Responding to a public interest litigation filed by five eminent persons against the arrest of activists and lawyers in cases related to caste violence in Bhima Koregaon near Pune in January, the Supreme Court on August 29 directed the Maharashtra police to hold the arrested people in their homes until the next hearing on September 6.

On August 28, the Pune police raided the homes of human rights activists in Mumbai, Ranchi, Hyderabad, Delhi, Faridabad and Sanquelim in Goa. The police sought to arrest five of them: Vernon Gonsalves and Arun Ferreira in Mumbai, Gautam Navlakha in New Delhi, Sudha Bharadwaj in Faridabad, and Varavara Rao in Hyderabad, under stringent provisions, including the Unlawful Activities Prevention Act, an anti-terror law.

On August 29, the prosecution presented three of the five arested activists before a Pune court and argued that they were active members of the banned Communist Party of India (Maoist) and were involved in activities such as recruitment and arms smuggling for the outfit. The prosecution alleged that the accused had formed an “anti-fascist” group that aimed to overthrow the government.

Now that the matter has gone directly before the Supreme Court, what are options available to the bench led by Chief Justice of India Dipak Misra that is hearing the plea? The criminal case is still in a nascent stage of investigation. Can the court quash the case altogether, or will it let the police carry on with its investigation without taking the accused into custody?

PIL and criminal cases

The Supreme Court admitted the public interest litigation as questions of the fundamental right of expression and speech were raised by the petitioners. While hearing the plea, the court observed that dissent is the safety valve of democracy.

While this is more or less stating the obvious, the comment has raised hopes that the Supreme Court will intervene decisively in the matter.

To begin with, the petition did not seek to dismiss the case. The plea before the bench was straightforward: order an independent investigation into the matter, stay the arrests of the activists and seek an explanation from the Maharashtra police on the arrests.

The petitioners did not seek the quashing of the First Information Report related to the Bhima Koregaon violence for two probable reasons. First, the petitioners were not the accused, which automatically limits their options. The petition stands on a larger platform of fundamental rights, which in its very basic form is also a way of ensuring that the established procedure of law is followed.

Second, the FIR does not feature the names of any of the five accused arrested by the Pune police on August 28. Had these names been mentioned in the FIR, the accused themselves could have moved their High Courts to quash the proceedings.

Perhaps, this was also the reason why the petitioners chose to move the Supreme Court directly with a public interest litigation, apart from the fact that there was an urgency in stopping the remand of the accused people. Since the arrests took place in several states, moving multiple High Courts to quash the transit remands would have been cumbersome.

Options before Supreme Court

Given the circumstances and the serious sections that have been invoked in the arrests, the options before the Supreme Court are limited, even though the court has sweeping powers under Article 142 of the Constitution to pass any order to secure the ends of justice.

Since the petition itself did not ask for quashing of the case, this option is unavailable.

The Supreme Court will have to first examine whether due procedure was followed when the arrests were made. Already, the lawyers appearing for the accused have pointed out glaring deficiencies, including the fact that all papers were in Marathi, a language alien to some of the accused. For instance, in the August 29 proceedings before the Delhi High Court against the arrest of Navlakha, the Maharashtra police admitted that the case diary was not shown to the chief metropolitan magistrate while seeking the transit remand necessary to transport him to Pune. This instrument is sought when the case registered is in another jurisdiction from the place of arrest. The police claimed that the contents were orally translated to the magistrate.

If the petitioners are able to convince the Supreme Court of procedural lapses, there is every chance that the arrests could be stayed for the time being, possibly with some conditions imposed on the movement of the accused.

Second, ordering an independent investigation at a stage when the police investigation itself has barely taken off could be difficult for the apex court. However, given the powers available to it under Article 142, it could very well choose to monitor the investigation to ensure that arbitrary police action is avoided. Alternatively, it could even direct the High Court to monitor the investigation.

A court-monitored process would be a key element since the accused are apprehensive that the police might meddle with the data that has been seized from them. Already, leaks to the media, ostensibly by the police, have made sensational claims. This includes a letter, purported to have been written by one of the accused, which is said to refer to a plot to assassinate Prime Minister Narendra Modi. Security analyst Ajai Sahni described the letter as an “obvious fabrication” that “strains credulity”.