CJP protest: Pleas flag police excesses, Supreme Court weighs independent probe option

The bench said it would take a call on an independent probe after examining the responses of the Centre and states. As an interim measure, it directed that CCTV, drone and body cam footage, wireless communication and PCR notes related to the protest be preserved.
The petitioners have demanded that the probe committee should be headed by a former Chief Justice of India.

The bench, however, said “prior to issuing any such order based on a tentative opinion, we consider it appropriate, in the interest of justice, to afford a brief period to the NCT of Delhi and the Union of India to submit their respective versions through an affidavit accompanied by relevant material. Likewise, we find it necessary to grant a short hearing to the various States where similar acts of violence have occurred, as the proposed investigation will encompass inquiries into such incidents within those States as well”.

It sought replies from the Centre and the governments of Delhi, Maharashtra, Bihar, Assam, West Bengal, Kerala, Madhya Pradesh and Uttar Pradesh where police cracked down on protesters who had joined the Cockroach Janta Party-led protest against exam paper leaks.

The bench was hearing petitions on alleged police excesses, the counsel for families of injured police personnel and some journalists who were allegedly attacked.

“The allegations made by the petitioners, prima facie, establish a compelling case for an independent and impartial investigation into the incidents of violence. Such an investigation will adequately address the allegations presented by the family members of the police personnel, as well as the issues raised by the learned Solicitor General of India,” it said.

With the petitioners raising the apprehension that the digital data of the protesters recorded by police may be used to harass them, the bench asked the police to ensure that the data is preserved and not brought in the public domain for the time being.

To a query on who may have perpetrated the violence during the protests, Mehta, who appeared for the Centre and Delhi government, said he was of the view that it was not the students but some “anti-social elements”.

While he said the government had no objection to an independent probe, he rejected the charge of police excesses.

Mehta said that hardened criminals and undesirable elements had entered the protest site and attacked the police personnel, injuring almost 280 of them.

Senior Advocate Gopal Sankaranarayanan, appearing for petitioner Shailendra Mani Tripathi, referred to alleged instances of use of pellet guns and electronic batons against the protesters and said accountability should be fixed right to the top.

The CJI pointed to the need for an independent probe. “It was initially meant to be a peaceful protest by students. Such a protest is protected by the Constitution. Now two things happen. People who want to stop the protests and indulge in violence after entering it. Second, there are petitions on behalf of injured police…. The question is why there should not be an independent investigation?” he said.

Sankaranarayanan said the developments also raised some legal questions like the absence of any prohibitory order under Section 144 CrPC/163 BNSS in place in the Jantar Mantar area, the lack of name tags on police personnel and the use of policemen in civilian attire for crowd control.

He pointed out that the Supreme Court, following the Ramlila ground protests and subsequent cases, had already laid down elaborate guidelines on how to respond.

The CJI said, “The time has come that all these principles are collated and expanded.” He said, “Whosoever has committed excesses, whosoever has taken law in hands, and whosoever has committed atrocities on innocent people… law must take care of them… And for that, there needs to be a completely independent, transparent, completely fair probe to identify them… Probe is meaningless if no responsibility is fixed.”

Senior Advocate Shadan Farasat, appearing for another petitioner, said what happened to protesters in Bihar was greater than what happened in Delhi. He said although the state had decided to drop FIRs registered in connection with the protests, about 150 individuals, mostly minors, were still in custody.

Advocate Prashant Bhushan, appearing for Junaid Malik who served food to protesters at Jantar Mantar, said he was picked up by police and taken to Mussoorie, and that his family members were also harassed. He also referred to a truck full of stones being brought to Jantar Mantar on the day of the Parliament march. The CJI pointed out that the police claimed that it was brought by protesters.
Senior Advocate A M Singhvi, also appearing for a petitioner, said what was needed was an independent probe and not a departmental enquiry.

Senior Advocate N Hariharan said the Delhi High Court too was seized of some similar petitions and suggested that they should be transferred to the Supreme Court.

On the question of who should head the SIT, Mehta said he would prefer if the court decided that instead of leaving it to the petitioners or respondents.