'Might Set Wrong Precedent': Supreme Court Doubts Earlier Order Allowing House Arrest For Bhima Koregaon Accused Gautam Navlakha

A bench Justices MM Sundresh and JB Pardiwala was considering Navlakha’s application seeking to shift his house arrest location in Mumbai. The septuagenarian has been in custody since August 2018 for offences under the Unlawful Activities (Prevention) Act, 1967 after being arrested in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for allegedly furthering the agenda of proscribed far-left outfit Communist Party of India (Maoists) and conspiring to overthrow the government.

Today, the division bench agreed to adjourn the hearing for eight weeks until the end of October, after it was informed that the National Investigation Agency (NIA) had not yet filed a counter-affidavit in response to Navlakha's plea for a shift in location. On his behalf, the urgency of his application was highlighted, saying that he would have to vacate his current residence soon. On the other hand, Additional Solicitor-General SV Raju once again reiterated the central agency's concerns over the order of house arrest. The law officer argued -

"This is an unusual order of house arrest. Probably the first of its kind...And this plea for house arrest was on grounds of his sickness. He said one lady would stay with him. But she is not staying with him most of the time, when in jail, there would be a force to look after so many people."

To this, Justice Sundresh replied that the court had its 'reservations' about its earlier order (which was passed by a bench headed by Justice KM Joseph, who has since retired) and shared his anxieties that such an order for one person might set the wrong precedent. The judge said - 

"Prima facie we have our reservations, but a lengthy order has been passed...Without going into the merits of the case, this might set a wrong precedent. [His plea] may have one hundred percent merit and we are not saying anything on that. But to facilitate this, and do this for one person...Might have a...Alright, you file your affidavit."

During the hearing, ASG Raju also claimed that Navlakha is now required to pay one crore to meet the expenses for round-the-clock surveillance at the location where he is house-bound. This figure, was however disputed by Senior Advocate Nitya Ramakrishnan, appearing for the embattled activist. She argued that the central agency's calculation of the amount payable was wrong and contrary to the relevant rules. Besides this, she also informed the bench that a deposit of eight lakhs had already been made by Navlakha towards surveillance and security expenses in terms of the court's order in April.

Notably, there was a heated exchange between the two senior lawyers about the period of adjournment, with the additional solicitor-general strongly urging the court to hear the plea within a month's time. In contrast, Ramakrishnan pointed out to the bench that the Bombay High Court is currently hearing Navlakha's bail plea, to justify her appeal for an eight-week-long adjournment. Noting that the petitioner would have to file a rejoinder after the central agency submits its counter-affidavit, the bench acceded to her request.

ASG Raju protested. "Kindly consider...He is on house arrest, which according to me, is unwarranted. Initially granted on health grounds..."

"Their own medical examination confirms his ailment," Ramakrishnan countered.

"We can file the affidavit in two weeks. Your Lordships may keep the matter after four weeks," Raju suggested.

Ramakrishnan disagreed with this suggestion, asking the law officer why the NIA had not filed its counter-affidavit when time was granted for this purpose, on the last occasion. 

"Alright, we will hear it," Justice Sundresh intervened, "We have our reservations. Let's see."

Background

Gautam Navlakha, an activist and senior journalist, along with 15 others have been accused by the National Investigation Agency of being responsible for the January 2018 caste violence at Bhima Koregaon in Pune, although one of them – Jesuit priest and tribal rights activist Father Stan Swamy passed away in July 2021.

The Pune police and later, the NIA contended that inflammatory speeches at Elgar Parishad – an event to commemorate the two hundredth anniversary of the Battle of Koregaon Bhima – triggered the violent clashes that broke out between Maratha and Dalit groups near the village of Bhima Koregaon in Maharashtra. This led to the 16 activists being arrested for allegedly conspiring and planning the violence and charged with various provisions of the Unlawful Activities (Prevention) Act based on letters and emails primarily retrieved from their electronic devices.

In April of last year, the Bombay High Court dismissed a petition filed by Navlakha in 2021 seeking to be shifted out of Taloja Prison and placed under house arrest on grounds of ill health. In November 2022, a Supreme Court bench comprising Justice KM Joseph and Hrishikesh Roy, however, allowed his appeal challenging the high court’s order and directed him to be shifted to house arrest for a period of one month.

The court outlined a set of stringent conditions accompanying this relief, including continuous CCTV surveillance at his residence, as well as various restrictions on his movement outside the house, use of internet and electronic devices, including mobile phones, and interaction with his family members and legal representative. Navlakha was also directed to bear the expenses incurred for the surveillance and the cost of CCTV installation himself.

In the same month, the bench also dismissed an application filed by the NIA seeking the earlier order of the court to be vacated on account of his medical reports allegedly being ‘vitiated by bias’. The following month, the court extended Navlakha’s house arrest for another month. According to reports, he is still under house arrest in Mumbai, where he resides with his partner.

He was originally housed in a library building controlled by the Communist Party of India (Marxist), but has been compelled to seek alternative accommodation after trust wanted the place back. In May, Navlakha informed the Supreme Court that he has secured a rental place in Alibaug, but this choice came under scrutiny from the NIA. To allow the central agency to file a counter-affidavit, and Navlakha to find a suitable accommodation, the court, on the last occasion, allowed the hearing to be adjourned until the end of August.

Meanwhile, in September of last year, a special NIA court rejected Navlakha’s bail application, observing that there was ample material in the charge sheet to establish a nexus between him and the offence. But earlier this year, in March, the Bombay High Court set aside this order, criticising it as ‘cryptic’, and directed the trial court to hear and decide Navlakha’s plea afresh. After his second bail plea was rejected by the special NIA, the activist approached the high court again, which issued notice in June.

Case Details

Gautam Navlakha v. National Investigation Agency & Anr. | Special Leave Petition (Criminal) No. 9216 of 2022

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