[dropcap]O[/dropcap]ur recent decisions reiterate the value of individual dignity as essential to a democratic way of life. But lofty edicts in judicial pronouncements can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases. 

~ Justice D Y Chandrachud

The right to move court

Five eminent personalities moved a Public Interest Litigation in the Supreme Court under Article 32 of the Indian Constitution regarding the arrest of five rights activists, advocates and a journalist on August 28, 2018 for their alleged involvement in instigating violence in the Bhima Koregaon, Maharashtra. The purpose of the petition was “to subserve larger public interests and to prevent stifling of honest dissent so as to protect democratic values and the democracy”. The petition moved the Court “not to stop investigation into allegations, but to ensure independent and credible investigation by such persons as may be deemed fit under supervision of this Hon’ble court”. The petition further emphasised that “on the face of it [arrests] appear indiscriminate, unwarranted, part of a malicious campaign to threaten human rights defenders, independent journalists, writers and thinkers in this country, from critiquing the government and its policies and an attempt to muzzle dissent”.

Tushar Mehta, Counsel for the State of Maharashtra, argued against the maintainability of the petition filed by third parties as they were said to be “strangers” to the offence under investigation. Abhishek Manu Singhvi, Counsel for the activists, argued that they were “all outstanding, well-known and well-respected human rights activists” and therefore, the arrests requires to be enquired into and that they should be released on bail.

Article 32 of the India Constitution provides for remedies for enforcement of fundamental rights. Article 32(2) states that “the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part [fundamental rights].” In People’s Union for Democratic Rights and Ors V. Union of India Justice, P N Bhagawati in 1982, expanding the horizons of justice delivery system and the scope of Article 32, stated: “Having regard to the peculiar socio-economic conditions prevailing in the country where there is considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only a person wronged can sue for judicial redress were to be blindly adhered to and followed, and it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may become easily available to the lowly and the lost.”

In the Bhima Koregaon case, the majority and the minority judgments responded to the arguments of the petitioners. The affidavits filed by the four arrestees further resolved the question of the locus standi. Justice D Y Chandrachud, in his dissenting judgement, opined: “The institutional role of this Court as a constitutional adjudicator should brook no technicalities which obstruct the cause of justice.” He further said that, “application deserves to be allowed as the accused themselves have chosen to approach this Court and also in the backdrop of the preliminary objection raised by the State that the writ petitioners were completely strangers to the offence under investigation and the writ petition at their instance was not maintainable”.

In the majority judgement authored by Justice A M Khanwilkar, concurred by the then Chief Justice, Dipak Misra, it is stated: The “application deserves to be allowed as the accused themselves have chosen to approach this Court and also in the backdrop of the preliminary objection raised by the State that the writ petitioners were completely strangers to the offence under investigation and the writ petition at their instance was not maintainable. We would, therefore, assume that the writ petition is now pursued by the accused themselves and once they have become petitioners themselves, the question of next friend pursuing the remedy to espousetheir cause cannot be countenanced.”

Another question that arose on the maintainability of the petition was whether the parties who have already approached alternate courts for relief can seek direction from Supreme Court (whether Supreme Court can be approached at this point in the investigation when the charge sheet has not been filed, and Trial and the High Courts have both been approached and are still deliberating upon the matter).

Answering the question, Justice Chandrachud in his dissent stated: “This Court, as a constitutional adjudicator, has been entrusted with the jurisdiction under Article 32 to secure the fundamental freedoms guaranteed by Part III of the Constitution. While the discipline of the law of criminal procedure must at all times be kept in view, it cannot be gainsaid that the protection of fundamental liberties is a subject so integral to democratic constitutional values that technicalities should not be allowed to override the cause of substantive justice.” He also stated: “The petitioners have not in their submissions sought recourse to the jurisdiction of this Court for espousing a remedy which is available before the competent court under the Code of Criminal Procedure.”

Justice Khanwilkar, in the majority judgment, however, directed that the arrestees approach the High Court and District Courts for remedies and he rules that no such abrogation of fundamental rights and liberties has occurred in the present case.

Can a party in the case demand for a different investigating agency? 

In an Absolute No!, Justice Khanwilkar invokes the order of Narmada Bai Vs. State of Gujarat and Ors., saying “the accused persons do not have a say in the matter of appointment of Investigating Agency. Further, the accused persons cannot choose as to which Investigating Agency must investigate the offence committed by them.” However, Justice Chandrachud in his dissent disproves the invocation of the Narmada Bai judgement: “The key issue [in Narmada Bai] was whether after filing of the charge-sheet by the state investigative agency, this Court was precluded from appointing an independent specialised agency like the CBI to go into the same issues, if the earlier investigation was not done in accordance with the established procedure…”

Justice Khanwilkar further uses Sanjiv Rajendra Bhatt Vs. Union of India and Ors. to substantiate his judgment in which the court had pronounced that “the accused has no right with reference to the manner of investigation or mode of prosecution”. However, Justice Chandrachud in his dissenting judgment argues that the facts of the case were substantially different: “It was held that the nature of the case relating to an allegedly false affidavit and the alleged hacking of an email account were not of such wide amplitude so as to warrant the constitution of a SIT. The Court also observed that the petitioner had not come to the Court with clean hands and that no relief could be granted to an individual who came to the Court with ‘unclean hands’. These facts were the distinguishing feature.”

Justice Chandrachud’s dissenting judgement very strongly states that “this case [Bhima Koregaon] supports my [Justice Chandrachud’s] view that in the interest of justice, and particularly when there are serious doubts regarding the investigation being carried out, it is not only permissible, but our constitutional duty to ensure that the investigation is carried out by a special investigation team or a special investigative agency so that justice is not compromised”. He supports his view by quoting an earlier judgment of Justice Khanwilkar in E Sivakumar v Union of India, in which he had upheld the High Court’s decision to issue the writ of mandamus to transfer the investigation to the CBI.  The same judgment is cited by Justice Khanwilkar to support the argument that accused cannot demand an investigation. The accused has no right to be heard during investigation. However, Justice Chandrachud cites Justice Khanwilkar’s words from the judgment: “It is the bounden duty of a court of law to uphold the truth andtruth means absence of deceit, absence of fraud and in acriminal investigation a real and fair investigation, not aninvestigation that reveals itself as a sham one. It is notacceptable. It has to be kept uppermost in mind that impartialand truthful investigation is imperative…If a grave suspicionarises with regard to the investigation, should a constitutionalcourt close its hands and accept the proposition that as the trialhas commenced, the matter is beyond it?…” — thereby, interpreting the judgment in favour of setting up an SIT.

Justice Khanwilkar concluded: “In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exerciseof power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough.If the answer to point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL?”

While Justice Khanwilkar’s judgment points to the fact that the Bhima Koregaon case in not an extraordinary case which warrants a special investigation, Justice Chandrachud makes an argument that it is indeed an extraordinary case and the matter of the case in hand is different, according to Justice Chandrachud, from those used by the majority judgement to reject the prayers of the petitioners. He points to a recent judgment (S Nambi Narayanan v Siby Mathews) delivered by the then CJI, Dipak Misra in which he granted a sum of Rs. 50 lakh as compensation to a space scientist who was found to have been wrongfully implicated and subjected to custodial interrogation. Justice Chandrachud asserts: “The fact that the payment of compensation was ordered nearly 24 years after the wrongful arrest is a grim reminder about how tenuous liberty can be and ofthe difficulty in correcting wrongs occasioned by unlawful arrest.” Making a case for the appointment of SIT, Justice Chandrachud says, “This Court has a constitutional obligation, where its attention has been drawn, in a case such as the present, to a real likelihood of the derailment of afair investigative process to issue appropriate directions under Article 142 of the Constitution.”

Pronouncing that the FIR no. 2/2018 (the FIR specifically names Sambhaji Bhide, head of the ultra Hindu outfit Shivajinagar Pratishthan, and Milind Ekbote, the chief of Hindu Janjagaran Samiti — as perpetrators and conspirators of the violence in Bhima Koregaon. Sambhaji Bhide has not been arrested, while Milind Ekbote secured bail within a month of his arrest. The FIR relates to offences under the Penal Code, Arms Act and the SC/ST Act. Since the police were allegedly not investigating the FIR, a writ petition has been filed before the Bombay High Court) is an independent FIR and at most can be considered to be a cross FIR, Justice Khanwilkar states that neither the writ petitioners nor the named accused in FIR No.4/2018 in that sense, can pursue relief in respect of FIR No.2/2018 registered at Pimpri (Urban) Police Station. Justice Chandrachud, on the other hand, points to the biases of the investigating officers — by citing the instances where the panch witnesses were “imported” from Pune while carrying out the arrests, press conferences were conducted by the Joint Commissioner of Police in one instance and ADG (Law and Order) in the other, alleged and unverified letters with grave implications were leaked to media houses at various occasions — thus indicating a purported and disturbing intention to carry out a media trial against the accused by the investigating officers. Justice Chandrachud further states that these letters that were leaked to certain media houses have neither been placed before the court of law nor do they find mention in the transit remand applications moved before the CJM Faridabad by the Pune Police. Without going into the veracity of the letters, Justice Chandrachud points out that there is a bone of contention regarding their authenticity as they do not have headers, dates, etc and also, in one instance, uses Marathi words in a letter allegedly written by Sudha Bhaardwaj — who doesn’t speak, read or write the language.

Justice Chandrachud cites a body of precedents to establish the maintainability of the prayer for the establishment of an SIT. Questioning whether the Maharashtra Police can now be trusted to carry out an independent and impartial investigation, he states that every citizen faced with an allegation of criminal wrongdoing in entitled to a fair investigation. It is an integral component against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. “If this Court was not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty,” says Justice Chandrachud.

Procedure established by law, depriving life or personal liberty of a person, has to be fair and just. It, by no means, can be fanciful, capricious, oppressive, or arbitrary as laid down in Maneka Gandhi v. Union of India.

While Justice Chandrachud in his stunning judgment lays bare the entire petition and discusses various points of law rigorously, striking at the heart of the matter — the utter violation of due process as per the provisions of the CrPC and the UAPA. The majority judgement in all but a few lines notes that the Pune Police is responsible and can be trusted to carry out the investigation following due process. The dissenting judgement recognises the extraordinary circumstances of the present case and asks for the setting up of an SIT; the majority orders for the extension of house arrest of the five implicated for another four weeks and gives them leave to seek remedies in High Courts and District Courts, while sending the case back to the Pune Police who are now armed with impunity to do as they please. 

Read an account of the court hearing in the Bhima Koregaon case here.

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