Maneka Sanjay Gandhi and Anr. v. Rani Jethmalani
KRISHNA IYER, J.-Mrs. Maneka Gandhi figures as an accused in a
prosecution launched against her and others by Miss. Rani Jethmalani
for an offence of defamation in the Court of the Metropolitan Magis
trate, Bombay. The former is the editor of a monthly called "Surya"
and is the wife of Shri Sanjay Gandhi and daughter-in-law of Smt.
Indira Gandhi, former Prime Minister. The latter is a young advocate
and is the daughter of a leading advocate and currently an important
Member of Parliament. The present petit;on has been made for a
transfer of the criminal case from Bombay to Delhi, and a string of
grounds has been set out to validate the prayer. We decline the trans
fer and proceed to give our reasons without making the least reflection
on the merits of the case.
Assurance of a fair trial is the first imperative of the dispensation
of justice and the central criterion for the court to consider when a
motion for transfer is made is not the hypersensitivity or relative con
venience of a party or easy availability of legal services or like mini
grievances. Something more substantial, more compelling, more im
perilling, from the point of view of public justice and its attendant en
vironment, is necessitous if the Court is to exercise its power of trans
fer. This is the cardinal principle although the circumstances may be
myriad and vary from case to case. We have to test the petitioner's
grounds on this touch-stone bearing in mind the rule that normally the
complainant has the right to choose any court having jurisdiction and
the accused cannot dictate where the case against him should be tried.
Even •o, the process of justice should not harass the parties and from
that angle the court may weigh the circumstances.
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MANEKA GANDHI v. RANI JETHMALANI (Krishna Tyer, J.) 3 8 I
One of the common circumstances alleged in applications for trans
fer is the avoidance of substantial prejudice to a party or witnesses on
account of logistics or like factors, especially when an altrrnative venue
will not seriously handicap the Complaint and will mitigate the
serions difficulties of the accused. In the present case the petitioner
claims that. both the parties reside in Delhi and some formal witnesses
belong to Delhi; but the meat of the matter, in a case of defamation, is
something different. The main witnesses are those who speak to hav
ing read the offending matter and other relevant circumstances flowing
therefrom. They belong to Bombay in this case and the suggestion of
the petitioner's counsel that Delhi readers may be substitute witnesses
and the complainant may content herself with examining such persons
is too presumptuous for serious consideration.
Now to the next ground. The sophisticated processes of a criminal
trial certainly require competent legal service to present a party's case.
If an accused person, for any particular reason, is virtually deprived
of this facility, an essenli<>l aid to fair trial fails. If in a certain court
the whole Bar, for reasons of hostility or otherwise, refuses to defend
an accused person-an extra-ordinary situation difficult to imagine,
haying regard to the ethics of the profession-it may well be put for
ward as a ground which merits this Court's attention. Popular frenzy
or official wrath shall not deter a member of the Bar from offering his
services to those who wear unpopular names or unpalatable causes
and the Indian advocate may not fail this standard. Counsel has nar
rated some equivocal episodes which seem to suggest that the services
of an efficient advocate may not be easy to procure to defend Mrs.
Maneka Gandhi. Such glib allegations which involve a reflection on
the members of the Bar in Bombay may not be easily accepted with
-Out incontestible testimony in that behalf, apart from the ipse dixit of
the party. That is absent here. It is difficult to believe that a person
of the position of the petitioner who is the daughter-in-law of the for
mer Prime Minister, wife of a consequential person and, in her own
right, an editor of a popular magazine, is unable to engage a lawyer
to defend her, while, as a fact, she is apparently represented in many
legal proceedings quite competently.
A mo.ce serious ground which disturbs us in more ways than one is
the alJeg,;J. absence of congenial atmosphere for a fair and impartial
trial. It is Jiecoming a frequent phenomenon in our country that court
proceedings are being disturbed by rude hoodlums and unruly crowds,
jostling, jeering or cheering and disrupting the judicial hearing with
menaces, noises and worse. This tendency of toughs and street roughs
to violate the serenity of court is obstructive of the course of justice
ff
3 82 SUPREME COURT REPORTS [1979] 2 S.C.R.
and must surely be stamped out. Likewise, the safety of the person
of an accused or complainant is an essential condition for participation
in a trial and where that is put in peril by commotion, tumult or threat
on account of pathological conditions prevalent in a particular venue.
the request for a transfer may not be dismissed summarily. It causes
disquiet and concern to a court of justice if a person seeking justice is
unable to appear, present one's case, bring one's witnesses or adduce
evidence. Indeed, it is the duty of the court to assure propitious con
ditions which conduce to comparative tranquiJ!ity at the trial. Turbu
lent conditions putting the accused's life in danger or creating chaos
inside the court hall may jettison public justice. If this vice is pecu-
liar to a particular place and is persistent the transfer of the case from ._, ·
that place may become necessary. Likewise, if there is general con- · 1
sternation or atmosphere of tension or raging masses of people in the
entire region taking sides and polluting the climate, vitiating the neces-
sary neutrality to hold a detached judicial trial, the situation may be
said to have deteriorated to such an extent as to warrant transfer. In
a decision cited by the counsel for the petitioner, Bose, J. observed :
". . . . But we do feel that good grounds for transfer from
Jashpurnagar are made out because of the bitterness of local
communal feeling and the tenseness of the atmosphere there.
Public confidence in the fairness of a trial held in such an at
mosphere would be seriously undermined, particularly
among reasonable Christians all over India not because the
Judge was unfair or biassed but because the machinery of
justice is not geared to work in the midst of such conditions.
The cahn detached atmosphere of a fair and impartial judi
cial trial would be wanting, and even if justice were done it
would not be "seen to be done".( 1)
Accepting this perspective we must approach the facts of the pre
sent case without excitement, exaggeration or eclipse of a sense. of pro
portion. It may be true that the petitioner attracts a crowd in Bom
bay. Indeed, it is true of many controversial figures in public life that
their presence in a public place gathers partisans for and against, lead
ing to cries and catcalls or 'Jais' or 'zindabads'. Nor is it unnatural
that some persons may have acquired, for a time a certain quality of
reputation, sometimes notoriety, sometimes glory, which may make
them the cynosure of popular attention when they appear in cities even
in a court. And when unkempt crowds press into a co;;rt hall it is
possible that some pushing, some nudging, some brash ogling or angry
starting may occur in the rough and rumble resulting in ruffled feelings
(1) r;.x. Francis v. Banke Bihari Singh, A.I.R. 1958 S.C. 809 at 810.
...-.
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MANEKA GANDHI v. RANI JETHMALANI (Krishna Iyer, J.) 3 83
for the victim. This is a far cry from saying that the peace inside the
court has broken down, that calm inside the court is beyond restoration,
that a tranquil atmosphere for holding the trial is beyond accomplish
ment or that operational freedom for the Judge, parties, advocates and
witnesses has ceased to exist. None of the allegations made by the
petitioner, read in the pragmatic light of the counter-averments of the
respondent and understood realistically, makes the contention of the
counsel credible that a fair trial is impossible. Perhaps, there was
some rough weather but it subsided, and it was a storm in the tea cup
or transcient tension to exaggerate which is unwarranted. The peti
tioner's case of great insecurity or molestation to the point of threat to
life is, so far as the record bears out, difficult to accept. The mere
word of an interested party is insufficient to convince ns that she is in
jeopardy or the court may not be able to conduct the case under con
ditions of detachment, neutrality or uninterrupted progress. We are
disinclined to stampede ourselves into conceding a transfer of the case
on this score, as things stand now.
Nevertheless, we cannot view with unconcern the potentiality of a
flare-up and the challenge to a fair trial, in the sense of a satisfactory
participation by the accused in the proceedings against her. Mob
action may throw out of gear the wheels of the judicial process. Engi
neered fury may paralyse a party's ability to present his case or parti
cipate in the trial. If the justice system grinds to a halt through physi
cal manoeuvres or sound and !fury of the senseless populace tk rule of
law runs aground. Even the most hated human anathema has a right
to be heard without the rage of ruffians or huff or toughs being turned
against him to unnerve him as party or witness or advocate. Physical
violence to a party, actual or imminent, is reprehensible when he seeks
justice before a tribual. Manageable solutions must not sweep this
Court off its feet into granting an easy transfer but uncontrollable or
perilous deterioration will surely persuade us to shift the venue. It
depends. The frequency of mobbing manouvres in court precincts is
a bad omen for social justice in its wider connotation. We, therefore,
think it necessary to make a few cautionary observations which will be
sufficient, as we see at present, to protect the petitioner and ensure for
her a fair trial.
The trial court should readily consider the liberal exercise of its
power to grant for the accused exemption from personal appearance
save on crucial occasions. Shri Tarkunde, for the respondent fairly
agreed that it was the right thing to do and explained the special reason
for its fiist rejection. If the application is again made, the magistrate
will deal. with it as we have indicated. This will .remove much of the
unsavoury sensationalism which the hearing may suffer from.
The magistrate is the master of the orderly conduct of court pro··
ceedings and his authority shall not hang limp if his business is stalled
by brow-beating. It is his duty to clear the court of confusion, yelling
and nerve-racking gestures which mar the serious tone of judicial hear
ing. The officials whose duty is to keep the public peace shall, on re
quisition, be at the command of the court to help it run its process
smoothly. When the situation gets out of hand the remedy of transfer
surgery may be prescribed. Every fleeting rumpus should not lead to
a removal of the case as it may prove to be a frequent surrender of
justice to commotion. The magistrate shall take measures to enforce
conditions where the court function free and fair and agitational or
muscle tactics yield no dividends. If that fails, the parties have freedom
to renew their motion under s. 406 of the Criminal Procedure Code. 16'
For, where tranquil court justice is a casua1ty the collapse of our consti- "'""."'
tutional order is an inevitability.
We dismiss, for the nonce, this transfer petition.
S.R. Petition dismis>ed.
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