Why Justice Chandrachud Thinks an SIT, Not Maha Police, Should Probe Bhima Koregaon Case

"Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigating agency."

New Delhi:  The Supreme Court on Friday refused to order an SIT investigation into the arrest of five rights activists by the Maharashtra police, and ordered four more weeks of house arrest. During these four weeks, the activists – Sudha Bharadwaj, Vernon Gonsalves, Arun Ferreira, Varavara Rao and Gautam Navlakha – may approach a trial court for bail, the court said.

A three-judge bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud were hearing the matter. Chandrachud presented a dissenting opinion.

In the majority verdict read out by the CJI, the judges said, “This is not a case of arrest merely because of dissent or difference in political views.”

“Accused persons do not have say in which investigating agency should probe the case,” Misra said.

Justice Chandrachud, however, said he could not agree with the majority opinion, and launched a scathing criticism on the Maharashtra police for its actions. The state police, the judge said, could not be trusted to investigate the case in a fair manner, and he was in favour of an SIT probe.

“As a matter of principle, I am unable to agree with the views expressed by the learned Chief Justice and my learned brother Justice AM Khanwilkar,” Chandrachud wrote.

The Wire brings you curated highlights from Justice Chandrachud’s dissenting opinion.

Trial by media

I must, at the outset, dwell on the fairness of the manner in which the police have approached this investigation. On 29 August 2018, this Court issued notices to the State of Maharashtra and to the others impleaded as respondents to the proceedings. Within a few hours of the conclusion of the court hearing, a press conference was held in Pune by Shivarjirao Bodhke, the Joint Commissioner of Police proclaiming that the Pune police had more than sufficient evidence against the five individuals whose transit remand was stayed by this Court while ordering them to be placed under house arrest. This is disconcerting behaviour – the Joint Commissioner sought in this oblique manner to respond to the interim order of this Court by recourse to the electronic media.

…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.

…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.

Plot to assassinate the prime minister

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.

Sudha Bharadwaj’s ‘letter’ to ‘Comrade Prakash’

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. We need not delve into these aspects at this stage, since they are matters for a fair investigation.

Police witnesses

One of the circumstances which must certainly bear upon the fairness and impartiality of the process which has been followed by the investigating agency is in regard to the importation of two panch witnesses from Pune, when the arrests were carried out. Section 41B of Code of Criminal Procedure emphasises the importance of an independent witness while making an arrest.

…The two panch witnesses in the present case are employees of the Pune Municipal Corporation. It is not disputed before this Court that they travelled as part of the police team which made the arrest.

Need for an SIT investigation

…my view [is] that in the interest of justice, and particularly when there are serious doubts regarding the investigation being carried out, it is not only permissible, but our constitutional duty to ensure that the investigation is carried out by a special investigation team or a special investigative agency so that justice is not compromised.

…The facts of the above case are distinct from the case at hand. The observations made on the maintainability of public interest litigation only lend support to the present case. The petitioners in the present case are not anonymous. There has been no argument that the petitioners have been motivated by personal gain or political considerations.

…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.

…Hence, I am of the view that while the investigation should not be thwarted, this is a proper case for the appointment of a Special Investigating Team. Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigating agency. Sufficient material has been placed before the Court bearing on the need to have an independent investigation.

Read the full text of his dissenting opinion below.

Justice Chandrachud Dissenting Opinion by The Wire on Scribd