Cannot stifle liberty on the altar of conjectures: Supreme Court on arrest of activists

Supreme Court says institutions need to be robust to take on dissent, asks Maharashtra to show evidence against activists.

The liberty of individuals cannot be curtailed at the altar of conjectures and institutions need to be robust to take on dissent, the Supreme Court observed on Wednesday, even as the Maharashtra government put up a strong defence to justify the August 28 arrest of five activists in connection with the Bhima Koregaon violence in January.

Arguing before a bench led by Chief Justice of India Dipak Misra, additional solicitor general Tushar Mehta said the six other alleged Maoist cadre, arrested in June, had thrown up concrete material requiring the custody of the five activists. He began his arguments by reading out the case diaries of the case.

However, the bench asked Mehta to indicate specific evidence against the five activists arrested on August 28 during nation-wide simultaneous raids.

The Maharashtra police had arrested Varavara Rao (Hyderabad), Sudha Bharadwaj (Faridabad), Arun Ferreira (Mumbai), Gautam Navlakha (Delhi) and Vernon Gonsalves (Mumbai) in connection with an FIR lodged following a conclave – Elgaar Parishad – held on December 31 last year that had triggered violence at Bhima Koregaon a day after.

Justice DY Chandrachud, who is a member of the bench, cautioned Mehta that a “clear-cut distinction” should be made “between opposition and attempts to create disturbance and overthrow governments” and advised the state to focus on such material, if it has any.

“Our institutions should be robust enough when there is an opposition to the system or even to this court. Then there has to be something different to constitute subversion of law and order as far as elected government is concerned,” he said.

Senior counsel Harish Salve, appearing for the complainant in the Bhima Koregan case, sought to counter the judge’s concern. “Whether systematic breakdown of law and order is within permissible limits of dissent has to be seen. There was a difference between someone who is angry saying burn the Constitution and someone being part of an organisation which aims to create unrest trying to provoke,” Salve said. “A lot of it depends on who says and what is said and the context in which it is said,” the lawyer pointed out.

“We cannot stifle liberty on the altar of conjectures. We will look at all these attempts with the hawk’s eyes,” Justice Chandrachud said in response.

“Dissent is fine but it is also important who is saying it. If the leader of a banned outfit says it, this will have a different connotation. This court has to look after the liberty of all citizens and not just five,” Mehta told the bench.

The arguments in the case will continue on Thursday. As a result, the SC extended the house arrest of the activists.

Senior advocate Abhishek Manu Singhvi addressed the court earlier in the day. Arguing for the petitioners – historian Romila Thapar and others – Singhvi raised questions on the police claim that one comrade Prakash, who is identified as GN Saibaba, had written letters to the five activists. He wondered how this could be when GN Saibaba was in jail since March 2017 and claimed it was “cooked up evidence”.

He also disputed the Maharashtra police using witnesses from Pune to make arrests in Faridabad asking “What business does Pune Municipal corporation employees have in Faridabad?”