New Delhi: Observing that liberty of an individual cannot be sacrificed in the alter of conjecture, the Supreme Court on Wednesday asked the Maharashtra government to produce at least one best document to justify the arrest of five human rights activists, journalists and lawyers on August 28.
A Bench of Chief Justice Dipak Misra and Justices AM Kanwilkar and DY Chandrachud after perusing the documents and case diary submitted by the State government in a sealed cover asked the Additional Solicitor General Tushar Mehta to produce the best document available showing the involvement of the activists. When the ASG told the court that the `case diary’ is self explanatory, the CJI asked the ASG “show us your one best document first.
The Bench was hearing petitions filed by Dr Romila Thapar and others challenging the arrest of five activists. The five activists Varavara Rao, lawyer Sudha Bhardwaj, Arun Ferreira, Vernon Gonsalves and Gautam Navlakha were taken into custody from different parts of the country on August 28. The next day the apex court had directed that they be kept under `house arrest’ and this has been extended further.
The ASG submitted that the police recovered electronic evidence such as phones, laptops and they were given for Forensic examination. Everything is recorded in the case diary. “How can we say we are framing someone? We found concrete materials required to justify the arrest”, the ASG said.
He questioned the maintainability of the petition said the case and arrests had nothing to do with dissent or writings by the activists. “This concerns serious offences. There is material recovered from their laptops, computers, hard disks, etc. We want your Lordships to go through the materials, which will shock the court’s conscience. Don’t make up your mind without going through the materials in full.”
Justice Chandrachud intervened and told the ASG “the court has to look with a hawk's eye at the case of activists' arrest in connection with the Bhima Koregaon violence. Our institutions should be robust enough to accommodate dissent. We want to have a holistic view. We won’t go by one or two documents. Don’t raise your opposition about this court entertaining the petition. We want our shoulders to be robust and not restricted. We feel liberty can’t be sacrificed in the alter of conjecture. We will look at all these attempts with the hawk's eyes."
Justice Chandrachud observed, “those at the helm of institutions may not like everything that is said about them but this cannot be grounds to stop them. Our institutions should be robust enough when there is an opposition to the system or even to this court. Then there has to be something different to constitute subversion of law and order as far as elected government is concerned. We may not like it but we must also accept there could be dissent... Let us make a clear-cut distinction between an opposition and attempts to create disturbance, overthrow government etc.”
The ASG said dissent is fine but it is also important who is saying it. If the leader of a banned outfit says it, this will have a different connotation.
Senior advocate Harish Salve, who represents the informant of the FIR in this case said, "There must be a distinction between a dissenting view and a criminal act. One may say out of anger that I will burn the Constitution because it has proved to be unfair to a certain class.”
The ASG said, “We don’t doubt the powers of this court. Your Lordships will have to see whether the materials we have produced shocks your judicial conscience and whether the investigation is being carried in accordance with the provisions of CrPC.
Earlier senior counsel Abhishek Manu Singhvi, appearing for the five activists, insisted on a probe by a SIT or a court-monitored investigation in the arrest of the activists on August 28 for their alleged role in the Bhima Koregaon violence. He submitted that for the past few months, a canard has been spread about the so-called criminal past of the activists.
He said Varavara Rao has been earlier booked in 25 cases, but was either acquitted or the cases were withdrawn. Gonsalves had 18 cases booked against him. He was acquitted in 17, convicted in one for which appeal is pending. Ferreira was booked in 10 or 11 cases, he was acquitted in all of them. The other two have no cases.
Dr Singhvi repeated that the 13 letters leaked into public domain, of which the seven that canvass a “Rajiv Gandhi kind of incident” are purported to have been exchanged between one Comrade Prakash and the five accused, are ex facie fabricated and false. These letters are yet to be forensically verified; they do not find a mention in the chargesheet, in any transit remand application and have not been placed on record in any court of law.
Former Union Law Minister Ashwini Kumar submitted that the expansive judicial review jurisdiction of this Court and its logic has been repeatedly asserted by the Court particularly in the context of its constitutional mandate for the preservation and protection of inviolable fundamental freedoms and rights.
He said the core of the petitioners’ case is that allegations of criminal conduct on the part of those arrested on 28th August 2018, criminal investigations prior to and following the arrests as also detention of the accused is patently mala-fide and a gross violation of their fundamental rights under Articles 14, 19 and 21 of the Constitution.
This assertion is prima facie validated by the manner in which the focus of criminality is sought to be shifted from the original accused, that is, Milind Ekbode and Shambhaji Bhide named in the FIR of 2nd January 2018 to those arrested on 28th August who were admittedly neither present at the Elgaar Parishad meeting on 31st December 2017 nor are named in the FIR of 4th January 2018.
Criminal prosecution shown to be ex-facie unsustainable and malafide violate Article 21 and citizens are not obliged in law to suffer oppressive prosecutorial processes of the State that result in the loss of their liberty, reputation and dignity. Such a prosecution negates the legal due process and is violative of Article 14. In matters concerning individual liberty, reputation and human dignity, the Court will lean in favour of liberty and dignity of individuals, he said.
Senior counsel Rajeev Dhavan, Anand Grover and Prashant Bhushan questioned the manner of arrest and called for an independent probe. Arguments will conclude on Thursday.