Review petition dismissed without reason in activists’ arrest case

Published : Oct 30, 2018 16:15 IST

On October 26, the Supreme Court bench of Chief Justice of India Ranjan Gogoi and Justices A.M. Khanwilkar and D.Y. Chandrachud dismissed a review petition that sought reconsideration of the court’s September 28 judgment in Romila Thapar and others vs Union of India .  The dismissal, without any reasoning, may have had an unintended fallout.  

On Monday, the Supreme Court stayed an order passed by the Bombay High Court which denied the Maharashtra police the 90-day extension it sought to complete its investigation and file a charge sheet against the lawyer Surendra Gadling and others accused of Maoist links in the aftermath of the Bhima-Koregaon violence in January. The High Court’s October 24 order had led to hopes that the accused could seek default bail as the police failed to file a charge sheet within the mandatory period.

On Monday, the Supreme Court also asked the activist Gautam Navlakha to respond in two weeks to the Maharashtra government’s plea against a Delhi High Court order setting aside his transit remand in the Bhima Koregaon case and releasing him from house arrest. Navlakha was one of the five well-known activists who were arrested by the Pune police in August in connection with the Bhima-Koregaon violence. The others were Sudha Bharadwaj, Vernon Gonsalves, Varavara Rao and Arun Ferreira.

In a 2:1 judgment on September 28, the Supreme Court bench comprising the then CJI, Dipak Misra, and Justices Khanwilkar and D.Y. Chandrachud (who dissented) rejected the plea for a Supreme Court monitored Special Investigation Team to investigate the allegations against the five activists. The Supreme Court had given these activists interim protection of house arrest.

While dismissing the writ petitions filed by eminent persons, namely, Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Daruwalla, and later by four of the arrested activists themselves, the Supreme Court gave the activists the liberty to seek all remedies from other fora available to them.

The review petition was filed by the five eminent persons as well as the four activists, who are under house arrest. The review petition pointed out that the majority judges did not consider the material facts and particulars having a direct bearing on the case and legal submissions, including the binding precedents of the Supreme Court, resulting in grave miscarriage of justice.

Review petitions are generally decided by circulation among the judges who hear them, requests for open hearing in court are rarely entertained. Although the petitioners made a plea for open hearing in this case, the bench disagreed and declined it without giving reasons.

Errors apparent

The major flaw in the September 28 judgment, the petitioners said in the review petition, was that the majority opinion deemed the arrested accused persons as the petitioners in the case, yet concluded that the prayers in the writ petition were not maintainable “at the behest of the next friend of the accused or in the garb of a PIL”.

As review petitions are accepted only if errors apparent on the face of the record of the judgment are pointed out by the petitioners, a number of such errors were highlighted in the review petition.  The prayer for appointment of a SIT, although maintainable in law and on facts, was ignored by the majority judges. The Supreme Court had held in many cases that in a PIL no directions can be passed for constitution of an SIT unless the litigant is bona fide. Thus, no anonymous PILs can be entertained by courts. The present petition could in no way be described as one.

The petitioners pointed out that in order to provide credibility and instil confidence in investigations, the Supreme Court had intervened in extraordinary circumstances. In the present case, the mala fide manner of the police investigation, through illegal arrests, searches, seizures, and media leaks prejudicing the accused while the matter is pending in court, reeked of bias on the part of the police, the petitioners stated and added that, therefore, the Supreme Court had the constitutional duty and ample power to direct the setting up of an SIT or to monitor the investigation. 

Besides, it was alleged that the Pune police, which carried out the arrests, was guilty of grave breach of the law and the violation of mandatory legal guarantees to the accused.

The majority judges had also ignored statements by former Judges Justice P.B. Sawant, of the Supreme Court, and Justice J. Kolse Patil, of the High Court, that the arrested persons were in no way associated with or linked to the organisation of the Elgar Parishad. The FIR registered against the activists referred to the parishad programme and the violence that followed it. None of the arrested activists was present during the programme. Instead, the majority judges relied on unsubstantiated, vague and bald assertions of the Maharashtra government to reject the plea for a SIT, the review petitioners contended.

With the retirement of Dipak Misra on October 2, it was felt that the new bench in which two of the judges, namely, the current CJI, Ranjan Gogoi, and Justice Chandrachud were present and who did not constitute the majority in the September judgment, might be inclined to consider the review plea with sensitivity and understanding.  But their non-reasoned order with the cliche that the review petition did not show “any error apparent on the face of the record” was a disappointment to the civil society.

The dismissal of the review petition is contrasted with the ourt’s decision to reconsider a review plea against the court’s judgment in the Sabarimala case in open court on November 13. The Sabarimala judgment led to widespread protests from devotees in Kerala, and the resultant uproar and the number of review petitions filed (nearly 19) apparently led to the court agreeing to hear the arguments in open court. The question whether the activists suffer merely because the protest against their arrests was not vociferous lingers.

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