On May 14, a two-Judge bench of the Supreme Court, comprising Justices M.M. Sundresh and S.V.N. Bhatti, vacated the stay on the Bombay High Court’s December 2023 order granting bail to human rights activist and journalist, Gautam Navlakha, an accused in Bhima Koregaon case.
The bench cited the detailed High Court order and the fact that there are 375 witnesses in the case, which is likely to inordinately delay the trial, as the reasons for lifting the stay. It is curious that the same grounds did not weigh with the bench earlier when it kept extending the stay on his bail order. It was as if the Supreme Court forgot its own jurisprudence that emphasises that bail should be the rule and jail an exception. A higher threshold for the granting of bail under Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA) does not mean that the apex court can interfere with the granting of bail by the High Court for trivial reasons.
The Supreme Court extended the High Court’s stay of its order for three weeks to enable the National Investigative Agency (NIA) to appeal against the granting of bail, although the grounds for vacating the stay were strong.
Of the 16 accused in the case, Navlakha is the seventh to secure bail. Earlier, Sudha Bharadwaj, Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, Varavara Rao, and Shoma Sen had either secured bail on medical grounds or on merit.
Allegations shrouded in mystery
The chances of the Supreme Court vacating the stay on bail granted on merit by the Bombay High Court to another accused, forest rights activist, Mahesh Raut are now probable, following the Navlakha precedent. Last year, the Bombay High Court had granted Raut bail, but stayed its own order for one week to enable the NIA to appeal at the Supreme Court.
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As in Navlakha’s case, the allegations against Raut are shrouded in mystery. The NIA alleged that Raut’s name was found in a letter retrieved from co-accused Rona Wilson’s computer, but Raut disputed it on account of forensic reports finding malware infiltration of the co-accused’s electronic mail devices. An investigation by Arsenal Consulting, a leading independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution’s case on the devices of two of the accused persons in the case, human rights lawyer Surendra Gadling and activist and researcher Rona Wilson. Arsenal’s findings were published in four reports in 2021.
Activist and lawyer Sudha Bharadwaj speaks to the media at her residence in Mumbai last year. | Photo Credit: INDRANIL MUKHERJEE
The stay on the bail orders of Navlakha and Raut created an unconstitutional and unjust barrier in the fulfilment of their fundamental rights, according to Deeksha Dwivedi, a New Delhi-based criminal lawyer. The practice of staying its own bail order by the High Court under Section 482 of the CrPC, which enables it to exercise its inherent jurisdiction to do real and substantive justice, has come under criticism. Dwivedi has pointed out that if the bail order is perverse, the Supreme Court can reverse it; therefore, why should the High Court exercise its inherent jurisdiction to enable the prosecution to appeal against it, she asks in an article.
One of the accused, Father Stan Swamy, died in custody in July 2021, as a result of his failure to secure bail on medical grounds.
The genesis
The case has its genesis in the Elgar Parishad meeting in Pune on December 31, 2017, which resulted in violence the following day, leading to the death of one and injuries to several people. The meeting was held to mark the 200th anniversary of the Bhima Koregaon Battle in which the mighty Peshwas were defeated by a handful of Bahujan soldiers.
The meeting aimed to challenge the right wing’s narrative creating tension between Dalits and Marathas. Activists belonging to different organisations had come together to hold the meeting on December 31, 2017. The violence between the right-wing forces and Dalits happened the following day.
In the Supreme Court, the State government filed an affidavit claiming that it had proof that right-wing forces were involved in the attack. Later, it was alleged that the speeches at the Elgar Parishad led to the violence. It was alleged that the banned organisation, the Communist Party of India (Maoist), was involved in the violence.
Navlakha’s alleged role
Navlakha, a member of the People’s Union for Democratic Rights (PUDR) was arrested on August 28, 2018. After being kept under house arrest, he was later sent to judicial custody. Like the co-accused in the case, he was charged under the UAPA.
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The NIA had alleged that Navlakha, along with other co-accused, conspiraced to further the ideology of the banned organisation and to create enmity between groups and communities belonging to different castes and religions.
The NIA contended that although Navlakha might not be personally involved in any violent terrorist act, his membership of the CPI (Maoist) suggested that he could not be dissociated from its terrorist activities.
Father Stan Swamy, one of the accused, died in custody in July 2021, as a result of his failure to secure bail on medical grounds. | Photo Credit: A. Muthukrishnan
While granting bail to Navlakha, the Bombay High Court did not find any material on record to indicate that there were reasonable grounds to believe that the accusation against him under Sections 16 (punishment for terrorist act) 17 (punishment for raising funds for terrorist act) 18 (punishment for conspiracy), 20 (punishment for being a member of a terrorist gang or organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA are prima facie true.
House arrest
On November 10, 2022, the Supreme Court allowed Navlakha to be placed under house arrest for a period of one month under certain conditions in view of his deteriorating health. His house arrest was periodically extended by the court. On May 14, the Supreme Court vacated the stay on his bail as the cost of keeping him under house arrest was mounting, and his senior counsel, Nitya Ramakrishnan challenged the NIA’s bill for his house arrest as unsustainable, and disproportionate to his income. The bench directed Navlakha pay Rs.20 lakh as a precondition to avail the High Court’s bail. The NIA had estimated the accumulated cost of its surveillance expenses during his house arrest was Rs.1.75 crore. He was under house arrest in Navi Mumbai.
While house arrest is a less stringent alternative to imprisonment, its cost-effective implementation has proved to be elusive, making it a less inclusive option to most prisoners.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
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