Mamata’s petition against Nandigram polls: SC rejects Suvendu plea to transfer case outside state

“That is not a basis for us to transfer. Whether that judge should or should not have recused himself is a different issue…,” Justice D Y Chandrachud presiding over a two-judge bench told Senior Advocate Harish Salve who appeared for Adhikari.

He was responding to Salve’s submission that Adhikari had “legitimate apprehensions…that he will have serious problems conducting this case” given the hostile atmosphere in the state. To buttress his point, Salve referred to Banerjee’s “letter” and subsequent developments culminating in the recusal of Justice Kaushik Chanda from hearing the case.

“The fact that a sitting CM writes a letter saying I had opposed the appointment of a judge and he must recuse himself and a senior member of Parliament sends a tweet, saying this man used to appear for BJP when he was in private practice…these are not two private people who are fighting in court,” Salve told the bench, also comprising Justice Hima Kohli.

Turning down the prayer for transfer, Justice Chandrachud said “the election of the then Prime Minister was challenged in the Allahabad High Court”.

Salve was quick to respond and said “I don’t think anybody ever said this Prime Minister appointed so many judges and the judges should not hear it…Today, we are living obviously in a very different culture and a very different ethos where Chief Ministers write letters like this…It’s a very sorry state of affairs”.

Adhikari in his plea filed through Advocate Surjendu Sankar Das also referred to a letter written by some members of the HC Bar Association riling against another HC judge who had given relief to Adhikari in the form of protection from arrest in some cases registered against him.

“Today my concern is this…the atmosphere you have created is…if a judge passes orders which are unfavourable to a dispensation, see what happens to that judge,” submitted Salve.

But Justice Chandrachud said, “If we allow your transfer petition, we will be expressing a view of lack of faith in the entire HC…how can we do that? Let’s allow the High Courts to have control over their litigation and we shouldn’t be sending a message that we don’t have faith in them…”

Salve responded, “I have 100 per cent faith in the HC. The problem is the atmosphere inside and outside the courtroom and the hostility, which, I know, I am going to face…Will I be able to conduct the case there? Can I fairly and freely defend myself in this atmosphere?”

The court said the Chief Justice will ensure that the atmosphere is conducive and added if anything untoward happens, “our shoulders are broad enough to deal with” it.

As Salve repeatedly asserted he had apprehensions, Justice Chandrachud asked, “but so far what has happened? Except that one judge recused, there is nothing…”

Savle said, “There are a number of cases between this gentleman and the state dispensation. Once it starts, in other cases involving the same person, if a judge passes order in his favour, there are protests, lawyers have passed a resolution saying you must take the board away from that judge who gave him relief, otherwise they are going on strike.”

But the court did not relent and said: “This election petition, we find no reason to transfer it at all…we will not allow this choice of High Courts. This is the High Court which has jurisdiction and let the trial take place there…If the judge perceives that the atmosphere of the court is not being maintained in a manner conducive to the trial, the judge himself or herself is sufficiently empowered to ensure that a proper atmosphere is created.”

Senior Advocate A M Singhvi appearing for West Bengal opposed Adhikari’s prayer and said he was trying to avoid the entire High Court.

Salve finally sought permission to withdraw the plea which was allowed by the SC.