This post has been written by Mamta Kumari, law student from Banasthali Vidyapith.
CASE TITLE- Romila Thapar & Ors. v. Union of India & Ors.
DATE OF DECISION- 28 September, 2018
CASE NUMBER- Writ Petition (Cri.) No. 2018
COURT- Supreme Court of India
JUDGES- CJI Dipak Mishra, Justice DY Chandrachud and A.M. Khanwilkar
JUDGEMENT RATIO– 2:1
PARTIES- Petitioner: Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande, Maja Dharuwala
Respondent: Union of India, State of Maharashtra
LAWYERS- Petitioner: AM Singhvi, Prashant Bhushan, Indira Jaising, Rajeev Dhavan
Respondent: ASG Tushar Mehta, ASG Maninder Singh
- On 28th August, 2018 a writ petition was filed by five persons named as Romila Thapar (eminent historian and professor Emeritus as Jawaharlal Nehru University), Devaki Jain (pioneer feminist economist), Satish Deshpande (sociologist at University of Delhi), Prabhat Patnaik (Rhodes Scholar and eminent economist) and Maja Dharuwala (board member and senior advisor of Commonwealth Human Rights Initiatives) before Supreme Court of India under Article 32 of the Constitution.
- The petition was filed regarding the arrest of five activists namely, Gautam Navlakha (Human Rights Activist), Sudha Bharadwaj (Advocate at Chhattisgarh High Court), Vernon Gonzalves (gold medallist in commerce from Bombay University), Arun Ferreira (lawyer and Human Rights activist) and Varavara Rao (political worker, commentator and renowned poet in Hyderabad, English and Telegu Professor).
- It was filed after the Maharashtra Police had performed raid in different parts of the country and arresting of five people in such raid. The activists were arrested with the charge of abetting the terror acts under the Unlawful Activities (Prevention) Act.
- The arrest was challenged as it was made in an arbitrary manner and violate the freedom of speech, equality before law, personal liberty and voice of dissent. The activists were arrested in relation to the Bhima Koregaon violence.
- The action by the police was to restrict the dissent and for stopping them to help the poor and needy people. The allegations were made to attack the freedom of expression and independence.
- Maharashtra police arrested by giving reason that the activists were the member of Communist Party
- of India (Maoist) which is a banned terrorist Organization within the Unlawful Activities (Prevention) Act as they were found involved in the Bhima Koregaon Violence.
- In this case the petitioner requested the court to constitute the Special Investigation team to conduct the autonomous and independent investigation.
- Whether the arrest made by the Maharashtra Police was arbitrary and mala fide?
- Whether the arrest violated the rights mentioned under Article 14, 19, 21 of the Constitution?
- Whether the action under the Unlawful Activities (Prevention) Act is valid and in conformity with rule of law?
- Whether the plea for investigation by the Special Investigation Team (SIT) will be allowed?
The petitioner argued that the Maharashtra police had violated the rights of activists of equality before law enshrined under Article 14, freedom of speech and expression under Article 19 and of personal liberty under Article 21 of Constitution of India. The arrest made by the Maharashtra Police was arbitrary and the allegation of terrorism made by the police is baseless.
Further the petitioner stated that the petition aimed at ensuring the independent, credible and autonomous investigation in the arrest of five human rights activist for which a request was made to constitute a Special Investigating Team (SIT).
It was contended by the respondent that the person arrested were the member of banned terrorist Organization named as Communist Party of India.
Further argued that the petitioners to this case do not have any locus to challenge the arrest of five people mentioned in the facts and the arrest is not arbitrary.
The decision of this case had come up with the ratio of 2:1 in which the majority of decision was of Chief Justice of India Dipak Mishra and Justice A M Khanwilkar where Justice D Y Chandrachud was of dissenting opinion.
In the view of Chief Justice Dipak Mishra and Justice A M Khanwilkar-
On 28th September 2018 the rejected the plea for conducting the enquiry by the Special Investigation Team (SIT) regarding the arrest of five Human Rights activists. The rejection can be referred from the case of Narmada Bai v. State of Gujrat and Ors.  where the court stated that the parties to the case cannot determine the investigation bureau as per their own personal choice and preference.
Supreme court elongated the house arrest for the four years. The court held that authorities had produced sufficient and relevant evidences and disagree with the contention that the arrest was made with the lack of evidence.
Court observed that the petitioner failed to prove that curbing the political dissent was intended by the investigating officer while making the arrest as there were no specific and relevant material facts which proves the investigating officer had exercise the mala fide powers.
The court also referred case of Joginder Kumar v. State of U.P.  in relation to misuse of power of police to arrest and stated that the existence and exercise of power to arrest, both are different. The court held that the arrest cannot be made without the reasonable and sufficient satisfaction after investigation regarding the genuineness of complaint.
The court stated that there is a proper process laid by the law to attain the judicial remedies and the proceeding are already pending before the lower courts as the remedy can be granted in accordance with the law to the party. The accused has a chance before the lower court to apply for the modified relief before appropriate court. Hence the Supreme Court cannot interrupt in the criminal inquiry or the proceeding pending before the lower court which is yet to be decided.
In this case the Supreme Court do not express its view regarding the offence committed or innocence of accused.
In the view of Justice D Y Chandrachud- a dissenting opinion
In the dissenting opinion, D Y Chandrachud stated that in this particular case the investigation by the Special Investigating Team (SIT) is needed and the SIT should be constituted for the independent and fair investigation. He also stated that investigation should be monitored by the court in this case.
He further held that there were sufficient doubts regarding the impartiality of the Maharashtra Police. He observed that the remedies for which the petitioner stands before the court do not related to remedies which belongs to the criminal procedure.
He is of view that the petition file before court is not political affected. In relation with the court’s intervention to the police inquiry he stated that the Court can interrupt the inquiry of police when the police commits any serious procedural lapse.
 (2011) 5 SCC 79
 (1994) 4 SCC 260: 1994 SCC (Cri) 1172
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