Bhima Koregaon Case Highlights Lack of Proper Legal Representation

The High Court found several contraventions in the Gautam Navlakha case, violating the latter’s right to life.

Pictures of the activists arrested in the case, used for representational purposes.

(Photo: Aroop Mishra / The Quint)

The Delhi High Court on 1 October set aside the transit remand order, and subsequent detention under house arrest, of activist Gautam Navlakha.

Navlakha had been arrested by the Maharashtra Police as an accused in the Bhima Koregaon case , on 29 August.

On 4 October, the Maharashtra government moved the Supreme Court against Navlakha’s release. The case will in all probability come up before the newly appointed Chief Justice of India Ranjan Gogoi.

While reams have been written about the case and the lapses committed by the Maharashtra Police and the magistrate who issued the transit remand order, an important aspect of the judgment has gone largely unnoticed.

Major Contraventions by the Magistrate

The High Court found that the transit remand was granted without complying with the constitutional requirements under Article 22(1) which mandates that every accused upon arrest shall be detained in custody only after being informed at the earliest, of the grounds for arrest, and shall have the right to consult and be defended by a lawyer of his / her choosing.

The Supreme Court in DK Basu vs Union of India, while framing guidelines to be followed by the police and other investigative agencies upon a person’s arrest, emphasised that Article 22(1) is a constitutional safeguard which must be read with the ‘Right to Life’ enshrined in Article 21 of the Constitution. The High Court takes note of this judgment while commenting on the non-compliance with Article 22(1).

In Navlakha’s case, the magistrate failed to ask him whether he was informed of the grounds for arrest, and also failed to ask him if would like to engage a lawyer of his choice to defend him in the proceedings.

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On the contrary, the order records the presence of a ‘duty lawyer’ empanelled by the Court, representing Navlakha. Such lawyers are usually for legal aid, who are empanelled to represent indigent persons who cannot afford to engage a lawyer by themselves. Further, the order also did not record any contentions by the duty lawyer on behalf of Navlakha. The natural conclusion is that the entire exercise was mechanical and undertaken as hollow compliance with the law. Such compliance is not real compliance and was therefore rightly declared to be in contravention of Article 22(1) by the High Court.

A Violation of Right to Life & Liberty

Another contravention noted by the Court was that Navlakha himself was not intimated of the grounds of his arrest as required by Article 22(1). Admittedly, the police intimated his partner of the arrest, but not of the grounds for arrest. The High Court came down heavily against these transgressions, and the offending contraventions formed an important part of its reasons for setting aside Navlakha’s transit remand and detention.

The Maharashtra Police was brazen in its conduct when it contended that such contraventions were inevitable and shockingly claimed that some or the other law must be by-passed on occasion. The Court rejected this contention and put the burden of ascertaining compliance with requirements under law upon the magistrate, and found that this burden was not discharged in Navlakha’s case.

Navlakha’s case has brought the focus back on the need for proper legal representation, which is the bane of the Indian criminal justice system.

The public profile of the Bhima Koregaon case meant that the media looked at the minutest of aspects of the magisterial proceedings, but we will never know the number of cases where arrested persons don’t get a lawyer of their choice and are saddled with a legal aid lawyer ‘on duty’ by the magistrate just to give the proceedings a veneer of regularity. When we speak about police reforms, it should inherently include reforms at the level of the lower judiciary which unwittingly abets miscarriage of justice and violation of fundamental rights.

Immediate Reform Needed in Criminal Justice System

The State’s reaction to this issue can be gauged from the petition seeking leave to appeal filed by the Maharashtra government before the Supreme Court. It claims that the High Court unnecessarily looked into the Article 22 aspect, and claims that no occasion arose for the High Court to look into this issue. Never mind that the petition does not urge any legal or constitutional ground in support of this argument.

Machinations of criminal justice delivery should not be mechanical, as deprivation of liberty without due process is a violation of the fundamental right to life and liberty.

(Chitranshul Sinha is a lawyer practicing in the Supreme Court. He tweets using the handle @ghair_kanooni. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)