Plain English Summary of Judgment

On 28th September 2018, a 2:1 majority rejected the plea for a Special Investigation Team (SIT) probe into the arrests of activists in relation to the Bhima Koregaon violence.

 

The petition was filed by five eminent citizens: Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Dharuwala. The petitioners had approached the Supreme Court in a writ petition under Article 32 of the Constitution, challenging the arrests of five activists on 28th August 2018. They argued that the State had arbitrarily made the arrests to curb dissent and, thereby, had violated Articles 14, 19 and 21 of Constitution, which guarantee equality before the law, free expression and personal liberty.

 

The Maharashtra Police had alleged that the arrested activists are active members of the Communist Party of India (Maoist), a banned terrorist organization under the Unlawful Activities (Prevention) Act (UAPA).

 

Justice A M Khanwilkar authored the majority opinion, on behalf of Chief Justice Dipak Misra and himself. Justice D Y Chandrachud authored the dissenting opinion.

 

Majority opinion

Justice A M Khanwilkar, on behalf of CJI Dipak Misra and himself, rejected the plea for a SIT probe. He held that the accused were not arrested merely because of their dissenting views, but rather due to their alleged involvement in the Elgaar Parishad meeting.

 

He opined that the jurisprudence, as laid down by the courts, establishes that accused persons cannot choose which agencies investigate them. He referred to Narmada Bai v State of Gujarat & ors and Sanjeev Rajendra Bhatt v Union of India & ors.

 

Further, he held that the investigating authorities had successfully refuted the claim that the arrests suffered from lack of evidence. He held that the authorities had produced sufficient satisfactory evidence. He also stated that the petitioners had failed to establish that the investigating officers intended to curb political dissent in making the arrests. He wrote, ‘no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officers.’

 

He observed that the accused had already resorted to judicial remedies in appropriate lower courts, the proceedings in which were pending, and the same could be pursued in accordance with the law. He stated the accused could continue to pursue their requests for modified relief in appropriate courts at the appropriate stage. The accused had requested to be released from custody and for all material evidence to be examined by a Forensic Science Laboratory outside of Maharashtra. He emphasised that the Supreme Court was not expressing any opinion on the guilt or innocence of accused nor the veracity of the material evidence.

 

Justice Khanwilkar concluded by disposing of the writ petitions and granting the accused the liberty to pursue appropriate legal proceedings. The investigating officer will be free to proceed against the accused persons in accordance with the law. He further directed that the interim order dated 29.08.2018 will continue for four weeks. The interim order placed the activists under house-arrest.

 

Dissenting opinion

Justice D Y Chandrachud highlighted the need for a SIT in his dissenting opinion. He observed that the present petition was not politically motivated. He stated that the question at hand was whether the arrests violated the accused’s fundamental rights to free expression and personal liberty, guaranteed by Articles 19 and 21. He emphasised that an effective and impartial criminal justice system is the stronghold of the human justice system.

 

On the question of the power of the Court to entertain the case at hand, he observed that the petitioners had approached the Court for the specific grievance that the arrests were arbitrary and an attempt to muzzle dissent. He stated that the reliefs the accused sought were not remedies belonging to criminal procedure. He emphasised that the Court’s jurisdiction under Article 32 is ‘wide enough to reach out to injustice in any form’. Article 32 empowers the Supreme Court to issue orders which enforce fundamental rights.

 

Adverting to the facts of the case, Justice Chandrachud berated the Maharashtra Police for its conduct during the course of its investigation. He stated that its conduct had subverted the investigation process. He criticized the Police for releasing material evidence to the press. He cited the press conferences and television programs where the Police distributed the letters. The letters formed the basis of the arrests. He also observed that the Police had used electronic media to cast aspersions on the accused and influence public opinion. He concluded that this cast serious doubt over the ability of the Maharashtra Police to conduct a fair investigation.  

 

Justice Chandrachud also cast doubt over the veracity of a letter attributed to one of the accused, Sudha Bharadwaj. The letter contains Marathi ‘forms’ in at least 17 places. Sudha Bharadwaj is not from Maharashtra and does not speak Marathi. Justice Chandrachud questioned how she could have written the letter using ‘Marathi forms of grammar and address’. Justice Chandrachud was careful to note that, in questioning the letter, he was not concluding that it was fabricated.

 

Justice Chandrachud elaborated on the majority opinion’s conclusion that accused persons have no say in choosing an investigative agency. While he agreed with the majority’s conclusion, he held that the Court should not therefore dismiss the petition at hand. He emphasised that the Court can intervene when the police commit serious procedural lapses. Like the majority, he analysed Narmada Bai. He emphasised that while Narmada Bai establishes that accused cannot choose investigative agencies, it in fact removed the Gujarat Police from the relevant investigation. The Bench, in Narmada Bai, concluded that the Gujarat Police had made serious procedural lapses and may not conduct the investigation.

 

Justice Chandrachud concluded that there was a need to constitute a SIT to conduct a Court monitored investigation. He held that sufficient doubt had been cast on the impartiality of the Maharashtra Police. He observed that the Court must be vigilant to protect the liberty of the those who take up unpopular causes. He emphasised that no deprivation of liberty can be compensated for.