Gautam Navlakha has been released but is everything okay in democratic India?

The Supreme Court passed the buck on the release of detained 'urban Naxals' to a lower court.

 |  6-minute read |   03-10-2018
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The Delhi High Court on Monday freed detained activist Gautam Navlakha from house arrest. Five weeks after Navlakha’s arrest, a bench of Justices S Muralidhar and Vinod Goel granted him relief and squashed the transit remand order passed by chief metropolitan magistrate (CMM) Manish Khurana, in which he failed to consider the case diaries and other evidence against Navlakha before allowing remand.

gautam-690_100218070306.jpgGautam Navlakha was released from house arrest on a Delhi High Court order. (Source: PTI)

The HC refused to accept the submission of Maharashtra Police that it should stay its hand since the Supreme Court had extended the house arrest of Navlakha and other activists by four weeks. The bench pointed out that the apex court had extended the house arrest by four weeks to enable the activists to avail appropriate legal remedy and the extension was for this limited purpose, which Navlakha has availed. Setting aside the August 28 order of the CMM granting Navlakha’s transit remand to Pune police, the HC said it was unsustainable in law and described his continued detention as “untenable”.

The HC said, “In view of Section 56 read with Section 57 of the CrPC and the absence of the remand order of the CMM the detention of the petitioner has clearly exceeded 24 hours which is untenable in law. Consequently, the house arrest of the petitioner comes to an end.”

The court also said that in the transit remand order, the CMM noted the submissions of the investigating officer of the case but the magistrate did not even think it necessary to record the submissions of the council who was provided to Navlakha. 

In a statement after his release, Navlakha said, “From Delhi High Court I have won my freedom. It thrills me no end... However, I cannot forget my co-accused and tens of thousands of other political prisoners in India who remain incarcerated for their ideological convictions, on account of false charges filed against them, and /or wrongful conviction under the Unlawful Activities (Prevention) Act.” 

Earlier, it had become clear that the Supreme Court would reject the case of five activists, accused of espousing Maoist causes. This despite Justice DY Chandrachud, who from the beginning questioned the Pune police, and criticised them for presenting ‘evidence’ before journalists.

Later, the many senior advocates who were present, including Abhishek Singhvi, Rajeev Dhavan, Anand Grover, Prashant Bhushan, Ashwani Kumar, Nihal Singh Rathore and many others, countered arguments presented by the Pune police and even by Justices (CJI) Dipak Misra and AM Khanwilkar.

supreme-court-690_100218070441.jpgThe Supreme Court passed the buck to a lower court in the case. (Source: India Today)

As one of the senior advocates pointed out, the majority of the bench excluding Justice DY Chandrachud, did not even suggest that the two retired judges PB Sawant, formerly a senior Justice of the Supreme Court, and Judge Kolse Patil who were at a Pune meeting on the eve of the January 1, 2018, violence at Bhima Koregaon, were not asked to state what they had seen. Senior advocates raised this issue, but majority judges did not agree. 

In fact, the Supreme Court majority refused to interfere in the proceedings stating, “dissenting views expressed or difference in political ideology” had nothing to do with the case. Not only did the majority decline to intervene in support of the activists, but also clearly stated “we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the main accused, but concerning their link with members of the banned organisation and its activities.”

The majority also said that the “investigating officer is free to proceed” against the accused, and rejected the plea to order a probe by a Special Investigation Team. The majority upheld the bench’s August 29 order to keep the activists under house arrest to enable them to move the appropriate forum for bail or quashing of the case registered against them. 

Once again dissenting from his colleagues in the majority of 2-1, Justice Chandrachud observed, “Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.” 

On Friday, September 28, he said “there are serious doubts” about the Pune police probe. He went on to say, “Conscious as the court is of the public interest in the effective administration, it cannot be oblivious to the overriding constitutional concern to secure the dignity of the individual. The key to the balance between the two lies in a fair, independent and impartial investigation of crime...”

Coming down hard on the Pune police, he said, “There is sufficient evidence placed before the bench to have an independent investigation... 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 media.”

Justice Chandrachud was clear that “it is not only permissible but our constitutional duty to ensure that the investigation is carried out by a special investigation team... so that justice is not compromised.”

chandrachud-690_100218070636.jpgJustice DY Chandrachud has emerged as the powerful voice of dissent in recent past. (Source: India Today)

This was a clear rebuttal of the majority which stated that there was no need for a SIT.

Referring to police allegations, made during a press conference, that there was a plot being hatched to kill the Prime Minister, he said the additional solicitor “fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the PM.”

Justice Chandrachud said when the joint commissioner of police and the additional director 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.”

On the plea to release the five activists, the majority said, “The accused must pursue this relief before the appropriate court, which can be considered by the concerned court on its own merits in accordance with law.”

So in other words, the Supreme Court passed the buck to a lower court. From examining all three judges, the majority of CJI Dipak Mishra and Justice Khanwilkar appeared to be less interested in the case, indicated in their insistence that the trial be held in a lower court.

It is quite clear that the decision of the Supreme Court was not upheld when the matter came before the Delhi High Court.

Unfortunately, there are likely to be further instances where there are slippages which occur in anti-terrorism laws, including the Unlawful Activities (Prevention) Act. This case is a clear instance of what can happen in such a situation.

It is no accident that in Maharashtra, chief minister Devendra Fadnavis and others welcomed the Supreme Court majority judgment. In such cases, as we have seen in Mumbai, the police are quick to allege unlawful activities, and their actions usually have political backing. This is not a good situation for a secular democratic country like India.

Also read: Liberals are forgetting slain Apple executive’s wife has a right to decide for herself


Kamal Mitra Chenoy Kamal Mitra Chenoy @kamaichenoy

The writer is an academic and activist.

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