- Judgment Summary: Romila Thapar v. Union of India
- Date of the Judgment: 28th September, 2018
- Judges: Deepak Mishra (CJI), Justice A.M. Khanwilkar, Justice DY Chandrachud
- Parties: Romila Thapar and Ors. (petitioners) Vs. Union of India and Ors. (Respondents)
SUBJECT
The present case is a cornerstone in cases at the intersection of criminal law and constitutional rights since it is among the first cases filed to deal with the silencing of the dissent under the current NDA regime. It deals with the arrest of five advocates, journalists and activists in relation with Bhima- Koregaon. The UAPA Amendment Act of 2019 that was levied on the petitioners, is a provision of the IPC which allows the Central government to imprison a person on the grounds of suspicion for upto 180 days without a chargesheet being filed.
AN OVERVIEW
1. On 28th August 2018, five human rights activists were arrested and their homes raided into by Maharashtra Police in relation with the Bhima Koregaon violence of January 1, 2018.
2. According to the petitioners, this high handed treatment of well known academics was an attempt at decimating independent voices that disagreed with the ideology of party in power and silencing dissent.
3. The police backed their action of taking the five accused into custody by producing the FIRs filed in against them. They had been accused of inciting violence by making malicious statements. Other accusations included their alleged close ties with the Communist Party of India (Maoist) which is a banned organization under UAPA Act.
4. The petitioners had approached the Supreme Court under Article 32, contending infringement of their rights, conferred upon them under article 14, 19 and 21 of the Indian Constitution. Even a PIL was filed by Romila Thapar in this challenging these unlawful arrests.
5. In the above petition, the petitioners had called for a just and a fair enquiry in the matter and has asked the court for the appointment of a Special Investigation Team (SIT) to lead the enquiry into the matter.
IMPORTANT PROVISIONS
- Article 32 – The article deals with right to constitutional remedies and guarantees the right to move to Supreme Court for enforcement of the rights conferred in Part III of the Indian Constitution
- Article 14 – Right to Equality – it provides for equal protection by the laws and equal treatment of all before the law. It is a fundamental right conferred upon both citizens and non-citizens of India.
- Article 21 –Protection of Life and Personal Liberty –it provides that no person shall be deprived of their personal liberty except in accordance with the law. Over the years, the scope of this article has been expanded to include right to livelihood and right to live with dignity.
Provisions in IPC
UAPA Amendment Act, 2019 - a provision of the IPC which allows the Central government to imprison a person on the grounds of suspicion for upto 180 days without a chargesheet being filed. The Act was originally brought in by the INC government in 1967 to prevent any unlawful activities. However, after the latest amendment, over 4000 civilians have been imprisoned and the provisions of the Act are such that they leave the Government unaccountable for its actions.
ISSUES
The following are the major issues of this case –
- Should the investigating Agency be changed at the request of the five-accused?
- Can the accused be released merely because they are "law abiding person"?
- Can a friend of the accused file a PIL for which the accuse has been denied? If so, what would be the Court’s standing on that.
ANALYSIS OF THE JUDGEMENT
· Stating the precedent of Narmada Bai v State of Gujarat, the Supreme Court has denied the Investigation Agency to be appointed/changed or made any alterations in at the behest of the accused. Neither can they choose the agency that would investigate them – all of this following the principle of Natural Justice that an accused does not get a say in their trial. Other case cited in this regard was Sanjiv Rajendra Bhatt v. Union of India.
· Thus dismissing the SIT petition by 2:1 majority judgement and held that the case of links with a banned organization has little to do with differing ideologies. As for the exercise of powers with a mala fide intent – it was termed a vague and unsubstantiated assertion without any legal evidence. The apex court did provide for a four-week extension in which the accused parties could seek reliefs from the local judicial bodies.
· The draconian measures of UAPA has rendered the already curtailed freedom to dissent, almost inaccessible. The party in power wants to demonize anyone who does not agree with their agenda. In times like these, when academics and journalists find themselves languishing in jail without the provision for bail in sight, it is the added duty of the Court, and apex court at that to protect these individuals.
· This case however, is far from the savior of the hunted. In this case, the scholars who demand a fair investigation, have been painted as criminals trying to escape their punishment by twisting loopholes in the law. Their concerns have been called “vague and unsubstantiated”and their friends bringing an action on their behalf have been treated no better than joint tort-feasors. The apex-court had an opportunity to restore fundamental rights and protect the fast crumbling practice of dissent, however, it chose to turn the other way.
· This stance of the court had far reaching consequences in terms of arrests of more such activists over the years and the lower courts being relatively helpless.
CONCLUSION
India is the world’s largest democracy. At the time of independence, we had extended right to vote to everyone, proving our democracy on paper as well as in spirit. One of the most important facets of any democracy, is people’s right to question their representatives. However, in India, this accountability is under attack as those very people that question – are being put behind bars. In this case, five eminent academics got their homes raided into and soon after they were under arrest under the provisions of UAPA which allows a person to be put behind bars for about 180 days without as much as a chargesheet. Discrediting the current sociopolitical inclinations of the state and its machinery, the court did not allow for a SIT to be established. All concerns of the “accused” who are scholars and are well aware of what they demand, were brushed aside calling them “vague and unsubstantial”. The then CJI, was accused of siding with the Government and hence the decision in this case can be attributed to this difference. However, his successor CJI Ranjan Gogoi and the current CJI Sharad Bobde, seem to effectively match the steps of their predecessor, as the recent Vara Vara Rao case in the Bombay High Court has proved.
The question is whether people can turn to the judiciary to protect and enforce their rights and if the judiciary would side with the people to correct this lopsided equation. So far, the answer looks like its in the negative.
