Bombay High Court grants “default” bail to Sudha Bharadwaj

Human rights activist Sudha Bharadwaj (left) after she was arrested by the Pune police in connection with the Bhima Koregaon case, in Faridabad on August 28, 2018.

Sudha Bharadwaj, the trade unionist and lawyer jailed in connection with the Elgar Parishad/Bhima Koregaon case, has been granted default bail by the Bombay High Court on December 1. Sudha Bharadwaj has been in prison since August 2018. Eight other accused in the same case who had filed the same plea were unfortunately denied bail. Sudha Bharadwaj will be the first among the 16 imprisoned in the case to be granted default bail.

The bench of Justices S.S. Shinde and N.J. Jamdar ruled that the Special National Investigation Agency (NIA) court based in Pune essentially had no jurisdiction to extend the detention of Sudha Bharadwaj beyond the stipulated 90 days. This technicality in the law, on which “court” was competent to extend the detention, led to the High Court’s conclusion that Sudha Bharadwaj could be granted default bail.

As per the Code of Criminal Procedure (CrPC), investigative agencies need to complete an investigation within a deadline. The accused can be kept in custody during this period. If the agency fails to comply with these deadlines, the accused is entitled to what is commonly referred to as “default” or “regular” bail. However, Sudha Bharadwaj was arrested under the Unlawful Activities Prevention Act (UAPA), which does not provide bail. The High Court referred to the right of personal liberty, Article 21 of the Constitution and said: “In our view, to deprive the applicant Bharadwaj of the indefeasible right on the premise that the application preferred on November 26, 2018, was premature, would be taking a too technical and formalistic view of the matter. In our view, all the requisite conditions to release Bharadwaj on default bail stood fully satisfied.”

Sudha Bharadwaj, a practising lawyer at the Chhattisgarh High Court and general secretary of the People’s Union for Civil Liberties (PUCL) in Chhattisgarh, works with mine workers, Dalits and tribals in the Chhattisgarh and Jharkhand belt. She is extremely knowledgeable about land and forest rights. She has repeatedly denied involvement with the Elgar Parishad or the caste violence at Bhima Koregaon, which has been linked to the Elgar.

According to an associate close to Sudha Bharadwaj, the 60-year-old’s health has suffered tremendously following her imprisonment. She suffers from several comorbities such as hyper tension, diabetes and a heart condition. The High Court has asked her to present herself in court on December 8 to decide her bail terms and date of release from prison.