New Delhi: Dissent is a symbol of “vibrant democracy” and the voices in opposition cannot be “muzzled” by persecuting those who take up unpopular causes, Justice D Y Chandrachud of the Supreme Court said Friday in his dissenting judgement in the Koregaon-Bhima violence case.
Justice Chandrachud, writing a separate minority verdict in which he disagreed with the views of Chief Justice Dipak Misra and Justice A M Khanwilkar, said that individuals asserting causes which might be unpopular to the echelons of power were entitled to the freedoms guaranteed under the Constitution. He made it clear, however, that when expression of dissent enters the “prohibited field” of incitement to violence or subversion of a democratically elected government by recourse to unlawful means, the dissent “ceases to be a mere expression of opinion”.
The Supreme Court Friday refused to interfere with the arrest of five rights activists by the Maharashtra Police in connection with the Koregaon-Bhima violence case and declined to appoint a SIT to probe their arrest. Observing that a special investigating team (SIT) must be appointed to conduct probe in the case, Justice Chandrachud said that court acts as a “watchdog” to ensure impartial and fair investigation as it was crucial for preservation of rule of law and liberty. Terming as “serious” the allegations levelled by the Pune Police that arrested the accused were plotting to attack Prime Minister Narendra Modi, Justice Chandrachud said this aspect required “responsible attention” and it cannot be “bandied” about by the police officers in media briefings.
“Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion,” he said in his 43-page verdict. He further said, “Unlawful activities which violate the law have to be dealt with in accordance with it”.
He noted that purpose of directions given by him in the verdict was to ensure that basic entitlement of every citizen, facing allegations of criminal wrongdoing, was that the investigative process should be fair. “This is an integral component of the guarantee against arbitrariness under Article 14 (equality before law) and of the right to life and personal liberty under Article 21. If this court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty,” he said.
Justice Chandrachud observed that there cannot be any doubt that deprivation of human rights seriously impinges upon dignity of individual for which even compensation may not constitute an adequate recompense. “The role of the Court involves particularly sensitive balances when the state seeks to curb freedom to investigate perceived breaches involving offences against the state,” he said. He also said that court has to be vigilant in exercise of its jurisdiction under Article 32 to ensure that “liberty is not sacrificed at the altar of conjectures”.
Justice Chandrachud strongly deprecated the conduct of Pune Police in utilising electronic media to cast aspersions on those under investigation and observed that this fortified the need for an investigation which was fair. He referred to media statements by the Joint Commissioner of Police and the Additional Director General of Police and said they had cast aspersions in media against persons whose conduct was still under investigation and in “disregard of proceedings pending before a judicial forum”. He said: “It is the duty and obligation of this court to ensure that the administration of criminal justice is not derailed”.
“The manner in which the Joint Commissioner of Police and the Additional Director General of Police (Law and Order), Maharashtra have selectively disclosed purported details of the investigation to the media and on television channels casts a cloud on the impartiality of the investigative process,” he said. He termed as “disconcerting” the behaviour of the Joint Commissioner of Police in holding a press conference hours after conclusion of hearing before the apex court and proclaiming that police had more than sufficient evidence against arrested individual – Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and Gautam Navlakha.
Justice Chandrachud noted that use of electronic media by investigating arm of the state to “influence public opinion” during pendency of probe subverts fairness of investigation as police was not “adjudicators nor do they pronounce upon guilt”. He said the move by petitioners in the case to initiate proceedings under Article 32 before it was “not motivated by extraneous reasons”.
Justice Chandrachud dealt with the allegations levelled by the police that the five arrested accused were found to be working for and to be an active member of “banned terrorist organisation” – the Communist Party of India (Maoist). “I find that the allegation that each of the five individuals arrested on August 28, 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,” he said.