Delhi High Court
Sajid Ali vs State & Ors. on 3 May, 2013
Author: J.R. Midha
Bench: Gita Mittal, J.R. Midha
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (Crl.) No.401/2013
% Reserved on : 15th April, 2013
Date of order : 03, May, 2013
SAJID ALI ..... Petitioner
Through Nemo
Versus
STATE & ORS. .... Respondents
Through Nemo.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
GITA MITTAL, J
1. The above criminal writ petition has been filed under Article
226 of the Constitution of India read with Section 482 of the Code
of Criminal Procedure for issuance of a writ for quashing the order
dated 15th December, 2012 and 17th January, 2013 passed by the
learned Additional Sessions Judge dismissing the petitioner's
revision petition for his failure to pay the entire arrears of
maintenance as a pre-condition for entertainment of the petition. It
is contended that this pre-condition is imposed pursuant to a
decision of a learned Single Judge of this court which is also
challenged herein. The respondent no.2 before us is the first wife
WP(C)No.401/2013 Page 1 of 34
of the present petitioner, while respondent nos.3 to 5 are their three
children who are residing with the mother.
2. When the case was listed on 19th March, 2013, learned
counsel for the petitioner was pressing for interim stay of the
maintenance order which, if granted, would cause irretrievable
damage to his wife and children. Maintenance needed today - is of
little solace if delayed. And the delay traumatic, if not disastrous
for those deprived of it. There was urgency in the matter as on the
one side, a wife and children were awaiting maintenance while on
the other, the petitioner was facing punitive action for non-
compliance of the maintenance order. The matter was a family
issue. We were exploring the possibility of referring the parties to
mediation. Therefore, on the 19th March, 2013 when the matter
was listed before us, we had issued a direction to the parties to
remain present in person in court on the next date of hearing.
3. On the next date i.e. the 9th of April, 2013, the respondent
nos.2, 3 & 5 were personally present. The petitioner was
represented by counsel. However, no effective proceedings could
take place as the petitioner was not present. The order dated 9th
April, 2013 explains the reasons for his absence and we reproduce
it hereafter:
"1. Despite the matter having been passed over once,
the petitioner - Sajid Ali has not appeared in person. It
is now 12.10 pm.
2. Learned counsel for the petitioner submits that the
petitioner in person has come to the Delhi High Court
from Aligarh but has not been permitted to enter the
WP(C)No.401/2013 Page 2 of 34
court premises as he does not have photo identity card.
It is submitted by learned counsel for the petitioner that
he has filed an affidavit of the petitioner dated 5th April,
2013 to the effect that he is educated only upto 7th
standard and is an unskilled labourer having no regular
employment and living in the small town of Aligarh. For
inability of the petitioner to produce the photo identity
card he has not been granted a gate pass and has not
been permitted access into the court premises.
3. The instant case raises a challenge by the
petitioner to an award of maintenance in favour of his
former wife - the respondent no.2 and their three
children impleaded before us as respondent nos.3 to 5.
4. Pursuant to the notice issued by us on 19th March,
2013, respondent no.2 - Roshanara is present along with
her daughters respondent nos.3 and 5 who are residing
with the father of the respondent no.2 at Delhi. They
state that they were issued the gate pass because they
had photo identity cards in the nature of election cards.
However, respondent nos.2, 3 and 5 submit that they
have no means of livelihood at all and do not have the
means to engage the services of a lawyer. They are
directed to appear before the Secretary, Delhi High
Court Legal Services Committee who shall assign them a
legal aid counsel.
5. The present case is one in a series of cases where
it has been brought to our notice the difficulty being
faced by the litigants in accessing the court system in the
current gate pass regime.
6. Today, in the present matter, for want of a photo
identification a litigant who has come to attend this
matter from Aligarh, Uttar Pradesh has been unable to
enter the court premises, let alone appear before us in an
issue relating to award of maintenance to the respondent
WP(C)No.401/2013 Page 3 of 34
nos. 2 to 5. This is a matter of extreme concern. As a
result, we have not been able to pass effective orders in a
matter relating to maintenance of the respondent nos.2 to
5 who claim to be impoverished.
7. We have directed Mr. Atul Sharma, Deputy
Registrar (General) to appear before us. He has placed
the rules which are in vogue as well as the form which is
required to be filled before issuing of gate pass to the
litigants. This matter requires imperative consideration.
Mr. Atul Sharma is directed to place a report before us
about the working categories of all the litigants who have
been finding it difficult to specify the requirements for
issuance of the gate passes.
8. A direction shall issue to the ACP, Delhi High
Court (Security) for appearance before us for further
consideration of this issue on 15th April, 2013 at 12.00
noon. The Registrar (Administration) and Mr. Atul
Sharma shall also remain present before us.
9. List the petition for consideration on 23rd May,
2013.
The petitioner and the respondent nos.2 shall
remain present on that date of hearing."
4. We may note that similar difficulty in getting access to the
court room had been brought to our attention in several cases. In
this regard, as far back as on 12th December, 2012 in Crl. L.P.
No.200/2012 State Vs. Azad Khan (a petition under Section
378(1) of the Cr.P.C. seeking leave to appeal against the
respondent's acquittal by the trial court) we had directed as
follows:-
WP(C)No.401/2013 Page 4 of 34
"xxx 3. We are finding that in every case especially
in criminal matters, litigants are finding access to the
court room with difficulty inasmuch as they are not
aware of the security procedure requiring them to
procure a gate pass. We are informed that a gate pass is
issued only to a person who is possessed of identity
proof. In case, a private person is represented by a
counsel, the application for the gate pass is required to
be counter signed by the lawyer concerned. Very often
lawyers are not available or the litigants arrive before
the lawyer especially when a lawyer is conducting case
in different courts in Delhi.
4. In this background, in the interest of justice and to
facilitate access to the court by litigants wanting to
attend the hearings, we issue the following direction:-
Every notice which is issued by the Registry shall
indicate that the party in person is required to produce
the following documents in order to obtain the gate pass
for entry to the High Court:-
(i) Notice served upon the party or any
other proof requiring his presence in the
High Court.
(ii) Identity proof (aadhar card, election
identity card, ration card, driving licence or
passport).
5. In case the respondent does not have
such documentation, it shall be the
responsibility of the SHO of the police
station concerned to ensure that the
respondent does not suffer any difficulty in
accessing the court room."
5. In several petitions, especially those under Section 378(1) of
the Cr.P.C. filed by the State, when we found that the private
respondents were not appearing despite the State saying that they
WP(C)No.401/2013 Page 5 of 34
stood served. When we started waiting for the litigants to put in
appearance, we found that this was interminable. Often no
appearance was put in at all. Looking at the profile of the litigants
and suspecting that the gate pass regime may be obstructing entry
into the court room, in order to put an unwary litigant to notice, we
had started passing the following directions:-
"CRL.L.P. No.
1. Issue notice for the service of the respondents,
returnable on _______________. The notice shall be
served through the SHO of the police station concerned.
2. The notice which is issued shall be accompanied
by a copy of the application form for issuance of a gate
pass. The notice which is issued shall indicate that the
party in person is required to produce the following
documents in order to obtain the gate pass for entry to the
High Court:-
(i) Notice served upon the party or any other proof
requiring his presence in the High Court.
(ii) Identity proof (aadhar card, election identity card,
ration card, driving licence or passport).
3. In case the respondents do not have such
documentation, it shall be the responsibility of the SHO
of the police station concerned to ensure that the
respondent does not suffer any difficulty in accessing the
court room.
4. Learned counsel for the petitioner/State submits
that the compliance report was filed in the Registry on
______________and she shall take steps to bring the
same on record."
6. As per the above directions, notice is required to be served
through the SHO of the police station concerned, who would be
responsible for ensuring that the respondent faces no difficulty in
accessing the High Court complex. However, this may not be
WP(C)No.401/2013 Page 6 of 34
without difficulty. Police officials at the police station may have
changed since the case and there may be none available who
recognises the respondent. Moreover, the SHO may not have the
human recourses to escort the respondents.
7. Yet another petition being Crl.L.P. No.42/2012 State Vs.
Kallu @ Khajla & Ors. was filed by the State under Section 378(1)
Cr.P.C. seeking leave to appeal against an acquittal judgment was
listed on 18th of December, 2012. In this case, the respondent no.2
was unable to access the court complex. He had faced grave
difficulty in entering the court complex for want of identification
document. We had called the Deputy Registrar (General) and the
following order had been recorded by us again as far back as on the
18th of December, 2012:-
"1. The service report under the signature of SHO P.S.
Tilak Nagar, Delhi has been filed. It is reported that
notice issued to respondent no.1 could not be served.
Respondent No.2 is present pursuant to receipt of the
notices. He submits that he is earning livelihood by
plying rickshaw in village Shahjaan and he does not have
any document of identification. He further submits that
he does not have the means to engage the service of a
lawyer. Respondent no.2 has expressed extreme
difficulty in gaining access to the court for the reason
that he has no proof of identify to obtain the requisite
gate pass.
2. We have accordingly called Mr. Atul Sharma,
Deputy Registrar (General Administration) to ascertain
the applicable procedure and we are informed that
litigant fills the form required for the gate pass along
with the copy of the identity proof and that the procedure
of storing details of the persons who have been issued
WP(C)No.401/2013 Page 7 of 34
gate pass by biometrics device is under active
consideration.
3. It is to be noted that the difficulty with regard to
non-possession of any document of identification would
arise not only to the persons seeking access to the Court
in criminal matters but also would arise in the case of
parties in the civil litigation. The
plaintiff/petitioner/appellant in other cases could also
be a person without any document of identification.
Such a person would also not have the benefit of
possession of any summon or notices which could
facilitate the gate pass section with regard to the
particulars of his/her case or the fact that the same was
listed on another particular date. There is also the
matter with regard to appearance on second date of
hearing for which no fresh notices are issued.
4. No litigant should have any difficulty in
accessing the court to attend their cases. Access to the
justice system is a basic and fundamental right of every
citizen of this country.
5. In this background, we have been informed that
the matter is under active consideration by the Delhi
High Court Security Section as well as General
Administration of the Delhi High Court.
In view of the above, we direct as follows:-
(i), (ii), & (iii) xxx xxx xxx
(iv) The Registry shall furnish the report with regard
to the matter noticed by us in paras 3 and 4 within two
weeks from today.
List for examining the report of the Registry on
th
15 January, 2013.
(Emphasis supplied)"
WP(C)No.401/2013 Page 8 of 34
Despite the above direction, nothing has been placed by the
Registry till date.
8. Pursuant to the directions made by us in the present case on
9th April, 2013, Mr.Dheeraj Singh Bhandari (OSD), Mr.S.K.
Sharma, Registrar (General Administration), Mr. Atul Sharma,
Deputy Registrar (General) and Mr. Sarabjeet Singh, Assistant
Commander of Police (Security) were present in court. Mr. Atul
Sharma, Deputy Registrar has placed a detailed Report before us
enclosing relevant documents including the application for issue of
the visitors' gate pass as well as the entry pass regime which is in
vogue in the Supreme Court of India. We note that along with the
Report, a copy of our order dated 12th December, 2012 passed in
Crl.L.P. No.200/2012 State Vs. Azad Khan, has also been placed.
In view of the above directions to the Registry, it was fully
aware of the difficulties litigants are facing in accessing the court
building. The Registry was also aware of the imperative concerns
in the matter. Yet no action was taken.
9. Inasmuch as the Report placed before us by the Registry
gives the entire background into the Security Instructions as well as
the impact thereof, the same is set down in extenso hereinafter as
follows:-
1. "That after the bomb blast on 07.09.2011, the
Facilitation Centre, on the recommendation of the ACP
(Security) was shifted to the building known as NDMC
School Block opposite the entry gate No. 7 of this Court.
There 8 No. of counters are functioning for the entry of
the litigants and public from 9:00 AM to 5:00 PM. In
WP(C)No.401/2013 Page 9 of 34
addition, one more entry pass counter was made
functional in the underpass of Multi-level Car Parking
which is functional from 9:30 AM to 4:00 PM. 1200-
1300 entry passes are being issued from these 9 No. of
enty pass counters per day on Courts' working days
namely Monday-Friday, however, on Saturday less
number of entry passes are issued. For issuance of the
entry pass, the following procedure is adopted:-
(a) The visitor/litigant has to submit a
prescribed application form duly filled
(Annexure-A) containing various details.
The set form is to be forwarded by his
advocate in case he is represented by some
person.
(b) The entry otherwise can also be
issued in case the petitioner is appearing in
person. In that case, the applicant has to
provide the details of his case which in turn
is examined by the dealing clerk at the pass
counter as the entry pass section is on local
area network and the cause list is always
available online. On his satisfaction, the
entry pass is issued to the litigants appearing
in person.
(c) Out of 8 No. of counters, one each has
been reserved for litigants appearing (i) in
person, (ii) ladies, & (iii) senior citizens.
(d) Along with the prescribed form, the
applicant has to enclose a copy of the photo
identity proof for this Court's record which
is tallied with the original photo ID and
thereafter the visitor/litigants photograph
is captured through web cameras which is
WP(C)No.401/2013 Page 10 of 34
printed on the entry pass issued to the
visitor.
2. That recently some instances have been noticed
when a litigant was not issued entry pass due to any of
the following reasons:-
(i) that his entry pass form was not
properly filled in, i.e. for want of particulars
such as Court No./item No. or date of
hearing.
(ii) for want of attestation by his/her
Advocate.
(iii) for want of copy of his/her identity
proof.
(iv) he/she has not been impleaded as
necessary party in the given case but he/she
is merely accompanying the necessary party.
3. That this Hon'ble Court was also pleased to notice
one such incident where due to not proper attestation by
an Advocate, a litigant could not be present before this
Court on time; and this Hon'ble Court was pleased to
pass orders as at Annexure 'B'.
4. It may be mentioned here that on an average we
have been issuing gate entry passes to as many as 1200
to 1300 persons on daily basis except on Saturday.
Out of these 1200-1300 persons, about 25 to 30
persons are such who do not carry any identity cards
with them, while equal no. of persons do not carry
identity proof such as Ration Card, Election Identity
Card, Passport, Aadhar Card or Driving License as
per the requirement of pass section.
WP(C)No.401/2013 Page 11 of 34
5. Since the undersigned remains present at the pass
section during peak hours between 9 AM to 11:30 AM,
the entry of the persons with above deficiency is
facilitated after verifying from the concerned persons of
the urgency/requirement of him/her to attend the Court
and after being satisfied that he/she is a genuine person.
6. It has also been noticed that although summons
are issued in the name of complainant/prosecutrix in
the Criminal matters and the other proceedings, most
of the time the prosecutrix is accompanied by
male/female members of her family who also apply for
Gate Entry Pass. But since the Passes are issued to the
Parties to the proceedings; they are not issued entry
passes. In such a case the complainant/prosecutrix feels
discouraged to attend the Court to pursue her matter
resulting in prolonging the litigation.
7. Similarly, in Mediation matters where the Parties
are directed to appear before the Mediator; their
companions are not issued passes being stranger to
Suit/Proceeding. In such a case useful Mediation can
not take place and the case is sent back to Court,
unresolved.
8. In some other matters where the parties have
solemnized inter-caste marriages, there are lot of
relatives on either side to seek entry in the Court, but
the passes are not issued to them because of them being
not the necessary parties, the cases of such nature suffer
for want of reconciliation between the parties at dispute.
Submitted please."
WP(C)No.401/2013 Page 12 of 34
(Emphasis by us)
10. The above Report refers to the procedure followed for
issuance of gate pass. So far as the requirements in place are
concerned, these are sourced from the following "Security
Instructions" issued by the Registrar General of this Court:
"SECURITY INSTRUCTIONS
1. All members of public and litigants are informed that due
to security reasons, entry into A, B and C Blocks, Delhi
High Court Building shall be restricted through issuance
of Gate Passes and subject to frisking. Entry shall be
only through the Main Entrance Gate of `A' Block.
2. All members of public and litigants desiring to seek entry
into A, B and C Blocks are required to obtain Gate
Passes at the Reception Office, near Gate No.4.
3. Entry shall be allowed to only such members of
public/litigants whose cases are listed in Court for the
day or who are to seek inspection of records, subject to
furnishing details of their cases, on the form prescribed.
4. Passes to such members of public/litigants as are
represented by Counsel shall be issued after due
verification and recommendation by their respective
advocates under their signatures and stamp, on the form
prescribed.
5. Such members of public/litigants as are
prosecuting/defending their cases in person may obtain
passes, subject to furnishing details of their cases listed
for the day.
6. In case a member of public/litigant requires to appear in
Court in the absence of his Counsel, he would also have
WP(C)No.401/2013 Page 13 of 34
to furnish details of his case for the day, on the form
prescribed.
7. All valid Identity Cards holders of the Govt. of
India/Govt. of NCT of Delhi/Delhi Police/Armed/Security
Forces/Supreme Court of India/District and Subordinate
Courts, Delhi, will be permitted entry in A, B and C
Blocks, without obtaining Gate Pass, but subject to
frisking and search of baggage, if any.
8. Public/Litigants etc. are not allowed to carry their Cell
phones into the Building which should be deposited with
security personnel at the entry point.
9. Public/Litigants may get the passes 4-5 days in advance
for appearing in the Courts of Hon'ble Judges/Joint
Registrarsfrom the Reception Counter.
10. No fee is payable for entry passes.
BY ORDER OF THE COURT
REGISTRAR GENERAL"
11. So far as the application for issuance of a visitor's pass for
entry into the Delhi High Court complex is concerned, the
following form is prescribed:
"APPLICATION FOR ISSUE OF VISITOR'S PASS FOR
ENTRY INTO DELHI HIGH COURT
1. Name(s):________\__Sex: Male/Female Age:______Years
2. Father's/Husband's Name:__________________________
3. Present Address:_________________________________
4. Permanent Address:______________________________
5. Pass required for entry to: Court No._ Item No.__ Date___
WP(C)No.401/2013 Page 14 of 34
6. Purpose of Visit:_________________________________
* I certify that I am appearing in person in the above matter
and that the information given by me is correct. In case it is
found to be wrong, I shall be liable to such consequences as
permissible under the Rules/Law.
7. Recommended by: Mr./Ms._____Sr. Advocate/Advocate/
Officer of the Court
Mobile No._____________
Telephone No.__________
Enrolment No.__________
SIGNATURE WITH SEAL/STAMP OF ADVOCATE
__________________________________________________
Applicant seeking entry pass should submit photocopy of ID
proof (Voter's Card/Driving Licence/Passport/Laminated ID
Card issued by Govt./Semi-Govt./PSU)
(Original to be shown at the time of preparation of entry
Card)
* Applicable for litigants not represented by Advocates (Delete, if
not applicable)"
12. Mahatma Gandhi said that there is peace if there is justice.
Courts are the institutions that guarantee the enforcement and
protection of peoples' rights through the sanction of law. It is trite
law that right to a fair court proceedings and access to justice is a
basic fundamental and human right. Inherent in the expression
`access to justice' is not only use of the justice system, but first and
foremost, the physical entry thereto. This flows from the well
WP(C)No.401/2013 Page 15 of 34
known doctrine ubi jus ibi remedium i.e that is when there exists a
right, a disputant must have a remedy. Thus, any impediment on
accessing the court room is an impediment to the fundamental and
human right of access to justice. Impeding entry into the dispute
resolution mechanism could lead to disastrous consequences.
13. These principles have been articulated by the Supreme Court
in (2009) 13 SCC 729, Vishnu Dutt Sharma v. Daya Sapra, in
which the Supreme Court opined that "any person may as of right
have access to the courts of justice." Moreover, in (2003) 6 SCC
230, Dwarka Prasad Agarwal (D) by Lrs. and Another v. B.D.
Agarwal and Others, the Court also held that "any procedure
which comes in the way of a party in getting a fair trial would be
violative of Article 14 of the constitution of India."
14. Finally, in (2011) 8 SCC 568, Delhi Jal Board v. National
Campaign Etc. & Ors., the Court clarified that Article 39A of the
Constitution of India requires the state to secure the just operation
of the legal system "on a basis of equal opportunity" and to
"ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities." It appears
to be settled law, then, that physical access to courts is an essential
part of the fundamental and constitutionally protected rights of the
rights to access to justice and to equal treatment before the law.
15. These well settled first principles need no elaboration.
Unfortunately, as the present case bears out - there is necessity of
not only reinforcement, but of a strong reminder of these rights and
an emergent examination of the matter.
WP(C)No.401/2013 Page 16 of 34
16. It is equally well settled as an essential and intrinsic
component of the judicial system that is the open court principle
which enables anyone who is concerned to physically see the
enforcement of the rule of law. It needs no elaboration that an
open court system is perceived as a fair independent and impartial
court system. The judiciary in India follows the open court
principle. Such transparency also reinforces confidence in the
courts and leads to regulation of the system as well as efficiency in
justice dispensation and case disposal.
17. The security instructions and the gate pass application,
however, suggest that only parties to cases listed on particular day
or parties who seek to inspect the record in their cases should be
allowed entry. This is contrary to the Delhi High Court Rules
which permit inspection in decided cases to third parties as well.
Furthermore, persons interested in following the court proceedings
could include academicians, students, writers, visitors to the
country or city. Legal activists include members of the public who
would be concerned with hearings of public causes and, therefore,
deserve to get access into the court.
18. The right to witness court proceedings is available to all and
not to the parties alone, unless the court has directed in-camera
proceedings. It is evident that on the basis of this principle alone,
the existing gate pass entry system in place violates the right of
members of the public to access justice.
19. In India, a civil court conducting proceedings under the
Code of Civil Procedure ('CPC') retains discretion to order "in
WP(C)No.401/2013 Page 17 of 34
camera" proceedings only in a suit or proceedings relating to
matters concerning the family, or if either party so desires [Ref.:
Order XXXII A Rule 23 CPC]. Of course, the courts may prohibit
entry of any person in the exercise of their inherent powers.
However, the open court system is the rule, camera proceedings an
exception.
20. Similarly, Section 327 of the Code of Criminal Procedure
mandates that the place in which any proceeding is held for the
purpose of inquiring into or trying any offence, shall be deemed to
be "an open court to which the public generally may have access,
so far as the same can conveniently contain them." The proviso to
sub-section (1) of Section 327 of the Code of Criminal Procedure
provides that the presiding Judge or Magistrate retains discretion to
order, at any stage of an inquiry or trial, that the public or any
particular person shall not have access to, or shall not remain in,
the court room or building. By virtue of sub-section (2), an inquiry
or trial of rape or any of the offences so specified in Indian Penal
Code must be conducted in camera with the Presiding Judge
empowered to allow any particular person to have access to, or
remain in, the room or building used by the court.
21. In the contemporary criminal context, it is worth
highlighting the words of the Supreme Court of India in (1988) 3
SCC 609, Kehar Singh v. State (Delhi Admn.) where the staging
of a trial in jail along with concomitant reporting restrictions was
considered. The following discussion by the Supreme Court
explains the importance of the open court system:
WP(C)No.401/2013 Page 18 of 34
"But apart from it even the Criminal Procedure Code as
it stood before the amendment had a provision similar to
s. 327 which was s. 352 of the Old Code and in fact it is
because of this that the criminal trial is expected to be
open and public. In our Constitution phraseology
difference from the United States Constitution has been
there. Art. 21 provides that no person shall be deprived
of his life or personal liberty except according to
procedure established by law. So far as this aspect of
open trial is concerned the procedure established by law
even before our Constitution was enacted was as is
provided in s. 327 Cr.P.C. The language of s. 327 shows
that any place where a criminal Court holds its sitting for
enquiry or trial shall be deemed to be an open Court to
which the public generally may have access provided the
same can conveniently contain them. The language itself
indicates that even if a trial is held in an private house
or is held inside jail or anywhere no sooner it becomes
venue of trial of a criminal case it is deemed to be in
law an open place and everyone who wants to go and
attend the trial has a right to go and attend the trial
except the only restriction contemplated is number of
persons which could be contained in the premises
where the Court sits...As soon as a trial is held whatever
the place may be the provisions of Sec. 327 are attracted
and it will be an open Court and every citizen has a right
to go and unless there is evidence or material on record
to suggest that on the facts in this particular case public
at large was not permitted to go or some one was
prevented from attending the trial or that the trial was in
camera..."
(Emphasis supplied)
WP(C)No.401/2013 Page 19 of 34
22. There are several cases in the court system which require the
physical presence of a party at the time of hearing. Some instances
where physical appearance of the party/litigant is required/or may
have been directed by the court include the following:
(i) an accused person before the criminal court;
(ii) a complainant who has filed the complaint under
Section 200 of the Cr.P.C.;
(iii) a person seeking to initiate indigenous person's
application under Order 32 of the CPC;
(iv) a person who has been directed by the Court to
personally appear before the Court on any particular
date;
(v) an alleged contemnor in proceedings under the
Contempt of Court
(vi) in execution proceedings
(vii) for compliance of the mandate of Section 89 CPC to
explore an alternate dispute redressal mechanism
23. Judicial notice can be taken of the fact that in our country
especially this city would have a large population which is
adversely placed economically who do not have any kind of
official documents of identification. Such persons would include
the migrant population; labour in the huge unorganized industrial
sector; the homeless; the aged; destitute; deserted women;
orphaned/abandoned children; the disabled etc. It is common
knowledge that securing any official identification documents
itself may require a dwelling, if not permanency of abode. What
does one do if there is none? How can a woman thrown out of her
matrimonial home prosecuting a Section 406 IPC complaint, be
expected to produce her ID document - which though in existence,
but stands retained by some unscrupulous husband and/or in-laws?
WP(C)No.401/2013 Page 20 of 34
How can any such persons be expected to produce identity
documents - still an unfortunate reality in our great Nation.
24. It is, therefore, noteworthy that limits on physical access to
courts including those imposed by the gate pass system in the
instant case, clearly disproportionately affect the right of the poor
or economically weaker to access justice vis a vis the rights of
those economically empowered to approach the courts.
25. We have been deeply pained to see the inability of the
petitioner to access our court because he did not have official
documents identification. Some others have struggled before they
could gain entry.
26. A bare reading of the Report filed before us would show that
as a result of the existing security regime, about 25 to 30 persons
who may be having cases in courts, are unable to secure the gate
pass and are unable to enter and are thereby deprived appearance in
their cases. The other categories of persons detailed in paras 6, 7 &
8 of the report are also unable to enter the court rooms. To say the
obvious, this number of persons (say 25 to 30) may be equivalent
to the entire board of court in some jurisdictions in this court. This
is an extremely serious matter. We may note that the number of
litigants denied entry may on a given day be even more. It is even
distressing to visualize the trauma that a litigant who does not have
either identification documents or a lawyer faces when he seeks to
access this court building on a date of hearing.
27. Even if the Report placed before us was to be ignored, the
order dated 9th April, 2013 passed by us in the present case itself
WP(C)No.401/2013 Page 21 of 34
manifests the impediment by the existing gate pass regime on such
recognized fundamental and human right. It has the effect of being
an absolute entry point barrier at the gate of the court building.
28. Interestingly the Security Instructions afore-noticed do not
contain any specific prescription for production of ID proof. The
requirement of furnishing identity documents thus has been
mentioned on the application for the gate pass. The security
instructions also confer no discretion on any court official to relax
any of the conditions. Therefore strictly speaking the Deputy
Registrar at the Gate Pass Section has no authority to deviate or
draw any exception.
29. In this background, our judicial conscience compels us to
pose to ourselves some pertinent questions. Is it legally
permissible, with the object of security, to effectuate such
prohibitions which prevent the general public from entering a court
complex? More specifically, is it permissible to put in place a
security regime that could have the effect of keeping members of
the general public (including bona fide litigants) without
identification documentation from accessing the courtroom? Could
such a regime be legally permitted to violate the open court
principle by reducing court proceedings to "in camera"
proceedings where access is restricted to a privileged few? We are
facing these questions of grave concern on an almost daily basis,
including in the present case.
30. While it is unquestionable that security concerns cannot be
trivialised, it is equally important to respect and protect the rights
WP(C)No.401/2013 Page 22 of 34
enshrined in Article 21 and 39A of the Constitution of India as well
as the open court principle. Therefore, it is the task of all
concerned to strike an appropriate balance between current security
realities and the rights the Constitution guarantees.
31. Security measures are required to be directed towards
securing life and property--they should not be directed at
identification and entry. We note here that even the heavily used
services provided by the Delhi Metro Rail Corporation have been
secured through a system that manages to handle security of
several lakhs of people every day without impeding physical access
through stringent identification requirements and use of the metro
facility. Thus, we find that security in the court complex must be
pursued by means other than those that effectively block the public
from accessing the courtroom.
32. Banks implementing `Know Your Customer' requirements
(also inter alia, on account of security concerns) have found a way
out and are providing `No FRILLS ACCOUNT" facilities to those
without identification.
33. It goes without saying that security measures for securing the
court complex as well as courtrooms are required to ensure
protection of life and property. Security measures in place include
electronic screening and physical frisking. These are essential to
prevent dangerous articles from entering into the court and could
be made more stringent. However, even persons accused of
serious or dangerous crimes appear before the courts for their trials
and are entitled to attend their court hearings.
WP(C)No.401/2013 Page 23 of 34
34. Courts for a large percentage of people, if not most people,
are the last resort. We are still grappling with and struggling to
overcome psychological, social, financial, technical, technological,
geographical barriers to access to justice and a security regime
which provides for an absolute entry point barrier; it results in an
exclusion which is complete. Such exclusion from the court is
constitutionally impermissible. Security concerns, therefore, must
be balanced against the public interest in zealously guarding the
constitutionally protected right to access justice, in ensuring the
right of physical access to courts as well as in protecting the open
court principle.
35. We cannot permit the High Court or the courts subordinate
to it, to become a privileged space accessible only to those with
ration cards, driving licenses or identity documents by making
courts inaccessible to the disadvantaged who are less likely to have
government-issued documents of identification. We also cannot
allow unreasonable restrictions on the right of public access to
courts to stand, reach whereof is beyond addressing contemporary
security concerns. To hold otherwise would not only violate a
range of constitutionally protected interests, but would also
infringe well-established principles central to our system of justice.
Reasons for Urgency
36. We may also pen down the reasons for our concern as to
why this matter is immediate. The Report filed before us manifests
that the exclusion of persons, including bona fide litigants, is not an
isolated or a `one off' occurrence. It is happening everyday. It is
WP(C)No.401/2013 Page 24 of 34
happening despite our orders dated 12th December, 2012, 18th
December, 2012, 9th April, 2013 and the several other orders
passed by us. We have issued gentle reminders to the Registry
while expressing our concerns in several orders (including those
noticed above) for the last almost six months, no effort has been
made to effect any change and now something requires to be done
urgently. As a result Sajid Ali - petitioner before us has not been
able to appear.
37. Given the nature of the rights and numbers of persons
impacted (25 to 30 litigants everyday as well as others assisting
them according to the Report) this matter brooks not even a day's
further delay. As a consequence of non-appearance, a litigant's
case (if a plaintiff/petitioner/appellant) may stand dismissed; or if a
defendant/respondent, may stand allowed against him. If he is to
appear in a criminal case (as in a petition under Section 378(1) of
the Cr.P.C.), warrants of arrest may unjustly stand issued against
him. This very requirement of ID documents may be utilized by
convincing and unscrupulous litigants to avoid an inconvenient
court appearance. All that a person needs to do is to leave his ID
documents at home and create the excuse that he was not issued a
gate pass and therefore could not appear.
38. The exclusion of the litigant is occurring not only in matters
before this Bench but as is evident from the Report of litigants in
other courts, apart from members of the public, bona fide wishing
to enter the court room. The exclusion is on a daily basis. For
these reasons, in our view, this matter cannot brook even a single
WP(C)No.401/2013 Page 25 of 34
day's delay and we would be failing in our judicial duty if we did
not take immediate steps.
39. No dispute can be raised with regard to the recognized
human and constitutional rights and the principles laid down by the
Supreme Court, especially those addressing primarily concerns of
access to justice and the constitutional rights of the people. Access
to justice to all has to be the heart beat of every Judge and the
`mantra' of every court's administration.
40. While dictating this order, another critical consequence of
indiscriminate measures under the shield of security is revealed.
Concerned only with ensuring controlled entry into a building, the
first step which is taken as a security measure is to completely
block multiple entry/exit points. As a result even emergency exits
are blocked indiscriminately. Building regulations, especially those
relating to public buildings (which includes courts) stipulate
emergency exits taking the comprehensive requirements of all
concerns, security being only one of several equally imperative
considerations. The correct balance between security and say,
effective building evacuation and rescue operations at times of
disasters - natural as well as manmade - has to be arrived at after a
careful examination and close empirical analysis. As a result of
indiscriminately blocking exits, we may have severely
compromised building evacuation and rescue operations, which is
also not permissible.
41. The above narration and the annexures to the Report amply
manifest that the court, the police and the Bar alone would neither
WP(C)No.401/2013 Page 26 of 34
have the requisite information nor the expertise to take a holistic
view in the matter.
42. The turn of events thus in the recent past is a strong
argument for an expert evaluation of the issue of court security on
priority basis. Instances of violence in court premises; judicial
officer being attacked; witnesses and parties being targeted have
also occurred. The concerns of the experts on disaster and the
geology of the land on which Delhi is located, clearly manifest
that the evaluation and the recommendation requires multi-
dimensional inputs on almost priority. Such expert evaluation
would bear in mind the suggested security measures from their
impact, if any, on the constitutional and human rights of the people
as well.
43. Delhi has the benefit of being the seat of the premier expert
bodies on the several issues involved which would include the
Ministry of Home Affairs, Intelligence Bureau, the National
Intelligence Agency, the National Institute for Disaster
management and the Central Industrial Security Force. The Govt.
of NCT of Delhi would be required to implement the
recommendations. The Governments, Delhi High Court, Delhi
Police, the representatives of the Bar would require to be joined.
44. Inasmuch as the matter of cour t security is being examined,
security of the district courts could also require to be considered.
45. Looked at from any angle, a relook requires to be urgently
given to the security instructions issued under the order of the
Registrar General with regard to the documentation requirement
WP(C)No.401/2013 Page 27 of 34
for obtaining the gate pass as well as alternative measures for
ensuring adequate and effective security of the court premises so
that access to the court premises is ensured to all without in
manner compromising on the security or the life of any person.
46. It would also appear that the linguistic barrier has escaped
notice while directing the security instructions which ideally
should be available in vernacular. These deserve to be kept in
mind.
Conclusions:
47. Restricting public access to the courts and the imposition of
identification or documentation requirements on litigants represent
significant barriers to access to justice.
48. Such obstacles that prevent the economically weak from
accessing courts could effectively reduce court proceedings to de
facto in camera proceedings. Barring the public from courtrooms
is thus a clear violation of the open court principle. Moreover,
stringent identification documentation requirements
disproportionately affect the ability of the poor and economically
weaker section to access courts.
49. Security Instruction nos.3 and 4 and the Note on the
Application for Issue of Gate Pass therefore may directly impede
the right of a person of access to justice, which may be
constitutionally and legally impermissible.
WP(C)No.401/2013 Page 28 of 34
50. Security measures are inextricably connected with disaster
concerns and a comprehensive evaluation and action plan is
required on priority basis.
Who would be competent to consider the matter and
recommend appropriate measures?
Security, especially today is not a casual matter. The nature of
threats to public spaces especially buildings merits evolution of
basic policy and norms.
51. We find that the National Center for State Courts (NCSC) in
the USA has published the report titled 'Steps to Best Practices for
Court Building Security' in February, 2010. This report has been
authored by Timothy Fautsko, the Principal Staff at NCSC with
three security consultants Steven Berson, James O' Neil and Kevin
Sheehan. The report identifies the categories, topics and steps to
best practices in court security. During the process of its
finalization, the report was reviewed by three practioners in the
field who made important recommendations incorporated in the
final draft. These experts with wide experience in the field of court
security and emergency preparedness included:-
- Malcolm Franklin, Senior Manager, Emergency Response
and Security from Administrative Office of Courts in
California.
- Frank Lalley, Judicial Security Administrator,
Administrative Office of Pennsylvania Courts.
- Carol Price, Court Security Director, Administrative Office
of Courts, Itah.
WP(C)No.401/2013 Page 29 of 34
Valuable guidance could be drawn from this report and other
court security polices which are in place.
52. The consideration involves technical matters about which
courts or the police would not have the expertise possessed by
expert organizations as the National Investigation Agency, the
Special Protection Group, the Disaster Management experts. The
National Institute for Disaster Management has a special section
for Policy and planning headed by a senior expert. The Central
Industrial Security Force is trained and experienced in institutional
security including airport security.
53. So far as the courts are concerned, the footfall in the district
courts is much heavier than that in the High Court. The judges in
the District Courts have hands down experience in facing and
dealing with large number of persons, security concerns and
violent situations. Their presence in an seuciryt evaluation of a
court building is indispensable. Additionally leadership and
capacity building amongst judicial officers must be ensured and
encouraged.
So far as this court is concerned, the Registrar (General
Branch) is concerned with security arrangements. The Registrar
(Vigilance) and Joint Registrar (Rules) are the senior judges of the
Delhi Higher Judicial Service working in all areas of functioing as
well as on drafting of rules in this court and would have the
knowledge to ensure that the Constitutional Rights of the litigants
and other persons are not violated without compromising on the
WP(C)No.401/2013 Page 30 of 34
court security in any manner by a security regime which may be
recommended.
54. The Delhi Police would be implementing the security
measures. It also has the factual information and assessment of the
ground reality situation. No security discussion can be addressed
without their presence and inputs. The Government of NCT of
Delhi is concerned with the issue and would be responsible for
ensuring installation and implementation of the security measures
in the courts.
Directions
55. For all the foregoing reasons, we direct as follows:-
(I) A Committee is appointed which shall consist of the
following:-
(i) Expert to be nominated by Home Secretary, Ministry
of Home Affairs, Room No.113, North Block, New
Delhi.
(ii) Expert to be nominated by the Director General,
Intelligence Bureau, 35, S.P. Marg, New Delhi.
(iii) Expert to be nominated by Director General, National
Investigation Agency, 4th Floor, Splendor Forum,
District Centrel, Jasola, New Delhi - 110 025.
(iv) Expert to be nominated by Director General, Central
Industrial Security Force, CGO Complex, Lodhi
Road, New Delhi.
(v) Expert to be nominated by Commissioner of Police,
Delhi Police Headquarters, I.P. Estate, New Delhi.
WP(C)No.401/2013 Page 31 of 34
(vi) Expert to be nominated by National Institute of
Disaster Management, 5-B, IIPA Campus, I.P. Estate,
Mahatma Gandhi Marg, New Delhi - 110 002
(vii) Expert to be nominated by Chief Secretary of Govt. of
National Capital Territory of Delhi, New Delhi.
(viii) Professor Santosh Kumar, Professor (Policy &
Planning), National Institute of Disaster Management,
5-B, IIPA Campus, I.P. Estate, Mahatma Gandhi
Marg, New Delhi - 110 002
(ix) Ms.R. Kiran Nath, Registrar (Vigilance); Mr.Bharat
Parashar, Joint Registrar (Rules) and Mr.S.K. Sharma,
Registrar (General Branch), Delhi High Court
(x) Mr.A.K. Chawla, Principal District Judge and Mr. P.S.
Teji, District & Sessions Judge, East District,
Karkardooma Courts, Delhi.
(xi) Standing Counsel (Criminal) of Govt. of NCT of
Delhi.
(xii) President & Secretary of the Delhi High Court Bar
Association
(xiii) Ms.Rebecca Menezes, Sr. Advocate and Mr.Dayan
Krishnan, Additional Standing Counsel (Criminal).
(II) (i) The Principal District Judge is appointed Chairperson
of the Committee.
(ii) Mr. P.S. Teji, District & Sessions Judge, East District
and Professor Santosh Kumar, Professor (Planning &
Policy) shall be the Convenors of the Committee.
WP(C)No.401/2013 Page 32 of 34
(iii) The Registrar (General Branch) shall be responsible
for coordination; correspondence (receipt & dispatch);
communication and provision of administrative and
secretarial assistance.
(iv) The proceedings of the Committee shall be
expeditiously conducted in available and suitable
conference room in Delhi High Court
(III) The nominations shall be informed to the Registrar (General)
within one week of the receipt of the order by the concerned.
The nominations shall give the mobile numbers and e-mail
IDs of the nominees
(IV) The first meeting of the committee shall be held on 16th
May, 2013 when a schedule for the further proceedings shall
be laid down.
(V) Notices for the meetings shall be served at the e-mail
addresses of the Members of the Committee.
(VI) The first meeting shall be attended by all the Members who
may decide the procedure to be adopted in this meeting.
(VII) Suggestions and comments thereon may be exchanged
electronically and draft of the recommendations be finalised
using the electronic mode.
(VIII)The draft recommendations shall be closely examined by the
Members of the Committee and a final report of the
Committee shall be submitted by the Chairperson of the
Committee to the Registrar General within two months, in
any case, not later than 15th July, 2013 who shall place the
WP(C)No.401/2013 Page 33 of 34
same before Hon'ble the Chief Justice for consideration and
appropriate orders.
(IX) The Committee shall also submit its recommendations qua
the District Courts not later than four months from the date
of the first meeting to the Registrar General of this Court
who shall place the same before the Chief Justice for
consideration and appropriate orders.
(X) The Compliance Reports of the present proceedings shall be
filed under the signatures of the Chairperson in the present
proceedings as well.
It is ordered accordingly.
(GITA MITTAL)
JUDGE
MAY 03, 2013
aa
WP(C)No.401/2013 Page 34 of 34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Dated of Decision: May 3, 2013
+ W.P.(CRL) No.401/2013
SAJID ALI ..... Petitioner
Through: Nemo.
Versus
STATE & ORS. ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
J.R. MIDHA, J.
1. I have had the benefit of going through the judgment of my learned sister, Gita Mittal, J. for whom I have great regard. However, I respectfully regret my inability to either concur with the directions or subscribe to any of the reasons on which the directions are based.
2. This writ petition relates to a maintenance dispute between the petitioner (husband) and his first wife/children (respondents No.2 to 5) under Section 125 Cr.P.C. Vide order dated 7th May, 2012, the learned Metropolitan Magistrate awarded maintenance of `2,000/- per month to each of the respondents. The petitioner W.P.(CRL) No.401/2013 Page 1 of 23 challenged this order before the Sessions Court. The Sessions Court vide order dated 15th December, 2012 directed the petitioner to deposit entire arrears of maintenance as a pre-condition to entertain the revision petition. The petitioner has challenged the order of the Sessions Court in this writ petition. This writ petition was initially listed before the learned Single Judge who vide order dated 13th March, 2013, directed the writ to be listed before the Division Bench on 19th March, 2013. On 19th March, 2013, the petitioner was directed to file short list of dates and submissions and respondents No.2 to 5 were directed to appear before this Court on 9th April, 2013.
3. On 9th April, 2013, this petition was listed for the first time before this Bench when the counsel for the petitioner submitted that the petitioner was not permitted to enter the Court premises as he did not have the photo identity card. Respondents No.2, 3 and 5 were present in the Court. This Court directed the Deputy Registrar (General) to submit a report with respect to the litigants finding difficulty in gate pass entry system.
4. On 15th April, 2013, Mr.D.S. Bhandari, OSD (Administration), Mr.S.K. Sharma, Registrar (General Administration), Mr.Atul Sharma, Deputy Registrar (General Administration) and Mr.Sarabjeet Singh, Assistant Commissioner of Police (Security), Delhi Police appeared before this Court. Mr.Atul Sharma, Deputy Registrar (General Administration) submitted a report in terms of the order dated 9th April, 2013. The W.P.(CRL) No.401/2013 Page 2 of 23 report was taken on record and the order was reserved in the matter.
5. The main writ petition is still at admission stage and notice has not yet been issued to the respondents.
6. There is no challenge to the gate pass entry system by any party in this petition.
7. Delhi High Court and Delhi Police are not parties to this petition. Neither any show cause notice has been issued to them nor have they been heard in respect of the proposed action.
8. The following questions arise for consideration in this matter:- Whether any direction can be passed in this matter without issuing show cause notice and hearing the affected parties, namely, Delhi High Court, Delhi Police and Delhi High Court Bar Association? Whether the gate pass entry system of Delhi High Court is fair and reasonable? Whether this issue is in the nature of PIL and can be heard only by the Bench presided over by the Hon'ble Chief Justice as per the roster? My view on the aforesaid questions is given hereunder.
9. REASONABLE OPPORTUNITY TO SHOW CAUSE 9.1. It is the cardinal rule of natural justice that all the affected parties have to be heard before passing any direction against them. Some of the relevant judgments in which this rule has been elucidated are as under:-
W.P.(CRL) No.401/2013 Page 3 of 239.1.1. Uma Nath Pandey v. State of U.P., (2009) 12 SCC 40 ―3... 10. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet.
Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ‗Magna Carta' ..."
(Emphasis Supplied) 9.1.2. Biecco Lawrie Ltd. v. State of West Bengal, (2009) 10 SCC 32 ―24..... It is fundamental to fair procedure that both sides should be heard - audi alteram partem, i.e., hear the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice, i.e., a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated.‖ W.P.(CRL) No.401/2013 Page 4 of 23 9.1.3. Union Of India v. Sandur Manganese & Iron Ores Ltd, (2012) 9 SCC 683 "3.The principles of the natural justice embody the right to every person to represent his interest to the court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given a chance to represent his/its case is unacceptable under the principles of natural justice.‖ 9.1.4. Kishore Samrite v. State Of Uttar Pradesh, (2013) 2 SCC 398 ―22. Compliance with the principal of audi alteram partem and other allied principles of natural justice is the basic requirement of the rule of law. In fact, it is the essence of judicial and quasi-judicial functioning, and particularly the courts would not finally dispose of a matter without granting notice and adequate hearing to the parties to the lis......‖ 9.1.5. In Full Bench judgment of this Court in Satish Chandra Khandelwal v. Union of India and Others, ILR 1981 I Delhi 917, Justice H.L. Anand in his dissenting judgment went into the origin of this rule and held as under:
―5. The time-honoured rule of audi alteram partea, an essential component of the principle of natural justice and an integral part of the larger concept of rule of law has been variously described as ―substantial Justice‖, ―the essence of Justice‖, ―Fundamental Justice‖, ―universal Justice‖, ―rational Justice‖, ―justice without any epithet‖ or ―fairplay in action‖. The rule expresses the close relationship between common law and moral principles, has an impressive ancestry and may be legitimately considered as being of Divine origin. That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient images, where justice was administered, proclaimed in Senoca's Madea, enshrined in the scriptures, traced by W.P.(CRL) No.401/2013 Page 5 of 23 the Supreme Court to the Arthshastra in India, mentioned by Saint Augustine, embodied in Germanic as well as African proverbs, ascribed in the year Books to the law of nature, asserted by Coke to be principle of divine justice and traced by an eighteenth Century judge to the events in the Garden of Eden, where the Lord himself asked of Adam and Eve if they had eaten of the forbidden fruit before their fall from Heavens to earth.
(Emphasis Supplied) 9.2. In the present case, neither any show cause notice of the proposed action has been given to Delhi High Court, Delhi Police and Delhi High Court Bar Association nor they have been afforded any reasonable opportunity of hearing. I had clearly expressed my desire to hear the High Court and Delhi Police during the course of hearing on 15th April, 2013.
10. REASONABLENESS OF THE GATE PASS ENTRY SYSTEM
10.1 Till 2003, the entry into the High Court premises was free and the litigants were neither subjected to any frisking nor they were required to produce any proof of their identity. The gate pass entry system was introduced in the year 2003 and the entry passes were issued upon recommendation of a lawyer. There was a bomb blast outside the gate No.5 of Delhi High Court on 7 th September, 2011, which claimed 13 lives and injured more than 75 persons. A high-level meeting presided over by the then Chief Justice was held on 8th September, 2011, which was attended by five senior judges, Joint Commissioner of Police, two Special Commissioners W.P.(CRL) No.401/2013 Page 6 of 23 of Police, President, Secretary and six members of High Court Bar Association and after detailed deliberations, an unanimous decision was taken that no person should be allowed to enter the Court premises without having photo entry pass. The minutes of the meeting dated 8th September, 2011 has been placed on record by the Deputy Registrar (General). The Deputy Registrar (General) has also placed the minutes of other relevant meetings. The gravity of the situation can be seen from the following news reports of 8th September, 9th September, 2011 AND 11th September, 2011 available on the internet:-
10.1.1 September 08, 2011, The Times of India, New Delhi Ed., published news titled ―Terrorists Strike Yet Again, At Will...No CCTVs Three Months after Blast at Delhi HC‖. It was reported that on September 7, 2011, Delhi High Court's reception counter near Gate No. 5 milled with people witnessed a major terrorist attack in the Capital with most of the casualties among litigants.
The report further highlighted that after a low-intensity blast May 25, 2011, the Delhi Police came up with plan to install CCTVs in the court, though the plan was not implemented. 10.1.2 September 08, 2011, The Times of India, New Delhi Ed., Section ‗Times City' published another article titled "Security Tight for Judges & Lawyers, Lax for Litigants" in which it reported there was a divide on security priorities at the Delhi High Court. While those entering the Court complex were subjected to vigorous checking by security officials manning the entry, the same degree of surveillance was not extended to the teeming W.P.(CRL) No.401/2013 Page 7 of 23 millions who gather outside the gates every day. This could be gauged from the fact that the blast site is hardly a few feet away from Delhi Police security cabin that has metal detectors and scanners, but none of the gates had a CCTV. After the May 25 blast outside Gate no.7 at Delhi High Court, CCTV cameras were to be installed at all gates, but the matter was caught in a tussle between the Delhi Bar Association and Delhi Police. As a result, there was no footage of the bomber.
10.1.3 September 11, 2011, Zee News Channel online news titled "Cops Barred From Using Mobile Phones in Court" reported that a high-level meeting presided by the then Chief Justice of Delhi High Court and five senior Judges, members of Delhi High Court Bar Association, Officials of Police, New Delhi Municipal Council, Delhi Government, Home Ministry and other agencies was held on September 8, 2011 for better vigilance and security measures. The outcome of the high-level meeting was that the Central Reserve Police Force (CRPF) would take over the charge of the inner security of the Delhi High Court. It was further decided that around 49 CCTV would be installed, and that all visitors will have to pass through a three-tier security arrangement while entering into the Court premises.
10.1.4 September 09, 2011, The Times of India, New Delhi Ed., published a report titled "SC Eyeing Parliament Type Security". It was reported that Supreme Court was considering new security measures in the wake of the bomb blast at the Delhi High Court on Wednesday (September 7, 2011). It further reported that Supreme W.P.(CRL) No.401/2013 Page 8 of 23 Court Judges had a meeting with Delhi police commissioner on Thursday (September 8, 2011) regarding security on the Court premises.
10.1.5 September 09, 2011, The Times of India, New Delhi Ed., and September 07, 2011, Hindustan Times, New Delhi Ed., reported that the then Chief Justice of India reviewed security of Supreme Court premises along with a few other Senior Judges in view of the Delhi High Court bomb blast of September 07, 2011. Chief Justice elicited views of Solicitor General and senior advocates about the security measures in Parliament. Solicitor General said that the security ought to be strengthened and suggested that biometric system of regulating the entry of visitors and foolproof screening system should be installed to prevent recurrence of any such incidents. A Senior Advocate suggested the Chief Justice that security for the Supreme Court and High Court can be developed on the pattern currently in vogue at Parliament. 10.2 The gate pass entry system being used in the High Court for entry of the litigants in the Court premises prima facie appears to be fair and reasonable and it does not violate the right of access to justice. The entry pass is issued to the litigants upon production of proof of identity. There is a note on the summons issued to the litigants that they have to produce proof of identity for entry pass. However, there are some cases where the persons do not bring a proof of their identity. In such cases, entry passes are issued to such persons upon identification of the litigant. Mr.Atul Sharma, Deputy Registrar (General Administration) in his report has stated W.P.(CRL) No.401/2013 Page 9 of 23 that about 1200 to 1300 litigants visit Delhi High Court daily, out of which 25 to 30 litigants do not bring the proof of identity. The Deputy Registrar himself remains present in the pass section and he permits the entry of such persons after necessary verification. 10.3 The gate pass entry system has been set up on consultation with the experts in the field of security. This Court is not an expert into the security arrangements. This Court also has not taken the opinion of any expert in this field.
10.4 Similar security system is prevalent in the Supreme Court of India as well. The circulars dated 18th May, 2007 and 6th December, 2007 of the Supreme Court downloaded from the internet are reproduced hereunder:-
―SUPREME COURT OF INDIA (ADMN. GENL. SECTION) No.F.219/Security/2007/SCA(Genl.) 18th May, 2007 CIRCULAR In view of the increased threat perception to the high profile buildings, and changed scenario concerning security of the Supreme Court Complex, Hon'ble the Chief Justice of India has been pleased to direct as under:
1. Henceforth only vehicles having approved parking stickers of the current year issued by the Supreme Court Bar Association and countersigned by the Registry of the Supreme Court of India or the Parking Stickers issued by the Supreme Court Registry will be allowed to enter the premises of Supreme Court. The parking sticker shall be prominently displayed on the vehicle and shall contain the registration number of the vehicle.
2. In case the person obtaining parking sticker replaces his/her vehicle during the year he/she will have to obtain a new parking W.P.(CRL) No.401/2013 Page 10 of 23 sticker of current year for the new vehicle after depositing the mutilated parking sticker of the old vehicle with Supreme Court Bar Association. A parking sticker shall not be transferable and can be used only in respect of the vehicle for which it is issued.
3. Inverted mirror will invariably be used by the security personnel for thorough checking of vehicles at the time of entry into the Supreme Court premises.
4. Advocates in robes or otherwise, registered/authorized clerks of advocates, employees of Supreme Court and employees of the other offices functioning in the Supreme Court premises must display or show their Identity Card or a visitors' pass issued by the Supreme Court Registry to gain entry into the High Security Zone.
All others will have to obtain visitors' pass issued by Supreme Court Registry for entry into the High Security Zone of the Supreme Court Premises upon proper identification.
5. All persons, other than Advocates in robes and displaying or showing his/her identity card, will be subjected to search and frisking by the security personnel at the point of entry into the High Security Zone.
6. Barring open files/briefs being carried by an advocate displaying or showing his/her Identity Card, all bundles/brief cases/bags/files books etc. being carried by any one will have to be scanned by the X-Ray Machine for entry into the High Security Zone.
7. The D.C.P., Supreme Court Security shall ensure that all the X-Ray Machines and Door Frame Metal Detectors (DFMDs) are always in proper working condition.
8. Cameras and Mobile Phones shall not be brought inside the Court rooms.‖ W.P.(CRL) No.401/2013 Page 11 of 23 ―SUPREME COURT OF INDIA (ADMN. GENL. SECTION) No.F.219/Security/2007/SCA(Genl.) 6th December, 2007 CIRCULAR In continuation of this Office Circular dated 18th May, 2007, Hon'ble the Chief Justice of India has been pleased to direct further that the following practice be adopted for issue of visitors' passes to the persons entering Supreme Court High Security Zone and the Courts:
1. No person (including an advocate) will be issued visitor's pass without verifying his/her identity and address from his/her Driving Licence/Identity Card/Votor's Card or any other authentic document(s). A photocopy of the proof of address and proof of identity shall be retained by the Reception Counter and kept in record for atleast 3 months.
2. Persons visiting Registry on behalf of any firm/company/association/office / Department must carry an authority letter besides proof of his/her identity and address.
3. No vehicle without valid Car Parking Sticker issued by the Supreme Court Registry/Supreme Court Bar Association will be allowed to enter into Supreme Court premises without written permission from the concerned Officer of the Supreme Court Registry.‖ 10.5 In New Zealand, there is a statute which provides that the person who wants to enter in a court has to provide the evidence of his identity in order to enter the Court. Section 12 of the Courts Security Act, 1999 of New Zealand is reproduced as under:-
"12 Power to ask for identification (1) A court security officer may ask any person who wants to enter, or is in, a court to provide the officer with--
(a) the person's name and address; and W.P.(CRL) No.401/2013 Page 12 of 23
(b) evidence of the person's name and address; and
(c) the person's reason for either wanting to enter the court or being in it, if the officer has reasonable grounds for asking for the information.
(2) A court security officer may deny entry to, or remove, a person--
(a) who does not comply with a request under subsection (1); or
(b) who gives a reason under subsection (1)(c) that gives the officer reasonable grounds to believe that the person may threaten the security of the court.‖
11. LIMITS OF JUDICIAL POWER AND IMPORTANCE OF ROSTER 11.1. In any view of the matter, the issue relating to gate pass entry system is in the nature of a PIL, which affects the rights of the litigants entering the Delhi High Court. None of the parties to the petition have challenged this system and suo moto cognizance of the alleged violation of the access to justice is sought to be taken. As per the roster set up by the Hon'ble Chief Justice, the PIL matters can be heard by the DB-I presided over by the Hon'ble Chief Justice. This Division Bench has been allocated the following matters by the Hon'ble Chief Justice:
―1. Criminal Appeals of the years 2002 to 2008 and 2010
2. Death Sentence References with connected Appeals
3. Criminal Leave Petitions for the year 2012 and of 2013
4. Writ Petitions (Service) relating to Armed Forces from the year 2009 to 2011 and of 2012 (instituted from 01.01.2012 to 30.06.2012) W.P.(CRL) No.401/2013 Page 13 of 23
5. Regular hearing matters of the above categories‖ This Division Bench is, therefore, not competent to hear any public interest litigation.
11.2. In Courts On Its Own Motion Re: Dengue Fever v. MCD and Others, 1996 (5) AD (Delhi) 753, the learned Single Judge of this Court took suo moto cognizance of a PIL on the basis of newspaper reports. Later on, the learned Single Judge directed the matter to be listed before the then Chief Justice. The Division Bench presided over by the Hon'ble Chief Justice examined the law with respect to the roster and held that the Hon'ble Judges cannot take up suo moto congizance or entertain or take up the work which is not assigned to them by the Chief Justice. The relevant portion of the judgment is reproduced hereunder:
―1. A learned Single Judge of this Court, after noticing- Press Reports in certain newspapers dated 5.1.1996 and 8.1.1996 relating to the spreading Dengue fever, took up suo motu action and issued show cause notice to the Government and other authorities on 8.10.1996. The learned Judge also appointed an Advocate as amicus curiae to assist the Court.
Notice was issued returnable by 10.10.1996, the learned Judge after hearing the matter issued certain further directions and observed finally.
―Matter be now listed before Hon'ble the Chief Justice th on 17 Oct. 1996, as it is a Public Interest Litigation and has to be heard by a Division Bench as per the rules.‖
2. The file was called for by us on 14.10.1996, and we passed an order preponing the matter from 17.10.1996 to which the learned Judge posted the matter, to 15.10.1996 having regard to the public concern regarding the increase in the death toll and further spread of the fever.
W.P.(CRL) No.401/2013 Page 14 of 233. At any rate, on 10.10.1996 when the learned Single Judge noticed that this was a PIL matter (assuming it was not so noticed on 8.10.1996) the file should have, for reasons given below, been placed before the Chief Justice for listing according to the rules and roster. But instead certain further directions were issued after hearing on 10.10.1996 in a lengthy order. The matter was also adjourned by one week from 10th to 17th October, 1996.
4. The learned Single Judge who dealt with this matter suo motu, was, at the relevant time assigned work in Civil Revisions, C.M.(M), FAO, RSA, EFA, & CCP as per roster. After the order of the learned Single Judge dated 8.10.1996, taking it up suo motu action, the Registry in fact registered the matter as a Civil Writ petition, and listed the writ petition before the learned Single Judge again on 10.10.1996, as directed in the earlier order dated 8.10.1996.
5. It has, therefore, become necessary to clarify the powers and jurisdiction of Hon'ble Judges of this Court vis- à-vis the work assigned to them in order to avoid any doubts in the matter. We may here point out ―Public Interest Litigation‖ (PIL for short), that under the Rules in force PIL matters are to be dealt with by a Division Bench only and that according to the roster now in force, PIL cases could be taken up only by DB-1. Situations such as the one in this case have arisen in several High Courts. As there is no authoritative ruling of this Court, we wish to clarify the legal position with reference to the stature and rules applicable.
6. The discussion, must start with Section 108 of the Government of India Act, 1915. Sub-clause (I) thereof states that each High Court may, by it rules provide, as it thinks fit, for the exercise, by one or more Judges or by Division Courts, constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the Court. Sub-clause (2) which deals with the powers of the Chief Justice in arranging the sittings of the Hon'ble Judges is important and reads:
W.P.(CRL) No.401/2013 Page 15 of 23―S. 108(2) : The Chief Justice of each High Court shall determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several division Courts‖.
7. Clause 26 of the Letters Patent (Lahore) 1919 adopts the powers in Section 108 of the Government of India Act, 1915, and reads as follows:
―Clause 26: And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction may be performed by any Judge or by a Division Bench thereof appointed or constituted for such purpose of pursuance of section one hundred and eight of the Government of India Act, 1915‖.
8. The Government of India Act, 1915 was repealed and re-enacted with modifications by Government of India Act, 1935. Section 23 thereof preserved the powers under the pre-existing law including the one relating to any power to make rules of Court and to regulate the sittings of the Court. When the Government of India Act, 1935 was repealed by the Constitution of India. It was as again provided in Article 225 which deals with powers of ―existing‖ High Courts that the existing law as to ―any power to make rules of the Court and to regulate the sitting of the Court‖ would continue to be force.
9. The Delhi High Court Act, 1966 provided in sub- clause (c) of Section 4 that Article 225 of the Constitution shall not, however, apply to Delhi High Court. This was because Article 225 was applicable only to High Courts ―existing‖ as on 26th January, 1950. But the Act made other provisions to place the powers of the Chief Justice of Delhi High Court on par with Chief Justice of High Courts which were in existence as on 26th January, 1950. Section 7 of the Act clearly provided that the practice and procedure of the Delhi High Court and the power to make rules shall be those exercisable by the High Court of Punjab. Section 10(1) provided for appeals from judgments of learned Single Judge W.P.(CRL) No.401/2013 Page 16 of 23 to a Division Bench and Section 10(2) is the important provision which clearly provided that ―the laws in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab, and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modification, apply in relation to the High Court of Delhi‖. Thus, by virtue of Section 10(2), the powers of the Chief Justice as applicable to the Chief Justice of the High Court of Punjab, including the powers contained in Section 108(2) of the Government of India Act as also the powers contained in clause 26 of the Letters Patent (Lahore) became vested in the Chief Justice of the Delhi High Court. The rules made by the Delhi High Court, as amended from time to time, specify which class of cases are to be heard by the learned Single Judges, or by Division Courts, while the Chief Justice, is vested with the powers to determine what cases or types of cases are heard by learned Single Judges or by Division Courts. It is by virtue of these powers that the Chief Justice of Delhi High Court is to decide the manner in which the roster is to be prepared.
10. The powers of the Chief Justice in arranging the sittings of the Hon'ble Judges of the Court as declared in Section 108(2) of the Government of India Act have been referred to by the Supreme Court in N.S. Thread and Co. v. James Chadwick & Bros (AIR 1953 SC 257). Again while describing the Chief Justice as ―the master of the roster‖, and as having an ―inherent power‖ to prepare the roster, the Supreme Court stated in State of Maharashtra v. Narayan (AIR 1982 SC 1198) (at 1200) as follows:
―The Chief Justice is the master of the roster. He has full powers, authority and jurisdiction in the matter of allocation of business of the High Court, which flows not only from ..... but inheres in him in the very nature of things.‖ W.P.(CRL) No.401/2013 Page 17 of 23
11. The exclusive powers of the Chief Justice as delineated in the minority Judgement of S.K. Das, J in Premnath Talukdar vs. Saroj Ranjan Sarkar (AIR 1962 SC
876) were accepted by the majority, in the same case, on this point. There powers were again described - part from Rules
- as part of the inherent powers of the Chief Justice.
12. A Division Bench of the Calcutta High Court in Sohan Lal vs. State (AIR 1990 Calcutta 168 (FB)), after referring to various provisions of law, and the rulings quoted above, held on facts that one of the learned Judges of the Court who was to hear only part heard cases and contempt matters could not have dealt with a fresh writ petition and passed interim orders thereon. The order was held to be ―without jurisdiction‖ and ―void‖ (see para 28).
13. A Division Bench of the Allahabad High Court in State vs. Devi Dayal (AIR 1959 Allahabad at 423), held that it is only the Chief Justice who has the right to and power to decide which Judge is to sit alone and what cases such Judge can decide: further, it is again for the Chief Justice to determine which Judges shall constitute Division Benches and what work those Benches shall do... it is for the Chief Justice, to allot work to Judges and Judges can do only such work as is allotted to them.
14. A Division Bench of the Allahabad High Court in Puran Chand vs. Abbullah (AIR 1938 Allahabad 606) held that a Division Bench of the Court did not have power to direct reference to five Judges and, therefore, it is open to the Chief Justice to place the matter before a Division Bench to decide whether the case was one fit to be referred to three Judges.
15. A Division Bench of the Madhya Pradesh High court held in Ambimeshwar Prasad Dubey vs. Hon'ble Chief Jutice Sri S.K. Jha (1992 M.P.J.R. (2) 44) following the last mentioned case that it is for the Chief Justice to arrange the sittings of the Hon'ble Judges and allot work. Another Division Bench of the Madhya Pradesh High Court in Laxmi Rai vs. Maga Ram Khilawandas (1993 (1) MPJR 172) held W.P.(CRL) No.401/2013 Page 18 of 23 that a learned Single Judge could not convert a memo of revision/appeal into a petition under Article 227 nor could he have decided a petition under Article 227 which, under the rules of the High Court, ought to go to a Division Bench.
16. From the aforesaid provisions of law and the rulings of the Supreme Court and the High Courts it is clear that while the rules of the court or other statutory provisions could decided which class of cases could be decided by Single Judges or by Division Benches, the power to determine which Judge or by Division Benches is to hear what type or class of cases is to be determined only by the Chief Justice of the court as per the roster prepared at his instance or as per any further directions he might give in that behalf from time to time. The power to prepare the roster and assign the work as aforesaid is constitutionally and statutorily vested in the Chief Justice alone and Hon'ble Judges cannot take up suo motu, or entertain or adjudicate work which is not assigned to them by the Chief Justice. The Chief Justice is the master of the roster and this power is vested in him by the law and it is also inherent in him as held by the Supreme Court.
17. We may, in addition, point out that in the Supreme Court of India, certain related issues arose connection with entertaining letters and writ petitions as Public Interest cases. It was held in M.C. Mehla vs. Union of India (Shri Ram Oleum Gas) (AIR 1987 S.C. 1086) that letters addressed to individual Judges have to be sent to the PIL Cell and placed before the Chief Justice of the Supreme Court of India and then, at this direction, be listed. The Judgement of A.P. Sen, J in Bandhua Mukti Morcha vs. Union of India (1984) (3) S.C.C. 161), which was followed in the above case, and the judgment in Ramsharan Autyanuprasi vs. Union of India (AIR 1989 S.C. 549) say that such letters are to be treated as letters addressed to the entire Court and the Chief Justice, and not to the individual Judge to whom they are addressed. If that be the case of specific letters written to a particular Judge of the Court, the case of suo motu W.P.(CRL) No.401/2013 Page 19 of 23 action by a Judge aforethought cannot permit the Judge not sitting in PIL jurisdiction either because of the rules or the roster, to deal with PIL cases. Assuming that any learned Judge or a Division Bench is of the view that newspapers report should itself justify suo motu action as a PIL case, the Judge or Judges ought, in our opinion, direct the news report to be placed before the appropriate Bench hearing PIL cases, after obtaining orders of the Chief Justice, to enable the Registry to prepare a note and so that the Chief Justice could consider the newspaper report and pass appropriate orders."
18. In the present case, we are of the view that the learned Single Judge took up the suo motu action treating "dengue fever" reports in newspaper as one of public interest. As per rules in force, PIL matters were to be heard by a Division Bench and as per the roster in force, they could be listed and dealt with only by DB-1. The learned Judge was not right in not initially giving primacy to the rules as also to the roster prepared by the Chief Justice, and in proceeding to pass order on 8.10.1996 or on 10.10.1996. Be that as it may, the directions already given by the learned Single Judge, need not be declared to be without doing having regard to the public interest involved in the matter‖.
(Emphasis Supplied) 11.3. In Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542, the Supreme Court held that the administrative control of the High Court vests in the Chief Justice of the High Court alone, the Chief Justice is the master of the roster and he alone has the prerogative to constitute Benches of the Court and allocate cases to them; and the puisne Judges can only do the work allotted to them by the Chief Justice. Paragraph 67 of the judgment is reproduced as under:
W.P.(CRL) No.401/2013 Page 20 of 23"The importance of roster
67. It is clear from the record that the learned Judge was not dealing with any public interest litigation caes as on the date of entertaining anonymous petition. It is beyond pale of any doubt and controversy that the administrative control of the High Court vests in the Chief Justice of the High Court alone and it is his prerogative to distribute business of the High Court, both judicial and administrative; that the Chief Justice is the master of the roster. He alone has the prerogative to constitute Benches of the court and allocate cases to the Benches so constituted; and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions; that the Puisne Judges cannot ―pick and choose‖ any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (See State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1.)‖ 11.4. In State of Uttar Pradesh and Others v. Neeraj Chaubey, (2010) 10 SCC 320, the Supreme Court again held the Chief Justice to be the master of the roster and has jurisdiction to allocate/assign the work to the Benches. The Court further held that if a Bench comes to the conclusion that it involves some issues relating to public interest, the Bench cannot entertain the matter as a PIL and has to place it before the Bench which has jurisdiction to entertain a PIL as per the roster fixed by the Chief Justice.
Paragraph 9 and 10 of the said judgement are reproduced herein:
―9. The High Court had taken note of various judgments of this Court including State of Maharashtra v. Narayan Shamrao Puranik [(1982) 2 SCC 440 : AIR 1982 SC 1198], Inder Mani v. Matheshwari Prasad [(1996) 6 SCC 587], State of Rajasthan v.Prakash Chand [(1998) 1 SCC W.P.(CRL) No.401/2013 Page 21 of 23 1], R. Rathinam v. State [(2000) 2 SCC 391 : 2000 SCC (Cri) 958] and Jasbir Singh v. State of Punjab [(2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470] and various judgments of the High Courts and came to the conclusion that the Chief Justice is the master of roster. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench.
He has jurisdiction to decide which case will be heard by which Bench. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial work of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court only if the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from this procedure is permissible.
10. In case an application is filed and the Bench comes to the conclusion that it involves some issues relating to public interest, the Bench may not entertain it as a public interest litigation but the court has its option to convert it into a public interest litigation and ask the Registry to place it before a Bench which has jurisdiction to entertain the PIL as per the Rules, guidelines or by the roster fixed by the Chief Justice but the Bench cannot convert itself into a PIL and proceed with the matter itself.‖ W.P.(CRL) No.401/2013 Page 22 of 23 11.5. This case is squarely covered by the aforesaid judgments. The issue relating to gate pass entry system being in the nature of a PIL, can be heard only by the Bench presided over by the Hon'ble Chief Justice as per the roster.
MAY 03, 2013 J.R. MIDHA, J. Dev W.P.(CRL) No.401/2013 Page 23 of 23 $~ *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (Crl.) No.401/2013 % Date of order : 3rd May, 2013 SAJID ALI ..... Petitioner Through Nemo Versus STATE & ORS. .... Respondents Through Nemo. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA GITA MITTAL, J
1. I have received the order proposed by my learned Brother disagreeing with my above opinion only this morning. I have, therefore, barely had occasion to glance through the same. It is necessary to clarify some aspects of the matter raised therein which I proceed to record hereafter.
2. The issue which was raised in the matter is whether Sajid Ali (petitioner in this case) seeking to enter the court for his hearing, can be denied entry into the court building on the 9th of April, 2013 and our court room because he does not have documentary proof of identification which is being imposed as a security requirement? The fact that this effects other litigants is brought out from the Report placed before us.
WP(C)No.401/2013 Page 1 of 53. Criminal Writ Petitions of the present nature are not our roster allocation. This writ petition was specifically marked to this Bench. Sajid Ali - the petitioner made efforts to be present in the hearing but was denied entry on the ground of enforcing security measures. The circumstances show that he would be denied entry again and again for the same reasons.
4. Denial of access to a party in the litigation before the court is fundamental to accord a fair hearing to her/him - Sajid Ali before us. It has to be addressed by the Bench hearing Sajid Ali's case and none other. This court was thus bound to decide whether Sajid Ali could be denied entry on account of security regime in place.
5. It is to answer the above question that the report had to be called for from the Registry which revealed that there was not one, but several persons like Sajid Ali who are being denied entry for the same reason everyday and that there are other categories of persons as well seeking entry who are not permitted entry for this very reason.
6. The issue of denial of access to the court even in the case of a single Sajid Ali requires a holistic consideration. His non- appearance on the last date and appearance on the next date is an issue directly before us in this writ petition. Merely because the consideration of the issue has to be wide would also not convert the issue of denial to Sajid Ali's entry before us in this case into a PIL.
7. The violation of the rights of the petitioner to accessing the court room is a fact placed before this court. In as much as the same is a violation of fundamental rights and basic human rights, WP(C)No.401/2013 Page 2 of 5 the same cannot be ignored by the court before which it is brought out. In these circumstances, no separate challenge is necessary to decide on the rights of the present petitioner to enter this court room in his pending case - it is an issue which is brought out during the proceedings.
8. The consideration of the concerns which we have pointed out does not depend on whether it is a single Sajid Ali or several of them. The impact of the denial of the access to a single person as Sajid Ali raises the same questions and has to receive the same importance and consideration as that may be given to several Sajid Alis. The mere reference to the group of litigants denied access in my order and the concerns noticed by me are, therefore, within the permissible limits of the roster allocation to our Bench especially when this case has been marked to us.
9. It may be observed that the matter of appearance of party in case marked to the court is a matter which has to be decided by it. Merely because it may benefit other parties as well would not convert it into a public interest litigation. In my humble view, suo moto cognizance of a newspaper report or a letter has not been taken in this case nor is there any adjudication of work not assigned to this Bench. This court would not over reach roster allocation and has always strictly abided by judicial discipline.
10. There is no 'lis' (or litigation) requiring adjudication of competing rights in considering whether Sajid Ali can be kept out of court - only concerns (access to the court vis a vis security) which are not coalescing in this consideration.
WP(C)No.401/2013 Page 3 of 511. There is no considered policy at all on court security as is manifested from the Instructions. The Security Instructions placed before us do not reflect a consideration by the experts noticed above. As the issue is directly concerned with security of a public building, the matter requires inputs from the experts who could still recommend the same measures as are in place that Sajid Ali be kept out of court. They could recommend even more stringent measures.
12. Just as every judgment resolves an issue/dispute and impacts society (including those who are not litigants before the court), so could the benefit of our order in Sajid Ali's case permeate to others. If a strict view was taken, every issue therein why may impact those who are not party to the litigation would have to be treated as a Public Interest Litigation.
13. Reference to judicial orders (which have been placed in the public domain) and precedents is legally permissible.
14. Law permits every court to request for expert assistance and local examination. The Expert Committee suggested by me in my order is only rendering this assistance. Furthermore, the Committee of experts has been constituted for making recommendations which are to be placed before the Chief Justice for consideration and orders. No view has been expressed by me on the recommendations which the Committee has to make. In fact it has been directed to be placed before Hon'ble the Chief Justice who would then pass appropriate orders on the Report, which could include whether it required to be treated as a public interest WP(C)No.401/2013 Page 4 of 5 litigation or not. No orders may be required if the committee reiterated the existing measures.
15. I may caution that inputs considered by experts recommending a security policy and regime are required to be kept confidential. Strategically and in order to be effective, they cannot be the subject matter of litigation. Hence the directions by me carefully constituting the committee to make its recommendations.
16. Even in PILs, referral courts often collect the relevant material which is referred for placing before the PIL Bench. This, in sum and substance, is the effect of the order by me. Given the conclusion by my learned Brother that there is no denial of access to justice to Sajid Ali (and others like him) by the security regime, there would be no issue of public interest which has to be referred to any other Bench of this court.
In any event, looked at from any angle, the issue deserves priority, attention, judicial (because we have differed on whether the measure impacts access to justice) and administrative, which I am positive that, irrespective of the judicial view which may be taken in the matter, would be given.
(GITA MITTAL) JUDGE MAY 03, 2013 aa WP(C)No.401/2013 Page 5 of 5