In an astonishing dissent in the case of Romila Thapar Vs Union of India decided on Friday 28th September, Hon’ble Justice DYV Chandrachud digressed with the majority judgment of CJI Deepak Mishra and J. Khanwilkar in Bhima Koregaon (Urban Naxal) case. Although it seemed to be an open and shut case in terms of settled principles of Criminal Laws in the country, Hon’ble Justice Chandrachud chose to rule otherwise broadly engaging his arguments around the powers of the Court enshrined in Article 32 and making it a case of liberty, equality and dignity of an individual invoking Part III of the Constitution.
In an attempt to satisfy perpetually unsatisfied liberal conscience, Justice Chandrachud missed to pre-empt the consequences of the reasoning which he forwarded in his minority judgment not only in terms of subverting the entire hierarchy of Criminal Justice system and hindering the Police investigation at a nascent stage but also setting a dangerous precedent as to privileging a group of influential and resourceful people over the common masses in remedies arising out of ordinary Criminal procedure keeping at stake all claims of Equality before Law. In such an important decision concerning the authenticity and purity of criminal Justice system and Constitutional remedies in the country concerning arrest & investigation of an accused, it becomes highly compelling to engage with the arguments which Justice Chandrachud is making in his dissent and to bring out the basic problems with the reasoning that Hon’ble Justice Chandrachud puts forward in his dissenting opinion.
From the very beginning Chandrachud J. frames this case as a question of two competing interests. One pertaining to public interest in effective administration of Criminal Justice system and other is the Constitutional concern for security and dignity of an individual, though he terms balance between these two as fair investigation but when it comes to decision making then it clearly pre-empt over the former. His reasoning revolves around the contention that the accused in this case are innocent and have been framed by prejudiced Pune Police with a malicious intent.
He relies on two-fold analysis to decide that arrests are baseless, one that none of the accused were present at the Elgar Parishad event on 31st December, 2017 against which an FIR was lodged on 8th January, in Vishram Bag Police station in Pune as FIR No-0004/2018 and secondly since these arrests have been made after 9 months of the incident, police version cannot be believed.
The involvement of an individual in any crime cannot be procured only from the fact of his presence at the scene of the offence, penal provision of Abetment and Conspiracy get attracted for any distant involvement in any offence so this theory of absence from the scene does not convince even a layman as to innocence of the accused.
As to the point of causing delay in arrest, it must be admitted that investigation of such intricate conspiracies have some pragmatic barriers. The Police moves forward with any leading input only after convincing itself to an optimum degree. As a caveat is being raised by the Hon’ble Justice against the 9 months delay, it can’t be considered detrimental in any case at all and since this investigation has proceeded, the number of accused in the case has risen to 22 initially from 5. In the light of the statutory mandate of Section 319 of Criminal Procedure Code, a person can be tried as an accused even before the delivery of judgment, so legally speaking Pune Police is absolutely correct in its approach.
Secondly, the Hon’ble Justice Chandrachud doubts the integrity of Pune Police to investigate the matter since the ACP held a press conference on the issue, intimating the Media about the investigation in the matter, the Court considered it as unnecessarily building an adverse public opinion against the accused. First of all media briefing in cases of public importance is a norm in the country.
In Union of India v/s Association for Democratic Reforms, Court itself said, “One sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.” Now, the press briefing held was not against any existing order of the Court, doubting the fairness of entire process of investigation on that basis is a very far-fetched assumption which is not at all convincing especially when four Hon’ble Judges of the Supreme Court opted for a Press Conference to address public at large in a matter of alleged public importance in a very recent past.
Though, in so many instances Hon’ble Supreme Court has been critical of the misuse of relaxing the Locus Standi in Public Interest Litigations, In several Cases Hon’ble Supreme Court has expressed great concern over misuse of relaxation of locus standi in Public Interest Litigations where people settle their political scores in the guise of PIL in Court premises but here Justice Chandrachud could not prevent himself from being mesmerized by the glory of respectable and distinguished petitioners. This seems to be a big cause of concern for those common people of the country who probably could not attract big names to represent their cause. It seems that “cause in a case” does not matter for the minority view what matters is who pursues and argues that cause and if Romila Thapar reaches the Court for your cause you can be reasonably sure the outcome would be favorable.
In a highly disappointing reasoning with a great respect, Hon’ble Justice Chandrachud, in Para 4 of the minority view, contended that accused persons are those warriors who have dared to challenge the state and advocated the rights of the marginalized and downtrodden. The Hon’ble Justice went on to count the number of cases in which these accused have been framed so far and later on acquitted, exceptionally one of them being convicted only once amidst dozens of prosecutions and thereby minority view concludes that these are innocent civil liberty activists who have been targeted by the State for speaking against the current establishment.
It is most respectfully submitted that the said observation is misplaced on the following counts:
- If accused have been facing dozens of criminal prosecutions from decades in serious legislations like UAPA and that too under different regimes in power, that bursts the argument as to them being highly critical of the current government and that is why their dissent has been tried to be muzzled by criminal prosecutions.
- A series of prosecutions against accused even if being acquitted in majority of them doesn’t guarantee the status of respectable civil rights activists. Actually they are habitual law-violating citizens who have always been on the radar of state agencies but have managed to get away with it due to technicalities of our system.
- In a Criminal Justice system which has a single digit conviction rate, if a mere prosecution does not make a person guilty then a number of acquittals too do not make them a warrior. Ferreria acquitted in eleven cases instituted against him or Vernon Gonsalves acquitted in seventeen out of the nineteen cases instituted against him (an appeal is pending in one case where he stands convicted) or Vara Vara Rao acquitted in twenty cases where he was prosecuted does not make them the flag bearers of dissent, on the contrary, they are repeat offenders who habitually plot against the integrity of the state.
The history of Bhima Koregaon event which the Hon’ble Justice Chandrachud has made the part of his minority view is highly misplaced and contrary to what happened in Bhima Koregaon more than a century ago. The judgment mentions that “A few hundred soldiers of the East India Company comprising of Dalits, tribals, Muslims, Christians and backward communities defeated the Peshwa army led by Bajirao II”. Except an alignment of Mahar-Dalit community with English Army none of the above mentioned social groups were in that battle.
There was always an attempt by the above said false narratives of those who want to divide India socially to perpetuate and nourish the existing attempts of caste divisions by portraying Upper caste Hindus (Peshwas) as villains and show an alignment of rest of the society against them, this dangerous portrayal of history is not acceptable especially when nothing of that sort really happened in Bhima Koregaon.
Though Hon’ble Justice Chandrachud in his wisdom must have tried to do justice with the facts and circumstances of the case by invoking relevant remedies at hand, but this dissent of an Hon’ble Justice Chandrachud from the Supreme Court fails to satisfy the existing legal order and what compelled him to carve out an exception for the petitioners which is denied in normal cases, especially when the case itself never deserved any such extra-ordinary remedies of forming an SIT for investigation contrary to clear Supreme Court precedents establishing that “An accused cannot be allowed to choose the investigator of their choice.”
Though historically Supreme Court benches have been inclined to their priorities while deciding about the issue at hand, either in terms of civil liberties, human rights concerns or of socialist economic order but an issue concerning security of an institution like that of Prime Minister must have been looked objectively to which the Hon’ble Justice Chandrachud has failed to do in the present case, which is really disappointing in a democratic country based on Rule of Law.
(Author: Ayush Anand is a practicing Advocate at Supreme Court of India. He may be contacted at ayush.nna@gmail.com and Shubham Tiwari is a student of Law at NALSAR Hyderabad)