In pursuit of justice

On September 6, as a three-judge bench of the Supreme Court comprising Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud resumed hearing a petition filed by Romila Thapar and four other eminent persons on behalf of five human rights activists arrested by the Pune Police, the counsel for Maharashtra, Additional Solicitor General Tushar Mehta, began by questioning the locus standi of the petitioners.

In plain English, he asked how the petitioners could file a case on behalf of the activists because the petitioners, not being activists themselves, had not suffered any personal injury at the hands of the state. Nor were they related to the activists to claim that their rights also suffered as a result of their incarceration.

The four eminent persons who joined Romila Thapar in knocking on the doors of the Supreme Court were Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Daruwala.

The bench, however, told Mehta that the arrested activists wanted to be made parties to the case. Senior counsel Indira Jaising, appearing for the petitioners, disclosed that the wife of one of the arrested persons had already filed an impleadment motion and had sought the court’s permission to produce some additional documents pertaining to the arrests of other activists made in June.

Mehta, however, argued that support for arrested persons could not wipe away the lack of locus standi and urged the court to decide the issue before examining the merits of the case.

In the infamous habeas corpus case of 1975, the Supreme Court’s five-judge bench, with the sole dissent by Justice H.R. Khanna, had reached the following conclusion in A.D.M. Jabalpur vs Shivkant Shukla :

“In view of the Presidential Order dated June 27, 1975, no person has any locus to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”

The Presidential Order referred to was the one issued after the declaration of the Emergency, suspending the right of any person to move any court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above-mentioned rights for the period during which the Proclamation of Emergency was in force.

Nine High Courts had declared that they could entertain a writ of habeas corpus filed by a person challenging his detention during the Emergency. They held that despite the suspension of fundamental rights, a person detained could demonstrate that their detention was not in compliance with the law, or that the state action was mala fide , or that there was a mistake of identity.

The then Attorney General, Niren De, submitted to the Supreme Court on December 14, 1975, that since the right to move any court had been suspended, the detenu had no locus standi and their writ petitions would necessarily have to be dismissed.

The next day, Justice Khanna asked Niren De in the open court thus: “Life is also mentioned in Article 21 and would the Centre’s argument extend to it also?” Niren De spontaneously answered: “Even if life was taken away illegally, courts are helpless.”

In 1975, the Centre’s contention was that the detenu himself had no locus standi because of the suspension of fundamental rights during the Emergency—a submission which four of the five judges unfortunately endorsed. The judgment in A.D.M. Jabalpur was formally overruled only last year in the Puttaswamy case by a nine-judge bench, which upheld the right to privacy as a fundamental right. The majority ruling in A.D.M. Jabalpur was, however, impliedly overruled by the subsequent 44th Amendment to the Constitution during the Janata government rule in 1978, and by the judiciary itself, which refrained from relying on its substantive decision although it had not been formally overruled all these years.

In 2018, the Centre argues before the Supreme Court in the Romila Thapar case that the petitioners, not being detenus or their relatives have no locus standi and that this infirmity cannot be remedied by subsequent addition of the names of relatives of the detenues. Although the fundamental rights have not been suspended today as they were in 1975 when the habeas corpus case was heard, the Centre’s legal defence is the same: the petitioners have no locus standi . The parallel between A.D.M. Jabalpur and Romila Thapar cannot be missed despite the passage of time and the change in the circumstances.

Present petition

Romila Thapar’s petition sought to bring on record the gross abuse of police power in the country aimed at stifling independent voices and ideologies different from those espoused by the party in power. The arrest of activists without credible evidence is not only to silence dissent but to stop them from helping downtrodden and marginalised people across the nation and to instil fear in the minds of the people, the petition alleged. Therefore, the petition sought the Supreme Court’s intervention to stop the ongoing investigation into the allegations against the activists and ensure independent and credible investigation under the court’s supervision.

The use of the Unlawful Activities (Prevention) Act, 1967, against them, when there has been no evidence of any acts of violence by them, was “deeply disconcerting and calls for an urgent intervention by the Supreme Court”, the petition said.

The targeting and persecution of political and ideological opponents/adversaries through abuse and untenable use of legal processes runs contrary to the core tenets of the “rule of law” which governs our society, the petition added.

The petition further stated that ideological and political persecution by the state was recognised as a violation of the rights of individuals under the Constitution and under international human rights law, including the International Covenant on Civil and Political Rights, which India ratified in 1976.

An interesting question raised by the petition pertains to whether a citizen has a legal remedy against the “chilling effect” which the state’s abuse of law against the accused entails. This also partly answers the Centre’s contention that the petitioners lack locus standi .

The petition thus contended:

“The arbitrary, motivated arrests and rampant misuse of special laws like the UAPA [Unlawful Activities (Prevention) Act] to muzzle free speech, dissent and political expression will not only violate the fundamental rights of the persons arrested, but also have a chilling effect on all citizens, who will be unable to enjoy their fundamental rights guaranteed by Articles 19 and 21 to the fullest, in fear of similar repercussions to their life and liberty.”

The petition argued that the issue of locus standi has been broadened over the years by the Supreme Court in the jurisprudence of Article 32, as detailed in Janata Dal vs H.S. Chowdhary (1992), and therefore, the petitioners in this case were covered by the broad scope of the provision as expanded by the court in that case.

The Supreme Court held in that case that the right of locus standi was available to any member of the public acting bona fide and having sufficient interest in instituting an action for redress of public wrong or public injury, but who was not a mere busybody or a meddlesome interloper. The dominant object of public interest litigation (PIL), the court held, was to ensure observance of the provisions of the Constitution or the law.

The court added in that case that in defining the rule of locus standi , no “rigid litmus test” could be applied since the broad contours of PIL were still developing, seemingly with divergent views on several aspects of the concept of this newly developed law and discovered jurisdiction leading to a rapid transformation of judicial activism with a far-reaching change both in the nature and form of the judicial process.

In Janatal Dal vs H.S. Chowdhary , the respondent had sought the quashing of the case against the accused in the Bofors case, and both the Delhi High Court and the Supreme Court concluded that he did not have the semblance of public interest litigant and, therefore, had no locus standi .

The Delhi High Court, however, suo motu initiated proceedings to quash the charges against the accused in the Bofors case. The Supreme Court, on an appeal by the Janata Dal, found the High Court’s order unsustainable and allowed the criminal trial against the Bofors accused to continue.

On September 6, Indira Jaising told the Supreme Court that the petitioners did not seek to quash the first information report registered against the activists, but only wanted an independent investigation of the State police’s so-called investigation of the allegations against the accused.

More importantly, she requested the Supreme Court to issue an injunction forbidding the police from releasing any further “letters” or “reports” concerning the arrests to the media, as that would deny the accused a fair trial.

Although Mehta opposed this plea, the bench was sympathetic to her concerns and directed the Maharashtra police to ensure responsible behaviour. Justice Chandrachud observed that some of the observations by the police at their press conference amounted to insinuations against the hearing of the case by the Supreme Court.

To this, Mehta apologised on behalf of the State police, but it was not clear why he was opposing the plea for a formal injunction against the State police from sharing details of its so-called investigation with the media. The State and the Centre apparently believe that media trials by friendly media are important in swaying public opinion in favour of the unjustified arrests.

As the Supreme Court adjourned its hearing of the case until September 12 and allowed the activists’ house arrests to continue until that date, the lack of response of the State government to the notice of the National Human Rights Commission (NHRC) on the arrests of other activists in June was expected to cast a shadow over the Supreme Court’s proceedings.

If the State government were sincere about its claims to the court that it had evidence of the activists’ complicity in the offences alleged to have been committed by them, why did it not respond to the NHRC’s notice issued to it in June on the arrests of five human rights defenders?

The defenders were Surendra Gadling, Rona Wilson, Sudhir Dhawale, Shoma Sen and Mahesh Raut. The NHRC issued a notice on June 29 to the Director General of Police (DGP), Maharashtra, calling for a report in the matter within four weeks.

On August 29, the NHRC issued a fresh notice to the State Chief Secretary and the DGP on the basis of media reports about the arrest of five activists on August 28 in connection with the investigations in the Bhima Koregaon violence.

The commission observed that “it appears, the standard operating procedure (SOP) in connection with these arrests has not been properly followed by the police authorities, which may amount to violation of their human rights”.

Although the NHRC has sought a factual report from the State government within four weeks, it is unlikely that the State will respond, unless there is pressure from the Supreme Court and civil society to do so. Apart from the future of civil liberties, the integrity of the institutions is at stake, as it conveys that State governments can ignore directions issued by the NHRC.

Scope of dissent

After the incident at Bhima Koregaon, an FIR was lodged on January 8. The names of the activists Stan Swamy, Arun Ferreira, P. Varavara Rao, Vernon Gonsalves, Sudha Bharadwaj, Gautam Navlakha and Anand Teltumbde were added on the FIR on August 23, after a gap of about eight months. The charges mentioned in the FIR are under Sections 153(A), (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.), 505 (1)(b) (causing fear or alarm to the public inducing persons to commit offences against the state and public tranquillity), 117 (abetting commission of offence by the public or by more than 10 persons) and 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC). Later, sections dealing with the offence of conspiracy and the UAPA were added to it.

During the hearing on August 28, Justice Chandrachud expressed his anguish to the counsel for the State thus: “Dissent is the safety valve of democracy. If you don’t allow dissent, the pressure valve of democracy will burst.” This was in response to the State government’s insistence that the arrests took place in pursuance of the FIR.

The Maharashtra police have successfully secured the magistrate custody remand for 90 more days under the UAPA for those accused, arrested on June 6, before filing the charge sheet in the case. Under Section 167 of the Code of Criminal Procedure (CrPC), an accused, pending investigation, can be detained in custody, by the orders of the magistrate, for 90 days, where the offence alleged is punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years.

UAPA provisions

Section 43D of the UAPA, however, enhances the period of such detention to 180 days if the public prosecutor satisfies the court that it has not been possible to complete the investigation within 90 days. The inability of the police to complete the investigation and gather the evidence, if available, in the case within the first 90 days of arrest, for those arrested in June, raises the question whether the police intend the process itself to inflict the punishment on the accused.

Therefore, the Supreme Court’s direction of keeping the activists arrested on August 28 under “house arrest” until September 12, rather than allowing them their privilege of seeking bail from the High Courts, is likely to be seen as depriving them of their liberties in a manner not foreseen by law.

Section 43D(5) of the UAPA prevents courts from granting bail to the accused if the police report presents prima facie evidence of wrongdoing and the public prosecutor has been given an opportunity of being heard on the bail application for such release.

According to many observers, this has made it easier for the government to keep suspects in jail for long periods of time before they get a fair opportunity to defend themselves.

The Supreme Court’s hearing of the case is also likely to throw light on the relevance of its 2011 judgment, delivered by a bench of Justice Markandey Katju and Justice Gyan Sudha Misra, in Arup Bhuyan vs State of Assam .

The court held in that case that mere membership of a banned organisation would not incriminate a person unless he resorted or incited people to violence or intended to create disorder or disturb public peace by resorting to violence. Therefore, the court found the conviction of the appellant in that case under Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act (TADA) unsustainable.

Under this provision, any person who is a member of a terrorist gang or a terrorist organisation that is involved in terrorist acts shall be punishable with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Although TADA lapsed long ago, the cases registered under the Act when it was in force continue in courts.

In 2016, the Centre asked the Supreme Court to reconsider its judgment in Arup Bhuyan as it claimed that High Courts were releasing members of banned outfits, making it tough for security agencies to deal with emerging challenges. The Centre’s review petition has been referred to a larger bench.