7/16 Bhima Koregaon Accused Get Bail, Courts Raise Prima Facie Doubts About Evidence

The Bhima Koregaon case, in which several activists and academicians have been incarcerated under the draconian Unlawful Activities(Prevention) Act 1967 over alleged Maoist links, raises a big question mark on India's civil liberties framework. The fact that the trial has not yet commenced for nearly six years makes one question the seriousness of the allegations concerning national security. Moreover, the doubts about the sustainability of the allegations are fortified by the repeated observations made by the Bombay High Court and the Supreme Court in the judgments granting bail to some of the accused. It is true that the the observations in the bail orders may not have a bearing on the trial. However, the fact that several accused established the lack of a prima facie case against them for the purposes of bail raises some questions. This is also indicative of the draconian nature of the UAPA, which places a strenuous task on the accused to show the lack of a prima facie case, converting bail hearing into a sort of "mini-trial". This means that liberty, even if it comes, comes after many procedural delays and long pre-trial incarceration.

Tragically, one of the accused, Father Stan Swamy, died due to health reasons while under custody. This case starkly illustrates that in India, dissent can cost liberty, and the criminal law process itself often serves as a form of punishment.

Let us see who all have got bail in the case and how the Courts have dealt with the evidence.

Sudha Bharadwaj

Arrest : August 28, 2018.

Bail order by HC : December 1, 2021.

Bail order affirmed by SC : December 7, 2021.

Activist and human rights lawyer Sudha Bharadwaj was the first accused to get bail in the matter. She was arrested on August 28, 2018. On December 1, 2021, the Bombay High Court granted her default bail on the finding that the Pune Sessions Court, which extended the time for the NIA to file the chargesheet, was not a court of competent jurisdiction as it was not notified as a Special Court under the UAPA. On December 7, 2021, the Supreme Court affirmed the Bombay High Court's order by dismissing the NIA's challenge to it. Although 8 other accused also sought default bail on the same ground, the High Court rejected their plea saying that a default bail application was not pending at their instance on the relevant date.

Professor Anand Teltumbde

Arrest : April 14, 2020.

Bail order by HC : November 18, 2022.

Bail order affirmed by SC : November 25, 2022.

While granting bail to academician, writer and social activist Professor Anand Teltumbde, the High Court raised several prima facie doubts about the case. The Court stated that the documents cited by the NIA against Teltumbde were in the “realm of speculation” requiring further corroboration. It observed :

“On prima facie appreciating the material on record as well as the statements of three key witness against Appellant, we do not think that provisions of Sections 16 and 18(of UAPA) can be invoked at this stage against Appellant(Teltumbde) for want of better proof and evidence. On reading the chargesheet and the material placed before us, prima facie it cannot be inferred that Appellant has involved himself in a 'terrorist act'”.

The Court also affirmed the academic credentials of Teltumbde terming him “a man of intellectual prominence in the field of Dalit ideology “

P Varavara Rao

Arrest : August 28, 2018.

First bail order by HC on medical grounds : February 22, 2021.

SC makes the bail permanent: August 10, 2022.

Telugu revolutionary poet Varavara Rao, aged over 80 years, was suffering from various ailments. In August 2022, the Supreme Court took note of his advanced age and severe health ailments and set aside the direction passed by the High Court for surrender.

Vernon Gonsalves and Arun Ferreira

Arrest : August 28, 2019

Bail by SC : July 28, 2023

While granting bail to Vernon Gonsalves and Arun Ferreira by a common judgment, the Supreme Court observed that there was no credible evidence against them.

"There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act....Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act", the Court observed after noting that the materials collected by the NIA were in the nature of "hearsay evidence" and materials seized from third parties.

The Court also observed that mere possession of Maoist literature cannot be regarded as an offence.

"Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b). Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the appellants under Section 15(1)(b) of 1967 Act can be held to be true.”

Professor Shoma Sen

Arrest : August 28, 2018.

Bail by SC : April 5, 2024.

While granting bail to former Nagpur University Professor Shoma Kant Sen nearly six years after her arrest, the Supreme Court observed that the allegations against can't be believed to be prima facie true. The Court said that her mere presence in the Elgar Parishad meeting cannot be regarded as incitement. The appeals made by Sen to women to join a “struggle for democratic revolution” cannot be construed as a conspiracy for terrorist acts.

"...we are of the opinion that there is no reasonable ground for believing that the accusations against the appellants for commission of the offences incorporated in Chapter IV and VI of the 1967 Act are prima facie true."

Gautam Navlakha

House Arrest : August 28, 2018 to September 18, 2018.

Surrender to NIA  : April 14, 2020.

Bail granted by HC (but stayed by HC itself ) : December 19, 2023.

SC refuses to extend the stay : May 14, 2024.

While granting bail to journalist and activist Gautam Navlakha, the Bombay High Court in its December 2023 judgment observed that there was no prima facie case against him.

“From the material on record, it appears to us that,no covert or overt terrorist act has been attributed to the Appellant.”

“The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and/ or statements of the witnesses,” the court observed.

Since November 10, 2022, Navlakha was shifted from prison to house arrest after the Supreme Court allowed it considering his ill-health and advanced age.

Mahesh Raut

Arrest : August 28, 2018

Bail by HC : September 21, 2023 (But stayed by HC itself and extended by SC).

Though forest rights activist Mahesh Raut was granted bail by the Bombay High Court in September 2023, the High Court itself stayed the order for one week to grant NIA an opportunity to challenge it before the Supreme Court. The Supreme Court, while admitting the NIA's challenge, extended the stay. The matter is still pending. Notably, as regards Raut as well, the High Court observed that there was no prima facie case.

“We are of the prima-facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusations against the Appellant is prima-facie true to attract Sections 16, 17, 18, 20 and 39 of UAP Act.”

Sudhir Dhawale, Surendra Gadling, Rona Wilson, Jyoti Jagtap, Professor Hany Babu, Jyoti Jagtap, Sagar Gorkhe, Ramesh Gaichor are the other accused.

Tragic death of Father Stan Swamy as undertrial

The tragic death of another accused, Father Stan Swamy, while in custody, remains a shameful blot on our criminal justice system. The plea of the octogenarian priest, who was suffering from Parkinson's disease and other geriatric ailments, for interim bail, made during the peak of the second Covid wave, was not heeded by the Courts. His requests for even a straw (to sip water as he was suffering from Parkinsons) were objected to by the NIA. Father Stan Swamy personally pleaded before the Court for interim bail, saying that he would rather prefer to be with his own people during his days of ailment than in a government hospital facility under custody. “Taloja Jail has brought me to a situation where I can neither write nor go for a walk by myself,” Swamy told the judges in a virtual interaction on May 21 while pleading, “Whatever happens to me, I would like to be with my own," Swamy said. On June 5, 2021, while Swamy was in a private hospital (under judicial custody), he passed away. After his death, one of the HC judges who dealt with his case, remembering him as a “wonderful person”, said that he had respect for his social work. Perhaps a timely adjudication of his bail plea might have given him some respite at least during his final days.

These facts must be considered in the context of the disturbingly low conviction rate in UAPA cases. According to some studies, less than 3% of those arrested under UAPA are ultimately convicted. Analyzing the profiles of individuals booked under UAPA reveals that they are often dissenters, activists challenging social hierarchies or vested corporate interests, and political opponents. This suggests that UAPA is frequently used as a tool of persecution to suppress dissent.

Recently, we witnessed the acquittal in the Professor GN Saibaba case, another UAPA case over alleged Maoist links. The Bombay High Court found that there was absolutely no evidence to link Saibaba and five others to terrorist acts and that the trial was a total failure of justice. However, it was liberty which came too late, as the accused had to spend nearly ten years in jail. Wheelchair bound Saibaba was denied bail even to attend his mother's funeral. One of the accused, Pandu Pora Narote, died as a prisoner without getting to see the acquittal. These cases raise troubling questions about our commitment to protect human rights. Recently, after the electoral bonds case verdict, eminent jurist Fali S Nariman expressed the hope that the doctrine of “manifest arbitrariness” applied in the said judgment would enable the Courts to strike down the “no bail for now provisions”. Certainly, Nariman had UAPA also in his mind among other legislations like PMLA having similar stringent bail provisions. It is hoped that the judiciary and the legislature open their eyes to the blatant human rights violations perpetrated by the draconian provisions of the UAPA and revoke them.