The Supreme Court on Wednesday said liberty cannot be sacrificed at the altar of conjectures and that it would look at the submissions of the central and Maharashtra government with a “hawk’s eye” while deciding on the arrests of activists in connection with the Bhima Koregaon violence in January.
The activists were arrested as part of the Pune Police’s investigation into the violence during the Bhima Koregaon event in January. While one petition was filed by five citizens a day after the arrests in August, an intervention application was also filed on behalf of five activists arrested in June.
Activists Vernon Gonsalves, Arun Ferreira, Gautam Navlakha, Sudha Bharadwaj and Varavara Rao, who were held in August, are currently under house arrest. The house arrest will continue till Thursday, when the top court resumes hearing the case. Activists Shoma Sen, Surendra Gadling, Mahesh Raut, Rona Wilson and Sudhir Dhawale were arrested in June.
On Wednesday, Additional Solicitor General Tushar Mehta disputed claims made on behalf of the ten activists and said procedures were followed in the case. Taking the court through the material related to the first five people arrested in June, Mehta said the relevant court was informed of the actions initiated at every step. “It was based on concrete material that we arrested the persons,” he said.
Mehta produced both the case diary and the evidence collected so far before the court. However, the evidence was not read out loud. Only the relevant page numbers and paragraphs were pointed out to the bench led by Chief Justice Dipak Misra, which read the paragraphs as and when they were cited by Mehta.
Mehta also said that there were photographs of the activists with Milind Teltumbde, on whom there is a bounty of Rs 50 lakh announced by the Maharashtra government. Teltumbde, a central committee member of Communist Party of India (Maoist), is the brother of management professor and intellectual Anand Teltumbde, whose home in Goa was raided by the police in August.
Earlier, appearing for the five eminent persons who had moved the public interest litigation against the arrests, senior lawyer Abhishek Manu Singhvi claimed that the letters purportedly written by the activists to members of the banned Communist Party of India (Maoist) were “cooked up”.
In particular, Singhvi said Maharashtra has cited letters written to and received from one Prakash of the CPI (Maoist). Citing a lower court order that had convicted alleged CPI (Maoist) member GN Saibaba, he said the court concluded that this Prakash was indeed Saibaba’s false named used for communications. Singhvi said Saibaba was convicted much before the letters produced were written. “How did someone serving in jail write these letters?” he questioned.
The lawyer said witnesses for the arrest of activists in June were brought from Pune. “They were stock witnesses. This is a grave violation of procedure.”
Singhvi also sought to know why a first information report was not registered on a grave charge that there was a plot to kill Prime Minister Narendra Modi.
Replying to these points later, Mehta argued that the same lower court which convicted Saibaba had also found that he had changed his fake name from Prakash to Chetan in 2012. The Prakash in the letters was a member of the CPI (Maoist) central committee. Mehta did not read out the name but produced it before the bench.
Mehta also claimed that there were dire references in some communications before 2014 to former Prime Minister Manmohan Singh and former Union Home Minister P Chidambaram as well.
When Mehta said some of these activists were sent into Maoist region in the garb of fact finding, Justice DY Chandrachud intervened and said someone going into a particular region for the sake of finding something out or for research cannot be deemed to be part of a banned organisation. At this point, Justice Misra asked Mehta to show his documents first.
While Mehta took the court through the letters, lawyer Prashant Bhushan appearing for the activists said their fundamental case was that the letters have been cooked up. To this, the bench collectively said the court, at this stage, cannot comment on the veracity of the evidence.
Mehta also said that except for Shoma Sen and Surendra Gadling, the others arrested have not moved for bail since they know exactly what has been recovered in the searches.
Justice Chandrachud again intervened to reiterate that there has to be a distinction made between “creating a sense of opposition” to the state and subversion of law and order through subscription to a banned organisation.
Senior lawyer Harish Salve, who is representing the complainant Tushar Damgude, said the context of the act gains importance. Giving the example of burning of the Constitution, he said a liberal person doing such a thing seeking a new Constitution was on a different plane to a member of a banned terrorist organisation doing it. “The means used should sync with the Constitution,” he said.
Senior lawyer Rajeev Dhawan said the court has to make a differentiation between “banality and complicity”.
On Monday, the Supreme Court had said it may consider ordering an inquiry by a special investigation team if it found anything gravely wrong with the material used as evidence against the 10 activists. “Every criminal investigation is based on allegations and we have to see whether there is some material,” Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud had said.
In previous hearings, the Maharashtra Police have defended the arrest on the grounds that the accused were planning large-scale violence as part of the agenda of the banned outfit Communist Party of India (Maoist). They had earlier claimed that the activists were involved in an event in Pune that was followed by caste-related violence at the nearby village of Bhima Koregaon on January 1.
The police have said the activists’ speeches at the event were meant to incite hatred and claimed to have seized thousands of letters exchanged among “underground” and “overground” Maoists. Two retired judges who organised the event have said that the arrested activists had nothing to do with the event.