Abhishek Manu Singhvi has asked the bench to order a top court-monitored probe in the arrests.
The Supreme Court, which was hearing a petition in the arrests of five activists before it decides on their release, made it clear that the evidence submitted by the Maharashtra government must be "robust enough" and how "liberty can't be sacrificed at the altar of conjecture".
Two days after the top court extended the house arrest of five activists in connection with Koregaon-Bhima violence, the hearing of a petition seeking immediate release for them resumed today. The petition by historian Romila Thapar and four others has challenged the arrests last month which many said was "absolutely chilling".
Additional Solicitor General (ASG) Tushar Mehta submitted the case diary in the court for the Maharashtra government, and told the bench comprising Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud that sometimes the government has to undertake tasks which aren't popular.
"The activists were arrested following raids that were carried out after the police found concrete evidence during their six-month-long investigation," Mr Mehta told the court.
In the Koregaon-Bhima violence case, the police had arrested activists Surendra Gadling, Shoma Sen, Mahesh Raut, Sudhir Dhawale and Rona Wilson arrested in June. Their interrogation led to August 28 raids in which documents, laptops and pen drives were seized from the activists' homes.
The Maharashtra government told the court that in the seized documents, they found Rona Wilson's photograph with an accused in the Koregaon-Bhima case.
Justice Chandrachud said that the court understands that the government (Maharastra) wants to show opposition (to the release of the activists), "but your evidence must be robust enough to make a distinction between subversion of law and order, to overthrow elected government and merely holding an international seminar".
The hearing will resume tomorrow and the activists will remain under house arrest for now.
"We will carefully examine everything," said Justice Chandrachud.
Advocate Abhishek Manu Singhvi, who is representing Ms Thapar and others, opened the day's arguments with the fact that the initial First Information Reports or FIRs did not mention any larger conspiracy. He also asked how could Delhi University professor GN Saibaba aka Comrade Prakash have written the letters submitted as evidence by the Maharashtra Police as he has been in jail since 2017.
The letters that the Pune Police claim to have recovered during raids were addressed to Comrade Prakash and mentioned names of others including Gautam Nablakha.
How could Saibaba write or receive letters containing objectionable content at a government-run prison, Mr Singhvi said.
He has asked the bench to order a top court-monitored probe in the matter.
Defence lawyer Anand Grover, appearing for the five activists, agreed with Mr Singhvi's points and pointed out that after the first FIR was registered, there was no reason under law to file a second FIR.
Telugu poet Varavara Rao, activists Vernon Gonzalves and Arun Ferreira, lawyer Sudha Bhardwaj and civil liberties activist Gautam Navalakha were arrested last month after multi-city raids at the homes of at least 10 activists. The raids were conducted as part of an investigation into an event called "Elgar Parishad" or conclave on December 31 last year, that triggered violence at Koregaon-Bhima village near Pune.
After an urgent hearing following the arrests, the Supreme Court had put the activists under house arrest.
Mr Singhvi said that the five activists were not even present at the Elgar Parishad and said that two former Supreme Court judges and a former High Court judge attended the event.
Mr Grover also said the raids were carried out without any permission. He also questioned the release of prime accused Milind Ekbote in the case and said, "An SIT must be constituted to bring out the truth."
The Supreme Court had on Monday said that it will order a special investigation team (SIT) to probe the case if it finds that the evidence supporting the arrests in connection with the Koregaon-Bhima violence was "cooked up" and needed to be examined.
"We must look into the material. We will see the record, what are the allegations and see if there is something real. We will quash if it is a cooked up or clumsy story... If it calls for our intervention, we will look into it," the bench, comprising Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud had said.