Authored By: Jaztejvar Singh Gill
Narsee Monjee Institute of Management Studies, Chandigarh
Case Title & Citation
Romila Thapar v. Union of India (2018), 10 SCC 753
Court Name & Bench
Court: Supreme Court of India
Bench: Division Bench comprising of Justice Dipak Misra, Justice D.Y. Chandrachud, and Justice A.M. Khanwilkar
Date of Judgement
28 September 2018
Parties Involved
Petitioners: Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande, Maja Dharuwala
Lawyers: Mr. AM Singhvi; Mr. Prashant Bhushan; Ms. Indira Jaising; Mr. Rajeev Dhavan
Respondent: Union of India, State of Maharashtra
Lawyers: ASG Tushar Mehta; ASG Maninder Singh
Facts of the Case
On August 2018, a writ petition was filed under Article 32 of the Constitution of India before the Supreme Court by five eminent citizens, which were Romila Thapar (Historian), Devaki Jain (Feminist Economist), Prabhat Patnaik (Economist), Satish Deshpande (Sociologist), and Maja Dharuwala (Human Rights Advisor). The petition filed challenged the arrest of five activists, namely, Gautam Navlakha, Sudha Bhardwaj, Vernon Gonsalves, Arun Ferreira, and Varavara Rao following the nationwide raids carried out by the Maharashtra Police. The arrests were connected to the Elgar Parishad event held in Pune on 1st January 2018, honouring the bicentenary of the Battle of Koregaon-Bhima.[i] It was alleged by the police that violence was instigated by the Parishad and the arrested activists were members of the banned Communist Party of India (Maoist). The charges involved were governed by the provisions of Unlawful Activities (Prevention) Act, 1967 (UAPA).[ii] The petition raised concerns regarding the arrests and sought judicial oversight. Due to urgent circumstances, the matter was mentioned before the Court by Senior Advocate Dr. Abhishek Manu Signhvi and the court agreed to hear it on the same day.[iii]
A second petition which related to the earlier arrests made on 7th June 2018 was also mentioned in the case. During that date, the Maharashtra Police arrested five other activists, namely, Shoma Sen, Surendra Gadling , Mahesh Raut, Rona Wilson, and Sudhir Dhawale who were in connection with the same violence. Hence, an intervention application was filed on their behalf so that those arrests could come under the Court’s consideration.
Thus, the case before the Supreme Court dealt with two separate sets of arrests, the first on 7th June 2018 and the second on 28th August 2018 – all linked to the Bhima-Koregaon case and alleged Maoist connections of the arrested activists.
Issues Raised
- Whether the arrests are malafide and arbitrary as none of the individuals were named in the First Information Report nor is there any evidence they were present at Bhima Koregaon site?
- Do these arrests made under the UAPA have a chilling effect on the exercise of freedom of speech guaranteed by Article 19?
- Whether the use of UAPA, an anti-terror law against citizen who have no history of violence, is malafide and goes against the core tenet of “Rule of Law”?
- Whether the Police, in making the arrests via the UAPA, violated fundamental rights of activists under the Articles 14 and 21?
Arguments of Parties
Argument of Petitioners
It was contended that the arrests of the activists were arbitrary and politically motivated, aimed at suppressing voices of dissent. They argued that the activists have been engaging in human rights and social justice work, hence, the charges under UAPA were a misuse of law. Also, it was argued that there was no credible evidence that linked the activists to the Bhima-Koregaon violence and that the police conducted raids with grave procedural lapses.[iv] It was asserted that these actions infringed the fundamental rights of the victims under Articles, 14,19, and 21 of the Constitution. They sought the establishment of a Special Investigation Team (SIT) to ensure an impartial investigation under the Court’s supervision.
Argument of Respondents
It was defended by the Maharashtra Police and State that the arrests were based on concrete evidence which directly connected the activists to the banned Communist Party of India (Maoist) and to the conspiracy behind the Bhima Koregaon violence.[v] It was argued that the Parishad was not only commemorative but also was a platform to evoke caste-based violence as well as promote Maoist ideology. The respondents stated that that it was necessary to address threats to national security and public order which justified the use UAPA. They maintained that the investigation was done in accordance with law, and that judicial interference would hamper the police’s power to carry out their duties at this stage.
Judgement
On 28th September 2018, the Supreme Court delivered the judgement in the writ petition filed by Romila Thapar and others which challenged the arrest of five activists. The decision was given by a three-judge bench. The verdict given by the bench was split into 2:1, with the majority opinion authored by the Justice A.M. Khanwilkar and C.J. Misra, and a dissenting opinion authored by Justice Chandrachud.
The majority rejected the plea of the petitioner for the formation of a Special Investigation Team (SIT) to control arbitrary arrests. The Court held that the accused cannot claim an entitlement to a specific mode or any sort of agency of investigation. Relying on the case of Narmada Bai v. State of Gujarat[vi], it was observed that disputing parties do not have the right to demand investigation by an agency of their choice. The Court highlighted that the police had provided sufficient evidence to justify the arrests and that the petitioners failed to prove malafide intent.
Also, in the case of Joginder Kumar v. State of U.P.[vii], the court reiterated that while the power to arrest exists, it should be exercised reasonably and based on adequate satisfaction after the inquiry has been done. The Court was satisfied that the arrests had a proper legal foundation in the case. It was observed that remedies were available before the lower courts, under which proceedings were pending. The Supreme Court stressed that it could interfere in ongoing criminal investigations at early stages. Importantly, the court refrained from expressing any opinion on the innocence or guilt of the accused, hence, it limited itself only to the procedural validity of the arrests and investigations.
In contrast, Justice D.Y. Chandrachud, in his dissent, provided that serious allegations over the impartiality if the police warranted the need of an independent SIT investigation under special judicial supervision.[viii] He clarified that the petition raised valid concerns about misuse of state of power and was not politically motivated. He noted that where investigative agencies show any bias, the court has rightly intervened, contrasting Narmada Bai’s case. Since remedies sought went beyond the criminal procedure for it to cover the broader constitutional issues, he concluded that the Court could not remain passive and criticized that the Court should have ordered a fair probe.
Ratio Decidendi
The ratio decidendi of the majority judgement is that:
- Choice of Investigating Agency
Investigation cannot be demanded by accused persons or petitioners by a particular agency of preference. The right to select an investigating authority does not come under the ambit of fundamental rights under the Constitution.
- Sufficiency of Evidence
If sufficient prima facie evidence is produced by the investigating authorities to justify the arrests, then the Court will not interfere in the investigation during the early stage. The Maharashtra Police was deemed to have presented satisfactory and reasonable material connecting the accused to the alleged offences.
- Judicial Non-Interference at Investigation Stage
It was reaffirmed that if ongoing criminal proceedings as well as remedies are available before the lower courts, then it must be respected. The Supreme Court should not intervene prematurely unless it is malafide or shows grave procedural irregularities which are clearly established.
- Arrest Powers
Relying on the case of Joginder Kumar v. State of U.P., the Court reiterated that even though the police have the power to arrest, such power should be exercised with reasonable satisfaction. In this case, the Court approved that this standard was met.
By contrast, Justice Chandrachud’s dissenting ratio emphasized that:
- If there are genuine doubts about the impartiality of the investigating agency, the Court has the power and duty to transfer the investigation to an independent body.
- It is essential to preserve legitimacy of justice system through judicial oversight and protect constitutional freedoms, especially when there are allegations of misuse of state power.
- It was highlighted that the Court should intervene even at the investigation stage if there are serious procedural lapses which are suspected and clearly evident.
Conclusion
Hence, by a 2:1 majority, the Court dismissed the appeal for the formation of SIT and allowed the Maharashtra Police’s investigation to go on. The majority focused on the procedural propriety and judicial restraint, while the dissent emphasized the need of a court-monitored investigation to protect fundamental rights and promote public faith in the justice system.
Reference & Bibliography
[1] Student of SVKM’s Narsee Monjee Institute of Management Studies (NMIMS), Chandigarh.
[i] Mayur Suresh, The Slow Erosion of Fundamental Rights: How Romila Thapar v. Union of India Highlights What Is Wrong with the UAPA (July 23, 2019).
[ii] Bhima Koregaon Arrests Under UAPA – Romila Thapar v. Union of India, SC Observer (Sept. 28, 2018), https://www.scobserver.in/cases/romila-thapar-v-union-of-india-arrested-activists-background/.
[iii] Preliminary Report: India – Bhima Koregaon, American Bar Association, https://www.americanbar.org/groups/human_rights/reports/preliminary-report-india-bhima-koregaon/.
[iv] Saumya Dadoo & Shailza Sharma, Tracing Carceral Continuities: A Review of Recent Works on the Incarcerations of the ‘Bhima Koregaon-16’, 21 Student L. Rev. 1 (2025).
[v] Olivia Hati & Yuvraj Singh, Examining the Bhima Koregaon Case: An Analysis of the Legal Framework, Evidence, and Implication for Civil Liberties, 2 J. Legal Rsch. & Juridical Sci. 2 (2022).
[vi] (2011) 5 S.C.C. 79 (India).
[vii] (1994) 4 S.C.C. 260 (India).
[viii] The Bhima Koregaon – Elgar Parishad Conspiracy Case: Marking Five Years of Injustice, People’s Union for Civil Liberties (PUCL) (July 5, 2023), https://pucl.org/manage-writings/the-bhima-koregaon-elgar-parishad-conspiracy-case-marking-five-years-of-injustice/.
