01, Oct 2018 | Teesta Setalvad

Today, we have to accept that the wise words in Justice Chandruchud’s dissenting judgement were a minority verdict. The battle is still on.

An interesting study into the way the political wind blows, especially with relation to fundamental freedoms in a democracy where we speak of elections for the people, by the people and of the people — but where executive overreach threatens to make us mute victims (or spectators) to a mobocracy — is in the clarity of conceptualisation and moral courage expressed in the dissenting judgements of courts. There have been some historic moments and September 29, 2018, is one such significant date. In the judgement of India’s Supreme Court in Romila Thapar versus Union of India & Ors., the dissenting judgement by Justice Dhananjay Y Chandrachud is a study in clarity.

It is on three to four counts that the Judge dissents with his brother Judges who declined to transfer the investigation from the Pune Police to a Special Investigation Team (SIT) appointed by the Court. He cites chapter and verse from several judgements of the same Court (including two that were selectively quoted by his brother Judges) to justify and warrant the Court, in this instance, to appoint an SIT, hand-picked by itself and to also ensure a fair monitoring of investigation.

In NHRC v/s State of Gujarat, the now famed Gujarat case in which the SC exercised the writ of continuing mandamus as laid down in Vineet Narain v/s Union of India, and in a slew of other cases (Ram Jethmalani v/s Union of India, Narmadabai v/s State of Gujarat & Ors, Sunita Devi v/s Union of India, Common Cause v/s Union of India) an SIT had been appointed because there were strong reasons to assume and presume a miscarriage of justice by local investigating agencies. Justice Chandrachud points out that in two cases where the prayer for the appointment of a SIT was declined, there were other extenuating reasons for not appointing an SIT.

On other crucial points too, this dissent is a sobering comment on the tendencies of investigating agencies to use electronic media to conduct high orchestration media trials against political dissenters and human rights defenders who are already involved in the vocalisation of democratic rights and infringement of fundamental freedoms before the state. It is, however, unlikely that this tendency will be curbed unless Media Monitoring Bodies like the National Statutory Broadcasting Authority (NBSA) — the authority to get electronic media to adhere to procedures — and the Press Council (for print media) take serious cognisance of this judicial reprimand.

Even the advocates for the state and the state, on affidavit, have deliberately confused and collapsed the literature of supposedly banned organisations (heavily quoting from the literature of the banned CPI-ML) without in any way establishing that the five public activists and intellectuals had any connections to this outfit.

High octane trials in the electronic media by compliant agencies have increasingly become the hand-maidens of a vicarious executive. On this count too, Justice Chandrachud’s judgement puts the police in their place. The police are not adjudicators (a role given through our Constitution to the Judiciary) and neither are they qualified or supposed to pronounce innocence or guilt. Says the dissenting judgement, “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.” It is to be fervently hoped that the Pune Police, which has been permitted by the majority judgement to continue with the investigation, will view these words with sobriety and responsibility.

Abuse of power happens, often through not just the denial of substantive justice but through deliberate lapses in procedural law. The dramatic countrywide arrests of Sudha Bhardwaj, Gautam Navlakha, Varavara Rao, Arun Ferreira and Vernon Gonsalves on August 28, 2018, is a study in this. The laws of seizure and raid were followed in their breach. The Panch Document and Seizure Memo were in a language that those being accused could not understand. Panch witnesses were imported to Delhi and Mumbai from Pune by the police, violating provisions of the Criminal Procedure Code. The two Panch witnesses are employees of the Pune Municipal Corporation. It was not disputed before the Supreme Court that they travelled as part of the police team which made the arrest.

Section 41B of Code of Criminal Procedure emphasises the importance of an independent witness while making an arrest. Section 41B of the Code provides as follows:

“Every police officer while making an arrest shall-

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be-

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.”

Twenty one years ago, in DK Basu v State of West Bengal  — yet another historic judgement of the Supreme Court not followed by investigating agencies — the Indian Supreme Court had laid down requirements to be followed in all cases of arrest, which include:

“(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such a memo shall be attested by at least one witness, who may either be a member of the family of the arrestee of a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.”

In their hurry to enact a quasi-political drama, the Pune Police abused all these norms. The SC’s dissenting judgement points this out. What needs to be ensured is an adherence to law and procedure, however, it is still a huge challenge. While the dissenting judgement in Romila Thapar lends some home and handle to India’s democratic movement, unless institutions of the Executive and Legislature take note and with an exercise in sobriety imbibe what is being said, more such travesties can be expected to unfold.

In today’s political climate, it is not insignificant to note the manner in which the Maharashtra Chief Minister, Devendra Fadnavis, welcomed the majority verdict. There was no degree of sobriety or humility. His words, as that of the president of the ruling party, gave a signal to the investigating agencies — something that those concerned with deepening of democratic space should note.

There can be little question that the arrests were made not just to incarcerate five lawyers/activists and intellectuals committed to the battle for the democratic rights of India’s marginalised, but to also send a message to thousands of others down the line. The majority verdict of India’s highest court declines to accept that this was an attack on democratic dissent while the minority judgement squarely says that it is. Loose and irresponsible stories guaranteed to raise passions (like possible threats to the prime minister’s life) were floated, without evidence to justify the witch-hunt. If a regime and government, be it central or state, gets desperate enough to manipulate a system in this fashion, and the Court does not intervene, it could render Articles 14 and 21 hollow.

Today, we have to accept that the wise words in the dissenting judgement were a minority verdict. The battle is still on. Not just for these five activists in appropriate fora (other Courts) but for all us citizens to challenge the draconian provisions of the UAPA.

The complete original article may be read here.