Arrest of activists not over dissent, says SC in 2-1 ruling, declines to interfere in case

Chief Justice of India Dipak Misra and Justice A M Khanwilkar, who delivered the majority decision and said the “investigating officer is free to proceed” against the accused, rejected the plea to order a probe by a Special Investigation Team. But Justice D Y Chandrachud, who gave a dissenting opinion, was all for a SIT probe. In his order, he said “voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”.

Ruling on petitions by historian Romila Thapar and others, CJI Misra and Justice Khanwilkar (he wrote the order for both) said they had examined the material gathered by police during the investigation and were “of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities”.

The house arrest of the five activists, held by Pune police on August 28, was extended by four weeks. The bench said they could seek relief from the appropriate court during this period.

Disposing the petitions, the majority judgment said “in the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough”.

The two judges said “this is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court”.

“We find force in the argument of the State that the prayer for changing the Investigating Agency cannot be dealt with lightly and the Court must exercise that power with circumspection.” On the plea to “issue directions that all electronic devices, records and materials, allegedly seized from the detenue/accused, be examined by Forensic Science Laboratory outside the State of Maharashtra to ensure fair play and in the interest of justice”, the judges said “even this prayer cannot be taken forward”.

They said if any of the accused have any grievance or apprehension, they “can make that request before the jurisdictional Court, which can be considered at the appropriate stage in accordance with law”. On the plea to release them, the two judges said “the accused persons must pursue this relief before the appropriate court, which can be considered by the concerned court on its own merits in accordance with law”.