Analysis of procedural lapses during nationwide raids on activists on August 28, 2018
Activist Gautam Navlakha being arrested by the Pune police in Delhi on Tuesday. Image: The Hindu
It is one of those judgements that hold well in statute books, the Basu case that we use, activists, lawyers and all to point out procedures that need to be followed when the state executive (police) wishes to infringe the rights of a citizen: arrest, seize, raid. It is the conclusions in this judgement that we cite to ensure that the rights of persons, often violated with impunity by the police are protected during arrest. This is the DK Basu Judgement of 1996 and also procedures under the CRPC and IPC. (Read a detailed extrapolation of the Basu Guidelines Below)
Reasons for arrest not specified, all documents in Marathi: BenchMost critically, when the Pune Police, with dramatic fanfare conducted countrywide raids, and some arrests they found, when questioned by the High Court that they had no answers! It was when the Maharashtra police was unable to explain the specific offence for detaining journalist and social activist Gautam Navlakha that the Delhi High Court on Tuesday ordered that he should not be taken away from the capital till it heard the case on Wednesday. The High Court was hearing a habeas corpus petition filed on behalf of Mr. Navlakha by his advocate Warisha Farasat after his arrest by the Maharashtra police.
Mr. Navlakha was arrested from a residence in South Delhi’s Nehru Enclave by a Maharashtra Police team from Pune on Tuesday afternoon. He was produced before a local court in Saket that allowed the police to take him and produce him before a local court in Pune. The Bench of Justice S. Muralidhar and Justice Vinod Goel said the documents submitted by the Maharashtra police while seeking the transit remand did not clearly specify why Mr. Navlakha was detained.
When Bench asked the Maharasthra police official, who was present in the courtroom, “what is the specific allegation” against Mr Navlakha, the official could not give any clear answer. Not satisfied with the response, the Bench said it was “not possible to make out from the document (submitted by the Maharashtra police) what precisely was the case against the petitioner (Mr Navlakha)”.
Provisions of Law disregardedBasics Disregarded, Documents not in Language which accused could understand: the provisions of the Criminal Procedure Code regarding search and arrest were not followed as the warrants were in Marathi, which Mr. Navlakha could not understand and the grounds for the action were not given in writing.
Witnesses Imported from Pune, Not Local: The Bench also questioned how the Maharashtra police was able to receive a transit remand order from the local court within half an hour of Mr. Navlakha’s arrest on Tuesday afternoon. Questioning why witnesses were brought from Pune to authenticate the arrest, the court said that under the law, witnesses were supposed to be local persons from the area where an individual was being arrested. It was following these gross anomalies that the Bench said Mr. Navlakha would remain at his residence here under police guard. The High Court will take up Mr. Navlakha’s plea as the first case on Wednesday.
Crucial Aspects ViolatedHow was due process violated in this case? Section 141 of the Code of Criminal Procedure Code grants law enforcement the right, to issue notice and call for questioning, any persons they are investigating for any crime. There was no need at all not to follow this procedure in the present case. These are prominent advocates and activists, their movements are knows and hence this procedure ought to have been followed, says Vijay Hiremath speaking to us. Technically section 141 is meant to apply to those offences for which punishment is less than seven years but there was no need not to follow it in this case. The FIR had been filed in February, the first arrests made in June 2018, why this tamasha now?
Ploy to Delay Charge-sheet in Original Case?Vernon Ferreira sees a plot against human rights activists; Pune police say they are acting on certain evidence: Susan Abraham, the wife of activist Vernon Gonsalves, told The Hindu that Tuesday’s arrests are nothing more than a ploy by the police to gain more time since they had been unable to file a charge sheet in the original case in which activists were arrested in early June 2018. Mr. Gonsalves, along with Arun Ferreira, Varvara Rao, Sudha Bharadwaj, and Gautam Navlakha, were arrested by the Pune police, allegedly for their involvement in Maoist activities.
Mr. Gonsalves was picked up at his Andheri residence while Ms. Abraham and their son Sagar were in the house. “Under the Unlawful Activities Prevention Act (UAPA), the police need to file a charge sheet within 90 days of the arrest, failing which the accused have the right to apply for bail. The deadline for filing a charge sheet against the five activists arrested earlier expires on September 6. With Tuesday’s arrests, the police can seek an extension claiming new facts have come to light which need to be probed,” Ms. Abraham said.
On June 7, the police had arrested Rona Wilson, Surendra Gadling, Mahesh Raut, Soma Sen, and Sudhir Dhawale, and charged them under the Indian Penal Code and the UAPA. They were accused of organising the Elgar Parishad in Pune, during which provocative speeches were allegedly made, which contributed to the Bhima Koregaon violence on January 1. “I have been falsely implicated by the police,” Mr. Gonsalves told reporters on his way out. A similar scene played out at Mr. Ferreira’s residence in Thane, with the police arriving around 6 a.m. and leaving with him by 4 p.m.On his way out, Mr. Ferreira, answering a question on whether he thought there was a plot against him, said, “This is a plot against human rights activists across the country.”
He said his books and journals had been seized, after which he was bundled into a car and taken to the Thane court, where the Pune police got his transit custody. Mr. Ferreira’s family refused to speak to the press.
 The petition was first mentioned before a Bench of Chief Justice Rajendra Menon and Justice V.K. Rao by Mr. Navlakha’s lawyers for urgent listing. When urgent listing was allowed, the lawyers approached the Bench of Justices Muralidhar and Goel, having the roster for habeas corpus cases, which issued an interim order that the petitioner be not taken out of the State.
DK BASU Guidelines:
Were these procedures followed during August 28 countrywide raids against lawyers, activists and journalists?
(1) The Court opined that Custodial Violence, including Torture and Death in Lock Ups, strikes a blow at the Rule of Law.
(2) The Court observed that despite the presence of several Constitutional and Statutory provisions aimed at safeguarding the personal liberty and life of a citizen, there had been several instances of torture and deaths in police custody which was a disturbing factor.
(3) The Court severely criticised the existence of Custodial Death and regarded it to be one of the Worst Crimes in a Civilised Society to be governed by the Rule of Law.
(4) A Reference was made to the case of Neelabati Bahera v. State of Orissa (1993) in which the Supreme Court had held that prisoners and detenues are not denuded of their Fundamental Rights under Article 21 and only such restriction as permitted by law could be imposed on the enjoyment of the Fundamental Rights of the prisoners and detenues.
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards which were to be followed in all cases of arrest and detention. The guidelines are as follows: –
(i) The Police Personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The Particulars of all such personnel who handle interrogation of the arrestee must be recorded in a register.
(ii) That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of the arrest at the time of arrest and such memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(iii) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of the arrest is himself such a friend or a relative of the arrestee.
(iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(vi) An entry must be made in the Case Diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars if the police official in whose custody the arrestee is.
(vii) The Arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory.
(ix) Copies of all the documents including the memo of arrest should be sent to the Magistrate for his record.
(x) The Arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(xi) A Police Control Room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the Police Control Room Board, it should be displayed on a conspicuous notice board.
D.K Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non- Political organisation on 26.08.1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph Newspaper regarding deaths in police lock up and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation” Category. Considering the importance of the issues raised in the letter, it was treated as a Writ Petition and notice was served to the Respondents.
While the Writ Petition was under consideration, one Mr. Ashok Kumar Johri addressed a letter to the Chief Justice drawing his attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody. The same letter was also treated as a Writ Petition and was listed along with the Writ Petition of D.K.Basu. On 14.08.1987, the Court made the Order issuing notices to all the State Governments and notice was also issued to the Law Commission of India requesting suitable suggestions within a period of two months. In response to the notice, affidavits were filed by several states including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur. Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist the Court. All the Advocates appearing rendered useful assistance to the Court
Authored by Dr. A.S. Anand, J. (as he then was)
Related:State Crushing Dissent Again!
Raiding the Resilient