Day 6 Arguments: 20th September, 2018

This case pertains to the arrests of activists by the Maharashtra Police in June and August of 2018. Today’s hearing lasted from around 11.30 AM to 1.00 PM. The Bench reserved its order. It has asked the Maharashtra government to hand over a complete case diary.

 

Summary of proceedings:

  • ASG Mehta presented evidence for the Bench to review.
  • Mr. Harish Salve presented arguments on behalf of the complainant, Mr. T Damgude. Mr. Damgude filed the First Information Report (FIR) that led to the arrest of ten activist, five in June and five in August.
  • Mr. AM Singhvi began the rejoinder on behalf of the petitioners. He criticized the material evidence and requested the Court to order an independent investigation via a Special Investigation Team (SIT).
  • Ms. Vrinda Grover and Mr. Anand Grover, representing Sudha Bharadwaj, argued that the letter mentioning their client was fabricated.

 

What happened previously?

In yesterday's hearing, the counsels for the activists both questioned the reliability of the material evidence and the integrity of the Maharashtra Police's general conduct. They claimed that the Police has violated the fundamental rights of the activists guaranteed under Articles 19 and 21 of the Constitution. They concluded that the Court needs to order an independent investigation of the matter via a Special Investigation Team (SIT).

 

At the end of the hearing, ASG Mehta briefly presented evidence to the Court. The Court, however, was not satisfied and directed ASG Mehta to produce evidence which could justify the arrests.

 

Defending the investigation

Today, Mr. Tushar Mehta began by presenting more evidence. He stated he would limit himself to justifying the August arrests. He said that the evidence unearthed in the June arrests led to the arrests in August. He read out letters and recovered documents. Note that some of the evidence was only presented to the Bench and not the public.

 

He began by reading documents which make references to the 'enemy' and the 'enemy forces'. Mr. Mehta said that the ‘enemy forces’ refer to the ‘security forces of the State’. He submitted that the documents stem from data that the Police decrypted. He read out loud a letter recovered from Surendra Gadling, which says ‘Dushmano ke manobol kamzor nahi ho raha hai’. Recall that Surendra Gandling was one of the persons arrested in June. Mr. Mehta said that the materials retrieved from Gadling significantly contributed to the August arrests.

 

He argued that the documents establish the activists’ connection to known Maoist cells. For example, the documents reference an Eastern Regional Bureau meeting where a strategic plan was made to attack the ‘enemy’. The documents also repeatedly use the phrase ‘LIC’ (Low Intensity Combat).

 

Mr. Mehta submitted that the activist exchanged the documents and letters throughout the last six months. All the documents can be dated. He used this fact to counter the claim that the Police planted evidence. He questioned how the State could have planted evidence over the course of six months.

 

Mr. Mehta concluded by reading out his prayers:

  1. A criminal matter cannot be pursued in the garb of a Public Interest Litigation
  2. The petitioners do not have the right to approach the Court on behalf of the activists. They are not related to the arrested activists.
  3. The arrested activists have not followed appropriate legal procedure. They are not pursuing bail proceedings even though they filed for bail in appropriate Courts.
  4. A habeas corpus plea may not be entertained given that the accused were placed under custody by a judicial order.
  5. The plea for an independent Special Investigation Team should not be entertained as the ongoing investigation is already being monitored by the Court by virtue of hearing this petition.

 

He asked the Bench to dismiss the petition and direct the accused to surrender to the investigating authorities.

 

Next, Mr. Harish Salve spoke on behalf of the complainant. The thrust of his argument was that the Police conducted a fair investigation and that there is enough evidence to arrest the individuals. Alluding to Justice Chandrachud's observation from yesterday, he said that the Court’s scrutiny should be one of “hawk’s eyes”. Irrespective of ideological leanings, the State cannot permit unlawful activities.

 

He raised the stakes by arguing that the list of unlawful activities planned referred to could qualify as sedition. He asked the Court to keep this in mind when they consider the accused’s request for release. He said that if the Court is prima facie convinced that the evidence demonstrates that the accused were planning unlawful activities, then the Court must allow the investigation to continue.

 

On the question of a SIT, Mr. Salve said that SITs are formed to ensure that people in power do not derail an investigation. He cited the SIT in the 2G scam, where allegations were made against a political class. He said that the proceeding should not become inquisitorial but remain adversarial. Meaning the Court reached should reach its judgment on the balance of evidence presented by each side. He submitted that there is no need of SIT as dissatisfaction with investigation cannot be ground for constituting SIT.

 

Petitioner’s rejoinder

Mr. AM Singhvi, Ms. Vrinda Grover and Mr. Anand Grover made a final attempt to convince the Court to constitute a SIT.

 

Mr. AM Singhvi began. He attempted to challenge the State’s Maoist narrative. He emphasised that the FIRs that launched the investigation never mention any of the letters nor any assassination plot.

 

He submitted that the expansion in the scope of the investigation was not due to the FIRs, but rather the letters, which were allegedly recovered from the residences of the activists arrested in June. He said that the whole Maoist subplot was retroactively made up by the Police to justify the arrests.

 

He said that the distribution of letters to the media by the Maharashtra police was a gross violation of the principle of the assumption of innocence. He referred to the NDTV telecast on 1st September where the letters were discussed in the presence of Addl Dir General of Police (ADG) Param Bir Singh.

 

Mr. Salve expressed surprise at the petitioner’s claim that the letters were given to the press and discussed on a television channel. He submitted that he had never been made aware of this and called for the petitioners to swear in an affidavit that they were present at the media events. In response, Mr. Singhvi referred to the annexures of television programmes and press conference recordings where the NDTV telecast appeared. 

 

At this point, Justice Chandrachud said ‘Let Mr. Param Bir Singh, ADG Maharashtara Police come on record and state which were the letters he presented at the press conference’. Mr. Mehta explained that the press briefing was an attempt to temper the narrative that the State was arresting individuals without proof.

 

Mr. Singhvi continued to question the police investigation. He pointed out the parallel nature of the June and August arrests. The June arrests were made on the basis of documents recovered from raids conducted on 17th April. Similarly, the August arrests were made on the basis of documents recovered from the June raids. He noted that the accused were arrested without any interrogation.

 

Next, Mr. Singhvi focused on the transmit remand application that the Police used to transfer the activists to Pune. He argued that the transit remand application again indicates that the Maoist narrative was an afterthought, used to retroactively justify the arrests. He submitted that neither the Maoist plot nor the letters were referred to in the transit remand application. He emphasised that the transit remand application was based on the Bhima Koregaon violence and not the Maoist plot.

 

Mr. Singhvi, given the discrepancies in the State’s version of events. He focused on the Comrade Prakash letters. The State claims that Comrade Prakash is a certain Professor Saibaba.  He submitted that Saibaba has been serving a sentence since 7th March, 2017. The letters the State submitted are dated after March 2017. He asked, how could the activists plot with an incarcerated man to assassinate the Prime Minister?

 

He continued to attempt to cast doubt in the Bench’s mind by bringing up another alleged alias of Prof. Saibaba, ‘Chetan’. He submitted that nowhere has the Court found that Comrade Prakash and Chetan are the same person. CJI Misra seemed disinclined to go into these claims.

 

CJI Misra instructed Mr. Mehta to place the entire case diary before the Court. The Bench wants to see if, as claimed by Mr. Singhvi, the case diary references a Maoist plot.

 

Mr. Singhvi questioned the impartiality and independence of ‘Panches’, independent witnesses, who accompanied the Police during their raids. When the Police seizes evidence during a raid, it must have an independent witness present.

 

Mr. Singhvi concluded by calling for the Bench to constitute a SIT. He stated that the discrepancies in the State’s narrative of events are sufficient to justify a SIT. Further, he argued that the Police’s serious procedural lapses demonstrate they failed to act fairly. He noted that his submissions were not to invite findings on these issues, but to show that the present case calls for an independent investigation.

 

Ms. Vrinda Grover and Mr. Anand Grover representing Sudha Bharadwaj, one of the five arrested activists, argued that the letter which mentioned Sudha’s name was fabricated. Ms. Grover argued that the letter must be fabricated because it was allegedly written in Hindi, yet it has Marathi words in it. Mr. Grover joined Ms. Grover to say that a Hindi speaking person could not have written the letter. He said that he has made a chart of letters to show the difference between how a Marathi and Hindi speaking person would write.

 

Justice Chandrachud agreed with Mr. Grover’s submission. He observed that ‘jwaabdari’ is a typical Marathi word and, further, the half-moon symbol is foreign to the Devanagari script.

 

With this, the arguments concluded and the Court reserved judgement.

                                                              (Court reporting by Disha Chaudhry)