Monday, December 5, 2022

SC stays AP HC gag order

  • Does not intervene in the other order which stayed  investigation into Amaravati land scam

New Delhi : The gag order issued by the Andhra Pradesh High Court has been stayed by the Supreme Court of India on Wednesday. A Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah passed the order on Special Leave Petition (SLP) filed by State of Andhra Pradesh challenging the interim order passed by the high court on 15 September 2020. The apex court will hear the matter again in January 2021. It has directed the parties to file their counter affidavits in the meanwhile. The Bench has also asked the HC not to decide the writ petition until it resumed hearing.

High profile case

The case that was heard by the Bench in the SC is a high profile case involving personalities from Andhra Pradesh. The petitioner and the defendant were represented by highly reputed senior advocates. While the petitioner was represented by Rajeev Dhawan,  two powerful advocates, Harish Salve and Mukul Rohatgi appeared for Dammalapati Srinivas, the former Advocate General.

Another contentious issue of stopping the investigation into the land scam in Amaravati was not interfered by the Bench. The interim order was passed by the HC bench headed by Chief Justice J.K. Maheswari in a writ petition filed by Dammalapati Srinivas, former Advocate General of Andhra Pradesh, in September 2020.

The gag order said:

“It is further directed that the news in regard to registration of FIR (First Information Report) shall not be made public in any electronic, print and social media. The Secretary, Home Department, Government of Andhra Pradesh, the Director General of Police, AP, shall inform through the Information and public relations department, Government of A.P. to the effect that no electronic or print news item to be published with regard to the FIR No. 08/RCO-ACB-GNT/2020 dated 19-09-2020 and connected events until further orders of the court. Social media posts shall also not be published and, in this regard, the Director General of Police, A.P. and the Minister of Information and Broadcasting, Government of India, shall take steps to inform the relevant social media platforms/houses.”

Prominent persons named in FIR

The allegations in the FIR said some land transactions had taken place between June and December 2020, from the date of the establishment of the TDP government and the announcement of the location of the capital. The FIR named several prominent persons including the former Advocate General.

The State Government was represented by senior advocate Rajeev Dhawan. He said the stay on the investigation of the land scam ordered by the HC was unwarranted. The writ petition did not ask for such a relief. The petitioner urged the court only to grant an anticipatory bail and also to stop media from reporting on the Amaravati land scam. “The HC stayed the investigation and also stopped media reporting on the FIR. How can investigation be stopped?” asked the senior advocate.

‘It was not a knee-jerk reaction’

Rajeev Dhawan went on to say that the appointment of the SIT (Special Investigative Team) was not a knee-jerk reaction. There was a Cabinet sub-committee which went into the details of the allegations and registration of lands and the committee submitted its report to the Cabinet on Amaravati land scam. A letter went to the Union Secretary from the AP Home secretary requesting the former to get the allegations inquired into by the CBI. The writ petition was filed in the high court a day after the inquiry into the land scam was ordered. The petition was decided on the same day it was filed.

“One judge has recuses himself from hearing and the chief justice sets himself the bench at 5.30 p.m. on that day to pass the order,” submitted Dhawan.

‘Shall such a case not be investigated?’

The counsel for AP government wondered why would farmers sell their lands for a lower rate between June and December 2014. He submitted comparative charts showing the land values in general and the values of the land purchased by the accused. “Shall such a case not be investigated? Ws the High Court right in staying the investigation on the same day of filing the writ petition?” asked Dhawan.

There was no substance in the writ petition before the HC except words like ‘gestapo police’ and sentences like “utter disregard of constitution on the part of the government,” he said

‘Would you have stayed FIR?’

“Would your lordships have stayed an FIR on the basis of allegations like ‘nazi’, ‘gestepo’ etc?” he asked the apex court. Dhawan reminded the court of its order in the case of Sahara vs Sebi. Giving its order in this case, the SC had made it very clear that injunctions to uphold a free trial by curbing the freedom of the press could only be given ‘in cases of real and substantial risk of prejudice.”

As against this background, Rajeev Dhawan asked the judges, “Is there something extraordinarily special about this petition that such order had to be passed?”

‘Government leaked FIR to media’

Another senior advocate Mukul Rohatgi argued for the former Advocate General Srinivas. “A Judge recused from hearing. The FIR was registered. The matter was mentioned before the Chief Justice urgently and hearing was done. The details of the FIR would not be there in the writ petition because the FIR was registered on the same day when the writ petition was being considered,” he said.  The senior advocate alleged that the government had leaked the FIR to the media.

‘Easy to mar one’s reputation

Rohatgi said, “The entire writ petition reeks of malafides. I requested the chief justice to hear the petition on the same day. It is easy to mar one’s reputation than build one.” He said one cannot target a lawyer because he happened to be an advocate general. Referring to the allegation of discreetly buying lands from farmers just before shifting the capital, Rohatgi said, “It is absurd to say that there was secret knowledge of capital. How can the shiting of capital be secret?” he questioned.

Approaching SC wrong

Then came Harish Salve, highly reputed senior advocate who argued for the government of India in the international court of justice, to appear before the same former advocate general. He quoted news items from Eenadu daily published in July 2014 to substantiate his argument that the shifting of the capital was in public domain by then.  He questioned the action of the State Government in approaching the SC instead of going to the same HC for a review of its order. “The SLP is a vote of no-confidence against the High Court. If the order was wrong, they should have urged the HC to vacate the order. The CM is now making allegations against chief justice.

‘Please see what they were up to’

“They are getting surrogates to file application in HC against the stay order. A lady lawyer has filed an application against the September 15 order. Please see what are they up to,” said Salve. “This is not a case where your lordships should encourage State Government which says it did not have (confidence) in the High Court,” he said.

Is there immunity from prosecution for a lawyer?

Replying to Rohatgi and Salve, Rajeev Dhawan said he has nothing against the High Court. “I have no doubt that on September 15 the case was heard in the evening. The central question here is if an offence (has) to be investigated? Is there immunity from prosecution just because one is a lawyer or was an Advocate General?”he asked.

“Why send it (the gag order) back to the HC when it had passed a draconian order to stay investigation and to stop media?,” he asked. Is there offence? The material has indicated that it was there. Was it a knee-jerk reaction? No. The CBI was asked to inquire.  A gag order or an order to stop investigation can be passed only under extraordinary circumstances. No such circumstances are there in the present case, he said.

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