SC meted out ‘differential treatment’ to activists arrested in Bhima Koregaon case by granting them urgent hearing

Editor’s Note: This article was originally shared on Quora on 29 August and updated on 2 September. Firstpost has edited the story for style.

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If lesser mortals like you or me are arrested, the hearing takes place in a magistrate’s court. But if those with alleged links with Naxalites are arrested, the hearing takes place directly in the Supreme Court.

Thousands of people are arrested every day in the country. These arrested persons are produced before a magistrate court or trial court (if it is a case before a special judge). Such a magistrate would examine in detail the grounds for arrest and either grant bail or allow further custody of the accused, depending on the merits of the case. If the accused is not satisfied with the order of the magistrate, he can challenge the order before a sessions court, high court or even the Supreme Court, in that sequence.

There is even a provision for obtaining anticipatory bail (pre-arrest bail), but that too can be obtained from a sessions court and/or high court, and there is an appeal procedure here, too. So an elaborate procedure has been laid down in the criminal laws of the country to take care of the rights of the person arrested.

But wait. These procedures are only for lesser mortals like you and me. These procedures are not meant for VVIPs.

A protester holds up a poster after the recent arrests of activists in the Bhima Koregaon case. AFP

A protester holds up a poster after the recent arrests of activists in the Bhima Koregaon case. AFP

When the five activists (alleged to have connections with Naxalites) were arrested yesterday (on 28 August) by the Maharashtra Police in connection with the Bhima Koregaon violence, this morning (29 August), a battery of senior lawyers mentioned the matter directly before the Supreme Court.

Moreover, this matter was mentioned before a Constitution bench of the Supreme Court directly. You are generally not allowed to mention a matter before the Constitution bench.

This matter was mentioned by several senior lawyers, including Abhishek Manu Singhvi, Indira Jaising, Dushyant Dave, Raju Ramachandran and Amarendra Sharan, along with advocates Vrinda Grover and Prashant Bhushan.

Now, Singhvi would usually charge about Rs 10 lakh for a single appearance. The other senior lawyers mentioned above would also charge in lakhs of rupees per appearance in court.

So does this mean that these activists have such financial resources to put up so many seniors at the same time? Or do the people supporting them have such resources? Or do these people have such high connections that such influential lawyers would appear for them for free?

But the moot question is, why should the matter be mentioned directly in the Supreme Court, when the arrested persons had yet to be produced before a magistrate court or a special judge, as the case may be? Does the Supreme Court have no faith in the lower judiciary? There is nothing to show in this case that the lower judiciary failed to take corrective action, which would have warranted direct action from the highest court of the land.

In fact, media reports also suggest that this matter was also mentioned before one or two high courts at the same time.

Yes, personal liberty is very important. It is a fundamental right. But then personal liberty is important for thousands of ordinary persons, too, who are arrested daily in India. I am personally handling (and have handled in the past) several cases where accused persons are in jail for years and not days, that too during trial period, or even during the investigation period.

I agree that there are merely allegations against these arrested activists at this stage, and the case has yet to be proved. But this is the situation for thousands of persons arrested every day in India — those persons were also merely facing allegations at the time of arrest.

Why there are different standards for different sets of people?

Merely because there are certain VVIPs? People who can manage to get big lawyers who charge in millions or lakhs of rupees per appearance? Or who are influential?

It is noteworthy that the Maharashtra Police was not hasty in arresting these activists. The Bhima Koregaon incident took place several months ago. In the meantime, the Maharashtra Police was collecting evidence while investigating the matter. As per media reports, it was only after evidence could be collected against these activists that the arrests were made.

Even otherwise, given the influence of such activists (the whole of the mainstream media was with them), the police would not dare to arrest these activists without there being sufficient evidence on record.

Why was such evidence not judged by the magistrate court in the first instance as per the laws applicable to ordinary citizens? Why directly the Supreme Court?

While I write this, I can see a news report that the Supreme Court has asked the Pune Police to keep these activists under house arrest till 6 September. I would like to be enlightened about where in law there is a provision for house arrest. Was the order passed under Article 142 of the Constitution? This is absolutely abnormal.

The biggest irony here is that the Supreme Court itself did not trust the lower judiciary, which has the power to deal with such arrests. Did the lower judiciary commit any mistake in this regard that the Supreme Court was directly involved?

What about the rights of the thousands of people — the ordinary people —who are arrested every day in India?

It is for the trial court to decide whether the arrest of these five activists is legally valid. It has to be done on the basis of the evidence on record. This is what I feel about their arrest.

But the law is not equal for everybody. Every person does not get equal protection before the law. Some get special protection, and that is evident.

Postscript (update on 2 September):

Some esteemed readers have tried to point out that under Article 32 of the Constitution, the Supreme Court has the power to “directly” handle such a matter. With all humility at my command, let me point out that holding a PhD in constitutional law, I am not unaware of the provisions of Article 32.

The issue I have raised is slightly different. In fact, for the past 30 to 40 years, the Supreme Court has not generally been entertaining most Article 32 petitions, including important matters involving serious violations of fundamental rights, even though Article 32 is itself a fundamental right. I have faced this in some of my cases.

The question is about differential treatment meted out to some over others. Will the Supreme Court directly entertain Article 32 petitions of millions of ordinary citizens who are arrested every year in India, instead of sending them first to a magistrate court?

The author is a Supreme Court advocate and former Indian Police Service officer.


Updated Date: Sep 12, 2018 19:58 PM

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