Dissent, Democracy and Drama: What SC Said on Activists’ Arrests

Everything that happened during the SC hearing, including Justice Chandrachud’s powerful statement about dissent

(L-R) Arun Ferreira, Varavara Rao and Sudha Bharadwaj.

(Photo: Aroop Mishra/The Quint)

Impassioned arguments on liberty and free speech. An obdurate government response. A powerful judicial comment on the importance of dissent.

A day of high drama in the Supreme Court ended with Chief Justice Dipak Misra staying the transit remand orders against the activists arrested on Tuesday, 28 August, in connection with the Bhima-Koregaon violence and alleged Naxal links. Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Varavara Rao and Vernon Gonsalves are all to be kept under house arrest instead, till the Supreme Court hears the matter again on 6 September.

The matter isn’t over yet – this is just an interim order, and does not mean the activists will be set free. The Supreme Court has instead sought a response from the Maharashtra government (the Pune Police asked for the countrywide arrests) as to why all of this is necessary.

The government is set to argue that these activists, authors and academics are in fact a threat to India’s security and their arrests are justified. The star-studded battery of lawyers arguing for the detainees, on the other hand, will assert that their fundamental rights are being violated, and that the arrests are “completely mala fide, baseless, and are meant to have a chilling effect on Indian democracy.”

The day’s proceedings, however, were about more than just the result. Here’s how the remarkable events unfolded, and why they were significant.

Chapter 1 – An Unexpected Hearing

When Bharadwaj and the others were arrested on Tuesday, it was expected that their detention and transit remands would be challenged in the relevant high courts – the arrests took place all across the country.

On Tuesday morning, however, a writ petition was filed in the Supreme Court by several prominent academics and members of civil society – Romila Thapar, Devaki Jain, Satish Deshpande, Prabhat Pattnaik and Maja Daruwala.

The petition argues that the objectives of the arrests are to “silence the voice of dissent, particularly those who speak for the poor and marginalised”, malign the activists, “malign the progressive ideas and human rights ideology they espouse” and have a “chilling effect on all independent-minded citizens.”

As a result, they asked for an independent inquiry into the arrests, the immediate release of all activists arrested in connection with the Bhima-Koregaon violence, and a stay on any further arrests till the apex court investigates and decides the matter.

The petition was mentioned urgently before the CJI’s Constitution Bench in the morning by a collection of some of the Supreme Court’s most prominent senior advocates, including Abhishek Manu Singhvi, Indira Jaising, Vrinda Grover (who represented Bharadwaj in Surajkund on Tuesday), Prashant Bhushan, Dushyant Dave, and Sanjay Hegde.

The CJI agreed to hear the matter at 3:45 pm along with Justices AM Khanwilkar and DY Chandrachud.

Chapter 2 – A Deliberate Delay?

As the appointed time approached, Courtroom 1 was filled to bursting with lawyers come to witness the hearing, which promised to be action-packed. The civil liberties issues at stake, the general unjustness of the Unlawful Activities (Prevention) Act (under which the activists were being detained), the heavy-handedness of the government, the articulate if somewhat controversial lawyers appearing for the activists – all created an electric atmosphere of anticipation for the arguments.

An atmosphere which seemed destined for disappointment, however, after Additional Solicitor General Tushar Mehta decided to bring up a different “urgent” matter before the judges. Instead of the Bhima-Koregaon arrests, the expectant throng had to bear witness to Mehta’s attempts to get the Supreme Court to prevent the release on bail of Neeraj Singal, the former promoter of Bhushan Steel.

Mehta’s vociferousness in arguing the case (he interrupted the CJI twice when he tried to start dictating an order) drew surprise from those present. The Delhi High Court had just recommended Singal’s release in the early afternoon, and imposed strict conditions on him, including the surrender of his passport. There appeared to be little reason for the ASG to spend so much time on this other case, or even to have brought it up immediately, given the bench had carved out time for the Bhima-Koregaon case.

As the clock ticked well past 4:30 pm, which is when the court normally stops hearing cases, there were rumblings of discontent, with some lawyers suspecting that the ASG, who was representing the government after all, was trying to stall so that the petition on the arrests wasn’t heard on the day. When Mehta said “I would normally never spend so much time arguing such an issue,” there were knowing laughs throughout the courtroom.

Chapter 3 – Fire, Fury and Pressure Cookers

Eventually the CJI put his foot down and dictated an order in the Bhushan Steel case. There was an audible sigh of relief from all those present, and suddenly, the atmosphere, which had perceptibly dampened during the earlier matter, was crackling once again.

The crowd pushed forward to better hear Abhishek Manu Singhvi begin his arguments for the petitioners – funnily enough he had been arguing for Singal in the previous case, but while everyone had been uninterested in what he’d been saying moments earlier, now they were all ears.

Dr Singhvi had barely made it through a brief introduction to the case, mentioning that the raids and then the arrests had been carried out without any basis, when Tushar Mehta interjected. “People with no connection to the case are before the Supreme Court. A stranger is asking for stay on arrest, not those who have been arrested.”

Larger Issues of Violation of Fundamental Rights

Dr Singhvi countered by saying that the arrests were part of a “bigger case”, and that the petition had been brought on behalf of the public because the government’s actions were meant to have a chilling effect on free speech of all citizens, and posed a threat to the right to life under Article 21 of the Constitution as well. “All our liberties are being compromised,” he argued.

Senior advocates Indira Jaising and Dushyant Dave pointed out that the arrests were random and could lead to a situation where “anybody could be arrested tomorrow.”

They also pointed out that the activists arrested had no criminal antecedents, and there was no risk of them absconding – there was therefore no need to arrest them or take them into custody at all.

‘Flaws’ in the Government’s Case

Sparks then flew as Tushar Mehta tried to say that some of the activists had been previously arrested. This drew serious criticism from the entire crowd, as while it was true that some of the activists had been previously arrested, they had also been acquitted of committing any criminal offences. Arun Ferreira, for instance, spent four years in jail before being acquitted of UAPA charges.

Things turned sour for the government’s case after that.

First, the judges expressed surprise that the FIR which first alleged incitement of the Bhima-Koregaon violence by the Dalit activists (rather than rightwing Hindu groups led by Milind Ekbote and Sambhaji Bhide) said nothing about the persons arrested on Tuesday. The connection between the Dalit activists and the violence on 1 January 2018 was supposed to be the ‘Elgar Parishad’, a meeting organised by Dalit rights activists a day before, where the violence had allegedly been incited.

However, as Singhvi pointed out, “These people who are arrested have not been alleged to be part of the meeting.”

Next, Singhvi pointed out that the convenors of the Elgar Parishad in fact included two retired judges – former Supreme Court Justice PB Sawant, and former Bombay High Court Justice BG Kolse Patil.

The CJI and Justice Chandrachud both expressed puzzlement that such an event could have been one where unlawful activities had been planned, and even if so, why people who weren’t at it being arrested.

Singhvi and Jaising’s exhortations that these arrests were a threat to dissent were well received, and notably, the judges agreed to hear the case even though the petition hadn’t been filed by the arrested persons themselves.

Mehta did himself no favours by responding evasively when asked about whether Ferreira, Gonsalves and Rao had been arrested (even though this was an indisputable fact), and this disingenuousness certainly played a role in what happened next. The government lawyers tried again to argue that the case shouldn’t be heard since the matter was already being heard by the high courts. “They have already approached the High Court which has already passed some interim order,” Mehta said, but in truth petitions had only been filed on behalf of Bharadwaj and Navlakha in the Punjab & Haryana and Delhi High Courts, respectively.

At this point, one of the other government lawyers tried to chip in, saying that “even those high court petitions are not maintainable.” This led to an unexpected burst of exasperation from the CJI, who said that the high court petitions were not the point here, as there larger issues at stake. Justice Chandrachud had a similarly strong reaction, and he then proceeded to deliver the most memorable quote of the day:

Dissent is the safety valve of a democracy; If you don’t allow that safety valve, the pressure cooker will burst.

Justice DY Chandrachud

With that, the judges appeared to have had enough, and Mehta himself seemed chastened. The CJI had already indicated that the best interim option would be to order house arrest of all the activists, and this is what he proceeded to do. He also directed the Maharashtra authorities to file a response in time for the next hearing, which was scheduled for the next Thursday.

The Significance of SC’s Response

Most historians of the Supreme Court will agree that the apex court failed to do its job in protecting civil rights during the Emergency, and that its subsequent citizen-friendly jurisprudence (starting with the introduction of PILs in the 1980s) has been an attempt to make up for this failing.

This may well be an oversimplification, and there are other legal scholars who will point out how the court’s failures during the Emergency are the norm, rather than the exception.

Either which way, there has been an increased pressure on the Supreme Court to ensure it gets things right if civil liberties are ever seriously threatened again, and there was perhaps some measure of this in the judges’ approach to this case.

That they heard the case at all is quite a surprise – even some lawyers sympathetic to the activists thought the judges would not interfere till the courts below had heard petitions filed by those arrested.

This is not to say they didn’t have the authority – the Supreme Court has wide powers when it comes to ensuring justice is done under Article 32 of the Constitution. It’s just that the court has normally shied away from what might be termed interference.

That this was not the case here was welcome, and perhaps indicative of just how transparently problematic this spate of arrests seems to be. The Delhi High Court, hearing Navlakha’s habeas corpus petition, also raised doubts about the arrests, noting that nothing submitted by the Pune Police seemed to indicate his involvement in any criminal offence.

The Pune Police’s press release on the arrests, which took place concurrently, has not helped their case, making claims that these activists – who are well-known public figures who have sacrificed a great deal to help the under privileged (Sudha Bharadwaj gave up her US citizenship to fight for the rights of Adivasis in Chhattisgarh, for instance) – are involved in conspiracies to attack the “highest political functionary.” This appears to tie in with the claims that the activists arrested in June were involved in a plot to assassinate Prime Minister Narendra Modi. The Pune Police also nonchalantly used the term “Urban Naxal” to refer to the accused – without so much as a perfunctory ‘alleged’ to preface the entirely extra-legal term.

Regardless of how things eventually turn out, it was heartening to see the Supreme Court willing to scrutinise government action that could be a threat to fundamental freedoms, and that too in a timely manner.