Activist arrests: How judiciary came to their rescue     

Just when conscientious citizens were negotiating a sea of despair at the state’s crackdown on human rights defenders, lawyers and activists, the judiciary – the Supreme Court and the Delhi High Court – gallantly stepped in to protect the rights of citizens who cherish their civil liberties and democratic rights of protest and dissent.

Today, a three-judge bench of the Supreme Court, acting on the basis of a writ petition filed by a number of eminent intellectuals, including historian Romila Thapar, civil liberties crusader Maja Daruwala and economist Prabhat Patnaik among others, stayed the arrests and transit remands of those who were arrested by Maharashtra Police on 28 August till September 6. They can be kept only under house arrest at the places of their residence and not in police custody, the court said. Were it not for the apex court, all those arrested- human rights lawyer and trade union activist Sudha Bharadwaj, revolutionary poet Varavara Rao, and activists Vernon Gonsalves, Arun Ferreira and Gautam Navlakha, would have been taken to Pune and made to answer charges against them in a trial court. All of them have been booked under numerous provisions of the Indian Penal Code and the stringent Unlawful Activities (Prevention) Act.

Dissent- Safety valve of Democracy

In the Supreme Court, Additional Solicitor General Tushar Mehta, representing the Maharashtra Government and the Union of India, vehemently opposed the petition, contending that all the detenues had been arrested because of serious charges against them, and the petitioners, being “strangers” to the case, had no locus standi. Mehta termed the petition as vexatious, and urged its dismissal at the very threshold. Strangely, not even once did he mention that the police has alleged that the activists were accused of being party to a plot to assassinate Narendra Modi and other senior ministers. His pleas were repelled by the bench, which had Justice DY Chandrachud saying that “dissent is the safety valve of democracy”, and that illegal and arbitrary arrests and detentions were not to be condoned by law.

A battery of senior lawyers- Abhishek Manu Singhvi, Indira Jaising, Dushyant Dave, Rajeev Dhawan - among others represented the petitioners, and together argued that the widespread arrests on fabricated charges presented a dark spectre for democracy and the rule of law, and therefore must be rolled back. All of them vouched for the sterling credentials of the detenues and praised their endeavours, with Dhawan even admitting that he has for long been funding the activities of Sudha Bharadwaj. Mehta tried to discredit Bharadwaj by contending that she had a “previous record”, but was quickly cut to size by the petitioners’ lawyers who pointed out he was concocting facts. The ASG eventually had to backtrack and tender an apology to the court.

Delhi High Court joins in

Meanwhile, A Delhi High Court bench of Justices S Muralidhar and Vinod Goel took the Maharashtra Police to task while hearing Gautam Navlakha’s habeas corpus petition against his arrest and transit remand.

Justice Muralidhar, who asked most of the questions, repeatedly grilled the police for not producing sufficient evidence which would justify Navlakha’s arrest and remand. He was particularly scathing in his criticism of the police for not properly informing the grounds of arrest in a language which Navlakha understood (all the police documents were in Marathi, a language alien to Navalakha ), and also for not providing reasons in writing to the magistrate who had issued the order for transit remand.

He also questioned the credibility of the witnesses to the search and arrest produced by the police, saying that they should be local residents, and not ones who accompany the men in khaki. Going further, he said that the court will ensure that it judges the legality of the very arrest, and would never allow a lower court order which was passed mechanically. This was in response to ASG Aman Lekhi arguing that it was not for the magistrate who passed the order for transit remand to examine the merits of the case as there is a limited scope for scrutiny, and what is required is only a prima facie satisfaction.

From the court’s tenure, it appeared highly likely that the judges would restrain the police from proceeding with the arrest and transit remand. Just as the bench was dictating today’s order, Lekhi informed that the supreme court has stayed the arrests, so the judges did not proceed.

Now that the police and the government has come in for strong questioning, and even criticism by the courts, one cannot be faulted for harbouring hopes of the right to dissent being protected and upheld by the judiciary in the near future.