Author: Kanishka Rathore ,Rajasthan School Of Law for Women 

CASE :

Romila Thaper V Union Of India

CITATION :

AIR (2018)10SCC802

PETITIONER:

Romila Thaper

RESPONDENT:

Union Of India

The present case is the mainspring in cases at the intersection of criminal law and constitutional rights since it’s among the first case filed to deal with the silencing of the dissent under the current NDA regime. This case is one of the landmarks cases when it comes to ‘arresting activities. It deals with the arrest of five activists Varavara Rao, Sudha Bhardwaj, Gautam Navalakha, Vernon Gonzalves and Arun Farreia and raises serious question on fragile nature of protection of freedom of speech and expression. Its was filed under Public Interests Litigation. The Unlawful Activities (Prevention) Act Amendment of 2019 that was lived on the petitioners is the provisions of IPC which allows the Central Government to imprison person on the grounds of suspicion for up to 180 days without chargesheet bring filed. The Maharashtra Police alleged that the activities were responsible for the Elgaar Parishad in January 2018 which reportedly had spark the Bhima Koregaon Violence. The police claimed that the activists are the members of the Communist Party of India (Maoist) a banned organisation. Further the petition asked the Supreme Court to set up Special Investigation Team (SIT) to monitor Maharashtra Polices Investigation and / or conduct a fair and independent investigation. The petitioners claimed that the arrests mode by the police were without any substantial credible evidence and material and the arrests were made on unfounded accusations of terrorism   if not killed  independent voices and a different ideology of the party in power.

PRIMARY DETAILS OF THE CASE

CASE NUMBER	Writ Petition (Cri.) No. 260 of 2018[1]
JURISDICTION	Supreme Court of India
CASE DECIDED ON	28TH September 2018
JUDGES	Justice Dipak Mishra, Justice DY Chandrachud and Justice A.M Khanwilkar
LEGAL PROVISION INVOLVED	Article     14,19    &21    of               Indian Constitution Unlawful Activities (Prevention) Act 1967
PETITONER RESPONDENT	Union of Indian State, of Maharashtra
COUNCEL OF PETITONER	AM Singhvi, Prashant Bhushan, Indra Jaising, Rajeev Dhawan
COUNCEL OF RESPONDENT	ASG Tushar Mehta, ASG Maninder Singh
JUDGEMENT RATIO	2:1

FACTUAL

1. On 28 January 2018 , the Maharashtra Police had carried out simultaneous raids across different parts of India , resulting in the arrest of five well known human right activists , journalist , advocates , and political leader namely Gautam Navlakha ( Human Right Activists ) , Sudha Bharadwaj ( advocate of Chhattisgarh High Court) , Vernon Gonzlaves ( Gold medallist in commerce from Bombay University ) , Arun Ferreria ( lawyer and human right activists ) , Varavara Rao ( political worker , commentator , renowned poet in Hyderabad ) from their homes without any credible materials and evidence against them under Article 32 .The Maharashtra Police alleged that the activities were responsible for the Elgaar Parishad in January 2018 which allegedly had triggered the Bhima Koregoan Violence . The police claimed that they were the members of a banned organisation the Communist Party of India (Maoist).

• The petitioners contended that the police had violated the activists right to equality before law (article 14), free expression (article 19), and personal liberty (article 21). According to the petitioners this action was taken to stop people from helping poor and to create fear in the minds of the people and to divert the people’s attention from the real issues. Supplementary to this the action of the police was to silence dissent voice against the concerned government. They highlighte that the activists had been booked under the draconian UAPA and thus claimed that the Maharashtra Police had notice serous procedural lapses during the raids.

• Notably the court decided to hear the matter on the same day that as it was filed by the lawyer representing the petitioners Mr.Abhishek Manu Singh urgently raised the matter on the morning 30 August. The first hearing happens at 3:45 pm.

It was contended that on 2.1.2018 FIR was registered regarding Bhima Koregon violence against some Hindtva leaders who alleged to instigate the violence. against such incident another complaint was registerd on 8.1.2018 regarding the same violence and police deliberately framed the social activists in consonance the public from the real culprits and the voice of the dissent could stop.

PROCEDURAL

On the 30 August 2018 a joint petition was submitted to the Supreme Court challenging high handed arbitrary arrests of the august five eminent citizens Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja.

Notably the court decided to hear the matter on the same day that as it was filed by the lawyer representing the petitioners Mr.Abhishek Manu Singh urgently raised the matter on the morning 30August, the first hearing happens at 3:45.

In June a similar second petition relating to arrest was tagged to this case. On 7 June the Maharashtra Police arrested Soma Sen, Roma Wilson, Surendra Gadling , Mahesh Raut , Rona Wilson and Sudhir Dhawale an intervention application was filed on behalf of these activists .

In the petition, the petitioner requested the Supreme Court to set up Special Investigation Team (SIT) to monitor the Maharashtra Police investigation and conduct a fair and independent into the arrest of stated five human right activists.

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Issues raise in the case:

1. Whether the arrest made by the Maharashtra Police was arbitrary and mala fide?
2. Whether or not a Special Investigation Team should be formulated / allowed.

0R

Should the investing agency be changed at the request of the five accused.

• Can a behest of the next friend of the accused can entertain in the same manner?
• Whether the arrest infringed the Article 14(equality before the law), Article 19(freedom of speech) and Article 21(personal liberty)?
• Whether such a person can be released by the court based on the perception of petitioners that accused persons were framed in the case?

ARGUMENTS:

Petitioner:

1. It was argued by the petitioners that the state frivolously made the arrest which violated Article 14,19 and 2 of the Indian Constitution which assured the citizens of equality before law, free expression, and personal liberty.
2. The Maharashtra Police not only misuse the Unlawful Activities (Prevention)Act 1967, and India Penal Code but the arrests were baseless and was made to curb dissent.
3. The petitioners argued that stated five activists were not present in the event organised on 31 dec 2017 at Pune by ‘Elgar Parishad”. Further no allegations were found against them in FIR.
4. The petitioners made a contention on their perception that the accused are ‘all outstanding, well-known and well respected human right activists’ and the arrest was not to stop their voices against the government to instigate the violence.
5. The petitioners requested the court to constitute a Special Investigation Team for ensuring the independent, credible an autonomous investigation in the arrests of five human right activists.

RESPONDENT

1. The respondent argued that five arrested activists were the member of Communist Party of India (Maoist) which is banned terrorist organisation under UAPA.
2. It was claimed by the respondent that they all were the active members in the conspiracy of Bhima Koregoan violence event arranged at Pune by the Elgaar Parishad through a fontal organisation called ‘Kabir Kala Manch’.
3. The respondent argued that the arrest was made based on evidence fought against them and many criminal proceedings in the past were found against the accused social activists.
4. According to the respondent many documents were found which proved the active participation foe the activists against the country.
5. Further argued that the petitioners to this case do not have any locus to challenge the arrest of five people mentioned in the facts and thee arrest by Maharashtra Police was not arbitrary.

LEGAL ASPECTS INVOLVED

• Article 32 – the article deals with the right to constitutional remedies and guarantees the right to move to Supreme Court for enforcement of the rights conferred in Part III of the India Constitution.
• Article 14 – Right to Equality – it provides equal protection and equal treatment for all before the law. It is a fundamental right conferred upon both citizens as well as  non-citizens of India.
• Article 21 – Protection of Life and Personal Liberty – it provides that no person except in accordance with the law shall be deprived of his/her personal liberty. Over the span of years the scope of Right to livelihood and Right to live with dignity has been expanded to include in this article.
• UAPA Amendment Act 2019 – a provision of the IPC which allows the Central government to imprison a person the grounds of suspicion for up to 180 days without a chargesheet being filed. The Act was originally brought in by the INC government in 1967 to prevent any unlawful activities. However, after the latest amendment, more than 4000 civilians have been imprisoned till date and the provisions of the Act are as such that they leave the Government unaccountable for these actions.

JUDEGEMENT:

RATIO DECIDENDI

Issue 1 – Whether the arrest made by the Maharashtra Police was arbitrary and Mala fide?

The Apex Court stated the petitioners had failed to establish that the investigating officers intended to curb political assent in making the arrests. Justice AM Khanwilkar wrote “no specific facts, material are found in the petition about mala fide in order to excise of power by the investigating officer”.

Issue 2 -Whether a SIT team should be formulated / allowed?

OR

Should the investing agency be changed at the request of five accused?

Justice AM Khanwilkar on the behalf of CJI Dipak Mishra and himself rejected the plea for a sit probe instead of Maharashtra Police for the cases of five arrests human right activists. The rejection was made by referring the case of Marmada Bai v State of Gujarat and Ors & Sanjiv Rajendra Bhatt v Union of India were in the court asserted that the parties to the case cannot determine the investigation burau as per their own personal choice and preference.

On the other hand Justice DY Chandrachud spotlight the need for a SIT probe in his dissenting opinion for fair and independent investigation through emphasised that though in the case of Narmada Bai v State of Gujarat and Ors it was held that accused cannot choose investigate agencies but the Gujrat Police was removed from the investigation because they made serious procedural lapses during investigation . He further stated that investigation should be monitored by the court in this case.

Issue 3 – Can a behest of the next friend of the accused can entertain in the same manner?

No interference by the Court is permissible in a criminal case in the grab of a public interest litigation.  A PIL is not maintainable at the command of the third person’s , only under Sections 438 or 439 and Section 482 of the Criminal Procedure Code relief can be granted. Therefore, they assume that the writ petition is now pursued by the accused themselves, the question of next friend pursuing the remedy to espouse their cause cannot be countenanced. They claim that anything sort of this relief will damage the fabric of the nation irreparably.

Issue 4 – Whether the arrest infringed Article 19 (freedom of speech) and Article 21 (personal liberty)?

Justice DY Chandrachud stated at the end the question is whether the arrest violated the fundamental Right to free of expression and personal liberty guaranteed under section 19 and 21 respectively of the accuses . He highlighted that an effective and unprejudiced criminal justice system is what hold the human justice together.

Issue 5 – Whether such a person can be released by the court based on the perception of petitioners that accused persons were framed in the case?

The court stated that the entire writ petition is based upon individual perception that the arrested persons are “all outstanding, well-known and well respected human right activists” and therefore, their arrest should be enquired into and they  all should be released on bail. Having, said that, he has asserted that the instant case, the five named persons have been arrested not because they expressed dissenting views but rather due to their alleged involvement in the Elgaar Parishad meeting .

OBITER DICTA:

In this case Justice DY Chandrachud stated Court’s jurisdiction under Article 32 is ‘wide enough to reach out injustice in any form’. Article 32 empowers the Supreme Court to issues orders which enforce fundamental rights.

CASES REFERRED BY COURT

• Narmada Bai v State of Gujarat and Ors AIR (2011)5SCC79
• Sanjiv Rajendra Bhatt v Union of India Writ Petition [Criminal] No. 135 of 2011 [WITH W.P.(CRL.) NO. 204 OF 2011]