Justice Chandrachud’s soaring dissent is an appeal to the brooding spirit of lawAbhishek Singhvi
All fundamental rights are vital but if forced to prioritise, liberty must stand first. Judges must bend over backwards to exercise that bit of extra discretion to uphold liberty, more than any other virtuous goal of our Constitution. Sadly, the Supreme Court (SC) in its majority judgment in Koregaon Bhima (KB) fails this acid test while Justice Chandrachud’s soaring dissent is likely to find a resounding echo in a future majority.
As i was the lead (and losing) counsel for the petitioners you are entitled to discount everything in this article, ascribing it to a poor loser. But my sense of dissatisfaction arises not from the loss but simply because the core and dispositive issues argued were not even addressed, even by way of rejection, by the majority.
Additionally, two press conferences by the police flashed 13 letters selectively insinuating guilt, but the letters were not placed in SC nor mentioned in the transit remand. No fresh FIR was filed regarding the PM assassination plot and, as the dissent tellingly points out, “no effort has been made by the ASG to submit that any such investigation is being conducted in regard to five individuals (petitioners). On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the PM. Nor does the counter affidavit make any averment to that effect”. None of this is mentioned in the majority.
The alleged materials against arrestees were gathered from third persons and the PM plot was based upon letters sent or received by one “Comrade R”. A final trial court judgment after full trial convicted Saibaba and returned a judicial finding that Comrade R was in fact none other than Saibaba, who was admittedly always under police/ judicial custody from months before the allegedly inculpatory letters were written. How a convict under custody could write or receive letters plotting to assassinate the PM remains a grand mystery which the majority does not even note. One letter appeared to be an obvious fabrication since it has over 17 references to words ascribed in Devnagari using Marathi forms of grammar and address, while the alleged author Sudha is non-Marathi.
Law mandates the presence of at least one independent witness who is a respectable member of the locality where the arrest is made, whereas the two Panch witnesses in the KB case are admittedly employees of the Pune Municipal Corporation who admittedly travelled with the police from Pune to Faridabad! Both this and the fact that 99.99% of the over 50 prior criminal cases collectively attributed to the arrestees had led to discharge, acquittal or quashing are ignored. The majority does not even note the total absence of evidence showing membership of CPI (Maoist), much less activity by arrestees on behalf of it and ignores the many judicial precedents appointing SITs and holding direct petitions in SC to be maintainable.
It oversimplifies by addressing only two points, viz whether the investigating agency should be changed at the behest of the five accused and whether a SIT should be appointed. As is obvious, even these two issues are opposite sides of the same coin. The other issues relating to locus had vanished as the arrestees themselves had filed applications directly in the SC.
Ironically, this sole issue on which the entire operative part of the majority (from paras 20 to 37) is based also does not arise for the simple reason that the petitioners had repeated in writing and oral arguments that they wanted neither exemption from investigation nor transfer from or substitution of the investigating agency. An SIT was only asked for supervisory purposes to lend independence and credibility to the investigation, which would continue to be done by the state prosecuting agencies.
By contrast, the dissent is masterful in its language, eloquence, comprehensiveness and soaring spirit. It will, in times to come, indubitably satisfy the prophetic words of a former US SC chief justice: “A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.”
Each one of the relevant probative issues listed above (and ignored by the majority) has been painstakingly addressed in the dissent. The judicial precedents cited by the petitioners have been approbated while state citations have been carefully and convincingly distinguished. The dissent sees judicial interference on such core issues of liberty as the “constitutional duty of the court so that justice is not compromised” and “not derailed”. It treats a fair investigative process as “the basic entitlement of every citizen faced with allegations of criminal wrongdoings” and “dissent as a symbol of a vibrant democracy (where) voices in opposition cannot be muzzled by persecuting those who take unpopular causes.