In a judgment pronounced on Thursday, 14 July, the Supreme Court dismissed a plea for an independent investigation into the deaths of several Adivasi persons in Chhattisgarh in two incidents in 2009.
However, the court did not just dismiss the plea by petitioner no. 1, activist Himanshu Verma (who runs an NGO that he says works for Adivasi communities in the Bastar/Dantewada regions of Chhattisgarh) and other 12 petitioners (family members of the deceased).
It also directed Verma to pay exemplary costs of Rs 5 lakh because it found there was no basis to support the claims raised in the original writ petition and affidavits to the court, that security forces were responsible for the deaths of the civilians and this was why the Central Bureau of Investigation and a Special Investigation Team were needed to investigate the killings.
"We are of the view, having regard to the materials on record, that no case, worth the name for further investigation or re-investigation, could also be said to have been made out," the bench of Justices AM Khanwilkar and JB Pardiwala held.
There are questions to be asked about how this decision was arrived at, but the problem is that the court did not just stop there.
The Union government filed an interlocutory application requesting the court to hold the petitioners in the case guilty of leveling false charges and giving false and fabricated evidence before the Supreme Court with an intention to get security forces personnel convicted of capital offences, and screen Naxal offenders.
The application also asked the court to direct the CBI or National Investigation Agency or some other central investigating agency to register an FIR and conduct an investigation to identify those who have been conspiring, abetting, and facilitating the filing of such cases in the courts.
While the apex court did not order either of the two things requested by the Union government, it took the application seriously and went over the provisions of the IPC dealing with giving false evidence (Section 195) and making a false charge (Section 211). It then held:
"Thus, we leave it to the State of Chhattisgarh/CBI ... to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface. We may not be understood of having expressed any final opinion on such action/proceedings. We leave it to the better discretion of the State of Chhattisgarh/CBI to act accordingly keeping in mind the seriousness of the entire issue."
Technically, the court did not order the initiation of an investigation or pass any finding against the petitioners in the case.
However, by agreeing to entertain this application by the Centre, then examining which provisions of law could be used against the petitioners, and then accepting that the CBI could investigate a potential conspiracy, the court has opened the door to another witch-hunt of those trying to hold the state accountable.
The union government, represented by Solicitor General Tushar Mehta, had provided zero evidence to the court of any such conspiracy, but the court still gave this claim plucked out of thin air, credence.
The interlocutory application filed by the Centre hadn't even specified which provision of law it had been filed under, which is one of the absolute basics of legal drafting – and instead of dismissing the application as a result, the bench generously offered their own suggestions of what procedural basis it could have.
The judgment of the court therefore encourages government authorities to make outlandish accusations of conspiracies in cases filed against the government/security forces, and tacitly endorses the targeting of petitioners seeking justice under Article 32, which is a fundamental right.
This has ramifications not only for this case, where we are now likely to see Himanshu Verma and others who have fought/argued for Adivasi rights investigated by the CBI and Enforcement Directorate, but will also have a chilling effect on anyone looking to file writ petitions alleging misconduct by state authorities in the future.
But Isn't This Justified if the Accusations Are False and Fabricated?
The obvious justification for the Supreme Court's actions here is that the allegations made against the security forces were false and fabricated. If this is true, then there cannot possibly be an objection to them being investigated and possibly prosecuted.
The thing is, this has not been established in any way in the judgment, even though it is also the basis for fining activist Himanshu Verma Rs 5 lakh.
There are two key reasons for the court arriving at their view.
First, they note that the FIRs were registered regarding the incidents in 2009 where civilians from the Adivasi community were killed, and investigated by the investigating agencies, following which charge sheets were filed in different courts in Chhattisgarh for offences under the IPC like murder, dacoity, etc.
On first brush, that looks quite compelling. Until you realise that the investigations were not into the alleged role of the police, security forces, and the state-sponsored Salwa Judum militia in the killings, but general investigations into the deaths, by the very police accused of complicity.
"There is not an iota of material figuring in the investigation on the basis of which even a finger can be pointed towards the members of the police force," the judgment notes.
It is hardly surprising that the police would not find any material pointing towards their own involvement – what is surprising is that a bench of experienced judges don't see how there is no conflict of interest here.
Now if those investigations had actually led to the capture of the actual culprits who were then put on trial and convicted, perhaps the claims of the investigation by the police could be taken seriously. However, the police investigation indicates that the massacres were at the hands of unknown Naxalites.
None of whom were found over the last 13 years, let alone arrested or put on trial.
It is nothing short of staggering that the Supreme Court, which has in multiple cases in the past ordered independent investigations into incidents because of concerns the police will not act impartially, should not even think to question the actions of the Chhattisgarh police here.
The state police have basically given themselves a clean chit here, saying the crimes were actually committed by other people, none of whom they were able to name or even track down. And the Supreme Court, the highest court in the land with the power to hold every government or state authority accountable, finds nothing fishy in this?
And not only does it not see anything suspicious in this, it holds this against the petitioners who have suggested that the security forces were involved in the violence, and endorses investigation of them for making false charges.
This would beggar belief, if this weren't the same court which also helped launch a similar witch-hunt against activist Teesta Setalvad and others who had supported Zakia Jafri in challenging the decisions of the SIT into the Gujarat riots cases.
But okay, you say, surely there must be more to why Justice Khanwilkar (who wrote the judgment in the Zakia Jafri case) and Justice Pardiwala held the allegations to be fabricated.
The second key reason for them to arrive at the conclusion they did was the statements made by petitioners 2-13 in this case, that is, the relatives of the victims of the two alleged massacres.
The statement of one of these persons, made before a district and sessions judge in Delhi in 2010, with the assistance of Himanshu Verma as translator (they only spoke the Gondi language) is reproduced in full.
In this statement, recorded after petitioners 2-13 had allegedly been taken into illegal custody and were produced before the Delhi judge after the Supreme Court passed an order for the same, the relative of the deceased says he could not identify who had killed his family members, and that the attackers "had come from the Jungle."
Supposedly, these statements 'demolish' the entire case put up by Himanshu Verma as petitioner no. 1.
Senior advocate Colin Gonsalves, representing the petitioners in the apex court, was asked about these statements by the bench during the hearings, but his response did not satisfy the bench.
Gonsalves argued that the way in which the questions were asked was incorrect, and specific questions should have been put to the petitioner by the judge. This does seem a valid point to make, as the judge failed to ask a number of pertinent questions about the assailants, including whether they wore uniforms, whether they said anything during the attack, and so on.
The judges were right to say that these issues should have been raised earlier, rather than 12 years later. But does this mean that the statements should be taken as proof of false and fabricated evidence?
If we look at the statements, there is nothing which conclusively contradicts the argument in the writ petition. Yes, the relatives of the victims may not have expressly said police/security forces/Salwa Judum personnel attacked them, but they didn't say it was Naxals either.
The fact that the attackers came from the "Jungle" is also inconclusive in this regard, especially since the militia was allegedly involved. The National Human Rights Commission was already investigating other incidents in the region where security forces and the militia had been accused of attacking civilians so this was not some outlandish claim to make.
The issue of the relatives of the deceased being illegally detained cannot also be forgotten here.
When the state government produced them before the Supreme Court in 2010, the apex court decided not to make any factual finding on whether they had been illegally detained, which is a dereliction of duty on its own part. This is something we have seen time and time again in more recent cases as well, where the court fails to actually address key legal issues, and instead accepts 'practical' solutions to cases before them, such as in the Jammu and Kashmir habeas corpus cases.
It is not unreasonable to foresee that if taken into illegal custody, the petitioners could have been under pressure not to say anything which would directly implicate the state authorities. The judge asking the questions in 2010 failed to ask any questions about the alleged detention, even though they were produced right after that, and only asked if they were making their statement under pressure, rather than whether they had been pressured before making their statement.
Once again, yes, the legal team behind the writ petition should have challenged this much earlier, but a failure to do so can hardly be taken as proof that the allegations in the writ petition were false.
A Dangerous Trend
Coming as this judgment does so soon after the Gujarat riots judgment, which led to an immediate FIR against Teesta Setalvad and former police officer RB Sreekumar, there is significant cause for concern as to the direction the Supreme Court is taking here.
In neither of these cases was there any clear-cut evidence of fabrication or mala fides, and yet the court has assumed these in the judgments.
In Setalvad et al's case there was not even an opportunity given to them to respond to the allegations by the court, and while a limited opportunity to respond seems to have been given in this case when putting across the statements of the deceased's relatives, there was still no material which justifies the court's statements.
It is understandable that the Supreme Court wants to discourage frivolous PILs being filed in the court which waste judicial time and state resources, but what it is doing in these cases goes much further.
Yes it can and should take steps to encourage action against false cases, but there has to be far more of a basis to do so than in these recent ones.
If this trend continues, however, it will only make it ever harder to seek accountability from state authorities. Nobody wants to demoralise the police and security forces, but there is little doubt that they have on numerous occasions committed atrocities and excesses, and they cannot be allowed to be the ones to investigate their own alleged misdeeds.
Writ petitions like Verma's are crucial to ensure that there is some reflection and accountability in such situations. He had not asked the court for a declaration that the state authorities had committed these atrocities, only for an independent investigation into the same. The day the Supreme Court makes such a request a taboo, is a dark day for civil liberties.
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