of crowds in Panchkula and other parts of the State of Punjab and Haryana on 25/26.08.2017. In consequence of the above, it would require examination whether there was any complicity on the part of the State of Haryana with the agitators?

Senior Advocates Anupam Gupta, Chetan Mittal and Ashok Aggarwal appeared in the matter.

Additional Advocate General Pawan Girdhar represented the State of Haryana.

Additional Advocate General Chanchal K Singla represented the State of Punjab.