A Division Bench of Jammu & Kashmir High Court Jammu Wing comprising Chief Justice Gita Mittal and Justice Rajesh Bindal today took serious note over the strike by the Advocates and took suo-moto cognizance, issued notices to the Government of the Union Territory of Jammu and Kashmir through Commissioner/Secretary Department of Home to produce all relevant Circulars of the Ministry of Home Affairs of the Government of India as well as other relevant circular(s)/order(s) of the Government of India or the Government of the erstwhile State of J&K and the Government of the Union Territory of Jammu and Kashmir to declare the High Court of Jammu and Kashmir and District Courts as High Security Zones.
DB also issue notice to the Government of India through Secretary, Ministry of Home Affairs, to urgently consider the above factual narration from the perspective of deployment of a Central Armed Police Force to provide security to both wings of the High Court Jammu and Kashmir as well as the District Courts, in the Union Territory of Jammu and Kashmir.
While issusing notices, DB observed that 1. It is the responsibility of this court to ensure effective and fair justice dispensation to the people in the Union Territories of Jammu and Kashmir, and Ladakh. Towards this end, it is essential that discipline and congenial atmosphere is maintained by litigant, public, the judiciary, its staff and the members of the Bar.
DB further observed that in order to inculcate confidence and to ensure that there is no disruption in the justice dispensation system, we are completely dependent upon the local police which is tasked to provide security to the courts and to ensure that the justice dispensation system is not disrupted. However, the turn of events in several High Courts and District Courts in the recent past has manifested the inability of the local police to ensure discipline and security which must be maintained in all judicial precincts, its reluctance to engage with lawyers.
Division Bench further observed that unfortunately, in this Court, we are experiencing an unusual and very serious situation. The J&K High Court Bar Association gave a call to its members to abstain from work indefinitely and have received a note dated 10th December 2019 from the Registrar General enclosing reports from the Principal District Judge, Jammu and some of the judges in the District Courts. A perusal of these reports shows that the call for abstention from court has been used by certain unruly elements to not only abstain from work but to indulge in completely illegal activities to the extent of attempting to block the main gate which serves as a main entry for the High Court as well as District Court Complex and also to actually repeatedly physically locking the main gate of the District Court Building Complex. We stand informed that furniture has been moved in an effort to block access to court rooms in the High Court. Upon this Division Bench observed that none of these acts are tolerable. To our utter chagrin and dismay the local police is either reluctant to engage with the lawyers or is not able to control the situation.
DB further observed that “We are constrained to notice one more extremely significant incident. On 7th September, 2019, posters threatening suicide attacks (fidayeen attacks) on the judiciary pasted with impunity in the Srinagar Wing of the High Court. In view of the threat contained therein, intimation thereof was immediately sent to Hon’ble the Chief Justice of India. The matter of security of all courts in the State was immediately taken up separately with the Security agencies of the State. The Security of the Srinagar Wing of the High Court stands beefed up.
- The said poster which is in the Urdu script reads as under:
MASALA KASHMIR “TAAQAT KE MIJQABALE ME TAAQAT K! DALEEL”
DB further observed that the issue of Kashmir is that, a powerful upon seeing our weakness, has occupied one part of our body which we cannot liberate from this occupation till we get power. India does not accept any logic but understands only the logic of power.
If a nation has no power to fight with the usurper to establish its rights, in that situation least it can do is to keep its cause alive though it may take fifty or hundred years or even more; during this period it will not accept the act of usurpation of its rights.
A self respected and brave nation has a duty upon it to never surrender its rights so that its future generations are not stripped of those rights.
IN SHORT Jammu and Kashmir is a police state in which law of the jungle has taken precedence over the human law, judiciary has totally become deficient useless. HENCE, all are informed to take care of their life and property themselves. Insha Allah Suicide Squads are ready to take action against whole India including the Judicial System. “FORCE AGAINST FORCE”.”
DB further observed that the District courts in Jammu and Kashmir are conducting some of the most sensitive criminal trials in the country and dangerous criminals are being regularly produced for the purpose of their trials. These include several prosecutions under the erstwhile Terrorists and Disruptive Activities (Prevention) Act 1987, the National Investigation Agency Act 2008, the Narcotics Drugs and Psychotropic Substances Act 1985 etc. Consequentially difficult undertrials are required to be produced before these courts. Sensitive cases are being heard by both wings of the High Court of Jammu and Kashmir. We find that despite the sensitive nature of work being discharged by the Courts, the security to the High Court as also the District Courts remains extremely porous.
DB further observed that we have reason to believe that the Ministry of Home Affairs of the Government of India had issued guidelines as back as on 31st May, 2007 and 4th June 2007 for security of High Courts and District and Subordinate Courts in the country. These guidelines were issued to the Chief Secretaries and Director General/Inspector General of Police of all States and the UTs. As per these guidelines, the High Courts in the respective States/ UTs had to be declared as High Security Zones. It would appear that no heed was paid in J&K to these guidelines and these do not appear to have been implemented.
DB further observed that the act of locking of the main door of the District Courts can have dangerous consequences which are beyond the violation of the Article 21 rights of the prisoners and accused. The same can result in dangerous situation of anarchy within the Court complex. The same can endanger not only the security of the judges and other persons inside the district complex but also imperil lives in the event of any untoward incidents. From the disclosures made in the reports received from the Registrar General enclosing information received from the Registrar Judicial and the District Court, it is manifest that the local police is unable to manage the situation.
This is not a reflection on the ability of the police to discharge its functions. But the above events manifest the reluctance of the local police to engage with the specific situation of lawyers who have taken law into their hands. The police has exhibited its complete inability to physically control the situation and ensure access to the court.
DB further obvserved that we are informed that Stationery Armed Guard at Strategic Points in Jammu Wing of the High Court and District Court Complex at Jammu is being provided by Border Security Force. While as local police is being deployed for frisking and other security related activities. In Srinagar Wing of the High Court and District Court Complex at Mominabad Srinagar, Stationery Armed Guard at Strategic Points is provided by Central Reserve Police Force. While as local police is being deployed for frisking and other security related purposes. In other District Courts, the security is the responsibility of the local police.
DB further observed that urgent steps need to be taken to ensure security of all Courts in the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. Equally imperative is the assurance of free access to courts of all citizens at all times. We have been informed that so far the Supreme Court and the Delhi High Court is concerned, the security is provided by deployment of the Central Reserve Police Force.
DB further observed that so far as the High Court of Madras is concerned, in the light of unruly incidents faced on account of lawyers strike since 2009, the matter was taken up by the court on a suo-motu cognizance registered as Writ Petition No. 29197 of 2015. As a result of the orders passed therein, the Central Industrial Security Force was deployed to provide security to and in the court. Given the above narration of events and the threats to not only justice dispensation but actions which may imperil lives of persons accessing the courts as also the public property in the nature of court infrastructure, clearly the local police may not be able to provide the requisite protection. We are therefore of the view that similar deployment of a Central Armed Police Force should be urgently made in respect of the Jammu and Kashmir High Court and all District Courts in the Union Territory of Jammu and Kashmir.
Meanwhile in another PIL, Division Bench observed that information has been received from the Registry that on 1st of November, 2019, the Jammu and Kashmir High Court Bar Association had taken a decision to abstain from work in all courts including the High Court, District Courts, Jammu and Kashmir Special Tribunal and Revenue Courts for an indefinite period. With regard to these abstentions, a noting dated 10th December, 2019 has been placed by the Registrar General of this court enclosing a series of reports received from Registrar Judicial of this Court and the Principal District and Sessions Judge, Jammu. Amongst these is the report received from the Principal District and Sessions Judge, Jammu that the main entrance of the District Courts building complex on was blocked 4th November, 2019 by certain striking lawyers. On intervention of the Principal District Judge, the lawyers permitted few under trial prisoners and ladies to enter the Courts complex, but the same was blocked again. The Principal District Judge had to personally remain present at the entry gate on 5th November, 2019 to facilitate entry into the District Courts of lawyers willing to work, appear in courts as also under trial prisoners, litigants and public. However, at 11:30 am on the same day, the main gate was again locked by the striking lawyers. Once again, the Principal District Judge had to intervene and facilitate access into the building to the litigants, staff and public. As per the report received, very few litigants and under trial prisoners were permitted to enter into the District Court complex. Very few lawyers appeared in urgent bail applications, matters involving stay etc. before noon. However, the main gate was blocked again. On 6th November 2019, the striking lawyers illegally started physically checking identity cards of those who wanted to enter into the Court building. Yet again few staff members, under trial prisoners and some accused were able to enter the Court. As a result of the main gate being locked, the judges, staff and those who were inside the District Courts were confined therein by these striking lawyers. The enquiries made have revealed that the lawyers who had locked the restricted entry and exit into the District Court and who were counselled by the District Judge on the 4th and 5th November 2019 include S. Baldev Singh Nitin Bakshi, Azhar Usman Khan, Mr. Mahinder Singh Palli, Suresh and Rahul, Advocates.
DB further observed that it is reported that on the above and other dates as well for the reason that accused persons were prevented entry and/or did not appear in the Courts, the judges had to issue warrants/notices in large number of cases to ensure appearances of the under trials. The Principal District Judge has compiled a report dated 26th November, 2019 from 23 trial courts in this regard. Another aspect repeatedly highlighted in all case management examinations is the time taken and the delays on account of service of accused persons. As a result of the locking of the main gate from 4th November, 2019, these striking lawyers have actually pushed back the criminal justice system in the District Courts, Jammu irretrievably. They have also caused multiplication of the work of the Court, court officials and the police authorities who shall have to use valuable resources and time in attempting to serve those accused persons whose cases were listed on the days the main door of the court was locked and their entry prevented.
DB further observed that We are not setting out the impediment and the obstruction caused in the civil justice dispensation system in the District Courts, on account of their locking the main gate. However, it needs no elaboration that consequential delays would be unsurmountable and grave prejudice would have resulted to several litigants who are in dire need of immediate justice. It is noteworthy that some of the most sensitive cases in the country are being tried in the Jammu district courts. From the designated NIA Court alone, information has been received that some extremely sensitive cases involving national security had to be adjourned on account of the aforesaid conduct by these lawyers. For the reason that complete list of cases would make this order extremely unwieldy, we are noticing hereafter some of the critical trials which could not proceed and had to be adjourned on account of contumacious and criminal conduct of the above lawyers.
DB further observed that the report received from the Principal District & Sessions Judge, Jammu indicates that the protesting lawyers have changed strategy to effect replacement/rotation of those locking the gates. However, S. Baldev Singh, Nitin Bakshi, Azhar Usman Khan and Mahinder Singh Palli, Advocates are spearheading the protestors and have been enforcing the closure along with their associates. Their arrogance is to the extent that they actually put a lock on the main gate and remove its key which was kept in their custody. A representation dated 23rd November 2019 has been received in the Chief Justice’s Secretariat from Shri Rampaul S/o Shri Sardha Ram complaining about the obstruction to the courts. Reports received from the Registrar Judicial show that an effort to similarly obstruct lawyers and litigants even in the High Court was unsuccessfully attempted by shifting sofas, which are court property, from their assigned places, to be used as barricades at access points within the court. DB further observed that we are informed that these sofas could not be used to completely prevent litigants. However, active measures were attempted to completely obstruct willing lawyers from appearing in the Court.
Given the turn of events in other parts of the country, DB exercised restraint in the matter hoping that better sense would prevail over the members of the Bar. Unfortunately, this was not to be. Despite the mandate of the law laid down by the Supreme Court, open threats are yielded by unruly elements in the Bar that the Bar Association is a strong one and lawyers would be removed from its membership if they chose to oppose the strike call or appear in courts. The entire justice dispensation system in Jammu has been held to ransom.
DB further observed that conduct of these advocates of locking the District courts and preventing the litigants in civil cases, under trials and lawyers from accessing the courts is a very serious matter and cannot be ignored andthe unequivocal, unexceptional and authoritative enunciation of law in the judgments which we are noting hereafter, bind lawyers and all courts. The same are being extracted merely as a reminder that violations of law are working grave injustice to the litigants, they are putting unbearable pressure on the courts which are already stretched and resulting in such delays and judicial arrears which shock our conscience. In fact the turn events as has been placed before us, shows how not only rights guaranteed under Article 21 of the Constitution of India of litigants, prisoners and under trials are being violated, but lives of judges and seekers of justice, court staff officials and visitors to the courts imperiled and safety of court property threatened.
DB further observed that It has been our experience at the Bar as well that registration of documents did not entail any judicial intervention and only very young lawyers at the inception/beginning of their careers are known to facilitate parties in this work. We have not experienced designated senior counsels visiting offices of Registrar/Sub Registrars of documents. Senior advocates are expected to lead the younger members of the Bar by example, so far as following law is concerned. Therefore, use of social media to incite young advocates and members of the Bar into abstaining from work; boycotting court(s); leading sloganeering within the premises of the Court; locking courts etc. by any senior counsel would not be acceptable conduct from persons who have been honored by the High Court in awarding them the special status of senior advocates. So far as licenced advocates are concerned, in the aforesaid judgments, the Supreme Court has held that such conduct tantamounts to criminal contempt of court as well as professional misconduct.
Division Bench after gone through various judgments observed that the mere call for meeting, or the very decision to proceed on strike; remaining absent from court and boycott of judicial proceedings; locking the courts, preventing entry to those wanting to enter are completely illegal rendering all persons responsible for the same for appropriate action as mandated by the Supreme Court of India. This conduct tantamounts to criminal contempt of court in terms of the law laid down by the Supreme Court of India.
DB further observed that this conduct also calls for action in accordance with the Jammu and Kashmir Advocates (Regulation of practice in the High Court and Subordinate Courts) Rules, 2003.
DB further observed that “we have no manner of doubt that such conduct as is in blatant violation of the mandate of law, in the clear pronouncements of the Supreme Court of India cannot be countenanced or condoned. As observed by the Supreme Court, we would become party to such violations if we continue to ignore such actions which have been held by the Supreme Court to be clearly contumacious and falling under the serious category of criminal contempt of court, professional misconduct and even criminal offences and are reasonably hopeful that given the reminder of the legal position hereby, good sense and conscience of the members of the Bar would prevail and they would conduct themselves in accordance with law ensuring the rights of the public guaranteed under the Constitution of India. DB took a view on this on receipt of further reports from the Registrar General.
DB further observed that the conduct of those who have indulged in provoking the contumacious conduct as also the obstruction of access to the District Courts is unpardonable and must invite stringent action in accordance with law.
Upon this Division Bench issued notices S. Baldev Singh, Nitin Bakshi, Azhar Usman Khan and Mahinder Singh Palli to to show cause as to why they should not be proceeded against for criminal contempt of court and also notices Notice to show cause to these advocates as to why they should not be proceeded against under rules 10, 11 of the Jammu and
Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003 as well as proceeded against for the acts which are penal under the provisions of the Indian Penal Code.
DB further directed that the noticees as above shall file a response within two weeks of the receipt of the notices and response shall be accompanied by a date wise list of cases wherein these lawyers were engaged by litigants between 1st November 2019 till date and the courts where these cases were listed.
DB also directed Registrar General shall procure from the Registrar Judicial as also from the Principal District & Sessions Judge, Jammu upto
date reports regarding the position with regard to the obstructions to access to the courts as well as CCTV video coverage recorded and photographs thereof, if any, and place the same before us.
DB also directed Registrar IT shall conduct an inquiry and collect all postings on the social media on Youtube or any other site, tweets, messages, interviews and speeches etc. by any counsel in violation of the judgments of the Supreme Court inciting violence/abstention from the court etc and place the same before this court. JNF