Can’t curb liberty on conjecture, says Supreme Court

Dissent not subversion, says judge

Updated - September 20, 2018 05:30 pm IST

Published - September 20, 2018 12:35 am IST - NEW DELHI

The Supreme Court of India, at New Delhi, the Capital of India.        Photo: Rajeev Bhatt , September 19, 2003.

The Supreme Court of India, at New Delhi, the Capital of India. Photo: Rajeev Bhatt , September 19, 2003.

Personal liberty cannot be sacrificed at the altar of conjecture, Justice D.Y. Chandrachud of the Supreme Court told the Maharashtra government, which kept insisting that there was nothing ‘hanky-panky’ in the arrests of rights activists in the Bhima-Koregaon violence case.

They were part of a larger conspiracy to cause “mass destruction” and “complete break-up of law and order,” Additional Solicitor-General Tushar Mehta, for Maharashtra, told the Bench, led by Chief Justice of India Dipak Misra, on Wednesday.

Justice Chandrachud, who is part of the Bench along with Justice A.M. Khanwilkar, replied that the State should first learn to distinguish between dissent against government policies and “subversion of law and order.”

The observations from Justice Chandrachud came while the Bench was going through the evidence against the activists.

“You [the Maharashtra government] should make a clear distinction between opposition to government and efforts for mass destruction or violence… We may not like it [resistance], but we must accept the fact that there will be opposition,” Justice Chandrachud told Mr. Mehta.

The Maharashtra government claimed that their raids unearthed “complete materials” to show that activists Surendra Gadling, Soma Sen, Mahesh Raut, Rona Wilson and Sudhir Dhavale, arrested in June by the Pune police, were active members of the banned Communist Party of India (Maoist).

Mr. Mehta submitted that evidence showed they were preparing for large-scale violence and had links to poet Varavara Rao, lawyer Sudha Bhardwaj, activists Vernon Gonzalves, Arun Ferreira and Gautam Navalakha, who were arrested on August 28.

The Supreme Court had ordered they be placed under house arrest.

Senior advocate Abhishek Manu Singhvi, for historian Romila Thapar and other petitioners who have challenged the arrests as a measure to quell dissent, cited the case of Varavara Rao. “He is a renowned poet. He is 79 years old. This is like ‘give a dog a bad name and then hang him’,” Mr. Singhvi submitted. He said the central theme of the petition is personal liberty.

Ethical touchstones

Senior advocate Ashwani Kumar submitted that “mere assertions of criminality by the State in the background of the special circumstances of the case cannot become the basis for incarceration of those detained… legality of action under penal statutes that robs a person of his liberty and reputation is required to be tested on the touchstone of the libertarian and dignitarian constitutional morality.”

Mr. Singhvi and advocate Prashant Bhushan argued that the charges were foisted against the activists. There have been selective leaks to the media in a bid to link the arrested activists with the Bhima-Koregaon violence and to efforts to create a situation of ‘mass violence.’ “All this has been done to create prejudice against them,” Mr. Singhvi submitted.

The court remained sceptical about the quality of evidence produced against the activists.

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