Majority judgment in Activists-Advocates arrest case amounts to authorisation by the highest court in the country
 We welcome the minority judgement in this matter

The People’s Lawyers Forum denounces the majority judgment of the Supreme Court in the case of Romila Thapar v Union of India, WP (Cri) No. 260 of 2018 dated 28.09.2018, and wholeheartedly welcomes the minority judgment in this case. This case relates to the recent arrests of five human rights activists including two advocates purportedly in relation to the Bhima Koregaon violence. These arrests have been made with the sole motive of suppressing political dissent of those who represent the marginalised sections of society. The judges in the majority have failed in their duty as Justices – to ensure the constitutional rights of the people. The golden triangle of fundamental rights enshrined in Articles 14, 19 and 21 has been violated in each aspect inasmuch as the Maharashtra police have arbitrarily violated the arrested activists rights under Article 19, resulting in a violation of their right to a dignified life and liberty. The arrests are a blatant attack on the right of advocates to represent whom they choose. They seem to be part of a larger plan to stifle any political opposition that challenges the government’s scheme to develop India at the expense of the masses.

The police claim that the violence at the Elgar parishad last year was caused by incendiary statement prompted by unlawful Maoist organisations. In fact, the Elgar Parishad was organised by retired justices PB Sawant and BG Kolse Patil, both of whom have firmly rejected the participation of any illegal organisation. It is to be highlighted that the actual perpetrators of the Bhima Koregaon violence are right wing Hindutva leaders, who were implicated in the first FIR in relation to this violence. One of the perpetrators was never arrested and the other was released on bail within a month.
Notably, though both the majority and dissenting judgments accept that at this stage, an elaborate examination of the investigative materials ought not to be conducted by the court, they reach dramatically different conclusions on the basis of the material available to them.

In this case, the arrested five were neither present at the incident, nor implicated in the FIR. Though the Maharashtra police have stated that their actions were not politically motivated, but relate to the connection of the arrested with banned organisations, their duplicity is revealed by their own actions. The failure of the Maharashtra police to follow due process can be seen from the media trial they have promoted to vilify the arrested. Notably, many fabricated letters were leaked to the public, and do not form a part of the case diary. Incendiary and unsubstantiated allegations of a plot to assassinate Modi were disclosed. However, no FIR has been filed in this regard, nor, as the Ld. ASG himself admitted, is any investigation in respect to the same being undergone. ‘Independent’ Panch witnesses were brought from Maharashtra to authenticate the arrest memos. Sudha Bhardwaj and Gautam Navlakha were not given translations of the FIR against them, nor of the seizure report.

However, the majority do not see the above as sufficient illustration of the mala fide exercise of state power by the Maharashtra police, and hold that-

‘In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough.’

Further, the court looks at precedent to show that accused persons cannot have any say in the investigating authority.
On the other hand, Chandrachud, J in his dissent attempts an objective determination of substance of grievance instead of focusing on technicalities. He notes that the jurisdiction of the lower courts was not being usurped, and the petitioners were only challenging the persecution of the arrested five. He notes that the petitioners had not sought that the investigation be terminated, but only that it be independent and credible. He looks at the decisional flexibility in exercise of jurisdiction to constitute as SIT and holds that the extraordinary circumstances of this case warranted the same.

Chandrachud states that the conduct of the police seems to be unfair, inasmuch as their oblique tactics of selectively flashing inflammatory letters, which do not form part of the case diary amount to a trial by the media and the police. He highlights the distinction between specific and general allegations of unlawful activities, and discusses, as well, the prominence of the freedom of liberty. He states,

Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.’

Ultimately, his dissent focuses on the duty of the court to protect the fundamental rights of the citizens of India.
The arrested people have been continuously targeted, and most of them have faced criminal proceedings. Varavara Rao was implicated in as many as 25 cases, and Arun Ferriera in 11. Vernon Gonzalves was acquitted in as many as 17 criminal cases, and an appeal against a single conviction is pending. These figures illustrate the fact that the State is targeting activists particularly, even without evidence.

At this juncture, it is important to remember that the Supreme Court has, on multiple occasions, rejected the doctrine of ‘guilt by association’. It has therefore been held that mere membership of a banned organisation will not be punishable (See, State of Kerala v. Raneef, (2011) 1 SCC 784; Arup Bhuyan v. State of Assam, (2011)3SCC377) Further, it is trite law that Advocates have the right to represent.

The arrests clearly highlight to power of the state to misuse and abuse its draconian powers under regressive and draconian legislation like the UAPA, which, in the name of national security and public interest permit the attack of the fundamental right to life and liberty. The Petitioners have released a statement on the judgment stating that the arrests practically amount to state terrorism inasmuch as people are seriously prejudiced for not conforming to the dominant political philosophy.
In the last month, the Supreme Court has made a number of landmark judgements relating to civil rights, on adultery, Article 377, and Sabarimala. In each of these, the majority judgment has taken a progressive approach, in line with the furtherance of fundamental rights. On the other hand, the landmark judgments of the Supreme Court relating to political rights have not met the same fate. In the Aadhar judgment as well as this Bhima Koregaon judgment, the passivity of the court in the face of blatant violations of fundamental rights is shocking. The alarming conformity of the Court to the dominant political view in respect of these cases must be condemned in the strictest of terms.


The arrests must be seen as significant to each person, especially in terms of their severe violation of the fundamental rights of Indians. The Supreme Court has upheld the permissibility of arbitrary arrests despite due process not being followed. The majority judgment amounts to authorisation by the highest court in the country of the blatant violation of fundamental rights, which is sure to result in a chilling effect on dissent.