While hearing a petition questioning the “arbitrary arrests of activists” including Sudha Bharadwaj and Gautam Navlakha by the Maharashtra Police, the Supreme Court of India on Wednesday observed: “Dissent is the safety valve of Democracy.”

The arrests and raids were carried out at different locations across five different states on August 28.

The apex court granted relief to the arrested people by putting a stay on the transit remands and ordered they be placed under house arrest instead. However, this also affected the proceedings of the case being heard a few streets away, inside courtroom number 33 of the Delhi High Court, where the two-judge Bench of Justices S Muralidhar and Vinod Goel were hearing a habeas corpus petition into the arrest of activist Gautam Navlakha.

During the hearing, which went on for about roughly three hours, the Bench pulled up the State Counsels and Maharashtra Police for procedural lacunas in the arrest of Navlakha. Although the Delhi HC Bench was expected to pass the order questioning the procedural legality of the transit remand issued by a magistrate court in Delhi itself, the Assistant Solicitor General (ASG) Aman Lekhi informed the Bench about the SC’s stay order.

The court will now hear out the petitioner’s counsel and State Counsels today (Thursday). Meanwhile, Navlakha will remain under house arrest until the judgement is pronounced.

On Tuesday, Maharashtra police had raided the houses of Navlakha, Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves, in relation to the Bhima Koregaon violence that took place in the first week of January earlier this year. At the same time, both High Courts—Delhi, and Punjab and Haryana—put a stay on the transit remand as well. Now, the apex court’s order has placed a stay on all arrests, placing them under house arrest instead.

In light of this development, the Delhi HC deferred its pronouncement of judgement in Navlakha’s petition till Thursday. However, even before the Bench reached its stage of pronouncing the order, the State Counsels and Maharashtra Police had to face a tough time inside the courtroom. Justice Muralidhar constantly questioned the Maharashtra Police’s failure when it came to translating the documents related to the arrest of Navlakha, from Marathi to English, or any other language known to both, the arrested person and the court. He further expressed concern over the procedural legality of the transit remand issued by the Magistrate Court itself “as we feel that the court was not as satisfied as it should have been.”

Pulling up the Maharashtra police, the Bench said: “If the grounds of arrest are written in Marathi, then clearly, even if you serve a copy (of it), the person will not know what the grounds of arrest are…”

The Bench also pointed out that Magistrate Courts should not issue “mechanical” orders. The Chief Metropolitan Magistrate had issued a transit remand on the basis of the “documents of Maharashtra Police.” Now, the State Counsels of Maharashtra and Delhi have accepted in front of the HC bench that all documents related to the arrest were in fact, in Marathi—except for the arrest warrant—which was in Hindi. The State Counsel(s) accepted that their failure of not having translated the documents was “negligence” on the police’s part.

“If you yourself say that these are not legible copies that you are able to translate, yet, you read it out in front of the magistrate…Is it practical that all of this could have been read out and examined by the Chief Metropolitan Magistrate?,” Justice Muralidhar said to the State Counsel.

More importantly, the Bench said the arrested person’s name did not feature in the FIR. Justice Muralidhar said that the police could even go on to say that Navlakha’s name was mentioned in the case diary. “Now, has the magistrate seen the case diary?,” the Bench asked the counsel to ask Maharashtra police personnel in front of the court. The answer was a “no”. The Bench then went on to express further concerns over the transit remand issued on Tuesday.

Notably, ASG Lekhi argued that the arrest of Navlakha was not a “case without a cause.” He informed the court that the reason for Navlakha’s arrest “is apparent due to his involvement” and that the petitioner was not the first one to be arrested in the case. He also pointed out that 16 arrests pertaining to the case had been made so far, and the arrests made on Tuesday were the third round of its kind. Somehow, all of them were inter-related.

When Lekhi went on to say that there was a prima facie case against Navlakha, the Bench interrupted him saying “we have not even reached that stage” and once again pointed out their concerns over the transit remand. Lekhi was interrupted a second time when he said that “the person [defendant] is actually an accused,” and stood corrected by the Bench, who pointed out that he is “actually not an accused.”

The Bench also stated that every minute of a person being kept in custody is a concern.

Even though the apex court’s order has now deferred the HC bench’s pronouncement of judgement in this case, the bench has laid out some serious concerns over the issuing of arrest remands in regards with cases under sections of the Unlawful Activities Prevention Act (UAPA). The Maharashtra police had added sections of the UAPA such as punishment for involvement in terrorist activity, funding of terror act, and being part of terror group in the Bhima Koregaon case. Therefore, any of the arrested people in the case would have slim chances of being granted bail in the near future.

The bench said: “Because the statute we are talking is impossible to come out on a regular bail unless some huge threshold is crossed, an additional burden is placed on a magistrate before whom a transit remand is placed.”

Justice Muralidhar further said: “We don’t want the magistrate to write 10 pages,” but that the CMM could have one line saying “I have seen the papers, which were in Marathi. we cannot put in one line saying I have seen the papers. Because this is the UAPA and the person cannot come out (soon)…,” he said that a single such order would mean that a defendant could not get bail for at least for three to four months.

What the two-judge Bench said could have a large ramification on the cases related to UAPA. “In lectures in the judicial academy, we say that the magistrates don’t realise that they are performing a very important constitutional function. At the very threshold, someone’s liberty is being taken away and magistrates presume that they have nothing to do with the Constitution of India. Actually—they have everything to do with it.”