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Case Analysis : Romila Thapar vs. Union of India


Authored By : Ankita Roy


Abstract:

The Constitution guarantees fundamental rights and their protection to the citizens of India. This case highlights the erosion of fundamental rights caused by the Unlawful Activities(Prevention)Act. The Public Interest Litigation filed by the five famous people alleges the Maharashtra Police of fabricating the arrest and unfair and impartial investigation. The court decided this case with 2:1 ratio and disposed of the petition filed for fair and impartial by special investigation team. The court has also questioned in tis whether the petition had any political affect.


Keywords:

Supreme Court; Special Investigation Team; Fabrication.


Case Number:

Writ Petition(Cri.) No. 260 of 2018 decided on 28th September,2018.


Petitioner:

Romila Thapar, Devika Jain, Prabhat Patnaik, Maja Dharuwala, Satish Deshpande


Respondent:

Union of India, State of Maharashtra


Bench:

Former CJI, Justice Dipak Mishra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar.


Introduction:

This case is a landmark judgment on the “arrest of activists”. A public interest litigation was filed by five famous people hailing from different fields of society. It. The court decided the judgment with 2:1 ratio and disposed of the petition filed stating that apex court cannot interrupt in a proceeding before the lower court.


Background:

In this case, a PIL was filed and the court has accessed the arrest of five activist under the Unlawful Activities Prevention Act and Indian Penal Code. The Public Interest Litigation challenged the arrest of five human rights activists and alleged that the Police has fabricated them in Bhima-Koregaon violence. It was prayed by the petitioners to allow independent and impartial inquiry by Special Investigation Team.


Facts:

Five well known human rights activists were arrested by the Maharashtra Police from their homes without any evidence. They were given signed arrest memo. They were arrested for their active participation as conspirators in the Bhima-Koregaon Violence. The petitioners are five famous people from different fields of the society and according to them this action was taken to dissuade the minds of the people so as to prevent them from criticizing the government and its policies. The police asserted their connection with banned organisation. Thus, the petitioners approached the apex court under article 32 challenging the arrest and prayed for SIT.


Issues:

i) Whether the apex court will allow the formulation of special investigation team?

ii) Whether the arrest made was arbitrary and violative of fundamental rights?

iii) Whether behest of the next friend of the accused can entertain the same prayer?

iv) Whether accused person be released after the impression of being trapped in?


Arguments Advanced:

Petitioner:

The petitioners contented that the arrest of made by the Maharashtra Police violated the fundamental rights of the arrested people. It violated the right to equality before law, right to free expression and right to life and personal liberty guaranteed under article 14,19 and 21 respectively by the Indian Constitution. The arrest was an arbitrary act and they were arrested as they were human rights activists and the arrest was made to dissuade them from criticizing government and its policies. Also, it was contended that the arrest made was baseless as it lacked evidentiary link. There was misuse of the power under the UAPA and the Police fabricated them in Bhima-Koregaon violence.

Furthermore, they contended that the petition contemplates for the fair and impartial investigation to be done by a Special Investigation Team.

Respondent:

They contended that the arrest was made on the basis of evidences collected during the investigation and that it was not arbitrary. They also contended that the arrested people were connected to a banned terrorist organisation named as Communist Party of India. The documents and other evidences found showed their active participation in the acts against the nation. They also had previous criminal proceedings. Further they claimed that they were the active conspirators of the Bhima-Koregaon violence.


Judgment:

The judges decided this case with the majority of 2:1. Justice Mishra and Justice Khanwilkar decided against and disposed of the petition for SIT whereas Justice Chandrachud gave the dissenting judgment. In this case the Supreme Court did not express view regarding the innocence of the accused or offences.

In view of Justice Mishra and Justice Khanwilkar-

The court rejected the petition for Special Investigation Team referring to the case of Narmada Bai v. State of Gujrat & Ors.[1] , where the court stated that parties cannot choose the investigation agency. Also, the court elongated the house arrest for four weeks from the judgment date so that the activists can appeal for bail in the lower courts. The court also referred to Joginder Kumar v. State of U.P.[2] where the court stated, that existence and exercise of arrest are different. It was held that arrest can be made after reasonable and satisfactory investigation. The court stated that the accused can apply for the modified relief before appropriate courts. Hence, the apex court cannot interrupt in the criminal proceeding pending before any lower court.

In the view of Justice Chandrachud-

Justice Chandrachud stated that in this case investigation by special investigation team is needed and it should be monitored by the court. Further, he stated that there is no political affect on this petition and there are certain doubts regarding impartiality of Police. he said that the court can interrupt in case the police commits any procedural lapse in the inquiry.


Conclusion:

In this case, the judges differ in two views, the majority consisted of Justice Dipak Mishra and Justice Khanwilkar. The other view was of Justice D.Y. Chandrachud. The majority held that i)the parties cannot choose the investigation agency for their case and ii)the court cannot interrupt in any criminal proceeding that is pending before any lower court. However, the court did not express any opinion regarding the innocence of the arrested people. This case has empowered one to re-check the delicate nature of protection regarding the freedom of speech and expression when it clashes with state.


Footnotes :

[1] (2011) 5 SCC 79; [2] (1994) 4 SCC 260;


Reference:

[1] Anoushka Saha,Romila Thapar v. Union of India(Case Analysis), http://probono-india.in/research-paper-detail.php?id=145;

[2] Mamta Kumari,Case Summary: Romila Thapar & Ors. v. Union of India & Ors.,https://lawlex.org/lex-bulletin/case-summary-romila-thapar-ors-v-union-of-india-ors/24864;

[3] Arrested Activists,https://www.scobserver.in/court-case/activists-arrest-case/arrested-activists-judgment;

[4] Romila Thapar v. Union of India,https://indiankanoon.org/doc/52834611/;



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