Day 4 Arguments: 17th September 2018

Read the case background here to remind yourself what is at stake. Currently, the Court is still assessing whether it can evaluate the Maharashtra Police's arrest of five human rights activists on 28th August. Addl Solicitor General Tushar Mehta has questioned the locus standi of the petitioners. He points out that while the petitioners want to represent the arrested activists, they have no direct relation to the activists. As of now, the Court has ordered that the activist to be removed from jail and, instead, be kept under house arrest.

 

Respondents question whether the Supreme Court can hear the matter

First, Petitioner’s counsel Mr. Abhishek Manu Singhvi opened arguments. However, he was immediately interrupted by Mr. Mehta, who appeared for the Union. Mr. Mehta reiterated his objections regarding the locus standi of the petitioners. He submitted that 'strangers' cannot approach the Court on behalf of the accused. He criticized the petitioners for assuming that police action is a State tool for curbing dissent. He concluded that the State had reasonable grounds for framing criminal charges against the activists, given the evidence recovered from their homes and laptops.

 

Mr. AM Singhvi rebutted Mr. Mehta’s locus standi challenge. He pointed out that the accused have submitted affidavits, which specify that the petitioners represent the accused.

 

Next, Mr. Mehta submitted that the accused have already individually sought out legal remedies in relevant High Courts. He questioned why the Supreme Court should hear the petition, arguing that the matter is already being assessed by relevant High Courts. Mr. AM Singhvi responded by saying that only three out of the five activists had filed High Court petitions.

 

Addl Solicitor General Maninder Singh joined Mr. Mehta in arguing against hearing the petition. He warned the Court that hearing the petition would set a poor precedent. He warned against directly intervening in an on-going Police investigation that is already being examined by relevant lower courts. He argued that accepting the petition would be akin to publicly questioning the competence of the lower courts. Mr. Singh clarified that he is not challenging the jurisdiction of the Supreme Court to hear this matter.

 

Justice Chandrachud responded by stating that if the Court has jurisdiction, then it should at least allow Mr. AM Singhvi to open his arguments. Mr. Singh once again warned the Court against setting a poor precedent. He submitted that Naxalism poses a grave internal security threat and that the authorities should be given the freedom to conduct relevant investigations.

 

Mr. AM Singhvi challenged Mr. Singh's poor precedence warning. Mr. AM Singhvi submitted that there is no specific rule which prevents the Court from hearing a petition on the grounds that it may set a harmful precedent.

 

Petitioners call for an independent investigation

CJI Dipak Misra asked the petitioners whether the petition should be treated as a criminal case under the Code of Criminal Procedure or as a fundamental rights violation under Part III of the Constitution. He suggested that an effective means to deal with the case would be to allow the High Courts to continue hearing the criminal issues. With regards to fundamental rights violations, he stated that fresh petitions could be filed before relevant High Courts calling for an independent investigation.

 

Mr. AM Singhvi urged the present Bench to hear the case. He requested twenty-five uninterrupted minutes to present the circumstances surrounding the arrests. He stated that the details of the arrests would ‘shock the conscience of the Court’.

 

Mr. AM Singhvi explained what led to the arrests, focusing on the First Information Reports (FIR) filed against the activists. He read out the two FIRs. Next, he described the events surrounding the Bhima Koregaon violence in January 2018 which led to the filing of the FIRs. He emphasised that the FIRs make no mention of any of the accused activists. Further, he submitted that they do not in any way tie the activists to the Bhima Koregaon violence.

 

Justice DY Chandrachud said that if Mr. Singhvi wanted this Bench to appoint a Special Investigation Team (SIT), he would need to amend his prayers. Recall that a prayer specifies the aim of a writ or order issued by the Court (Article 226). Mr. Singhvi contended his prayers already subsume an independent investigation via a SIT.

 

Next, Mr. Singhvi discussed the public coverage of the case. He submitted that the public coverage does not align with the content of the FIRs. He accused the Maharashtra Police of fabricating materials and pushing a made-up narrative to justify the arrests. He highlighted the letters released by the police, which he argued were obviously fabricated. Further, he accused the media of dishonesty. He spoke about how they pushed a narrative that imagines the accused as urban Maoists, who intended to assassinate Prime Minister Modi. He concluded by reminding the Court that this narrative is nowhere to be found in the FIRs.

 

Finally, Dr. Rajeev Dhawan and Mr. Ashwani Kumar concluded arguments for the petitioners. Dr. Dhawan requested the Court to hear the case as a fundamental rights violation case under Article 32 of the Constitution, rather than only a criminal case under Section 482 of the Code of Criminal Procedure. Ms. Kumar added that they will establish that the State has adopted an oppressive prosecutorial process. 

 

The matter has been listed for 19th September, this Wednesday. The Court will review the material evidence to determine whether the evidence is reliable.

The interim order holds. The activists will remain under house-arrest.

                                                                    (Court reporting by Ms. Disha Chaudhry)