CASE COMMENT: Romila Thapar and Ors Versus Union of India and Ors.

AUTHOR- Varun Vikas Srivastav, Amity University, Noida.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 260 OF 2018

Romila Thapar and Ors. ….. Petitioner(s)

Versus

Union of India and Ors. .... Respondent(s)

Hon’ble Judges - Deepak Mishra (CJI), Justice DY. Chandrachud and A.M. Khanwilkar

1. Background of the Case

The aforementioned case is one of the landmark cases while it attains "detaining activists". The Court has obtained the arrest of five human rights activists by the Maharashtra Police below the Unlawful Activities Prevention Act (UAPA) under the Indian Penal Code. It did file under the Public Interest Litigation. The petitioners have alleged that the Maharashtra Police has traced these five people who remained engaged in the Bhima Koregaon violence and revolution. Here, it was pleased by the petitioners that the examination should be arranged by the Special Investigation Team (SIT).

2. Facts

On September 18, 2018, the Supreme Court declared judgment in Romila Thapar & Others v. Union of India & Others[1].

The five claimants in the case – ‘Academics who are sincerely affected with the protection of the constitutional framework of this country’[2] – registered their Public Interest Petition in answer to the detention of five human rights activists by the Pune police for terrorism-related crimes following the Unlawful Activities (Prevention) Act 1967 (UAPA).

“The Name of the activists were: Gautam Navlakha, Vernon Gonzalves, Arun Ferreira, Sudha Bharadwaj, and Varavara Rao”.

The petition demanded the Supreme Court set up a Special Investigation Team (SIT) to convoy a ‘clean and autonomous inquiry’[3] within the accusations produced by the Pune police upon them. The petitioners contested that the police should catch the five on baseless allegations of terrorism, to suffocate if not kill autonomous decisions and distinctive ideas from the party in control. The challenged claims of the Pune Police are the most significant attack on the freedom and independence of civilians by resorting to high handed endowments without reliable matter and proof. The whole operation is to quell disagreement, obstruct bodies from assisting the subjugated and marginalized people beyond the nation and to insert panic in thoughts of people[4].

At the course of their seizures, the accusations upon the arrested activists held distant from cleared – among the police inconsistently challenging before various courts the that the five involved were planning to slaughter the Prime Minister, the portion of the assigned terrorist group the Communist Party of India and instigators of inter-caste fury that began in the township of Bhima Koregaon in January 2018.

The petitioners broadly asserted that the inquiry consequently far had been harmed by significant procedural variations – crimes under the UAPA had been joined to the FIR without adequate permission from the responsible authority; the detained activists meant not advised of the purpose for their detention in a sign that they assumed.

In reply, the state proposed various jurisdictional doubts about whether the claimants had the locus to register this appeal on account of the activists, whether the court could intervene in a criminal investigation by a PIL, moreover whether this habeas corpus petition following Article 32 was maintainable given that common criminal law assistance were accessible to the arrested.

The inherent inference of this declaration imitated the discussions initiated about controlled by the colonial state[5]: that as the examination was being escorted by a ‘senior’ police director and not a junior deputy, this indicated that the examination was compelled to be honest. Furthermore, there was nothing on account, according to the State, that would symbolize that the police were examining in a mala fide mode.

3. Issues raised

i) Will the bench provide a Special Investigation Team to express?

ii) Can a behest of the next fellow of the arrested consider the corresponding request?

iii) Can the accused bodies be rescued following the impact of being confined in?

4. Rules

Article 32: Article 32 of the Indian Constitution grants the right to people to proceed to the Supreme Court to ask for justice when they consider that their equity has been ‘unfairly denied’.

Section 43D (2) of the UAPA: Section 167 of the Code shall appeal concerning a matter committing an offense condemned under this Act subjected to the alteration that in sub-section (2), —

· The references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

· After the proviso, the following provisos shall be inserted.

Section 43D (5) of the UAPA: Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be discharged on bail or his security except the Public Prosecutor has been granted a chance of being overheard on the demand for such relief: Granted that such accused person shall not be discharged on bail or his bond if the Court, on an inspection of the case diary or the record declared under section 173 of the Code believes that there are rational grounds for considering that the allegation toward such person is prima facie true.

5. Analysis

In a 2-1 judgment, the bulk (comprising of Dipak Mishra and A.M Khanwilkar) noted that criterion placed the opinion that except there was a substantial matter to recommend that the inquiry was carried in a mala fide manner[6], the challenged one has no power to ‘ask for replacing the Investigating Agency or to prepare research in a selective method incorporating for Court-monitored inquiry’[7].

The majority managed to state that the forum may interrupt if it determines that the examination was administered in a mala fide method, but proceeded on to operate that this writ appeal only carried ‘vague and unconfirmed accusations’ of an illegal inquiry[8]. Moreover, the majority believed that the Supreme Court, by working on PIL, could not intervene in a criminal inquiry.

The objection by D.Y. Chandrachud, determined that the direction of the Pune police had ‘chosen a spot on whether the Maharashtra police must in the existing case served as a reasonable and unbiased investigative agency’[9].

Chandrachud assumed that the pattern relied upon by the majority was not as obvious as it executed to be. He aimed out to the variety of circumstances in which the Supreme Court possessed and operated under Article 32, either appointed a SIT[10] or controlled the investigation into distinct offenses[11].

Chandrachud considered that there was sufficient matter on account to legitimately investigate whether the Maharashtra police could be[12] ‘assumed to carry out an autonomous and unbiased inquiries’[13] and that it was constitutionally obligatory on the court to designate a SIT.

The distinction among the majority and dissenting decisions turned throughout whether the inquiry accompanied by the Maharashtra police was appropriate.

6. Transforming social protest toward a terrorist movement

The events as described in the FIR furthermore succeeding records registered by the State before the Supreme Court explain how the state can turn a social rally into terrorist movement. The state demands to itself the capacity to describe several sorts of political exercise as modes of terrorism, and accordingly unacceptable. To do so, since we consult here, the state strives to build links – through slight – within political movement and violence.

According to the organizers, the description of the situation was to ‘save the code’ from conservative Hindutva forces who ‘neither consider in a democracy neither socialism neither secularism’[14]. The incident brought the consideration of members of the Hindu right-wing.

Disputes among Dalit groups and right-wing groups remained for approximately two weeks commencing to the arrest, according to media statements, of numbers of Dalits.

Shortly later the violence, Two First Information Reports (firs) moved recorded – one upon the segments of the heads of the Hindu right-wing parties that supposedly struck the Parishad, and the second upon the organizers and partners of the Elgar Parishad.

The Maharashtra police claimed in the Supreme Court that the people who were the head of the writ petition are current divisions of a forbidden terrorist group named Communist Party of India.’[15]

7. Forbidding Standards and violations of the association

This incident also highlights the point that terrorism inquiries and prosecutions by district police are formed on the central government’s ability to halt organizations by administrative command. In this situation, as the CPI has been listed as a terrorist group by the Central Government, all the police required to do is to declare that several persons are parts of the forbidden organization for the police then to take resort to the exceptional pre-trial plans included in the UAPA.

Certain decisions endured that the criminalization of insignificant membership of banned groups was undemocratic. What was lawful, though, was the criminalization of society if that society commenced to violence or the incentive to intensity. This is an essential warning to society linked offenses[16].

Nevertheless, as we have noticed in this case, the police have encircled the activists’ group of the CPI as one that has managed to fury. The issues of whether the activists were parts of the CPI and whether this group commenced to destruction are concerns that will possibly be adjudged at trial – a suit that will retain these activists behind hurdles as it gradually disintegrates its process to the termination.

8. The purpose of UAPA suits is not to achieve a conviction

The State claimed that the Supreme Court should not oppose, as the examination was being controlled by senior administrators who in service ‘would be advised by the jurisdictional Courts at various degrees[17].’

The State besides claimed that if the involved had any attention with the probe, they could address the jurisdictional courts for numerous assistances, including legal remand, bail, removal, and quashing of the prosecution.

· Firstly, the UAPA itself reduces the investigative means. Section 43D (2) of the UAPA enables the police to register a charge sheet up to 180 days subsequent the person is first caught, as objected to 90 days for common offenses.

· Secondly, the bail prerequisites included in section 43D (5) of the UAPA are so severe that bail is essentially unattainable[18].

Nobody involved in offenses under the UAPA can be imparted bail except the Public Prosecutor has had an opportunity to be overheard on a bail request.

· Thirdly, police option to form of proceduralism to guarantee the arrested spends as much time in prison as feasible.

For illustration, the various police units take shifts in apprehending the arrested. Arun Ferreira, one of the activists detained, explains in vigorous detail how he was conducted in several cases furthermore was discharged from prison, barely to be caught by different police depot the second he moved out of jail[19].

9. Judgment

· The Supreme Court of India has witnessed in Narmada Bai v. State of Gujarat and Ors. That the suitors cannot determine the investigation bureau of their personal preference.

· It was further held that the crisis is only regarding the connection with the forbidden terrorist group not regarding various aspects and beliefs.

· By 2:1 majority decision, the Supreme Court rejected the appeal for SIT (Special Investigation Team).

· The house arrest remained elongated by the Supreme Court for 4 weeks from the course of assessment so that the activists can bail in lower courts.

· The Pune Trial Court refused the bail request and the Hyderabad High Court stretched the house arrest.

· The Apex Court upheld that assistance is accessible at various degrees of inquiry by the accused.

· The petition was refused by the Court and granted the capability to the investigative deputy to take operations according to the law.

10. Conclusion

The SIT statute began in a period where the Supreme Court operated roughshod over the division of capabilities consecrated within the Constitution and paid lip-service to constitutional policy and procedural decorum in the pursuance of populist resolutions to obstacles of governance and state role in India. Oftentimes, the clarifications are not lawfully or procedurally valid, and the equivalent goes for the SIT. The Supreme Court is ill-equipped to advise criminal investigations and the SIT executes no sense. That is the role of the local policemen and trial courts because crime is bounded. Taking an inquiry out of the usual route is not only an accusation of the local police, but including the Trial Courts, and High Court, who would differently have moments to evaluate the process and consideration of inquiries.

But considering the Court has been conferring requests for building a SIT and/or monitoring investigations, my principled action is not conforming to matter enough. In that situation, all persons can request an effort to aid eliminate such crises from happening completely fact-specific and must some fair reason for coming courts to determine when should demand to formulate a SIT or controlling an examination be permitted. In this concern, a commendable attempt is performed by the dissenting evaluation in building an understanding of the elder cases to try and separate comprehensive descriptions. This minimum level of compatibility will improve both contestants and the bar forum by providing some much-needed assurance to the field while reducing the politicization of such demands.

What the aforementioned case determines is that the elimination of objection does not demand grand expressions of states of emergency.

11. Present Scenario

In the modern period, the citizens understood their rights and fair certainty of the law. Now, the citizens can examine equal citizenship by the purpose of civil and individual rights in the country as a guide. This case has enabled a person to re-check the sensitive creation of assurance concerning the liberty of communication and expression when it collides with the State.

REFERENCES- [1] Romila Thapar & others v. Union of India & others (September 28, 2018) http://www.pucl.org/press-statements/romila-thapar-ors-vs-union-india-ors-supreme-court-india accessed September 28, 2018 [2] Writ Petition, p. 3 [3] Writ Petition, p. 15 [4] Writ Petition, p. B [5] A. Bhuwania “’Very wicked children: ‘Indian torture’ and the Madras Torture Commission Report of 1855” Sur: International Journal of Human Rights (2009) Vol. 6, No. 10, pp. 6-27. [6] Divine Retreat Centre v. State of Kerala and Others (2008) 3 SCC 542; State of West Bengal & Others v. Committee for the Protection of Democratic Rights & Others (2010) 3 SCC 571. [7] Romila Thapar case para 27. [8] Romila Thapar para 26. [9] Romila Thapar para 40. [10] National Human Rights Commission v. State of Gujarat (2009) 6 SCC 767; Ram Jethmalani v. Union of India (2011) 8 SCC 1; Common Cause v. Union of India (2017) 3 SCC 501. [11] Vineet Narain v. Union of India (1996) 2 SCC 199; Babubhai Jamnadas Patel v. State of Gujarat (2009) 9 SCC 610 [12] Centre for Public Interest Litigation v. Union of India (2011) 1 SCC 560. [13] Romila Thapar para 24 (D.Y. Chandrachud, J). [14] Arefa Johari ‘‘They want fascist forces to reign’: Retired judges who organised Pune’s Elgaar Parishad speak out’ Scroll.in (1 September 2018) ≤https://scroll.in/article/892631/they-want fascist- forces-to-reign-retired-judges-who-organised-elgar-parishad-speak-out≥ accessed January 23, 2019 [15] Writ petition p. 14. [16] S. 15 of the Criminal Law Amendment Act, 1908 [17] Anil Kalhan et al ‘Colonial Continuities: Human Rights, Terrorism and Security Laws in India’ 2006 Columbia Journal of Asian Law 93 [18] Naresh Tekchand Shah v. Union of India & Another WP(Crl) 67 of 2017, decided on November 23, 2017 [19] Arun Ferreira Colours of the Cage: A prison memoir (New Delhi: Permanent Black 2014).