Was Chandrachud’s dissent in the Bhima Koregaon case initially a unanimous verdict?

On 28 September, a majority judgment written by AM Khanwilkar, on behalf of himself and Dipak Misra, dismissed the Bhima Koregaon petition. But until the previous evening, the Supreme Court’s website indicated that there would be only one judgment in the case—by the dissenting judge, DY Chandrachud. Ashok Dutta/Hindustan Times/Getty Images
29 September, 2018

On 28 September, a three-judge bench of the Supreme Court pronounced its verdict on a writ petition challenging the arrest of five activists, writers and lawyers purportedly in relation to the violence at Bhima Koregaon earlier this year. The petition sought their release from custody and asked for the case to be handed over to a court-monitored Special Investigation Team. A majority judgment written by AM Khanwilkar, on behalf of himself and the chief justice, Dipak Misra, dismissed the petition. But until the evening of 27 September, the Supreme Court’s website indicated that there would be only one judgment in the case—by the dissenting judge, DY Chandrachud.

Every day, the Supreme Court registry uploads cause lists—the cases each bench will hear—of the following day on its website. The lists mention the judges who will hear each case, the scheduled time of the hearing and the judges who will be pronouncing verdicts.

In the case of the Bhima Koregaon petition, however, the cause list as of the evening of 27 September—a screenshot has been reproduced below—mentioned only one judgment, to be pronounced by Chandrachud. On the morning of the hearing, the registry uploaded a notice on its website clarifying that the “pronouncement of judgment by Hon’ble Dr. D.Y. Chandrachud may be read as to be pronounced by ‘Hon’ble A.M. Khanwilkar and Hon’ble D.Y. Chandrachud, JJ.’”

Going by convention, the Supreme Court registry ought to have mentioned Khanwilkar’s name along with Chandrachud’s in the cause list for the Bhima Koregaon case. For instance, the listing for the petition challenging the prohibition of women’s entry to the Sabarimala temple, also heard in the chief justice’s court on 28 September, noted, “Judgment by: Hon. The Chief Justice, Hon. Mr. Justice Rohinton Fali Nariman, Hon. Dr. Justice D.Y. Chandrachud and Hon. Ms. Justice Indu Malhotra.” The case was heard by a bench of five judges, four of whom pronounced judgments. (Khanwilkar was the fifth judge.) Although the list did not clarify which judges would be concurring or dissenting—Malhotra’s judgement was a dissent—all four judges were mentioned.

The Supreme Court registry’s notice stating that Khanwilkar would be pronouncing a judgment provided no explanation for why the error occurred. Rajkumar Choubey, the listing registrar in the Supreme Court, declined to speak on the record about the case.

According to the senior advocate Prashant Bhushan, who represented one of the petitioners, the omission of Khanwilkar’s name was likely not by accident. “This is an important case for the government,” he told me. Bhushan said that it is possible that the government learnt that Chandrachud was writing the judgment and had “gotten alarmed.”

The senior advocate Abhishek Manu Singhvi, who also represented one of the petitioners, refused to comment because he was a counsel in the case. The additional solicitor general, Tushar Mehta, also declined comment, noting that “as [a matter] of principle, I do not discuss about any matter in which I have appeared.”

Bhushan emphasised one aspect of Chandrachud’s judgment, which he said was a “giveaway” that it was originally a unanimous verdict on behalf of all three judges. In the final paragraph of his dissent, Chandrachud writes: “I would direct that the petition be listed after three days for orders on the constitution of Special Investigation Team.” It is odd for a dissenting judgment to order that the case be listed again, especially when the majority judgment dismisses the petition in question. “He would not have written this if it was a dissent,” Bhushan said.

Chandrachud’s opinion also contains other observations peculiar for a dissenting judgment. Earlier in the final paragraph, he writes, “The Special Investigation Team shall submit periodical status reports to this Court, initially on a monthly basis.” But again, the majority judgment specifically rejects the plea to transfer the case to a court-monitored SIT, and permits the Pune police to continue its investigation. Pertinently, Chandrachud adds a footnote at the end of that sentence, which acknowledges that his is a dissenting opinion, but provides little clarity on the directions issued in the last paragraph: “Speaking as I do for the minority, I have not indicated the names of the personnel who would constitute the SIT. Should that occasion rise, liberty is granted to seek an appropriate direction from this Court.”

Chandrachud makes other specific references to his opinion being the dissenting judgment. Some of these mentions underscore another reason Bhushan offered for why he thought the dissent was originally a unanimous opinion—Khanwilkar’s majority judgment appeared to be “a rushed overnight job.”

The majority judgment primarily rests on its finding that “the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation.” However, Chandrachud challenges the applicability of the case law relied upon to make this assertion, raising fundamental concerns over four of the cases mentioned by Khanwilkar.

He shows that in two of the precedents cited—one of them written by Khanwilkar himself—the Supreme Court had permitted the transfer of investigations to the Central Bureau of Investigation in the interest of fair and impartial justice. In two other cases that are used to deny the relief to transfer the investigation, Chandrachud notes crucial facts that distinguish the matter at hand—one judgment refused a request for transfer of investigation by an anonymous petitioner, while the other featured a petitioner who approached the court with “unclean hands.” In the Bhima Koregaon case, he writes, the petitioners are neither anonymous nor is there any argument “that the petitioners have been motivated by personal gain or political considerations.”

Even without specifically referring to the majority judgment, Chandrachud’s dissent demonstrates other significant failings of the verdict. After citing these four cases, Khanwilkar writes that “no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer.” However, in his dissent, Chandrachud refers to and relies on several such arguments made by the petitioners. For instance, the petitioners pointed out that the police had released 13 unverified letters, which it claimed to be proof of a Maoist connection, to the media. “The letters are unsigned and do not bear any identifiable particulars including e-mail addresses or headers,” Chandrachud writes.

He also notes the petitioners’ argument that seven of these 13 letters were authored by or addressed to one “Comrade Prakash” and that the judgment convicting the Delhi University professor GN Saibaba had noted that he used the pseudonym “Prakash.” Given that Saibaba has been lodged in Nagpur Central Jail since March 2017, the petitioners argued that “the alleged letters attributed to him after that date are ex-facie fabricated.”

Chandrachud also notes Singhvi’s submissions about the police bringing witnesses from Pune for the arrests, which the senior advocate said amounted to a “gross violation of law rendering the arrest, search and seizure unlawful.” Accepting this argument, the dissenting judge writes: “The two panch witnesses are employees of the Pune Municipal Corporation. It is not disputed before this Court that they travelled as part of the police team which made the arrest.” He writes in his conclusion:

Another indication that Khanwilkar’s judgment was written at the eleventh hour is his reluctance to consider in detail the petitioners’ submissions concerning the Pune police’s conduct of the investigation, even though such consideration would be essential to determine whether the investigation is fair and unbiased. “This is not the stage,” Khanwilkar writes, “where the efficacy of the material or sufficiency thereof can be evaluated nor it is [sic] possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter lest it would cause prejudice to the named accused and including the co-accused who are not before the Court.”

He repeats the phrase later in the judgment as a justification for refraining from “dealing with the factual issues raised by the parties” because it may cause “serious prejudice” to the accused. Again, towards the end of the majority judgment, before declaring that the five activists will remain under house arrest for four more weeks, Khanwilkar uses the same phrase. He writes: “We may hasten to mention that we have perused the Registers containing relevant documents and the Case Diary produced by the State of Maharashtra. But we have avoided to dilate on the factual position emerging therefrom, lest any prejudice is caused to any accused or the prosecution, in any manner.”