SC demands to see evidence against arrested activists, extends house arrest

Written by CJP | Published on: September 17, 2018
The Supreme Court has thwarted yet another attempt by the Pune Police to get custody of five human rights activists who had been arrested on August 28. Activists Gautam Navlakha, Vernon Gonsalves, Arun Fereira, trade unionist and lawyer Sudha Bharadwaj and Telugu poet Varavara Rao, had been arrested as a part of what is being seen by civil society groups as a state sponsored nationwide crackdown on dissenting voices. The apex court extended their house arrest and adjourned the case till August 19. More importantly, it also made it clear to the government that they could not dictate terms to the court.

Activist arrest
 
During the hearing the government objected to the apex court's "interference" in the case. But in a resounding slap in the face of the 'objection', the court not only asserted its right to intervene if necessary, but also demanded to see evidence gathered by the Pune Police. A bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud said, “We have to see the police documents. We may cancel the case here if there’s nothing. If it calls for our intervention we will look into it.”  
 
The court was hearing a petition filed by civil society members led by historian Romila Thapar, economists Prabhat Patnaik and Devaki Jain among others, against the unlawful raids and subsequent arrests of the human rights activists. During the hearing the government also asked the Apex Court to allow a “competent court to hear the case as the case is pending before other courts.” Abhishek M Singhvi, appearing for many petitioners, submitted to SC that the petitioners are seeking for an independent enquiry and that SC has jurisdiction. He said that none of the accused were present at the Elgar Parishad and even the FIR doesn’t have names of any of the five accused persons in the case.The CJI observed, “We entertained the case on the foundations of liberty. Issues like independent enquiry come at a later stage.”

ASG Maninder Singh appearing for Union of India made long winded submissions about how the Union has no role to play because this investigation is under the State of Maharashtra and about how the problem of Naxalism is prevalent in several states and is an extremely serious problem, the present case involves very grave allegations impacting on national security. He also argued that the SC should not deal with the matter as the HC and subordinate courts are competent to deal with it.
 
Abhishek Singhvi began with the origin of this incident, Bima Koregaon and the violence of 1st January 2018. He argued that in Elgar Parishad- Elgaar means a 'clarion call' and not a 'call to attack' the State (as alleged by State of Maharashtra in its counter affidavit). The entire basis of the FIR against those arrested is that Sudhir Dhawale sang a song the lyrics of which were a call to bring down the State. He explained how these words are actually a translation of a poem in a play by Bertolt Brecht, The Good Person of Szchewan. He quoted CJI Dipak Mishra’s judgments rejecting the ban on the Malayalam novel Meesha where the SC upheld freedom of expression particularly cultural, artistic expression of a poet.

Abhishek Singhvi then went on to explain that Elgar Parishad was organised by Retd. Justice Sawant and Justice Kolse Patil; that none of those arrested in August 2018 had anything to do with the event or were present at the event. He emphasised that 2 FIRs were filed, first by Anita Sanwle on 2nd January, 2018, about the violence incited by right wing groups on 1st January, which names Milind Ekbote and Sambhaji Bhide- how these are the people and groups responsible for the violence, and how some days after this FIR another FIR was filed by Tushar Damgude (who is being represented by Sr. Adv Harish Salve in the SC) on 8th January, which for the first time introduces the 'Maoist' angle through a bald averment. He argued that even in February 2018, when Milind Ekbote had applied for anticipatory bail, the State of Maharashtra had filed a counter affidavit opposing the bail saying that the violence was planned and Ekbote had a role to play in the violence. He questioned how then the present arrestees became involved in the incident all of a sudden?!

He referred to the report by Siddharth Dende the Deputy Mayor of Pune submitted to the IG police, Pune which also categorically holds that the violence was planned using social media and by collecting material to attack the Dalit community, and that Sambhaji Bhide and Milind Ekbote played key roles in this and the motive was to teach the community a lesson for celebrating a history which undermines the Hindutva agenda. He argued that while this report was submitted to the IG Pune police in January 2018, after petitioners filed this Writ Petition and their Rejoinder referring to this contradiction on September 10, 2018. The Pune police on September 11, 2018 issued a press note denying this Committee’s report. This shows the shifting stands and mala fide intention of the State. Singhvi went on to explain how the investigation itself is mala fide since witnesses to the seizure were brought along with the Police from Pune, though the CrPC mandates that they are supposed to be independent witnesses from the locality. He explained how the “letters” being leaked by the Pune Police, are on the face of it, fabricated.

Earlier, Maharashtra state had alleged that the petition was filed by “strangers” and hence, that it shouldn’t be entertained. But this claim also fell flat when an additional affidavit was filed on petitioners' behalf where all the arrested activists said that the petition had been filed on their behalf! The Pune Police had accused the activists of being involved in instigating the Bhima Koregaon violence, a claim debunked by both Justice PB Sawant and Justice Kolse Patil, the original duo that had organised the Elgaar Parishad.