Day 5 Arguments: 19th September, 2018

The Court heard the matter from 11.30AM until the end of the day. The petitioners labeled the Police's investigation as biased and unfair, and demanded a Court monitored investigation. The respondents argued that the Police had followed proper procedure. For the first time in the hearings, the Court categorically asked ASG Tushar Mehta to present evidence that could justify the arrests. Upon viewing the evidence presented, Justice DY Chandrachud remarked that an individual’s liberty cannot be sacrificed at the ‘altar of conjecture’.


The Court did not entertain questions regarding the locus standi -- the right to be heard in Court -- of the petitioners.


What happened previously?

During the previous hearing, ASG Mehta and ASG Singh both argued that the Court should not hear the petition. Mr. Mehta questioned the locus standi of the petitioners, while Mr. Singh argued that the Court would set a poor precedent if it were to hear the matter. On the other hand, Mr. AM Singhvi, Mr. Dhawan and Mr. Kumar argued that the Court ought to hear the petition not only as a criminal matter, but also as a fundamental rights matter. They argued that the arrests violated the fundamental rights to free expression (Article 19) and life and personal liberty (Article 21).


Pre-Lunch Hearing

Mr. AM Singhvi opened arguments. He called into question the accuracy of key material evidence. In particular, he focused on the letters which established the activists' alleged plans to assassinate PM Modi. One of the letters is addressed to a 'Comrade Prakash' of the banned Communist Party of India (Maoist). Mr. AM Singhvi submitted that the man the Maharashtra Police have identified as Comrade Prakash has been under arrest since 2017. The letters are dated post-June 2018. Mr. AM Singhvi questioned how the activists could have been plotting to assassinate PM Modi with a man who was in prison. He concluded that the letters are fabricated.


Mr. Singhvi questioned the reliability of the independent witness who accompanied the Police during 'search and seizure'.  Next, he countered the claim that the arrested individuals have a past history of criminality. He emphasised that Varavara Rao and Arun Ferreira (two of the accused) have been acquitted in previous cases lodged against them. Varavara Rao has been acquitted in all cases, while Arun Ferreira has been acquitted in seventeen out of nineteen cases.


Mr. Singhvi said the Court needed to order either an independent investigation or a Court monitered investigation. He pointed to previous Supreme Court judgements that formed Special Investigation Teams in response to serious procedural lapses on behalf of the Police.


Next, Mr. Anand Grover spoke. Mr. Grover represents an intervenor, Meenal Gadling. Ms. Gadling is the wife of Surendra Gadling, one of five activists arrested in June on similar charges. Mr. Grover also called for an independent investigation via an SIT. He claimed that the June arrests lacked proper authorisation as stipulated by Section 43 of Unlawful Activities Prevention Act (UAPA). Mr. Anand Grover submitted that the arrests were hence illegal.


Post-Lunch Hearing

Mr. Ashwani Kumar, representing the intervenor Satish Jacob, opened arguments. He submitted that the current case is about ensuring constitutional guarantees. He argued citizens need to be re-assured that the State will not unfairly target individuals for exercising their right to free speech. Mr. Kumar stated that there exists no basis for the arrests and that the Police committed serious procedural lapses. He concluded by calling for the Court to defend dignity, a core tenet of the right to liberty guaranteed by Article 21. He asserted that the arbitrary nature of the arrests has violated the dignity of the accused.


Next, Mr. Rajeev Dhavan made arguments on behalf of the petitioner Ms. Romila Thapar. In response to ASG Mehta's previous arguments, he submitted that the locus standi of the petitioners is no longer in question.


Mr. Dhavan called for the Court to scrutinize the blatant procedural lapses in the investigation. He labeled it an 'unfair investigation' and accused the Police of conducting a 'trial by media'. He questioned how the Police could hold a press briefing on an on-going criminal trial, alluding to Maharashra Addl Director General PB Singh’s press briefing where he said that activists have a clear link to Maoists.


Mr. Dhavan. accused the police of presuming the activists' guilt prior to commencing their investigation. He submitted that the Elgar Parishad meeting was organized by two retired judges, Supreme Court Justice PB Sawnt and Bombay High Court Justice BG Kolse Patill. The retired judges have stated on record that the activists were invited by the judges to attend the Elgar Parishad. Further, the judges have stated that no unlawful activities could be attributed to the event. Mr. Dhavan concluded that the Police failed to consider the former judges statements prior to making the arrests. He suggested that this shows the Police's malice towards the accused.


Mr. Dhawan concluded by saying this ‘extraordinary case’ requires a probe by a SIT. He described the police action as a clamp down on the freedom of expression.


Next, Mr. Prashant Bhushan spoke on behalf of the petitioners. He focused on the two First Information Reports (FIR) that led to the arrests. The two FIRs were filed in relation to the Bhima Koregaon violence. He submitted that the arrests were made not on the basis of the FIRs, but rather on the retrieved letters which were leaked to the media. He added that the letters never reference any of the arrested activists. He concluded that the arrests were politically motivated and aimed at intimidating citizens who are critical of the government.


ASG Tushar Mehta made arguments on behalf of the Union, defending the Police’s investigation. He went over the evidenced collected so far. First, he produced the Court orders which authorized the searches that led to the June arrests. Then, he showed how the case diary accurately recorded al items recovered during searches. He maintained that the June arrests of activist Rona Wilson and lawyer Surendra Gadling were made upon recovery of incriminating materials from their residence.  


Next, Mr. Mehta proceeded to defend the Maharashtra Police's claim that 'Comrade Prakash' is Professor Saibaba. ‘Comrade Prakash’ allegedly wrote and received letters which discuss a plan to assassinate PM Modi.  Mr. Mehta established that Saibaba is known for taking aliases. He referenced a trial court judgment that states ‘Comrade Prakash’ is Professor Saibaba. Note, Professor Saibaba, not under any aliases, is known to have been in contact with the accused. Note also, Mr. Mehta did not address Mr. Singhvi's point about Professor Saibaba being under Police custody at the time the letters were allegedly sent.


Chief Justice Dipak Misra asked Mr. Mehta to present the Bench with the State’s best piece of evidence.  Mr. Mehta presented letters discovered from the laptop of Rona Wilson, one of the activists arrested in June. The letter was not read out in open Court. The letters are signed by, or, are addressed to someone with the initials 'VV'.


After viewing the evidence, Justice Chandrachud remarked that the State cannot infringe upon an individual’s liberty on the basis of conjecture. He emphasised that the State must distinguish between plots of armed rebellion and ideological writings. He said that the Court will examine all evidence with a ‘hawk's eye’ when considering whether to issue an order under Article 32.


The Bench instructed Mr. Mehta to not produce Elgar Parishad related documents as material evidence. CJI Misra requested ASG Mehta to produce substantial material evidence in the next hearing.


The Bench rose. The next hearing is tomorrow, 20th September.

                                                     (Court reporting by Abhishek Sankritik)