Consider this: One of the grave accusations that the Pune police made to the media about the 10 human rights activists and lawyers who have been arrested since June in cases connected to the Bhima Koregaon caste violence was that they were involved in a plot to kill Prime Minister Narendra Modi.

On Friday, in a 2:1 judgement, the Supreme Court said it would not order a special investigation into the case. The majority opinion, written by Justice AM Khanwilkar and concurred by Chief Justice of India Dipak Misra, refused to go into the merits of the evidence presented or the alleged lapses in the procedure by which the activists were arrested.

The arrests were made in a case that began as an investigation into caste violence in Bhima Koregaon village near Pune on January 1 but has now turned into an alleged Maoist conspiracy to create conflict against the state. Ten activists and lawyers have been arrested in the case five on June 6, another five on August 28. The police claimed to the media that they had found letters linking the arrested activists – who they described as “urban Naxalites” – to a plot to set off “a Rajiv Gandhi-style” incident to assassinate Modi.

But the dissenting opinion written by Justice DY Chandrachud makes clear that the Maharashtra government itself does not believe that the activists arrested were in any way connected to a plot to kill Modi, as the police claimed.

Chandrachud said:

“The course of the investigation was sought to be deflected by alleging (in the course of the press briefings of the police) that there was a plot against the Prime Minister. Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings. But during the course of the present hearing, no effort has been made by the ASG to submit that any such investigation is being conducted in regard to the five individuals. On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the Prime Minister. Nor does the counter affidavit makes any averment to that effect.”  

This statement is vital because this claim was bandied before the public at a press conference by senior police officers in Pune three days after the activists were arrested. This was a straightforward ploy to influence public opinion and points to prejudice on part of the police officers against the arrested activists and lawyers.

Such prejudice undermines the credibility of the investigation, the central reason why five eminent persons including historian Romila Thapar approached the Supreme Court on August 29 with a public interest litigation praying for an independent and credible investigation.

As it turns out, this did not manage to persuade the two judges who gave the binding majority opinion.

The difference between the majority opinion and the dissent by Justice Chandrachud is stark.

The majority, citing judicial precedent, said that the accused cannot choose the manner of investigation and thereby refused to grant a special investigation.

In the course of arguing towards this conclusion, the majority opinion said that the evidence provided by the Maharashtra government shows that the activists were arrested not merely for dissent but for their association with a terrorist organisation, the Communist Party of India (Maoist).

Procedures violated

All through, the majority opinion says that the nature of evidence could only be tested before the relevant courts and that any remedy has to be sought before the jurisdictional courts. On plain reading, this looks like a fair conclusion and one based on judicial discipline. However, what is conspicuous in the opinion is that the bench majority has not given a fair thought to the violation of procedures, including stock witnesses being used for making the arrests.

The two judges said:

“In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer.”

The question that immediately arises is how the decision by the police to present a fake plot to kill Prime Minister Modi could be described as anything but mala fide?

Given that the central question here is one of liberty, the court ought to have weighed in on the broad picture that the alleged evidence collected by the police gives about the case, even if they believed commenting on the evidence itself would amount to interfering with the investigation. The majority, however, did not do this.

Justice Chandrachud, on the other hand, took exactly this route of prudence in his attempt to lift the veil on the police claims. He said:

“Upon perusing the material, I find that the allegation that each of the five individuals arrested on 28 August 2018 is found to be engaged in activities of the nature set out in paragraph 26 of the counter affidavit (extracted above) is taking liberties with the truth. General allegations against the philosophy of a banned organisation, its policies and the modalities followed in the execution of its unlawful activities constitute one thing. Linking this to specific activities of named individuals is a distinct matter.”  

What the court was expected to do was to balance the interests of the state in establishing unlawful activities and the interests of the accused in seeking a fair investigation. It is only the dissent that carefully attempts this balance, whereas the majority has simply put the burden on judicial discipline, with little regard to the grave concerns on liberty. Again, Justice Chandrachud pointed out this duty of the court succinctly while analysing the use of stock witnesses during the arrest:

“The two panch witnesses in the present case are employees of the Pune Municipal Corporation. It is not disputed before this Court that they travelled as part of the police team which made the arrest.

There is a serious allegation that the arrests have been motivated by an attempt to quell dissent and to persecute five individuals who have pursued the cause of persons who have suffered discrimination and human rights violations. In approaching the present case, the Court must be mindful of the need not to thwart a criminal investigation leading to the detection of unlawful acts. Equally, the Court has to be vigilant in the exercise of its jurisdiction under Article 32 to ensure that liberty is not sacrificed at the altar of conjectures.” 

The mere fact that the Pune police instigated a media trial should have been a major point to consider a special, independent investigation. This is especially true when the nature of the false allegation made was so grave. It showed that in order to implicate the accused, the police was even willing to cook up an assassination plot aimed at the prime minister.

At best, the majority opinion can only be described as a mechanical order.