The Supreme Court said it will constitute a high-powered judicial committee to probe alleged police excesses against student protesters and consider quashing FIRs against peaceful protesters.
New Delhi: The Supreme Court on Tuesday said it would constitute a high-powered judicial committee, headed by a retired judge and comprising a former CBI Director and a former State Director General of Police, to examine the allegations of police excesses against students during the July protests, and indicated it would consider quashing FIRs registered across the country against peaceful student protesters, distinguishing them sharply from those with criminal antecedents [Shailendra Mani Tripathi v. Union of India and Others].
A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana heard the batch of petitions, which seek a court-monitored investigation into the alleged excesses, including the use of pellet guns, and issued notice on all the fresh applications and petitions. The Court said it would release a detailed order on Wednesday, after receiving suggestions from the parties.
A high-powered judicial committee
The centrepiece of the hearing was the Court’s decision to set up an independent committee to examine the allegations. Announcing the move, the Chief Justice said the Court had already secured the consent of eminent officers to serve, and had deliberately withheld their names to protect the committee’s credibility:
“We are going to constitute a high-powered committee. We have taken the consent of a retired CBI Director and a former DGP who have no connection with the matter. We are not naming them today. They are outstanding officers. We have done our homework so that no one can raise a concern later about the composition.”
The Court said it would identify the issues the committee must examine, and gave the parties liberty to place additional issues before it. It took on board suggestions that a former Attorney General and at least one woman member be included, given that several of the issues concern women. Senior Advocate N. Hariharan urged that a woman member was essential, and there were suggestions for a separate sub-committee, functioning under the main committee, to deal with gender-related issues. The Court said the preserved material, CCTV footage, videography and records whose preservation it had earlier directed, would be handed to the committee, and appointed nodal officers.
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The move to quash FIRs against peaceful protesters
A significant part of the hearing concerned the fate of the FIRs registered against protesters across several States. Advocate Vrinda Grover pressed the Court to invoke its powers to quash them, submitting that this was consistent with the assurance the authorities had already given:
“There are a large number of FIRs and complaints, including in Bihar and Delhi. This Court should invoke Article 141 and quash the FIRs against the student protesters across the country. That was the assurance given.”
Solicitor General Tushar Mehta accepted that FIRs against student protesters should be quashed, leaving the manner to the Court, but carved out an exception for allegations concerning anti-social elements who may have infiltrated the protests, which he said would have to be investigated.
The Chief Justice proposed a practical mechanism, that both sides submit lists so the Court could identify the FIRs where there was no dispute:
“Unless we have a specific list, how can we pass an order quashing the FIRs? Let both sides give us the lists. Wherever there is no dispute, we will pass orders.”
Justice Bagchi cautioned that the category of infiltrators could not be left as a generic label to sweep in genuine protesters.
‘We cannot lose sight of their right under Article 19’
The hearing saw a pointed exchange over whether a protest held without permission could attract any protection. Advocate Rizwan submitted that criminal law recognises no “peaceful” offence, only lawful and unlawful protest, and argued that the march to Parliament, lacking permission, was unlawful.
The Chief Justice resisted that binary, anchoring the students’ conduct in the constitutional right to protest:
“Criminality has to be assessed keeping in mind the object and purpose for which the students had gathered. We cannot lose sight of their right under Article 19. So long as a person does not violate the law and is peacefully raising his voice, such cases are entirely distinguishable from those involving hardened criminals.”
He added that the matter “concerns the life and future of innocent students,” who had a legitimate expectation from the system even in the face of public outcry. When Rizwan suggested that leniency might later be portrayed as weakness, and that the students should file an affidavit expressing remorse, Justice Bagchi replied that this was “not necessary,” while noting the Court had taken his submission on board.
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The allegations against police conduct
Several counsel pressed for specific allegations of police misconduct to be examined. Senior Advocate Shadan Farasat referred to video footage raising serious concerns about individual officers, including material allegedly showing an officer using a lathi against a woman in an objectionable manner, submitting that the committee could examine these while the police remained free to act in the meantime.
Senior Advocate Gopal Sankaranarayanan was sharper, pointing to the Delhi DCP’s affidavit filed the previous night, which, he said, admitted that personnel had operated in plain clothes and without name tags but was silent on any action taken:
“For the last two months, we have been asking the authorities to disclose what steps they have taken. Let them place those details on record. Once women protesters are subjected to such disgusting acts, responsibility has to be fixed.”
The Chief Justice was cautious about the Court itself entering these allegations, lest it narrow the committee’s scope, but left the door open to interim measures, “If suggestions are given today, we may be able to pass an order tomorrow.” The Solicitor General urged restraint, submitting that the Court should await the committee’s findings before engaging with any individual’s culpability, and asking, “Why sensationalise the issue?”
Sexual harassment and online threats
The Court reacted with particular gravity to a plea concerning the alleged sexual harassment of, and online threats against, women protesters. The Chief Justice described it as a matter admitting of no excuse:
“This is a very serious issue. There can be no excuse for this. It must be taken to its logical conclusion. The committee will examine every aspect. We stand with the victims. How can this be permitted in a civilised society?”
Counsel submitted that a video by one Gaurav Bindu had gone viral while the victim’s own account had been disabled, that the offences had not stopped, and that even the reporting of them was being suppressed, making an interim order necessary. The Court was urged to direct all States to furnish details of FIRs registered over such incidents, including alleged derogatory content targeting an elderly woman protester associated with the farmers’ agitation, and to permit the Supreme Court Registry to receive complaints relating to them.
Facial recognition and the constitutional question
A distinct constitutional dispute arose over the use of facial recognition technology at the protest sites. Hariharan submitted that this raised a question of constitutionality that could not simply be delegated to the committee, and, with Senior Advocate Menaka Guruswamy, contended that the authorities were using private companies to process the data with no governing legal framework, directly implicating the right to privacy.
The Solicitor General defended the practice, submitting that facial recognition was used only to identify hardened criminals already in the NCRB database and accused of serious offences, and that no action was taken on a match without field verification. The Chief Justice held that the committee could give its opinion, but that the larger question was for the Court:
“There cannot be any doubt that the constitutional issue will ultimately have to be decided by this Court.”
Injured police and compensation
The Court also heard counsel appearing for the families of police personnel injured during the protests, who sought provision for their compensation, the Solicitor General noting that around 200 officers had been injured. Grover pressed for interim compensation for those allegedly injured by pellet guns, which the Solicitor General said he would examine.
What happens next
Issuing notice across the fresh applications and petitions, the Court said it would await the parties’ suggestions and release its order on Wednesday, and that the committee should first be made functional. The order is expected to formalise the committee’s composition and terms of reference, the mechanism for identifying and quashing FIRs against peaceful protesters, and any interim measures the Court decides cannot wait.
The allegations on all sides, of police excess, of sexual harassment, and of protester violence and infiltration by anti-social elements remain untested, and the committee the Court is constituting is the forum before which they will now be examined.