KAMAL MITRA CHENOY
A number of severe laws have been existing in the annals of Indian politics and society. We often fail to assess them.
For example, the British mandated a new law in 1942, which came to be known as the Armed Forces Special Powers Ordinance, 1942. This law was promulgated to crush the Quit India movement.
Later, it became a feared Act — the Armed Forces Special Powers Act — used by the Army to crush insurgency.
Then, the Indian state promulgated a host of anti-terror laws.
These included (not necessarily in that order) the MISA (Maintenance of Internal Security Act), POTA (Prevention of Terrorism Act), and, of course, the UAPA (Unlawful Activities Prevention Act), among others.
This has strongly influenced the Army and police in their fight against terrorism.
But have the five activists jailed in the “urban Naxal” case been violating any of these laws?
There were three sets of lawyers involved:
Additional solicitor general Tushar Mehta tried to prove the five activists — Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and Gautam Navlakha — guilty.
He took the bench through the allegedly recovered documents, including pen drives, laptops and hard discs.
Justice DY Chandrachud clearly stated, “We cannot sacrifice liberty at the altar of conjectures.”
When Mehta persisted that the judges should look at the evidence at length and not at a “few pages”, Justice Chandrachud stated, “Of course we will take a holistic view after going through the entire set of documents that would be shown to us. We will look at the evidence, but with a hawk eye.”
Justice Chandrachud also said, “We must differentiate between armed struggle against the government and expression of dissent by a section of people because of generations of suppression. Please keep this distinction in mind while presenting evidence. The shoulders of all, be it the government or the Supreme Court, should be broad enough to take criticism and dissent.”
When Tushar Mehta intervened, advocate Prashant Bhushan interjected and claimed that the letters and documents being cited were “fabricated” evidence.
To this, CJI Dipak Misra bluntly said, “We cannot deal with your allegation… We are at the preliminary stage of finding whether the evidence makes up a prima facie case for police to arrest the petitioners.”
The activists, through counsels AM Singhvi, Anand Grover, Ashwani Kumar, Rajeev Dhavan and Prashant Bhushan, vigorously argued that they were targeted for dissent against the ideology and practices of BJP-led governments and were arrested to muzzle criticism.
They argued that systematically unverified reports were leaked to the press by the Pune Police in an attempt to tarnish their reputation through a “media trial”.
Expectedly, Mehta denied this. He claimed, “The arrests are not remotely connected to their dissent against the government. But if some persons are energising a machinery for planned activities to cause widespread law and order problem in the country, we must look at these with a little more seriousness.”
There lies the paradox.
On the one hand, Mehta was dismissing the allegation that the arrests were connected to the activists’ dissent; on the other hand, he was talking of “energising a machinery”.
If these arrests “are not remotely connected to their dissent against the government”, then why are the five activists accused of wanting to “widespread law and order problem in the country…”?
Senior advocate Ashwini Kumar, who appeared for the petitioners, submitted, “Action against citizens under penal statutes, such as the UAPA, must pass the test of reasonableness, rationality and procedural fairness as mandated under Articles 14 and 21 of the Constitution.”
Senior advocate Abhishek Manu Singhvi contested the Pune police’s claim that a comrade named Prakash, who was identified as Saibaba, had written to these five activists. Singhvi raised questions over the possibility of this as Saibaba has been in jail since March 2017.
He also questioned the process of the Maharashtra police using witnesses from Pune to make arrests in Faridabad.
“What business do the Pune Municipal Corporation employees have in Faridabad?” Singhvi asked as he contended that the five activists were arrested because “they had been writing strongly against the other arrests made in June”.
Senior advocate Anand Grover, who appeared for those arrested in June, said that the Pune police had lodged two FIRs on the Bhima Koregaon violence. The second FIR cannot be used for starting a fresh investigation, when the first FIR is pending, he argued. He also pointed out that the police had not complied with any procedure while making the arrests. It was a fit case for being sent for an independent investigation, he said.
Seeking an independent inquiry, senior advocate Rajeev Dhavan also said that the unfairness began with the police going to the media with evidence.
The accused were “five respectable people who had been writing for a long time,” he said, adding that the case “is nothing more than a relentless pursuit of some people.”
“You target liberal and Left people,” he said, remarking, “(the) court will have to see if Pune police have targeted these people again and again and again.”
These are very serious issues here.
Why was the “evidence” shown to the media?
This would mean that the media could prejudge the later proceedings.
The very “contradiction” underlying Tushar Mehta’s argument; “falsely” linking Saibaba to the activists — all these take us to a much larger debate.
The Romans would say reductio ad absurdum — reducing an untenable charge to the absurd.
The trial is not over yet.
But those who follow it will see for themselves how the police apparently often create their own evidence.
Or, they delay it.
As the dictum goes, justice delayed is justice denied.