BHIMA KOREGAON CASE HEARING: ARGUMENTS BY PETITIONERS AND RESPONDENTS. BY KRITIKA A & NIKITA AGARWAL The hearing on the petition Romila Thapar and Ors. vs. Union of India and Ors., known as the Bhima Koregaon case continued on September 19, 2018 at the Supreme Court heard by Chief Justice of India Deepak Misra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar. In the long arguments which lasted till 4 o’clock with a one hour lunch break, both sides—for the five plus five activists’ arrested on June 6th and August 28th in connection to Bhima Koregaon violence under FIR No. 04/2018 and the prosecution, the State of Maharashtra put forth their best arguments. Senior counsel for the activists Abhishek Manu Singhvi opened his argument by pointing towards the first FIR filed by Anita Salve, a Dalit woman and eye witness to the violence unleashed by right wing extremist groups: “Anita Salve, an eye witness to the violence of 1st January 2018, lodged FIR 2/2018 at P.S. Pimpri on 2nd January 2018, stating that violence was unleashed by a mob armed with swords, rods etc. against the Dalits and specifically names Sambhaji Bhide, Chief of Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu Janjagaran Samiti, as the perpetrators and conspirators of the attack.” He emphasised that a belated FIR was filed by Tushar Damgude, who is an Intervenor before this Court, on January 8th, eight days after the incident and seven days after the first FIR. This FIR is what is known as FIR 4/ 2018 and the raids and arrests of the activists’ have taken place under this FIR. Singhvi further argued around the only evidence against those arrested on August 28th which is based on some purported “letters” leaked by the police to the media, “letters” which are prima facia fabricated and cannot be relied upon. The police has been releasing them to the media in a concerted effort to create prejudice against the activists and have themselves not verified and authenticated the letters. Counsel Singhvi went on to the notice of Hon’ble Apex Court that most of the letters are either addressed to or authored by some “Comrade Prakash”. Referring to Professor Saibaba who was indicted by the Nagpur Sessions Court alongwith six others in March 2017, he alleged that according to Maharashtra State’s own case, professor Saibaba’s alias was Prakash. It is interesting to note that the alleged “letters” are dated after his incarceration. He argues it is prima facie impossible for professor Saibaba to have written or received these letters from Nagpur Central Jail. Furthermore, he added that these letters have neither been placed before any Court until now nor do they find place in the remand application. Senior Advocate Singhvi further invoked expert in counter terrorism and militancy, Ajay Saini, who has opined that these letters are fabricated. He further states that it is impossible for the police to not file FIR after recovering letters plotting Prime Minister’s assassination and no such FIR has been filed so far. “A cloak of criminality has been cast upon the activists”, Singhvi pronounced—the arrested activists are systematically targeted and falsely implicated. Varavara Rao, a 79 year old poet whose writing he does not agree with, but nevertheless a renowned poet who is critical to the government was falsely implicated in 25 cases only to be acquitted in all previously. In the same vein he mentions Arun Ferreira who was also implicated in 11 cases and acquitted in all. Vernon Gonsalves was implicated in 19 cases out of which he was acquitted in 17, was convicted in one and one is pending. He brings to the notice of the court that all legal procedures as prescribed under the Criminal Procedure Code were flouted by the police in carrying out the raids and the arrests. On one hand letters were leaked to media houses and on the other, process of search, seizure and arrest were carried out illegally with police tutored witnesses. The Criminal Procedure Code is explicit that search and seizure witnesses are to be unbiased persons from the local neighbourhood. However, in the present case, Pune Municipal Corporation Workers and panchas were brought by the police as witnesses thereby compromising on the accused’s rights to a fair trial. He stresses on the point that the activists on August 28 were arrested because they were vocal in criticizing the June 6 arrest under the same FIR. Senior Counsel Abhishekh Manu Singhvi closed his argument by referring to the various case laws which uphold and emphasise upon personal liberty. He pleads that under such extraordinary circumstances, the investigation be assigned to a credible, independent body like the Special Investigating Team and/or investigation monitored by the Supreme Court. Senior Counsel Anand Grover, arguing on behalf of Surendra Galding’s wife Minal Gadling and for the five activists who were arrested on June 6th started his submissions emphasising on the work that those arrested have done for the rights of the oppressed, Dalits, Women and Adivasis. He bought to the notice of the court that his client, Surendra Gadling is a lawyer for the last 25 years working on UAPA, POTA, TADA cases with 99% success Rate. He was also been appointed as Special Public Prosecutor. Grover further went on to say that Gadling while defending Professor Saibaba was threatened by the investigating officer Suhas Bawache that Gadling will be ‘next’ if he kept representing Sai Baba. Shoma Sen, another arrestee on June 6 was a professor and Head of English Department, in Rastrasant Tukdoji Maharaj Univesity, Nagpur. Mahesh Raut, a 32-year-old man was in the first batch of Prime Minister Rural Development Fellow and was involved in strengthening Gram Sabhas in the most Naxalite prone areas and getting villagers to vote and implement laws like The Schedule Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, and Panchayat (Extension to Schedule Areas) Act (PESA) 1996. Sudhir Dhawale was previously arrested in one case was later acquitted. Grover recounted the time line of the events starting from December 31, 2016 leading to the arrest in June 6 and alleges that the second FIR (4/2018) filed on January 8 by Tushar Damgude does not hold ground as an independent FIR. He cites T.T. Anthony v State of Kerala to support his point. He pointed out the Chief Minister of Maharashtra too had alleged on the floor of the house that the violence was incited by the right-wing extremist. He submitted that raids carried out by the police in the houses of Surendra Gadling, Rona Wilson and Sudhir Dhawale on April 27 was bad in law as permission was denied by Judicial Magistrate (1st Class), furthermore search warrant under UAPA requires designated authority not below the rank of Joint Secretary in the Central Government or not below the rank of Secretary of the State but the raids were carried out at a request letter by one ACP of Pune to another ACP of Pune itself. The arrests were carried out in violations with the UAPA and CrPC. In this case, he submitted, a Special Investigation Team must be set up. READ HIS COMPLETE SUBMISSION HERE https://twitter.com/TheLeaflet_in/status/1042313741981941761 Senior Advocate Ashwani Kumar argued that personal liberty of an individual cannot be deprived without due process of law and the courts cannot turn a blind eye to vexatious proceedings in criminal process. He requested the court to ensure fairness in procedure and prosecution. This case, he stressed is not so much about the criminal law, but about the actualization of constitutional rights. Referring to the content of FIR filed on January 8 which mentions a song sung by Sudhir Dhawale- a translation of certain lines from The Good Person of Szechuan written by famous German playwright and poet, Bertolt Brecht- as proactive, Ashwani Kumar quotes Sahir Ludhianvi’s famous song- jalaa do use phoonk daalo ye duniye [set fire and burn this world] as analogy to insist that poets since the independence struggle have always spoken about the socio-economic injustices in the society. He asserts that the petition is about the upholding of non-negotiable rights—of personal liberties and dignities. An arrest causes indignity and infringes on the liberty of the person leaving scars forever for the person and their family to deal with. Arrest is a tool of oppression. The existence of the power to arrest is one thing but the justification of arrest is another. No arrest can be made without looking at the genuineness of the complaint and the need to affect the arrest. Stressing on liberty and dignity as the pillars of the constitution, he closed his arguments. Senior Counsel Rajeev Dhawan opened his argument by pointing towards the breach of procedure carried out in the raids and arrests. He invoked DK Basu and Nandini Satpaty’s case to emphasise on the importance of procedure in carrying out arrests. Rajeev Dhawan further questioned the intent of Maharashtra police in leaking the alleged “letters” and documents to the media and contended that it is an attempt to bias the trail. He goes on to point to the statement of two retired judges- Justice PB Sawant and Justice Kolse Patil- who have come on record and said they have funded the Elgar Parishad. He questioned the police on not taking their statement and acting on the second FIR. He pronounces that an investigation is a narrow matter not meant for the media. The involvement of the five arrested on August 28 is nil.