The dissenting judgement outweighs majority judgement in legal and factual reasoning.
It is quite natural that the same set of facts will be perceived differently by different people. This can happen in judicial process too. Instances are galore,where different judges draw different inferences from the same set of facts presented before them. That is why we see appellate courts reversing trial court judgments on facts and judges on a single bench delivering dissenting opinions on factual findings.
All that is fair, so long as these judgmental differences are with respect to same set of facts. However, if one judgment omits to consider certain relevant circumstances in the factual chain which were considered by the other judgment, it will fall short of a fair judicial process. Failing to consider relevant facts is a test of jurisdictional error employed for judicial review. Also, when there is a split in verdict from a bench, it is ideal that the judgments discuss the points of differences in the other judgment(s) and explain the difference. If there is no such discussion of mutual differences, it will mean that there were no internal deliberations between the judges on the bench.
The majority opinion in the Bhima-Koregaon case is such an instance. The majority opinion expressed by Justice A M Khanwilkar,to which Chief Justice Dipak Misra concurred,totally omitted from consideration certain facts which acted as heavy influencers in the dissent of Justice D Y Chandrachud. While the majority opinion is on set of facts ‘A’, the dissenting opinion is on set of facts ‘A+B’. The majority opinion does not care to state why the additional facts ‘B’, which caused the dissent, are not applicable or totally irrelevant for consideration. The majority is blissfully blind to those facts!
The petition filed by Romila Thappar and four others – who are termed ‘illustrious persons in their field’ by the majority- sought an independent enquiry under a Special Investigation Team set up by the Court to investigate the allegations against five arrested activists on the ground that Maharashtra police was highly biased and motivated in the matter.
The arrests of five activists – Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves and Varavara Rao - were made by Maharashtra police as part of investigation in FIR No.4/18 of Vishram Bagh PS (Pune City). The FIR alleged that the incidents of violence in Bhima-Koregaon parade held on January 1, 2018 were incited by inflammatory song and dance performances made at the Elgar Parishad meeting held in Pune on December 31,2017 (Justice Chandrachud noted that two retired judhes were associated with the event: one of them, Justice PB Sawant is a former judge of SC and the other Justice BG Kolse Patil is a former judge of the Bombay High Court). It was also alleged that objectionable books and pamphlets were distributed in the meeting. Justice Chandrachud’s judgment notes the petitioners’ submission that the inflammatory speeches referred in the FIR were actually Marathi translation of verses from the German play “The Good Persons of Szechwan” by Betrolt Brecht. The performance by Kabir Kala Manch during the Elgaar Parishad acted on verses from the German play like “When injustice is done there should be a revolt in the city. And if there is no revolt, it were better that the city should perish in fire before the night falls”.
With respect to the actual incidents of rioting and violence that occurred during Bhima-Koregaon parade on January 1, an FIR was registered on January 2, as FIR No.2/18 of Pimpri Station against Hindutva right wing leaders Sambhaji Bhide and Milind Ekotbe. Six days later, the FIR concerning this case was registered, alleging that provocative song performances in Elgaar Parishad incited violence. A petition is pending in Bombay HC seeking proper investigation into the first FIR, stating that the main accused Sabhaji Bhide is still roaming free.
It is pertinent to note that the petition before the SC was not seeking to establish the innocence of the arrested activists. It was a petition for an independent enquiry by a court appointed SIT. Therefore, the issue before the Court was whether the investigation carried out by Maharashtra police was fair, unbiased and unmotivated.
Justice Chandrachud listed several circumstances, which cast a cloud on the ability of Maharashtra police to carry out fair and impartial investigation. The circumstances were :-
• Within hours after the SC admitted the petition on August 29 and stayed the transit of arrested activists from their homes to Pune, the Joint Commissioner of Pune Police addressed a press conference, stating that police had sufficient evidence.• On August 31, the ADG of Maharashtra police held a press briefing, where several letters were selectively flashed to media to suggest that the arrested activists were involved in a plot to assassinate the Prime Minister.• These incriminating letters do not form part of the case diary in the investigation against the activists.• Months before the arrest of Sudha Bharadwaj, a letter attributed to her was flashed in a news channel on July 4, to create the impression that she had links with Maoist organizations.• These letters have not been produced in any court of law and are not mentioned in the remand applications filed before the Magistrates.• ASG Thushar Mehta submitted that there was no basis to link the five arrested activists to the alleged plot to assassinate PM. The ASG also submitted that no investigation in that regard is being carried out against the activists.• Even though there was no allegation on record that the activists were involved in PM assassination plot, the police made an attempt to create a public impression in that regard through their media briefings.• The ADG appeared in Truth vs Hype program in NDTV on September 1 to admit that the letters were still undergoing forensic analysis.
Based on the above circumstances, Justice Chandrachud held that there was an attempt by the police to tarnish the reputation of the arrested activists by selectively leaking information to media.“The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media”, he said.
It may be noted that the revelations made by the police fuelled the narrative that the arrested activists were ‘urban naxals’.
Justice Chandrachud also noted that the investigation,which started as an enquiry into Bhima-Koregaon violence, got deflected with allegations of plot to assassinate PM.
Apart from the above, Justice Chandrachud also dealt with procedural lapses in the arrest and glaring discrepancies in investigation. It was undisputed that none of the five arrested activists were present in the Elgaar Parishad meeting. The judge noted that the panch witnesses who attested arrest were persons from Pune who accompanied Pune police to the places of residence of the activists. It was not disputed before the Court that the witnesses were from Pune who travelled as part of the police team which made the arrest. This was held to be in contravention of Section 41B(b) of the CrPC, which mandate that at least one of the arrest witnesses must be a respectable person form the locality. In this regard, it may be recalled that the Delhi High Court had also observed in the petition of Gautam Navlakha that arrest and remand were carried out in blatant violation of procedure. The High Court also noted that the FIR and documents produced before the Magistrate for transit remand were in Marathi, a language unknown to the accused as well as the Magistrate. The Delhi High Court was about to quash the arrest and remand of Navlakha, and Justice Muralidhar had even started dictating the order. But the proceedings were halted in view of the SC intervention in the meantime.
Justice Chandrachud held that these procedural lapses “bear upon the fairness and impartiality of the process which has been followed by the investigating agency”.
The materials produced by the ASG Thushar Mehta to show that police proceeded on the basis of hard evidence were examined by the Court. Justice Chandrachud noted that the incriminating letters were recovered from laptops of others, and on that basis sweeping conclusions are made that the activists were closely linked with Maoist organization, so as to invoke UAPA. According to him, such allegations amounted to “taking liberties with the truth”. He noted the submission that a letter attributed to Sudha Bharadwaj, allegedly written to a Maoist, was recovered from laptop of another person, and had words in Marathi, which was a language not known to her.
A cumulative effect of above circumstances, especially the selective media revelations made by Police to besmirch the reputation of arrested activists by linking them to an assassination plot which had no mention in the case diary, led Justice Chandrachud to hold that “this is a proper case for the appointment of a Special Investigating Team”
When Majority Chose To Be Blind To Police Excesses
What is surprising in the majority opinion is that it makes no reference to the circumstances listed by Justice Chandrachud. The majority judgment authored by Justice Khanwilkar- who rarely writes judgments in prominent matters- simply makes a curt statement that “no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer”. There is absolutely no reference made to the mischievous press conferences held by Maharashtra police to create an aura that activists were "urban naxals". It is worthy to note that the ASG Thushar Mehta himself admitted in the Court that there is no basis in those allegations. Though the petitioners had filed a rejoinder detailing the instances of press briefings done by police, all those seemed as “vague and unsubstantiated assertion” to Justice Khanwilkar.
The glaring procedural lapses in the arrest- which were noted by Delhi High Court and also Justice Chandrachud- were trivialized by the majority judgment as “some circumstances to question the manner of arrest”.
The majority also concluded that “it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities”.This conclusion would have been acceptable, had the overall conduct of the investigating agency been impartial and fair. But the majority judgment did not even care to at least discuss the circumstances which weighed with Justice Chandrachud. Had there been such an exercise by the majority, the cloud cast on investigating agency would have been totally dispelled. The majority however chose to be blind to those circumstances. The silence in the majority judgment regarding the conduct of Maharashtra police is deafening. When strong circumstances exist showing biased nature of investigation, how can the majority accept the materials unearthed in such an investigation, without dispelling those circumstances? Ideally, the majority should have expressly discarded those circumstances by listing out cogent reasons.
When it is tough confronting reason, embrace technicality – the majority judgment follows this evasive approach. That the accused cannot choose investigating agency is a settled principle. However, in exceptional circumstances, the Court can order change of investigating agency, if there are circumstances to show that investigation is biased. In the Narmada Bai v State of Gujarat case cited by the majority to state the principle that accused cannot choose investigating agency, the SC ultimately ordered investigation by CBI in a case where the local police had already submitted charge sheet. There are also umpteen instances where the SC has constituted SIT.
The dissenting judgment also explained why the judgments relied on by the majority were not applicable in the present case. The dissent explains why this is an extra-ordinary case warranting judicial intervention. "These proceedings have been moved with a specific grievance that the arrest of the five individuals is an attempt by the state to muzzle dissent and that each of them is being prosecuted for being a defender of persons subjected to human rights violations", Justice Chandrachud noted, endorsing the extraordinary situation of the case.
"The conduct of the Pune police in utilising the agency of the electronic media to cast aspersions on those under investigation fortifies the need for an investigation which is fair. When the Joint Commissioner of Police and the Additional Director General of Police cast aspersions in the public media against persons whose conduct is still under investigation, and in disregard of proceedings pending before a judicial forum, it is the duty and obligation of this Court to ensure that the administration of criminal justice is not derailed", he explained why the Police is appearing to be biased against the activists.
Sadly, such a reasoned approach is absent in the majority judgment, which proceeds on narrow grounds of technicalities.The dissenting judgement far outweighs majority judgement in legal and factual reasoning.
Since the majority does not expressly state reasons to show why the circumstances pointed out by Justice Chandrachud do not cast a shadow on the credibility of Maharashtra police, it is difficult for an objective observer to believe that the investigation conducted by them will be fair. The majority had to exercise extra care and diligence, as draconian provisions under UAPA were involved in the case. The failure of majority to do so can only be termed as judicial abdication.
It may be a cruel coincidence that investigation in an FIR arising from a lyrical rhetoric is fuelled more by imagination than by facts. It might be yet another coincidence that grievance against use of police to muzzle political dissent could only appeal to the lone dissenting judge.