03, Oct 2018 | Sushmita
In a diabolical bid to curtail Gautam Navlakha’s freedom after the Delhi High Court order set aside his transit remand and set him free from house arrest, the state of Maharashtra has filed a Special Leave Petition (SLP) against the HC order. Meanwhile, Sudha Bhardwaj’s Habeas Corpus petition was withdrawn in order to seek relief from the lower court.
This is in connection with the Pune Police case where several Human Rights activists are facing a variety of ridiculous allegations ranging from masterminding the Bhima Koregaon violence on January 1, 2018 to a plot to kill the Prime Minister!
CJP stands in solidarity with the human rights defenders targeted by a vindictive state. A healthy democracy needs voices of dissent. We also need human rights defenders and social activists to work tirelessly to uphold our shared values of equality, peace and justice. Join CJP now!
Maharashtra state’s SLP against Gautam Navlakha
In its SLP before the SC, the state of Maharashtra has questioned the maintainability of the Habeas Corpus filed by Navlakha before the HC in light of the two SC decisions on the issue. The state has argued that the Delhi HC did not apply the Section 167 91) of the CrPC while setting aside the transit remand order and that it had erred in holding that production of the case diary was necessary while applying for transit remand.
The SLP filed by the State said,
Section 167 (1) of the code of criminal procedure makes it clear that in case an accused is to be produced before the jurisdictional magistrate, then it is incumbent upon the police to produce the case diary. In case the police applies for transit remand before a Magistrate having no jurisdiction, then it is not necessary for the police to produce the case diary. In the case in hand, the Police arrested 5 persons from different places in the country. It was, therefore, not expected and not possible to produce the case diary before the concerned Courts.”
Additionally, the SLP says that the writ petition should not have been entertained by the HC in view of the SC’s decisions in State of Maharashtra v Tanseem Rizwan Siddique and Saurabh Kumar v. Jailor, Koneil Jail.
The Delhi HC had observed that the Chief Metropolitan Magistrate passed the transit remand order without “application of mind”. This too is contested by the State of Maharashtra saying that while passing the order of transit remand the magistrate had gone through the application filed by the Police and he had heard the concerned Police officer. It said that it’s not possible to mention “minute details while passing the order of remand.” In the SLP the state of Maharashtra defended the procedure of arrest followed by the Maharashtra police, stating that the HC had “unnecessarily gone into that aspect.”
The SLP has prayed to keep Navlakha under House Arrest. The SLP also mentions that the Police has a “good case on merits”, and hence that the Delhi HC order should be set aside. The State says in the SLP that it may suffer an “irreparable loss” if it’s not done.
Immediately after his arrest in the early hours of August 28, Navlakha has moved the Delhi HC challenging the transit remand order granted to the Maharashtra police. The Bench of Justices S Muralidhar and Vinod Goel had posted the case for the next day observing that it wasn’t possible to make out a case from the documents placed before it, directing that Navlakha be placed under house arrest.
The entire SLP may be viewed here:
Interestingly, in his minority dissenting judgment, Justice Dr. D Y Chandrachud had stated,
The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media. That the police should lend themselves to this process is a matter of grave concern.”
In his conclusion, agreeing with request for a probe by a Special Investigation Team (SIT), Justice Chandrachud wrote,
I am of the view that while the investigation should not be thwarted, this is a proper case for the appointment of a Special Investigating Team. Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigating agency. Sufficient material has been placed before the Court bearing on the need to have an independent investigation.”
Justice Chandrachud berated the police’s methods of evidence collection in which Panchas were made to travel all the way from Pune to collect evidences which is at odds with the regular procedure of the Panchas belonging to the neighbourhood in which investigation is being conducted. J Chandrachud with reference to the unverified letters released to the media, which it claimed to be proof of a Maoist connection, states, “The letters are unsigned and do not bear any identifiable particulars including e-mail addresses or headers.”
Justice Chandrachud’s entire dissenting judgement may be read here.
Sudha Bharadwaj’s Habeas Corpus petition withdrawn
Meanwhile, the Habeas Corpus petition filed on Sudha Bhardwaj’s behalf before the Punjab and Haryana High Court has been withdrawn today. The petition was filed after her arrest by the Pune Police.
Advocates RS Bains and Arjun Sheoran appearing on behalf of Sudha Bhardwaj said, “We will be approaching the High Court again through Sudha Bharadwaj either under Article 226 or Section 482 CrPC. We will also be filing a regular bail before the Pune Sessions Court.”
The Court said that it was inclined to dismiss the present Habeas Corpus petition. It added that it was not in agreement with the Delhi HC order. The State mentioned that an SLP was filed before the SC, hence, the Court asked the counsels to withdraw the present Habeas Corpus petition.
The petition that was filed by Ankit Grewal (for Sudha Bhardwaj) was based on the contention that the documents of arrest given to Bhardwaj were in Marathi, a language with which she was not familiar. This was against the Section 165 and 166 of the CrPC, the petition said. Moreover, the grounds and purpose of conducting the search in terms of Scetion 165(1) were not made available to Bhardwaj.
On the day of the arrest i.e. August 28, Justice Arvind Singh Sangwan had ordered that Bhardwaj should be kept under house arrest. And has stayed her transit remand to Pune till August 30.
Petition by eminent Indians and impact
The apex court pronounced its verdict on September 28, 2018 in the case of a PIL filed by 5 eminent citizens, viz: renowned historian Romila Thapar, Devaki Jain & Prabhat Patnaik, leading economists, Maja Daruwala, human rights spokesperson, and Satish Deshpande, a leading sociologist. The petitioners approached the Supreme Court when five well-known lawyers, journalists and civil rights activists were arrested across the country on August 28 and charged with abetting acts of terror under the Unlawful Activities (Prevention) Act (UAPA).
The petition sought their release from custody and asked for the case to be handed over to a court-monitored Special Investigation Team (SIT). Soon this was followed by another intervention, this time on behalf of five previously arrested activists – Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Rona Wilson and Sudhir Dhawale. The intention of the petitioners was to draw the attention of the judiciary to what they believe is a case of gross misuse of the state’s powers under draconian laws like the UAPA to suppress dissent and opposition of the state’s unjust policies and actions. The case hearing witnessed several dramatic moments including the highest court in India upholding the right to dissent and calling dissent as the safety valve of democracy.
In the majority judgment disposing off the petition, the Supreme Court implicitly recognised the need to protect the liberty of the accused by providing window period of 4 weeks so that they can seek appropriate relief from lower courts.
Civil Society Organisations demand Fair Trial
On Monday, October 1, as many as 38 civil society organisations including women’s rights organisations, Dalit rights organisations, Adivasi mass organisations, legal aid and research organisations, environmental groups, trade unions, students etc., came together to register their “grave apprehensions over the possible miscarriage of justice in the arrest of activists in connection with the Bhima Koregaon violence.”
The group of organisations under the banner of Mumbai Rises to Save Democracy (MRSD) said that they felt concerned about the continued media trial of the activists despite the SC judgment and the myths being floated in the media.
The statement noted, “We firmly stand in support of and solidarity with the activists and demand that the values of the Indian Constitution and the rule of law be strictly upheld to ensure a fair trial and the liberty of the activists be protected.”
Especially concerned about the independence and fairness of the investigation in the context of the false narrative and negative public opinion being created against the activists, the platform said that these had the possibility of prejudicing the trial.
The entire statement may be read here:
Speaking on the subject, Adv. Flavia Agnes said, “It remains to be seen who all will be targeted in the run up to the 2019 elections.” Adv. Susan Abraham said, “The petition by eminent personalities created a national level debate and that civil society members need to come together on such platforms to jointly protest the unfair treatment meted out to dissenting voices.”
* Feature Image Courtesy The Hindu: Rights activists Sudha Bharadwaj and Gautam Navlakha at a public meeting on ”Activism, State Repression and the Unlawful Activities Prevention Act (UAPA)” in New Delhi on July 13, 2018. | Photo Credit: Sushil Kumar Verma