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Police leaks led to trial by media in Bhima-Koregaon case: Quotes from dissenting judge

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Justice D.Y. Chandrachud says role of the court involves sensitive balances when state seeks to curb freedom to investigate offences against it.

New Delhi: In a majority verdict Friday, the Supreme Court declined to constitute a special investigation team to look into the raids and eventual arrests of five activists with alleged links to Maoists by the Maharashtra Police.

However, Justice D.Y. Chandrachud offered a dissenting opinion, on the grounds that the Pune police tried to deflect public opinion and conducted a trial by media by leaking selective evidence. He also highlighted various irregularities to make his point.

Here are excerpts from his opinion:

“The intersection between criminal law and constitutional rights has led to the evolution of judicial precedent which originates in this court… But lofty edicts in judicial pronouncements can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases.”

Also readWhy Justice D.Y. Chandrachud gave a dissenting judgment on Aadhaar

“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. Custodial interrogation involves the balancing of diverse and often conflicting values: the effective administration of criminal justice, an impartial process of investigation and the liberty and reputation of the individual.”

“Conscious as the court is of the public interest in the effective administration of criminal justice, it cannot be oblivious to the overriding constitutional concern to secure the dignity of the individual.”

“… He (Additional Solicitor General Tushar Mehta, representing the Maharashtra Police) urged that the petitioners have no locus to question the circumstances relating to the arrest of the five individuals named above. I would not have been inclined to accept a technical argument of this nature in view of the constitutional imperatives for this court to intervene when human freedoms and liberties are alleged to be imperilled.”

“Securing human liberty and dignity must occupy an important space in the judicial docket. Liberty and freedom are defining values of our Constitution. The institutional role of this court as a constitutional adjudicator should brook no technicalities which obstruct the cause of justice.”

“The court will not interfere in every case merely because it has the jurisdiction. But its duty to scrutinise, perceive and remedy violations of human rights is non-negotiable.”

“While the discipline of the law of criminal procedure must at all times be kept in view, it cannot be gainsaid that the protection of fundamental liberties is a subject so integral to democratic constitutional values that technicalities should not be allowed to override the cause of substantive justice. The court must undoubtedly tread with circumspection for in the guise of seeking access to its wide jurisdiction under Article 32, the normal remedies under the criminal law should not be displaced.”

“Again, as the court has repeatedly emphasised, public interest litigation should not become a weapon for settling political scores or of pursuing extraneous ends. In the present case, we have no manner of doubt that the initiation of the proceedings under Article 32 is not motivated by extraneous reasons.”

“The law is not a respecter of social, economic or political status and every litigant who seeks access to justice has to be treated evenly.”

“While the court does not determine the course of the investigation, it acts as a watchdog to ensure that a fair and impartial investigation takes place. A fair and independent investigation is crucial to the preservation of the rule of law and, in the ultimate analysis to liberty itself.”

“The fact that in a particular case, a SIT was ordered to be constituted in a situation where there was an allegation of interference with the investigation by the political establishment is not a reason to confine the exercise of the jurisdiction only to such cases. In the rights discourse, violations of law and transgressions of human rights arise in myriad situations which it may be difficult to anticipate exhaustively.”

“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.”

“The investigation commenced as an enquiry into the Bhima-Koregaon violence. The course of the investigation was sought to be deflected by alleging (in the course of the press briefings of the police) that there was a plot against the Prime Minister. Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings.”

“But during the course of the present hearing, no effort has been made by the ASG to submit that any such investigation is being conducted in regard to the five individuals. On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the Prime Minister. Nor does the counter affidavit makes any averment to that effect. All this has certainly a bearing on the basic question as to whether the Maharashtra police can now be trusted to carry out an independent and impartial investigation.”

“Upon perusing the material, I find that the allegation that each of the five individuals arrested on 28 August 2018 is found to be engaged in activities of the nature set out in paragraph 26 of the counter affidavit is taking liberties with the truth.”

“At this stage, it is necessary to note the submission which has been urged in regard to an undated letter of Sudha Bhardwaj to Comrade Prakash which was also allegedly distributed to the media. There is a serious bone of contention in regard to the authenticity of the letter which, besides being undated, does not contain any details including the e-mail header. A statement has been handed over the court in support of the submission that the letter is an obvious fabrication made by a Marathi speaking person because in as many as 17 places, it contains references to words scribed in Devanagari, using forms peculiar to Marathi. It has been urged that Sudha Bhardwaj who does not belong to Maharashtra and is not Marathi speaking, could not possibly have written a letter in Devanagari utilising essentially Marathi forms of grammar or address.”

“Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.”

Also read: No mala fide intention on part of police in arrest of Bhima-Koregaon activists: Top court

“…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. Unlawful activities which violate the law have to be dealt with in accordance with it.”

“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.”

“There can be no manner of doubt that the deprivation of human rights seriously impinges upon the dignity of the individual for which even compensation may not constitute an adequate recompense.”

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