Bench asks petitioners to approach High Courts concerned for relief

The Supreme Court on Tuesday refused to set up a fact-finding committee to probe the police action and alleged brutalities committed against students of Jamia Millia Islamia (JMI) and Aligarh Muslim University protesting the Citizenship Amendment Act (CAA).

A Bench led by Chief Justice of India (CJI) Sharad A. Bobde on Tuesday reasoned it would be too enormous and cumbersome a task for a solo committee to probe the facts and evidence of incidents that occurred in “various” States. The Bench asked the petitioners to approach the High Courts concerned for relief.

The court refused to even entertain an oral plea to stop any arrests until the High Courts take up the issue.

Senior advocate Indira Jaising, for petitioners who include three former JMI students, said, “FIRs are being filed against students one after the other all over the country... If Your Lordship wants peace, as you said yesterday, you cannot file FIRs against hundreds of students.”

The CJI responded, “You may be innocent or guilty, but what if the police think you are guilty, an FIR is filed.”

Ms. Jaising urged the court, “At the end of the day, we are looking for a resolution. That cannot be done if FIRs are filed. How will students sitting in jails help? Universities are private property. How could police enter university grounds without permission? In the dead of winter, you close the hostels. Are students going to sleep out in the cold? Please intervene and send a message to the country.”

Solicitor General Tushar Mehta for the Centre, said “not a single person is in prison”. Only two AMU students were injured in the police action. One of them had tried to grab a tear gas shell. They were taken to the hospital. Whereas over 20 buses and private cars were burnt and 37 policemen injured besides damage caused to property. Senior police officials who were at the scene were in court “to provide factual assistance to Your Lordships”, he said.

But Ms. Jaising said “the moment we come out of this court, there will be more arrests”. She told the CJI, “The Supreme Court said it wants peace to return. Well, it's not enough to just say that, you have to put it in a judicial order.”

‘Not a courts of facts’

But the court declined to step in or take sides. It said it was simply not equipped to do so. The real facts behind these incidents of violence were not clear yet. The CJI told the petitioners, “The Supreme Court is not a courts of facts, not a court of the first instance. Go to the High Courts. First determine the facts... They [incidents of violence] are of different circumstances and have different consequences. The grievances are different. We don't want to dwell on the facts. We are not saying we don’t want to hear. Don't think we are belittling the problem.”

In the probability that the petitioners approach High Courts in future, these courts would use their discretion to consider the need to appoint fact-finding committees with former apex court or High Court judges to probe the police action against students. The apex court said the High Courts would pass orders only after hearing what the Centre and the respective governments have to say in this regard. It had confidence in the Chief Justices of the High Courts concerned to do the right thing by law.

The Bench dismissed a comparison made by Ms. Jaising about the way it had intervened with alacrity in the Hyderabad encounter case to appoint a commission of inquiry. The CJI reasoned that unlike the Hyderabad police ‘encounter’, the incidents post CAA were spread across vast areas in various States. One committee appointed by the apex court would hardly be able to perform such an enormous task.

In the hearing, advocate Mehmood Pracha, for the petitioners, said the court cannot bow out at this time. The petitions concerned events spread across the country. There was a commonality in the protests. “If you do not intervene, things may snowball”.

Chief Justice Bobde replied, “That is a law and order problem... We are not an institution which is into maintaining law and order. We are not telling this is not serious, we are only asking you to get the facts determined first.”

Mr. Pracha said the government wants to portray the protesters in a bad light.

Chief Justice Bobde said, “Then how did the buses burn? Look, we are not interested in supporting or testifying the government's stand. We are only trying to tell you to determine the facts.”

Mr. Mehta submitted how a false “rumour” was sourced from JMI that two students have died in the police action.

Petitioner-lawyers retorted, “None of us have made any such claims in the petitions. Is he arguing rumours now?”

Mr. Mehta replied, “Please, this is not Ram Lila Maidan”.

At one point, the Chief Justice said the hearing was not a “shouting match”.

“This is not a place for you to shout just because there is a big crowd and media is present,” he told the lawyers.