This article is submitted by:
- Shreya Chakraborty
In the Supreme Court of India Writ Petition (Cri.) No. 260 of 2018 Petitioner Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande & Maja Dharuwala Respondent Union of India, State of Maharashtra Date of Judgement 28 September, 2018 Bench Justice Dipak Mishra, Justice DY Chandrachud & Justice A.M. Khanwilkar
This case is one of the important cases in relation to “arresting activists”and raises serious question on fragile nature of protection of freedom of speech and expression. In the present case, a petition was filed as public interest litigation by five prominent persons in distinct filed of society. This petition challenged the arrest of five human right activist and claimed that Maharashtra Police has fabricated these activists in the Bhima Koregaon violence. Further, it was prayed in the petition that the enquiry should be conducted by the Special Investigation Agency.
Statutory Provisions Discussed:
Article 14,19, 21 ,32 of the Constitution of India and Unlawful Activities Prevention Act.
Facts of the Case:
- On 28th August 2018, the petition was filed before Supreme Court under Article 32 by five illustrious persons who were famous human rights activists, journalists, advocates and political worker: Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Dharuwala challenging the arrests of five human right activists named Gautam Navlakha, Sudha Bharadwaj, Vernon Gonzalves, Arun Ferreira and Varavara Rao.
- This petition was filed after the Maharashtra Police carried simultaneous raids across different parts of the country in relation to the Bhima Koregaon violence. According to the Police, the activist were members of the Communist Party of India (Maoist) which is a banned organization under the Unlawful Activities Prevention Act (UAPA).
- The petitioners challenged the arrest by claiming that it was made in an arbitrary manner and stopped the arrested activist to help the poor and needy people. Further, the action of the police was to silence the voice of dissent against the concerned government. It also violated the activists’ rights to equality before the law (Article 14), freedom of speech (Article 19) and personal liberty (Article 21).
- In the petition, the petitioner requested the Court to form a Special Investigation Team for ensuring independent investigation into the arrest of stated five human rights activists.
- Whether the arrest of stated five human rights activists by the Maharashtra Police was mala fide and arbitrary in nature?
- Whether the arrest infringed equality before the law (Article 14), freedom of speech (Article 19) and personal liberty (Article 21)?
- Whether the petitioner’s prayer for Special Investigation Team (SIT) will be accepted by court?
Arguments of the Petitioners:
- The petitioners contended that arrest of the activist by the Maharashtra police had violated their equality before the law (Article 14), freedom of speech and expression (Article 19) and personal liberty (Article 21).
- The petitioners argued that stated five activists were not present in the event organized on 31st December, 2017 at Pune by “Elgar Parishad”. Further, no allegations were found against them in the FIR.
- The arrests by the Maharashtra Police under various provisions of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) was baseless and was made to curb dissent.
- The petitioners requested the court to constitute a Special Investigating Team for ensuring the independent, credible and autonomous investigation in the arrest of five human rights activists.
Arguments of the Respondents:
- The respondents argued that five arrested activists were the member of Communist Party of India (Maoist) which is banned terrorist Organization under Unlawful Activities Prevention Act.
- The respondent further contended that the petitioners cannot challenge the arrest of five activists and the arrest by Maharashtra Police was not arbitrary.
The judgment of this case had come up with the ratio of 2:1. The majority decision was of Chief Justice of India Dipak Mishra and Justice A M Khanwilkar whereas dissenting opinion was of Justice D Y Chandrachud.
- On 28th September 2018 the court rejected the plea for conducting the enquiry through the Special Investigation Team (SIT) instead of Maharashtra police for the case of five arrested human rights activists. The rejection was made by referring the case of Narmada Bai v. State of Gujrat and Ors.  & Sanjiv Rajendra Bhatt Vs. Union of India  wherein the court asserted that the parties to the case cannot choose the investigation agencies according to their own personal choice and preference.
- The court disagreed with the contention that the arrest was made without appropriate evidence as authorities had produced sufficient and satisfactory evidences.
- Also, the court stated that the petitioners had failed to establish investigating officers’ intention to curb political dissent while making the arrests because there were no specific and relevant material facts which can prove that the investigating officers had exercised mala fide powers and held that the accused were arrested for their involvement in the Elgaar Parishad meeting & not merely because of their dissenting views.
- The Apex Court has not expressed any views in relation to the guilt or innocence of accused. The court stated that the judicial proceedings are pending before appropriate lower court which can be pursued in accordance with the law by the parties and the accused were granted liberty to continue their requests for modified relief before appropriate court. Further, the investigating officer are free to proceed against the accused persons in conformity with the law. In addition to this, the court directed the interim order dated 29.08.2018 which placed accused persons under the house arrest for the four weeks.
- Justice Chandrachud emphasised that though in the case of Narmada Bai v. State of Gujrat and Ors, it was held that the accused cannot choose investigative agencies but the Gujarat Police was removed from the investigation because they made serious procedural lapses during investigation. In present case he held that there is sufficient doubt in relation to the impartiality of the Maharashtra Police. So, investigation by the Special Investigating Team (SIT) is needed which should be monitored by the court. Also, he stated that the court should be vigilant to protect the liberty of the those who take up unpopular causes.
- But he observed that the remedies which the petitioner sought were not remedies belonging to criminal procedure.
The Supreme Court in a 2:1 majority judgment rejected the plea for an independent enquiry by Special Investigation Team (SIT) on the ground that there was sufficient evidence for the possibility that they are members of a banned terrorist organization i.e. Communist Party of India (Maoist) under Unlawful Activities Prevention Act (UAPA). So, it is clear from majority decision that arrest made by Maharashtra Police was not mala fide and arbitrary in nature and didn’t infringed rights (i.e. equality before the law, freedom of speech and personal liberty) of arrested activist. But according to the lone dissenting judge, DY Chandrachud, called for a Special Investigating Team (SIT) which should be monitored by the court as he had doubt regarding the impartiality of the Maharashtra Police. The majority decision, forces one to re-examine the delicate nature of protection in relation to the freedom of speech and expression when it clashes with the State.
“The views of the authors are personal“
 Narmada Bai v. State of Gujrat and Ors. (2011) 5 SCC 79
 Sanjiv Rajendra Bhatt Vs. Union of India Writ Petition [Criminal] No.135 OF 2011 decided on 13 October 2015