The Supreme Court rightly rejected a writ petition filed by former Mumbai Police Commissioner Param Bir Singh challenging his transfer as commandant of home guards because the basic axiom of law is to move the lowest court which has jurisdiction in the case and approach the superior court only in appeal or revision.
Singh would be left with no remedy if the apex court decided against him. This is why the Supreme Court has admitted even though the extortion charges levelled by Param Bir Singh against his home minister Anil Deshmukh are “very serious”, Singh should first approach the Bombay high court. “Both (Param Bir Singh and Anil Deshmukh) were hunky dory before they fell apart and now this has come up,” remarked the judges.
The former top cop did not implead Anil Deshmukh in his petition, which would have tied the hands of the Supreme Court in granting him relief. Whether this was a mistake or a clever ruse by Param Bir Singh’s lawyer Mukul Rohatgi, who charges over Rs 500,000 per appearance is debatable.
Finally, the Maha Vikas Aghadi government has played a master card, by offering to allow a retired high court judge to probe Singh’s charges against Deshmukh. No police officer or barowner would dare depose against Anil Deshmukh with Sharad Pawar backing him.
Be that as it may, while approaching the Supreme Court under Article 32 is the soul of all fundamental rights, approaching the 25 high courts under Article 226 is not. The high court judges grill petitioners as to the maintainability of their writ petitions by asking them if there is any other remedy. So, just as the Supreme Court dismisses thousands of Special Leave Petitions on Mondays and Fridays without reasons, the high court may dismiss a writ petition giving reasons.
Better chance in HC
Unlike criminal or civil trials, the high courts do not assess evidence while hearing writ petitions which is why Singh may have a better chance of succeeding in his writ petition in the high court than in a probe by a retired high court judge. Two more petitions have been filed in the Bombay high court, also demanding a CBI probe into Home Minister Anil Deshmukh allegedly demanding that the now jailed encounter cop Sachin Vaze extort Rs 100 crore per month from bar owners.
Now that the Unlawful Activities Prevention Act has been applied to him, Vaze may tell the truth under sustained interrogation by NIA sleuths who come under the Central government. The NIA does not need the okay of the state government to probe the charges against Vaze and Anil Deshmukh, unlike the CBI, which cannot act without the high court ordering it. Vaze’s career is finished and apart from top politicians promising to look after his family, there is no motive for Vaze to protect those who used him to do their dirty work.
It is an open secret that police officers pay huge sums to politicians for “lucrative postings” within the police force. Hence, former additional DGP Rashmi Shukla’s probe report submitted to former DGP Subodh Jaiswal, which he submitted to Chief Minister Uddhav Thackeray on August 25, 2020, is not surprising. Police and the customs do this, with gangster Arun Gawli once alleging to the FPJ that the post of police commissioner of Mumbai city cost each IPS officer Rs 5 crore. After he took over as new police chief, Hemant Nagrale has shunted out 86 police officers, including API Riaz Kazi, who was grilled by the NIA. But that will not break the old practice of policemen using agents in the force to approach the home minister to rescind transfers, which has been going on for decades.
The question is, if Anil Deshmukh did order Sachin Vaze to extort Rs 100 crore per month from 1,750 dance bar and restaurant owners, was this huge sum to be used for his party or his government. It is unlikely Deshmukh wanted such a huge sum for himself alone.
The truth will never come out. If it did, the MVA government would topple. In any case, this ongoing scandal erupted simply because there are different political parties in power in the Centre and in the state. This is why a magisterial order directing the ATS to hand over its files to the NIA needs to be lauded. The ATS is the ‘caged parrot’ of the state government, just as the NIA or the CBI is of the Central government.
Two more petitions
Apart from Param Bir Singh’s petition, a Mumbai-based lawyer, Jaishri Laxmanrao Patil, and a Pune-based activist, Hemant Baburao Patil, sought independent probes against both Anil Deshmukh and Param Bir Singh and others, concerning the Rs 100 crore per month extortion. They both filed separate writ petitions in the Bombay high court, which will be clubbed with that of Param Bir Singh.
But unlike Param Bir, Advocate Patil, like activist Hemant Baburao Patil who sought the high court’s supervision of an independent probe into the murky scandal, have also sought that the top cop should also be charged with criminal conspiracy. Whether the high court will supervise an independent probe into the slew of allegations and counter-allegations remains to be seen. There is no doubt the ATS will brief Chief Minister Uddhav Thackeray of their probe, which is why the high court’s supervision is vital for the truth to come out.
In our imperfect democracy, judges are like umpires who must ensure Param Bir Singh and Anil Deshmukh play by the rules. Those rules are meant to be broken, which is why the independence of the judiciary will be on test with these writ petitions being heard.
The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.