In the past few days, several human rights activists and writers have been subjected to a state-driven persecution, with five courting arrests — including Sudha Bharadwaj (activist, lawyer and professor at National Law University, Delhi) and Gautam Navlakha (activist), as well as the raids in the homes of Arun Ferreira (activist and lawyer), Vernon Gonsalves (activist), Varavara Rao (activist and poet), Susan Abraham (advocate), Kranthi Tekula (activist), Father Stan Swamy (activist and Jesuit priest), and Anand Teltumbde (writer, academic and Activist).
On August 28, Gonsalves was arrested from Mumbai, Ferreira from Thane, Rao from Hyderabad, and all three were brought to Pune. Navlakha and Bharadwaj were arrested in Delhi. Within a span of barely a day, petitions were filed to question whether the procedure was constitutionally sound. Further, news of the arrests led to massive outrage leading to protests in the national capital and other cities as well as online petitions across the country. Interestingly, the proceedings in three different courts, i.e. the Pune Sessions Court, the Delhi High Court and the Supreme Court of India occurred within the same time frame. The Supreme Court’s decision in this matter would override the lower courts, and the said court merged all petitions concerning the matter pronouncing that the said activists were to remain under house arrest until further directions were made by the Court.
The Pune Sessions Court
Three activists, i.e. Gonsalves, Ferreira, and Rao were presented before a Pune Sessions Court on 29.8.18. In order to secure their custody, Public Prosecutor Ujjwala Parmar accused the three of being members of the outlawed Communist Party of India (Maoist).
The grounds of the alleged arrest mentioned in the warrant were surrounding a compliant that the caste violence which occurred in Bhima Koregaon had been instigated by the detainees in speeches made at Elgaar Parishad on the preceding day. Surprisingly, the arguments of the prosecution were not based on the events, but rather called out the accused for being “Urban Naxalites” and linked their professions as activists to being anti-state.
The remand petition filed by the Pune Police accused a sum total of 22 persons, which alleged that the same were involved in a conspiracy to overthrow the government. To keep them in custody, the police presented the need to personally interrogate the accused about the matters seized in their homes, i.e. to draw links between the letters and documents found to further organizations that they may be involved with.
Rawat read out some sentences from the letters seized, as evidence for the involvement of the accused in establishing an anti-fascist group, through the Elgaar Parishad in Pune. A plot to assassinate the Prime Minister was further realized, and alleged them to be involved in a criminal conspiracy in purchasing weapons, using code language and purchasing weapons.
Defence lawyers Rohan Nahar representing Rao and Rahul Deshmukh representing Gonslaves pointed out the lack of connection and evidence between the allegations of Maoist involvement and the Bhima Koregaon clashes. Representing himself, Ferreira stated that all the documents, evidence etc. that were seized was willingly submitted, and a further arrest through physical custody was not required.
Meanwhile, the proceedings at the Delhi High Court and Supreme Court began, before the Pune Sessions Court could rule on the matter.
The Chief Judicial Magistrate recalled the transit remand for Sudha Bharadwaj to be taken to Pune. The same occurred in an emergency midnight hearing.
The Delhi High Court proceedings
The current case was concerning the arrest of Gautam Navlakha, who was charged under Sections 153A, 505, 117 and 34 of the Indian Penal Code, as well as Sections 13 and 18 of the Unlawful Activities Prevention Act, 1967. Navlakha was arrested in his house in Delhi, after the police in Pune filed an FIR in Vishrambagh Police Station. The Habeas Corpus petition was filed before Chief Justice Rajendra Menon, who redirected the same to Justices S Muralidhar and Vinod Goel.
The Delhi High Court asked the Maharashtra Police an onslaught of questions, such as whether the guidelines for arrest had been followed, whether guidelines for arrest had been followed. Justice Murlidhar enquired how the raids were conducted and the accused Navlakha was arrested when the concerned papers were in Marathi.
The counsel for the State, Aman Lekhi argued that the arrest proceedings would be governed by Section 482, since the nature of enquiry is extremely limited to examine whether an arrest may be justified. He primarily was trying to state that there had been no such violation of the mandates, and the FIR was a commencement of the investigation.
The judge said that at the time of granting remand transit, the State had to present the grounds for the same to fulfill the Court’s satisfaction. In this case, the Court could not ascertain the nature or reason of the arrest upon the perusal of papers that were presented before them. Lekhi responded by guaranteeing the submission of all the documents, after being appropriately translated.
Muralidhar was concerned about the cumulative degradation of Navlakha’s liberty with the continued arrest, as well as the brazen lack of due process in the entire administration of the arrest by the hands of the police. Lekhi tried to argue that the court had in fact interacted with the reason of arrest for 10-15 minutes, before the giving the order for the transit remand. Muralidhar stated that one mere line was insufficient for the Magistrate to give an order, and rebuked their ignorance of the severity of Constitutional mandates. Further, the one line in reference was made to an event that took place on December 31, 2017, which the accused declined. Instead, the case diary should have been presented to the Magistrate, and the lack thereof of the requisite documents only adds to the premise that the nature of the arrest had been illegitimate.
The nature of the proceedings, as well as the tone and tenor of Judge Muralidhar was such that he was leading up to passing an order to quash the arrest as being illegal in nature, the petitioner made the Court aware of the simultaneous Supreme Court proceedings. Since the SC stayed the matter and ordered a house arrest of all the arrested activists.
The Supreme Court proceedings
Petitioners Romila Thapar (historian), Satish Deshpande (writer and Professor of Sociology at Delhi University), Prabhat Patnaik (economist), Devaki Jain (economist) and Maja Daruwala (writer and Senior Advisor, Commonwealth Human Rights Initiative), have filed the petition before the Supreme Court. Their petition concerns similarly, whether the arrests had been made on procedurally sound steps, and the exact grounds of the same.
The lawyers for the petitioners are Senior Advocates Abhishek Manu Singhvi, Indira Jaising, Dushyant Dave, Raju Ramachandran and Amarendra Sharan, along with Advocates Vrinda Grover and Prashant Bhushan. The bench hearing the matter was Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud.
Singhvi commenced the arguments by stating an absence of any mention of the arrested persons in the FIR. The Additional Solicitor General Tushar Mehta responded by questioning the locus of the petitioners, to which the both Singhvi and Grover clarified to be a much larger question of Right to Life under Article 21 of the Constitution and the arbitrary nature of such arrests. Further, the difference between the petition of the Delhi High Court and the current one was clarified, i.e. while the High Court was faced with Habeas Corpus petitions to stay the transit remands, the one at the Supreme Court was an umbrella issue of larger concern.
The senior counsels for the petitioners, Jaising and Dhavan both argued that the precedent for all these arrests and raids were completely baseless, and that they too felt threatened due to their investment in the field of human rights activism.
While the court was trying to issue notice to the Respondents, Singhvi asked for a stay to which Mehta raised an objection in reference to the High Court’s stay. Justice Chadrachud in response to the same stated that “Dissent is the safety valve of a democracy; if you don’t allow safety valve, the pressure cooker will burst.”
The SC ordered the counsels for the Respondents, i.e. the State had to file a counter-affidavit by Sptember 5, 2018, and the rejoinder to the same is any was set within a period of three days. In consideration of the interim relief as requested by them, Sudha Bharadwaj and Guatam Navlakha were to be kept under house arrest. Further, as suggested by senior counsel Abhishek Manu Singhvi, if Varavara Rao, Arun Ferreira, and Vernon Gonsalves were to be arrested, the nature of the arrest should be a house arrest, was conceded to by the Court. The matter was listed to be heard next on September 6, 2018.