Case Analysis: Romila Thapar v. UOI

Romila Thapar & Others

v.

Union of India & Others

Citation(2018)10 SCC 802
CourtSupreme Court of India
BenchChief Justice Dipak Mishra , Justice Khanwilkar and Justice DY Chadrachud
PetitionerRomila ThaparDevaki JainPrabhat PattnaikSatish DespandeMaja Daruwala    
RespondentUnion of India Special Cell Delhi PoliceState of Maharashtra  
Acts concernedConstitution of India Indian Penal Code Code of Criminal Procedure Unlawful Activities Prevention Act The Scheduled Castes and Scheduled Tribes Orders    

Supreme Court of India

In the Court of Chief Justice Dipak Mishra, Justice Khanwilkar and Justice DY Chadrachud

Introduction

In September 2018, a three judge bench pronounced the judgment and by a majority if 2:1 the plea for setting up a Special Investigation Team (SIT) to probe into the arrests of activists in connection with Bhima Koregaon Violence was rejected by the Court. The petition was filed by five prominent citizens of the country. The petitioners were Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Dharuwala.  The petition was filed in the Supreme Court under writ jurisdiction granted in Article 32 of the Constitution of India. The arrests made on 28th August 2018 and other dates were challenged in the petition. It was claimed by Maharashtra Police that the arrested activists have connection with Communist Party of India (Maoist) and were active members of this organization. Communist Party of India (Maoist) is a banned terrorist organization covered under the Unlawful Activities (Prevention) Act (UAPA). Justice Khanwilkar and Chief Justice Dipak Mishra gave the majority judgment while dissenting opinion was presented by Justice DY Chadrachud. [i]

Background

Petition was filed in response to the arrest of five human rights activists by the Maharashtra police for terrorism-related offences under the Unlawful Activities (Prevention) Act 1967 (UAPA). These activists were: Gautam Navlakha, Sudha Bharadwaj, Varavara Rao, Vernon Gonzalves and Arun Ferreira. It was prayed in the petition before honorable Court that a Special Investigation Team (SIT) should be set up to conduct a “fair and independent investigation” [ii]against the allegations made by the Pune police. The petitioners claimed that the arrests made by the police were without any substantial/ credible evidence and the arrests were made on unfounded accusations of terrorism, in order to suppress the independent voices against a different ideology from the party in power. It was argued that the arrests made by the state are arbitrary in nature and hence violate Articles 1419 and 21 of Constitution, which guarantee equality before the law, freedom of expression and personal liberty.

Facts

Five accused were arrested under Section of the UAPA by the police on charges of terrorist activities, were active members and supporters of an organization which has been banned under UAPA. They have also been accused of offence of conspiracy under Section 120 of the IPC. The writ petition filled by the petitioners had a very narrow claim. The objective of the petition was not to quash the FIR or halt the investigation. The main objective for the writ petition was regarding formulation of a SIT for fair investigation of the case.  It was alleged that the investigation so far has been performed with mala fide intention and there have been many procedural irregularities in the investigation. The offences under the UAPA were added to the FIR without authorization from the required authority. The reason for arrest was not told to the accused at the time of arrest. The panch witnesses were stock witnesses. In order to make it grab influence of media the police had leaked evidences selectively but the allegations made by the police were not mentioned in either of the investigation documents. The petitioner alleged that such allegations were fabricated in order to make it a high profile case. Such actions of police clearly violated the principles of natural justice duly recognized by the honorable Supreme Court. According to the petitioners if we consider the facts in totality then it clearly demonstrates that this investigation was not being conducted in a fair way and their existed mala fide intention.

The State of Maharashtra questioned the maintainability of the petition as it was filed by third party and there existed no locus standi. Later on the accused had said the petition was filed on their behalf and hence it should be considered maintainable. The respondents denied the fact that there was no substantial evidence against the accused. It was argued that in light of material gathered during the investigation by the police it would be desirable of the petition is dismissed. The state denied the fact that their existed mala fide intention on part of police. the petition filed by the petitioners was totally based on the fact that the accused are   “all outstanding, well-known and well respected human rights activists”[iii] and hence their arrest requires to be enquired and bail should be granted to all the accused.

It was clarified by the state that the accused persons have not been arrested because of their dissenting views or difference in political ideologies. Instead the investigation had unraveled the involvement in serious offences like being active members of Communist Party of India (Maoist), which has been banned as a terrorist organization since 2009, and of their involvement in planning and preparation of large scale violence and destruction of property. All the accused were part of a well planned criminal conspiracy and had supported the event arranged at Pune by the Elgaar Parishad through a frontal organization called “Kabir Kala Manch”.

The freedom and liberty of citizens is being attacked by undertaking unconstitutional actions and by resorting to unethical arrests without credible evidence. The list of evidences was prepared in Marathi by the police and the accused person didn’t know either to read, write or speak Marathi language.

Issues

Three main issues that were raised in this were:

1. Can a behest of the next friend of the accused file a writ petition?

 2. Whether or not a Special Investigation Team should be formulated? 

3. Can the accused persons be released from house arrest? [iv]

Related cases

In Narmada Bai Vs. State of Gujarat and Ors.[v], the Supreme Court in paragraph 64 restated that the accused persons do not have a say in the matter of appointment of Investigating Agency. Further, the accused persons do not have any choice so as to which Investigating Agency must investigate the offence committed by them. Paragraph 64 of this decision reads thus:-

 “64. ….. It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them.”[vi]

In Sanjiv Rajendra Bhatt Vs. Union of India and Ors.[vii] the Supreme Court tated that the accused had no right with respect to the manner of investigation. Paragraph 68 of this judgment reads thus:

“68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha[viii], Mayawati v. Union of India[ix], Dinubhai Boghabhai Solanki v. State of Gujarat[x], CBI v. Rajesh Gandhi[xi], Competition Commission of India v. SAIL[xii] and Janta Dal v. H.S. Choudhary[xiii][xiv]

The idea of unfair investigation or bias in investigation and pre judging the matter was dealt in case of Mohan lal. In case of Mohan Lal v. State of Punjab[xv] the Court held that the officer who was also the informant in a case cannot conduct the investigation for the very same case. The proof of bias or mala fide was not required and the circumstances are enough to assume bias. The Court associated the issue with Art 21 of the constitution and held that every individual has a right to a fair investigation and an unfair or biased investigation would violate this right. This case has not been mentioned even once in Romila Thapar case. The question for SIT could have been clearly be linked to Mohan lal case and the Court could have given the point for instance, whether individuals had the right to question the investigation under Article 21 in a pre-trial setting – unlike Mohan Lal which was a post-conviction appeal.  

In Joginder Kumar v. State of U.P.[xvi] the Supreme Court held that  

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. … No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”  When in a case like Romila Thapar the attention of the Court is drawn towards biasness or mala fide intention in an investigation then it is the constitutional responsibility of the Court to give appropriate directions under Article 142 of the Constitution.  The Court also emphasized that an arrest cannot be made until there is reasonable satisfaction of genuineness and bona fide nature of the complaint.

Article 21 protects any person against torture or assault from state or its functionaries. The same concept has been covered in the following cases Kiran Bedi v Committee of Inquiry[xvii], Delhi Judicial Service Association v State of Gujarat [xviii], Joginder Kumar v State of UP[xix] and DK Basu v State of West Bengal[xx]. In DK Basu, this Court elucidated on the importance of personal liberty in the constitutional scheme:

“17. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression “life or personal liberty” has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.”[xxi]. The Court also emphasized that no arrest can be made without reasonable satisfaction after investigation about the genuineness and bona fides of a complaint

In E Sivakumar v Union of India[xxii] the petitioner was accused in an FIR which was being investigated in regard to the illegal manufacture and sale of pan masala and gutkha. The petitioner challenged the decision of the High Court to transfer the investigation of the criminal case to the Central Bureau of Investigation. One of us (Khanwilkar J) who authored the judgment on behalf of this Bench held:

“The High Court has cogitated over all the issues exhaustively and being fully satisfied about the necessity to ensure fair investigation of the crime in question, justly issued a writ of mandamus to transfer the investigation to the CBI.”[xxiii] The judgment of the High Court was upheld on the following ground:

“… the question regarding the necessity to ensure a fair and impartial investigation of the crime, whose tentacles were not limited to the State of Tamil Nadu but transcended beyond to other States and may be overseas besides involving high ranking officials of the State as well as the Central Government, has now been directly answered. For instilling confidence in the minds of the victims as well as the public at large, the High Court predicated that it was but necessary to entrust the investigation of such a crime to CBI. Viewed thus, there is no infirmity in the conclusion reached by the High Court in the impugned judgment, for having entrusted the investigation to CBI.”[xxiv] Drawing attention to the duty of this Court as adjudicator, it was also observed:

“It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative…If a grave suspicion arises with regard to the investigation, should a constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it?…” [xxv]

The above observations significantly remind the function of the Court as the protector of the Fundamental Rights granted in part-III of the constitution

Judgment

In this case Majority opinion was authored by Justice A M Khanwilkar, on behalf of CJI Dipak Misra and himself and Dissenting opinion was authored by Justice DY Chandrachud  

 Majority opinion

The majority opinion was authored by Justice A M Khanwilkar, on behalf of CJI Dipak Misra and himself and the plea for a SIT probe was rejected.  It was held that the accused persons were not arrested merely because of their dissenting views, but they were arrested due to their alleged involvement in the Elgaar Parishad meeting.It was considered that the jurisprudence, which was laid down by the Courts, establishes that accused persons do not have the right to choose as to which agency would investigate them. The case of Narmada Bai v State of Gujarat & ors[xxvi] and Sanjeev Rajendra Bhatt v Union of India & ors[xxvii] was referred.

 Further, it was held that the authorities investigating the case had denied the claim that the arrests suffered from lack of evidence. The required authorities had produced sufficient and   satisfactory evidence to indicate involvement of accused persons in the related events and hence the arrest was justified. It was further stated that the petitioners had failed to establish that the investigating officers intended to curb political dissent in making the arrests. Justice A M Khanwilkar wrote, ‘no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officers.’ [xxviii]

 t was observed by the majority that the accused had already resorted to judicial remedies available to the accused in appropriate lower courts and the proceedings were pending, and the same could be pursued in accordance with the law. It was stated the accused could continue to pursue and exhaust their requests for modified relief in appropriate Courts at the appropriate stage. It was requested by the accused to be released from custody and that all material evidences must be examined properly by the forensic science laboratory outside Maharashtra. It was emphasized by the majority that Supreme Court was not expressing opinion or statement with regards to the guilt or innocence of accused persons nor the veracity of the material evidence.

 Justice Khanwilkar concluded by disposing of the writ petitions and granting the accused the liberty to pursue appropriate legal proceedings. The Court allowed the investigating officer to proceed against the accused persons in accordance with the law. It was further directed that the interim order dated 29.08.2018 will continue for four weeks. The interim order placed the activists under house-arrest[xxix].

Dissenting opinion

Justice D Y Chandrachud gave the dissenting judgment and highlighted the need for a SIT. It was observed that the present petition was not politically escalated. It was stated that the issue that was raised was whether the arrests violated the fundamental rights to free expression and personal liberty, guaranteed by Articles 19 and 21 of the accused. It was emphasized that an effective and impartial criminal justice system is what holds the human justice system together.

 On issue with regards to the maintainability of the petition it was observed that the petitioners had approached the Court for the specific grievance which was regarding arrests that were arbitrary in nature and were part of an attempt to muzzle voice against the party in power. It was stated that the reliefs which were prayed by the accused were not remedies related to criminal procedure. It was emphasized that the Writ jurisdiction of Supreme Court under Article 32 of the constitution is ‘wide enough to reach out to injustice in any form[xxx]. Article 32 empowers the Supreme Court to issue orders to protect fundamental rights.

The conduct of Maharashtra police was questioned by Justice DY Chandrachud. It was stated that the conduct of Maharashtra police had hampered the investigation process. Leak of evidence to Press by Police was criticized. The press conferences and television programs where the Police distributed the letters were cited. It was the letter that had formed the basis of arrest. It was further observed that Police had used E- media to influence public opinion. Credibility of Maharashtra police for a fair investigation was questioned.  

 Justice Chandrachud also casted doubt over the letters attributed to one of the accused, Sudha Bharadwaj. The letter contained Marathi ‘forms’ in at least 17 places. Sudha Bharadwaj is not from Maharashtra and does not speak Marathi. Justice Chandrachud questioned how she could have written the letter using ‘Marathi forms of grammar and address[xxxi]. Justice Chandrachud was careful to note that, in questioning the letter, he was not concluding that it was fabricated.[xxxii]

 Justice Chandrachud also elaborated on the majority opinion’s conclusion which stated that accused persons have no right to choose the investigative agency for their case. Though he agreed with the majority’s conclusion, but it was held that the Court should not therefore dismiss the petition at hand. It was emphasized that the Court can intervene when the police commit serious procedural lapses. Like the majority, the Narmada Bai[xxxiii] case was accessed. It was emphasized that while Narmada Bai established that accused cannot choose investigative agencies, it in fact removed the Gujarat Police from the relevant investigation. The Bench, in Narmada Bai, concluded that the Gujarat Police had made serious procedural lapses and may not conduct the investigation. Similar was situation in case in hand.

 Justice Chandrachud concluded with the opinion that SIT should be constituted to conduct a Court monitored investigation. It was held that sufficient doubt had already been casted on the impartiality of the Maharashtra Police. It was observed that the Court must be vigilant to protect the liberty of those who take up unpopular causes.

Highlights and Conclusion

Romila thapar case became a media highlight and again questions were raised on the constitutionality of UAPA. Thought the writ petition didn’t deal with guilt or innocence of the accused person but instead it raised important issues for the interpretation of Article 21 of the constitution. As stated earlier Right to fair investigation is part of Article 21 of the Constitution. Right to fair investigation is duly recognized in Principle’s of Natural Justice. Narmada bai case was also accessed and interpreted in two different ways. The main relief sought in the petition was fair investigation. In case of Narmada bai[xxxiv] it was stated that the accused have no right to choose investigating agency but it can also be interpreted that if the investigating agency is not competent of there is scope biasness then the investigation agency must be changed. Many instances though indicate that the investigation was not fair. Since the cases were being pursued in the trial Courts the petitioners were granted right to exhaust their available legal remedies. The need of the hour is to analyze jurisprudence with regards to the formation of SIT. Requisite guidelines must be formulated so that in case the investigating agency is unable to conduct a fair investigation the accused can seek support from the honorable Court and fair investigation could be pursued. Guidelines with respect to SIT must not be left arbitrary so as to protect fundamental rights of every person as covered by Part-III of the Constitution of India   


[i] Romila Thapar & Others v. Union of India & Others (2018) 10 SCC 802

[ii] Writ Petition, p. 15

[iii] Romila Thapar & Others v. Union of India & Others (2018) 10 SCC 802

[iv] http://probono-india.in/research-paper-detail.php?id=145 (probono-India)

[v] ((2011) 5 SCC 79 35)

[vi] Ibid

[vii] ( 2 (2016) 1 SCC 1)

[viii] (3 1993 Supp. (4) SCC 260)

[ix] ((2012) 8 SCC 106)

[x] ((2014) 4 SCC 626)

[xi] ((1996) 11 SCC 253)

[xii] ((2010) 10 SCC 344)

[xiii]  ((1991) 3 SCC 756)

[xiv] ( 2 (2016) 1 SCC 1)

[xv] [Crl. Appeal 1880 of 2011, decided on 17.08.2018]

[xvi] (1994) 4 SCC 260 : 1994 SCC (Cri) 1172

[xvii] (1989) 1 SCC 494

[xviii]  (1991) 4 SCC 406

[xix] (1994) 4 SCC 260

[xx] (1997) 1 SCC 416 39

[xxi] Ibid

[xxii] (2018) 7 SCC 365

[xxiii] Ibid

[xxiv] Ibid

[xxv] Ibid, at para 13

[xxvi] ((2011) 5 SCC 79 35)

[xxvii] ( 2 (2016) 1 SCC 1)

[xxviii] Romila Thapar & Others v. Union of India & Others (2018) 10 SCC 802

[xxix] Ibid

[xxx] Ibid

[xxxi] Ibid

[xxxii] Ibid

[xxxiii] ((2011) 5 SCC 79 35)

[xxxiv] Ibid

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