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ROMILA THAPAR AND ORS. VS. UNION OF INDIA (UOI) (2018) 10 SCC 753

Updated: Apr 7


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Under Article 32 of Constitution of India

Writ Petition (Cri.) No. 2018




ROMILA THAPAR & ORS. PETITIONER

V.

UNION OF INDIA & ORS.[1] RESPONDENT



Date of Judgement:28 September, 2018

JUDGES- CJI Dipak Mishra, Justice DY Chandrachud and A.M. Khanwilkar (Division Bench)

Counsel for Applicant:AM Singhvi, PrashantBhushan, Indira Jaising, Rajeev Dhavan

Counsel for Respondent: ASG Tushar Mehta, ASG Maninder Singh







INTRODUCTION

Recently there have been reported many cases of unlawful arrest[2] or detention where it has been alleged that police is using it power without following the procedure mentioned in the code. In the past of many such incidents of illegal arrests[3]has been reported and it used to end up with warning and guidelines from the honourable court. There have also cases that have come up to the lime light where it has been alleged that dissenting views of well-known personalities are being supressed by government by using their police forces[4]. The case discussed below is a landmark case regarding unlawful arrest[5] of five famous rights activists. This case was file before the Supreme Court against the unlawful act of raiding and arresting five famous activists.The petition is before the court to examine whether it is political motivated arrest to supress the dissenting view or unlawful arrest.


[1](2018) 10 SCC 753 [2]https://www.thehindu.com/news/cities/mumbai/arnab-goswami-moves-hc-against-his-illegal-arrest-by-police/article33028108.ece [3]https://www.hindustantimes.com/india/1000-unlawful-police-detention-cases-in-india-every-year-up-and-delhi-lead/story-GgmhdLpW5SgNSAfpCkxzvO.html [4]Jaiswal Vijay, PREVENTIVE DETENTION IN THE INDIAN CONSTITUTION, Sept 02 2013, Important India [5] https://www.thehindu.com/news/national/raids-on-activists-gonsalves-ferreira-and-rao-to-be-produced-before-sessions-court/article24807066.ece




MATERIAL FACTS

1. 28.08.2018- a writ petition as file before the Supreme Court under Article 32 by five people who are prominent in their field names as RomilaThapar, Devaki Jain, SatishDeshpande,PrabhatPatnaik and MajaDharuwala.

2. The petition was pertaining to the arrest of five activists on 28th August 2018 are named asGautamNavlakha, Sudhabharadwaj, Vernon Gonzalves, Arun Ferreira andVaravaraRao.

3. TheMaharastra police conducted a raid throughout the country and arrested five activists through the raid. The activists were arrested on the ground of abetting for terror act under Unlawful Activities Prevention Act (hereinafter UAPA).

4. In the petition, it has been alleged that the arrest was arbitrary and has violated the freedom of speech, personal liberty and suppression of freedom of dissent under Article 14, 19 and 21 of Constitution of India.

5. The activists were arrested pertaining to the BhimaKoregaon violence that took place on 1st of January 2018.

6. It has been alleged in the petition that it was done to supress the dissenting views and the arrest was made with the motive to prevent them from helping the poverty ridden people.

7. The reason given by Maharashtra police while arresting the activists was that the activists were member of Communist party of India which is a prohibited organisation under UAPA because they were involved under BhimaKoregaon violence[1].

8. The petitioner had requested the apex court for the constitution of SIT for the anonymous and independent investigation in the alleged offence against the activist.

9. A PIL by RomilaThapar has also questioned the unlawful arrest made under UAPA.








ISSUES

I. WHETHER THE PETITION BEFORE THE COURT IS MAINTAINABLE OR NOT?

II. WHAT IS THE VALIDITY OF ARREST MADE BY MAHARASHTRA POLICE AND DOES IT VIOLATED THE FUNDAMENTAL RIGHTS OF ARRESTEE?

III. WHETHER THE CONSTITUTION OF SIT FOR INVESTIGATION WILL BE ALLOWED?






















ARGEMENTS ADVANCES

I. WHETHER THE PETITION BEFORE THE COURT IS MAINTAINABLE OR NOT?

PETITIONER:

Locus Standi-The petitioners filed a PIL before the apex court under Article 32 of constitution of India for the independent, fair and unbiased investigation into the arrest of five activists.

Violation of fundamental rights- The petitioner alleged that the arrest was politically motivated to arrest these activists in order to silence their voice as they were exercising their right to dissent under Article 19[2]. Therefore, this act of arrest by state has violated fundamental rights under article 14, 19 & 21 of the constitution of India.


RESPONDENT:

Locus Standi:The respondent has alleged that petitioners have no locus standi in the present case to challenge the arrest made. Further, they mentioned that a PIL cannot be maintainable[3] at the behest of third party. It has been contended that the PIL filed is completely based on ‘individual perception’ and it concern only to the certain person who are well known in their respective field.

Fundamental Rights: A PIL under article 32[4] can be filed before the Supreme Court for the enforcement of fundamental rights violated by state as promised under part-III of the constitution of India. In the present case there has been no violation of fundamental rights as the arrests has been made under principles of UAPA which cannot be arbitrary. And freedom of speech under article 19 is subject to reasonable restriction under article 19(2) of the constitution.

Availability of Alternate Remedy: when the remedy can be sought under Sections 438 or 439 and Section 482 of the Criminal Procedure Code, 1972. For this they relied on Rajiv Ranjan Singh ‘Lalan’ (VIII) v Union of India[5],Gulzar Ahmed Azmi v Union of India[6],Simranjit Singh Mann v Union of India[7]and Ashok Kumar Pandey v State of West Bengal[8].They have also contended that three of the arrestee has filed petitions before the jurisdictional High Courts which are pending adjudication.


II. WHAT IS THE VALIDITY OF ARREST MADE BY MAHARASHTRA POLICE AND DOES IT VIOLATED THE FUNDAMENTAL RIGHTS OF ARRESTEE?

PETITIONERS:

Unlawful Arrest:The petitioners alleged that charges were fabricated under UAPA to supress their dissenting views as the arrest made was politically motivated and was done to further intensify the violence.It was further alleged that that the arrests made was arbitrary as it did not followed the procedure of the code. Further, it has been alleged that none of the arrestee were arrested related to either of FIR w.r.t to event on 31st December, 2017 or FIR w.r.t. 2nd January, 2018 rather the charges were fabricated and arrest was made in connection to FIR on 8th January, 2018.

Violated Fundamental Rights: The arrests has led to the suppression of freedom of speech that has led to the violation of article 19 and the arrest was arbitrary which as violated article 14 and 21 of the constitution.

RESPONDENT:

Member of banned organisation: The respondent has contended that the arrest has been made“material gathered from others”.And the evidence that has been collected during raid indicated the association of accused with banned organization i.e. Communist party of India (Maoist) under UAPA.

Lawful Arrest:The respondent has contended that the investigation agency has followed the fair and impartial procedure and in this regard there were two independent panchwitnesses who are the employee of Pune municipal corporation under section 41B[9]and procedure under the given section were followed. And for this respondent relied on the guidelines provided in the case of DK Basu vs. State of West Bengal[10]

“Inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest memo shall be attested by at least one witness, who may either be a member of the family of the arrestee of a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.”

Further, the respondent has relied on section 41[11] which allow the police to arrest any person if they found any ‘reasonable suspicion’.


III. WHETHER REQUEST FOR CONSTITUTION OF SIT WILL BE ALLOWED FOR INVESTIGATION?

PETITIONERS:

Credibility of Pune Police: The petitioners have challenges the credibility of Pune police in investigation and also pointed that the investigation is being done to supress the dissent.


RESPONDENT:

Cardinal Criminal Agency:The respondent contended that the choice of investigation agency according to the accused is against the cardinal criminal jurisprudence. And in the present case the investigating agency has gathered sufficient evidence against the arrestee so it would be unwise to doubt on the integrity of investigating agency. Further it has been contended that the Pune Police is discharging it duty according to the statute.

Grievances raised in PIL: The respondent has contended that the court always takes the grievances raised before the court and in the present case the grievance is about the unlawful arrest and the petitioners nowhere in the PIL has raised any concern about investigation or have not alleged any malafide act of investigation agency or have not cleared basis on which investigation is motivated.













FINDINGS OF THE COURT

I. WHETHER THE PETITION BEFORE THE COURT IS MAINTAINABLE OR NOT?

The court was of the view that the petitioner must be allowed because the accused have chosen to approach the court.But it was contended by the respondent that the petitioner has been made by the friends next to the accused and not by accused themselves and the court has decide to assume that the writ petition has been filed by the accused but once accused become petitioners themselves thenthe question of petition pursued by next friend for their remedy cannot be thwarted. And as long as accused are not in position to be the petitioners their next friend can purse the petition on their behalf.



II. WHAT IS THE VALIDITY OF ARREST MADE BY MAHARASHTRA POLICE AND DOES IT VIOLATED THE FUNDAMENTAL RIGHTS OF ARRESTEE?

The court observed that the allegation made by petitioners that the arrest was made without having sufficient evidence have been disputed by the investigating agency and has put forward materials that have been gathered during the investigation which according to them indicates the involvement of arrestee in the commission of crime. Regarding the misuse of power to arrest by police the court referred theJoginder Kumar v. State of U.P.[12]

“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.”

The court is of the view that after considering the evidence presented by investigation agency it seems clear that the case is not about the arrest because of dissenting opinion rather link of arrestee to the banned organization and the act related to it.And it is not the stage to evaluate the credibility or sufficiency of evidence. The court is of the view that when an investigation in a criminal offence is in progress the remedy is provided with CrPC.

Further the court directed that the accused may approach the jurisdictional court for any remedy available during the investigation or trail. Additionally, the mentioned names have already approached the High court for remedy.




III. WHETHER REQUEST FOR CONSTITUTION OF SIT WILL BE ALLOWED FOR INVESTIGATION?

The court was of the view that the issue is no more res integraand rejected the prayer for the constitution of SIT for investigation because according to criminal jurisprudence the accused cannot[13] choose investigation agency[14] and for this they relied on Narmada Bai vs. State of Gujarat and Ors.[15]The court held that:

“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.”

The court further mentioned that in the petition there has been matter rose against the arrest of the accused and nowhere is it mention about the malafide act by investigation agency. In fact there is no mention of basis on which they are alleging the biasness in the investigation process.

The court found strength in the argument of state that the investigation cannot be transferred to any agency. And the court reiterated that the duty to the court is to make sure that fair, unbiased and independent investigation takes place. Therefore, the request for SITwas not allowed by the court.


Dissenting View of Justice D Y Chandrachud

According to D Y Chandrachud, J

· The SIT need to be constituted for the fair and unbiased investigation and it must be monitored by the court in this case.

· There was noticeable difference in the investigation which suggested the biasness of Maharashtra police in the investigation. Further, mentioned that the court can interrupt into an investigation when there is consistent and serious procedural error.

· Regarding the remedy sought by the petitioners, the remedy does not pertain to remedy mentioned in the criminal procedure.






CONCRETE JUDGEMENT

The majority2:1 in the judgement has dismissed the petition and rejected the request for the constitution of SIT for investigation into the alleged matters. And have allowed the accused to approach the appropriate forum for the remedy as prescribed by the law.






















RATIO DECIDENDI

On a mere allegation that the arrest violated fundamental rights would not grant a writ by a court rather one needs to establish the fact and reason how it violated the fundamental rights.













CONCLUSION

The framer of the constitution has included freedom and rights in part- III of the constitution intensely to everyone for the betterment of society. With time many rights and freedom have been evolve but time and again the ambit has been broaden to give a broad interpretation to protect the fundamental rights guaranteed. In fact with time many independent organization came up that protect human rights and they have their own code with the consensus of countries which protect freedom of speech and expression[16] and also protects from arbitrary arrest and detention[17] as well apart from these there are other provisions that take care of other aspects of human life. Butin the present case the petitioner alleged the violation of fundamental rights but upon examination it was found that there was no such violation of alleged rights rather the investigation turn out to be in right direction. So, for the betterment of society and functioning one must be courageous enough to accept the truth and its consequences[18].

Therefore, one need to be cautious enough before making any allegation because making allegation is not a big deal rather establishing and proving the allegation of allegation checks the integrity of concern person.







BIBLIOGRAPHY

AUTHORITIES

Ø Narmada Bai v. State of Gujarat and Ors. (2011) 5 SCC 79;

Ø SanjivRajendra Bhatt v. Union of India and Ors. (2016) 1 SCC 1;

Ø Union of India v. W.N. Chadha 1993 Supp. (4) SCC 260;

Ø Mayawati v. Union of India (2012) 8 SCC 106;

Ø DinubhaiBoghabhaiSolanki v. State of Gujarat (2014) 4 SCC 626;

Ø CBI v. Rajesh Gandhi (1996) 11 SCC 253;

Ø Competition Commission of India v. SAIL (2010) 10 SCC 344;

Ø Janta Dal v. H.S. Choudhary (1991) 3 SCC 756;

Ø E. Sivakumar v. Union of India and Ors. (2018) 7 SCC 365;

Ø Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65;

Ø Divine Retreat Centre v. State of Kerala and Ors. (2008) 3 SCC 542;

Ø State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors. (2010) 3 SCC 571;

Ø Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India (2006) 6 SCC 613; Gulzar Ahmed Azmi v. Union of India (2012) 10 SCC 731;

Ø Simranjit Singh Mann v. Union of India (1992) 4 SCC 653;

Ø Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349;

Ø Pratibha Ramesh Patel v. Union of India (2016) 12 SCC 375;

Ø UdyamiEvamKhadiGarmodyog Welfare Sanstha v. the State of UP (2008) 1 SCC 560;

Ø State of Maharashtra v. TansenRizwanSiddiquee (2018) 10 SCALE 711;

Ø National Human Rights Commission v. the State of Gujarat (2009) 6 SCC 342;

Ø Ram Jethmalani v. Union of India (2011) 8 SCC 1;

Ø Common Cause v. Union of India (2017) 3 SCC 501;

Ø Sunita Devi v. Union of India (2018) 3 SCC 664;

Ø VineetNarain v. Union of India: (1996) 2 SCC 199;

Ø BabubhaiJamnadas Patel v. the State of Gujarat (2009) 9 SCC 610;

Ø Centre for Public Interest Litigation v. Union of India (2011) 1 SCC 560; BharatiTamang v. Union of India (2013) 15 SCC 578;

Ø RajendranChingaravelu v. R.K. Mishra (2010) 1 SCC 457;

Ø KiranBedi v. Committee of Inquiry (1989) 1 SCC 494;

Ø Delhi Judicial Service Association v. the State of Gujarat (1991) 4 SCC 406; D.K. Basu v. State of West Bengal: (1997) 1 SCC 416;

Ø Joginder Kumar v. the State of U.P. (1994) 4 SCC 260;

Ø S. Nambi Narayanan v. Siby Mathews (2018) 11 SCALE 171;

LEGISLATION

Ø Constitution of India, 1950;

Ø Unlawful Activities Prevention Act, 1967 (Central)

Ø Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

Ø Arms Act 1959;

Ø Maharashtra Police Act, 1989;

Ø Indian Penal Code, 1860 (IPC)

Ø Code of Criminal Procedure, 1973 (CrPC)


BOOKS

v M.P. JAIN, INDIAN CONSTITUTIONAL LAW 98 (6TH ED., 2010)

v RATANLAL AND DHIRAJLAL, CRIMINAL PROCEDURE CODE, 1973(ED.,)

v D.D.BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8TH ED., 2008).

RESEARCH PAPERS

v Sekhri, Abhinav, Article 22 — Calling Time on Preventive Detention (September 17, 2019). AbhinavSekhri, "Article 22- Calling Time on Preventive Detention", 9 Indian Journal of Constitutional Law 173 (2020), Available at SSRN: https://ssrn.com/abstract=3455821 or http://dx.doi.org/10.2139/ssrn.3455821


ARTICLES

v https://www.jatinverma.org/the-article-22-protection-against-arrest-and-detention/

v Jaiswal Vijay, PREVENTIVE DETENTION IN THE INDIAN CONSTITUTION, Sept 02 2013, Important India

[1]Pol, Prabodhan (2018-01-04)."Understanding BhimaKoregaon".The Hindu. ISSN 0971-751X. Retrieved 2018-09-01. [2] The Constitution of India, 1950 [3] State of Maharashtra v TansenRizwanSiddiquee [4] Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III. [5](2006) 6 SCC 613 [6](2012) 10 SCC 731 [7](1992) 4 SCC 653 [8](2004) 3 SCC 349 [9]Criminal Procedure Code, 1972. [10] (1997) 1 SCC 416 [11] Supra note 12. [12] (1994) 4 SCC 260 [13] Union of India v. W.N. Chadha AIR 1993 SC 1082 [14]SanjivRajendra Bhatt Vs. Union of India and Ors. (2016) 1 SCC 1 [15] (2011) 5 SCC 79 [16] Article 19, Universal Declaration of Human Rights, 1948 [17] Article 9, Universal Declaration of Human Rights, 1948 [18]Sekhri, Abhinav, Article 22 — Calling Time on Preventive Detention (September 17, 2019). AbhinavSekhri, "Article 22- Calling Time on Preventive Detention", 9 Indian Journal of Constitutional Law 173 (2020), Available at SSRN: https://ssrn.com/abstract=3455821 or http://dx.doi.org/10.2139/ssrn.3455821


UTKARSH

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

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