Listen to this article:
The Supreme Court has recently dismissed a petition filed in 2009 that sought an independent probe into the alleged extra-judicial killings of tribal persons by security forces in Chhattisgarh, raising several questions amongst legal experts.
On Thursday, July 14, the apex court while dismissing the plea also imposed a fine worth Rs 5 lakh on the main petitioner, tribal-rights activist and Gandhian Himanshu Kumar. It added that failure to pay the same within a period of four weeks would lead to recovery steps being initiated against him.
Counsels on behalf of the Union government not only opposed the plea for an independent probe but also sought perjury proceedings to be initiated against the petitioners, claiming that they were depicting killings carried out by Naxals as being done by security forces instead.
Though the division bench of Justices A.M. Khanwilkar and J.B. Pardiwala left it to the government of Chhattisgarh to act against the petitioners for purportedly making “false charges” under Section 211 of the Indian Penal Code (IPC), the court, however, noted that the Chhattisgarh government could take action against the petitioners not only for perjury but even for the offence of “criminal conspiracy”.
The bench observed:
“[W]e leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface.”
The petition, which was moved by Himanshu Kumar and 12 others, alleged that security forces had shot down over 10 tribal persons from Chhattisgarh’s Dantewada district in the guise of anti-Naxal operations in 2009. Their plea sought an independent investigation into the same and asked the court to direct the government to provide compensation of Rs 5 lakh to the kin of the deceased.
After the judgement, activist Kumar told The Wire that he would be willing to go to jail, but would not pay the fine, adding that the verdict was “proof of the changing character of the court”.
Significantly, the top court’s order came less than three weeks after another controversial judgement by the court in the case of Gujarat riots victim Zakia Jafri, which was followed by the Gujarat Anti-Terror Squad arresting activist Teesta Setalvad and former DGP R.B. Sreekumar.
The bench, in that case, had noted, “All those involved in such abuse of process, need to be in the dock and proceeded with in accordance with the law.”
A growing number of experts have pointed to the pattern of the Supreme Court’s response against the petitioners.
Following the court’s order against activist Himanshu Kumar and the other petitioners, lawyer and academic Gautam Bhatia tweeted, “Second time in two weeks that the SC has gone after a petitioner for daring to file a case against state impunity, and passed hints about how they should be prosecuted for it.”
Speaking to The Wire, former Patna high court judge Anjana Prakash said, “I am really sorry we have come to such a pass.” Noting how defenders of human and civil rights “once felt secure coming to the courts with their grievances – no matter how small”, she added that “they never felt their petitions with fervent appeals to help was adversarial litigation. Nor did the state much less the courts behave as one. But times have evidently changed”.
A former Bombay and Allahabad high court judge echoed the same view, saying that the order could have the effect of “deterring people from coming forward to lodge complaints against investigation agencies”.
Speaking on the condition of anonymity, he emphasised how the order shows an interlocutory application was already filed by the Government of India seeking action against the petitioners, and that the court’s observations risked creating a “dangerous precedent”.
“These types of observations can be treated as a hint to prosecute, and in the event of this being undertaken, the accused petitioners will face trouble in the lower courts,” he pointed out.
The former judge also noted that it was “surprising” that the court was suggesting an alternative way to deal with the petitioners and clarifying that there is no bar to take cognizance under Section 195 (prosecution for contempt of lawful authority of public servants) of the Code of Criminal Procedure CrPC.
“They could have said that it is for the state to decide whether to go for perjury or not and left it at that. I don’t understand why the court suggested Section 211 [false charge of offence made with intent to injure] of the IPC by its own volition.”
Referring to the interlocutory application filed by the Union government, senior advocate Chander Uday Singh told The Wire that the apex court’s observations “will make it impossible for the person to defend himself in the prosecution”.
Singh also pointed out that despite having imposed very high costs on a petitioner, the fact that the court had gone ahead in virtually directing a prosecution to take place “suggests a vengeful attitude that is not befitting for the last refuge of our people”.
“And the vengefulness is compounded by making observations which will make it impossible for the person to defend himself in the inevitable prosecution that will follow,” he added.
“What’s worrying is the fact that they have passed directions in terms of para 67(b) in the order referring to the interlocutory application filed by the Union government. If you look at that paragraph, it is very dangerously worded. It seeks liberty to do something which the government if it had a right to do it, it could do anyway. But if it doesn’t have a right to do it, it is not entitled to get a certificate from the Supreme Court to do this. Because when the SC gives you this kind of liberty, it is virtually sealing the fate of a person who is then left with no defence,” Singh said.
The concerned paragraph prays that the court:
“(b) Pass an order directing CBI/NIA or any other central investigating agency or any other monitoring committee, as this Hon’ble Court deems fit and proper, to register an FIR and conduct an in-depth investigation to identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence before this Hon’ble Court as well as before the Hon’ble High Courts with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victimization before the Hon’ble Courts…”
While Para 67(a) in the order refers to the government’s prayers seeking the petitioners guilty for the offence of perjury, advocate Singh added that para 67(b) “is almost an invitation to create a case of a larger conspiracy against an ordinary petitioner who has been working with tribal persons for decades.”
Fear of a ‘chilling effect’
Mumbai-based lawyer Anubha Rastogi opined that the recent order could add to “a chilling effect”. Noting how this was “the third such case” she was aware of, Rastogi pointed out the treatment meted out to petitioners “first in the context of Indira Jaising and Anand Grover, and then Teesta and all and now this”.
In May 2019, a bench headed by then-CJI Ranjan Gogoi issued notice to advocates Jaising and Grover and their NGO, Lawyers Collective, following a PIL seeking a court-monitored probe into alleged violations of the Foreign Contribution Regulation Act (FCRA).
Jaising, who had previously spoken out in support of the staffer who accused former CJI Gogoi of sexual harassment, said that the Supreme Court’s notice was to “victimise” her, and Grover for speaking up against the court’s procedural violations while taking up the harassment case.
Reiterating the fear of a chilling effect, Justice Anjana Prakash said, “We were taught that docket explosions in courts added to their credibility. The dockets exploded because people believed in the efficacy of the courts and that courts alone as a last resort would give them an independent and sympathetic hearing. My fear is that such orders will intimidate the general public into silence.”
She added, “Who will an ordinary man turn to in times of distress? One must keep in mind that for an ordinary man, it is not easy to stand up against the might of the state and litigation is no luxury.”
Sabah Gurmat is an independent journalist and law graduate based in Mumbai.