Sudhir Dhawale, a Dalit rights advocate, poet, and publisher of the Left-leaning Marathi magazine Vidrohi, and Rona Wilson, a Kerala-based activist and founding member of the Committee for the Release of Political Prisoners, represent the human cost of a deeply flawed and punitive legal system. Both were part of a group of 16 intellectuals, activists, and lawyers arrested under the draconian Unlawful Activities Prevention Act for their alleged involvement in the Bhima Koregaon violence and purported links to the banned Communist Party of India (Maoist). These charges, widely criticised as politically motivated, led to their prolonged incarceration without trial.

Wilson and Dhawale’s release at 1:30 pm, after completing bail formalities, was bittersweet. It underscored the agonising delay in justice for political prisoners in India, many of whom remain behind bars for merely exercising their right to dissent. The bail conditions imposed by the court—a ₹1 lakh surety, weekly appearances at the National Investigation Agency’s headquarters, surrender of their passports, and restrictions on travel outside Mumbai—serve as a reminder of how the system continues to control and limit their freedom.

Their case highlights not just the weaponisation of the legal process against activists but also the glaring delays and inequities in the Indian judiciary. The release of Wilson and Dhawale is a small but significant victory, the first to receive bail on account of delay, yet it remains overshadowed by the years of their lives lost and the continuing struggles of those who remain in jail under similarly dubious charges.

Rona Jacob Wilson v. State of Maharashtra & Anr.

The Bombay High Court’s decision in Rona Jacob Wilson v. State of Maharashtra & Anr. represents a nuanced intersection of procedural law, constitutional rights, and judicial discretion. This order granted bail to the appellant, Rona Jacob Wilson, who had been incarcerated for over six and a half years under stringent provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and other penal statutes.

Background and case details

The charges and context of arrest: The appellant, Rona Jacob Wilson, was implicated in the Bhima Koregaon case, a matter that has drawn significant legal and political attention. He was arrested on 6 June 2018 under charges including Sections 153(A), 505(1)(B), 120(B) of the Indian Penal Code (IPC), and Sections 13, 16, 17, 18, 18(B), 20, 38, 39, and 40 of the UAPA. These charges relate to promoting enmity between groups, conspiracy, and alleged involvement in acts of terrorism.

The case, originally investigated by the Pune Police, was transferred to the National Investigation Agency (NIA) owing to its complexity and the gravity of allegations. The NIA contended that Wilson, as a co-conspirator, was part of a larger plot involving Maoist groups intending to destabilise the nation.

Prolonged pre-trial detention: By the time the appeal for bail was heard, the appellant had spent over six and a half years in pre-trial detention without charges being framed. The prosecution’s case involved an extensive witness list of approximately 363 individuals, making the prospect of an early trial conclusion unlikely. Despite filing several charge sheets, the procedural stages of trial—such as addressing discharge applications filed by co-accused—remained incomplete, further delaying the framing of charges.

Legal framework and judicial reasoning

Prolonged incarceration and Article 21: The court noted that the appellant’s primary argument rested on the violation of his right to personal liberty guaranteed under Article 21 of the Constitution, which encompasses the right to a fair and speedy trial. The Supreme Court’s decision in Union of India v. K.A. Najeeb provided pivotal guidance. This landmark ruling established that even under special legislations like the UAPA, prolonged incarceration without trial constitutes an infringement of fundamental rights and may justify the grant of bail.

The court extensively cited K.A. Najeeb and earlier cases, such as:

1. Shaheen Welfare Assn. v. Union of India (1996) – Gross delays in trials under special laws, such as the Terrorist and Disruptive Activities (Prevention) Act (TADA), were held to justify bail based on Article 21.
2. Supreme Court Legal Aid Committee v. Union of India (1994) – Highlighted that undertrials cannot be indefinitely detained pending trial, particularly when the possibility of early resolution is remote.
3. Babba v. State of Maharashtra (2005) – Granted bail where delays in trial under special statutes were unreasonable.

The Bombay High Court applied these precedents to hold that constitutional protections take precedence over statutory restrictions when fundamental rights are at stake.

Evaluation of charges and sentence: The court acknowledged that under Section 13 of the UAPA, the maximum sentence was seven years, which aligned closely with the appellant’s period of incarceration. It further noted that for the specific offences attributed to the appellant, no minimum sentence was prescribed, making the prolonged detention disproportionate. This weighed heavily in favour of granting bail.

Arguments by the prosecution: The NIA, represented by the Additional Solicitor General of India, argued that delays were not solely attributable to the prosecution. Factors such as discharge applications filed by co-accused and the complexity of the case contributed to the prolonged timeline. While conceding that procedural delays existed, the prosecution maintained that the appellant’s role in a serious conspiracy justified continued detention.

Bail conditions and final order

Bail was granted with stringent conditions to mitigate any potential interference with the trial:

1. The appellant was required to furnish a personal bond of ₹1,00,000 with solvent sureties.
2. He was prohibited from tampering with evidence or contacting witnesses.
3. He had to report to the NIA office in Mumbai on the first Monday of every month.
4. His travel was restricted to the territorial jurisdiction of the trial court unless permitted otherwise.
5. The appellant was directed to surrender his passport before release and provide a permanent contact number.

Recognising the procedural delays, the court directed the trial court to expedite proceedings, specifically mandating that the stage of framing charges be completed within nine months. Importantly, the court clarified that the bail order was based solely on the appellant’s prolonged incarceration without trial and not on the merits of the allegations. This distinction underscored the judiciary’s focus on procedural justice rather than prejudging the appellant’s innocence or guilt.

This judgment exemplifies the judiciary’s role as a guardian of constitutional rights, even in cases involving national security. The court reaffirmed that:

1. Constitutional supremacy – Provisions like Section 43-D(5) of the UAPA, which impose stringent bail conditions, must harmonise with constitutional safeguards, especially when delays threaten the right to a fair trial.
2. Balancing justice – The decision balances the need to uphold national security with the individual’s right to liberty, setting an important precedent for undertrials facing indefinite detention under special laws.

This case highlights the importance of procedural fairness in the criminal justice system and serves as a reminder that justice delayed can amount to justice denied, even under the framework of anti-terror legislations.

The complete order may be read here.

Sudhir Dhavale Vs. the State of Maharashtra & anr

Background and case details

The charges and context of arrest: The appeal was filed by the appellant Dhavale seeking bail under Section 439 of the Cr.P.C., after being incarcerated since June 6, 2018. The appellant’s case is part of a larger investigation into offences under the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act (UAPA). The trial has been delayed, and the appellant argues that his prolonged incarceration without trial, without any clear timeline for the completion of the trial, justifies his release on bail.

The case involves serious charges such as promoting enmity between different groups (Section 153A IPC), creating public mischief (Section 505 IPC), and various provisions of UAPA related to terrorist activities and conspiracies. The investigation was transferred to the NIA, and the trial is currently pending before the Special Court.

Arguments presented by the appellant: The appellant’s counsel argued that the prolonged detention of over six years without trial violates the constitutional right to a speedy trial under Article 21 of the Constitution. He stated that the trial court has not framed charges yet, and given the likelihood of the trial being delayed further, the appellant should be released on bail on this ground alone.

Legal framework and judicial reasoning

Article 21 of the Constitution: The right to a speedy trial is an essential part of the right to life and personal liberty under Article 21. The Supreme Court has consistently held that prolonged incarceration without trial can be a violation of this right, especially when the trial is unlikely to conclude in a reasonable time.

UAPA and Bail Provisions: Section 43-D(5) of the UAPA places a bar on granting bail in cases involving certain terrorist activities, stating that the accused shall not be released on bail if there is a reasonable ground to believe that they have committed the alleged offence. However, the Supreme Court has clarified that the constitutional right to a speedy trial takes precedence if the trial is delayed unjustifiably.

Arguments by the prosecution: Mr. Vyas, representing the NIA, acknowledged the delay but explained that the delay in the trial process was partly due to the filing of discharge applications by other accused, which slowed the progress of framing charges. The prosecution, however, expressed willingness to abide by the court’s decision.

Prolonged incarceration: The court observed that the appellant has been in custody for over six years without trial, and the likelihood of the trial concluding in the near future was remote. Given the delay, the court found that the prolonged incarceration without trial could be seen as a violation of the appellant’s constitutional rights under Article 21, justifying bail.

Reference to Supreme Court judgment: The bench cited the Supreme Court judgment in Union of India vs. K.A. Najeeb to underline that prolonged pre-trial detention, where the trial is unlikely to conclude soon, can justify granting bail. The Court referenced several decisions where undertrials were granted bail due to the unlikelihood of their trials concluding in a reasonable time. The principles from this case are now settled law and form the core basis of granting bail in situations of prolonged incarceration.

Balancing rights and societal interests: The Court carefully balanced the appellant’s constitutional right to liberty against the interests of justice and public safety. It reiterated that while special legislations like UAPA impose strict bail conditions, the violation of fundamental rights due to excessive delay in trials cannot be ignored.

Bail conditions and final order

The bail conditions imposed by the Bombay High Court in the present case were:

1. The appellant is directed to execute a personal bond of ₹1,00,000/- with one or more solvent local sureties to make up the amount.
2. The appellant shall not tamper with prosecution witnesses or evidence in any manner.
3. Before release from jail, the appellant must inform the NIA, Mumbai, and the trial court of their prospective place of residence.
4. After release, the appellant shall attend the NIA office in Mumbai on the first Monday of every calendar month between 11:00 a.m. and 1:00 p.m. to mark their presence, continuing until the conclusion of the trial.
5. The appellant is prohibited from leaving the territorial jurisdiction of the Bombay High Court without prior permission from the trial court.
6. The appellant must attend all trial court dates unless precluded on medical grounds.
7. The appellant is required to surrender their passport, if in possession, before the trial court prior to release from jail.
8. The appellant must provide their mobile and/or landline number to the NIA, Mumbai, and the trial court, ensuring they can be contacted.

The judgment reinforces the principle that an individual’s right to a speedy trial is an integral part of the right to life and liberty under Article 21 of the Constitution. In cases of prolonged detention without trial, the courts are obligated to take steps to ensure that such detention does not continue indefinitely, as it constitutes a violation of constitutional rights. Furthermore, tThis judgment will serve as a critical reference in future cases where there are delays in the trial process, particularly in matters involving national security laws like UAPA. The case reaffirms the need for courts to act swiftly to avoid undue prejudice to the accused while also balancing public safety concerns.

Additionally, the decision calls for the expeditious handling of cases involving serious charges like those under UAPA. The Court specifically requested the trial court to expedite the framing of charges within a set timeline of 9 months, indicating that delays in the judicial process will no longer be tolerated, especially when fundamental rights are at stake.

The complete order may be read here.

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The post Rona Wilson and Sudhir Dhawale released: Seven years of injustice by a state that punishes dissent appeared first on SabrangIndia.

A division bench comprising Justices Ajay Gadkari and Kamal Khata emphasised the prolonged pre-trial detention of the accused as a crucial factor in its decision. The court noted that Wilson and Dhawale have been in custody since their arrest in 2018, with charges yet to be framed. The prosecution has listed over 300 witnesses, making the conclusion of the trial in the foreseeable future highly unlikely. The bench referred to the precedent set by the Supreme Court in Union of India vs KA Najeeb, which held that prolonged incarceration could justify bail, particularly when trial delays are apparent.

The court refrained from making any observations on the merits of the case, following requests from Additional Solicitor General Devang Vyas and other representatives of the prosecution, including Special Prosecutor Sandesh Patil and advocate Chintan Shah. Instead, it confined its ruling to procedural and constitutional grounds.

Bail was granted subject to strict conditions, including furnishing a bail bond of ₹1 lakh each. Wilson and Dhawale are prohibited from tampering with evidence, leaving Mumbai without prior permission from the special court, or accessing their passports. They must also provide their mobile contact information to the prosecution and report to the National Investigation Agency (NIA) headquarters in Mumbai every Monday.

This decision comes after a history of contested bail pleas. In July 2024, the Bombay High Court denied default bail to Wilson, Dhawale, and three other accused in connection with the case. Both Wilson and Dhawale were arrested in 2018 under charges framed under the Unlawful Activities (Prevention) Act (UAPA).

The Bhima Koregaon case originates from the Elgar Parishad event held on December 31, 2017, in Pune. The event was organised to commemorate the bicentennial of a significant 1818 battle where Dalit soldiers under the British army defeated the ruling Peshwa, a Brahmin. Organised by activists and intellectuals, including retired Supreme Court judge Justice PB Sawant and retired Bombay High Court judge Justice BG Kolse-Patil, the event faced backlash and was followed by violent clashes between Dalit and Maratha groups. These clashes, which resulted in one death and several injuries, led to the filing of three First Information Reports (FIRs).

The most controversial FIR, registered on January 8, 2018, alleged that Leftist groups with Maoist affiliations orchestrated the violence. This FIR formed the basis of the arrests of 16 accused individuals, including Wilson and Dhawale, and resulted in the filing of three voluminous chargesheets.

While the detailed order of the High Court is awaited, the bail marks a critical development in a case that has drawn significant national and international attention for its implications on civil liberties and the criminal justice system in India.

Related:

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Gautam Navlakha granted bail by Supreme Court in Bhima Koregaon case; orders him to pay 20 lakhs for the expenses incurred during his house arrest

The Truth about the Elgaar Parishad | CJP

Bhima Koregaon case: Prof Anand Teltumbde granted bail on merits by Bom HC

The post Bombay High Court grants bail to Rona Wilson and Sudhir Dhawale in Bhima Koregaon case appeared first on SabrangIndia.

Background of the case

Mahesh Raut, a land and forest rights activist, has been extensively involved with Gram Sabhas in the mining regions of Gadchiroli, Maharashtra. His activism centres on empowering local communities and protecting their rights against encroachments by mining corporations.

On June 6, 2018, Mahesh Raut, along with five other individuals, was arrested by the Pune police. The charges against them included spreading Maoist ideology, funding banned organizations, and recruiting individuals for the Maoists. These arrests were part of a broader investigation into the Bhima Koregaon violence that occurred in January 2018, which led to clashes between Dalit and Maratha communities.

The Pune police alleged that inflammatory speeches at the Elgar Parishad event held on December 31, 2017, in Pune, triggered the violence. The event was organized to commemorate the 200th anniversary of the Battle of Bhima Koregaon, a significant event for the Dalit community. According to the authorities, Raut and others were implicated based on letters and emails retrieved from their electronic devices, allegedly linking them to Maoist activities.

Mahesh Raut, along with other accused in the Bhima Koregaon case, faces several serious charges under the Unlawful Activities (Prevention) Act (UAPA) 1967 and the Indian Penal Code (IPC).

Procedural history

In November 2019, a session’s court in Pune rejected the bail applications of the accused, including Raut, citing prima facie evidence suggesting their involvement in activities aimed at undermining democracy in India.

In November 2021, an NIA court rejected Raut’s bail application, noting the National Investigation Agency (NIA)’s submission that his name appeared in a letter retrieved from co-accused Rona Wilson’s computer. Raut contested this, arguing that the letter’s authenticity was questionable due to forensic reports indicating malware infiltration in Wilson’s electronic devices.

In April 2022, Raut sought discharge from the charges, claiming that the evidence (letters) against him was compromised and tampered with. Despite this, the Bombay High Court in May 2022 dismissed a petition reviewing its earlier order denying default bail to Raut and others.

On September 21, 2023, the Bombay High Court granted bail to Raut but stayed the order for a week to allow the NIA to appeal to the Supreme Court.

On September 27, 2023, the Supreme Court admitted the NIA’s appeal against Raut’s bail and extended the stay on the High Court’s order.

As of June 2024, Mahesh Raut remains in judicial custody at Taloja Central Jail, awaiting trial. He recently sought interim bail from the Supreme Court to attend his grandmother’s last rites, and the hearing was scheduled for June 21, 2023. The Supreme Court has repeatedly extended the stay on the Bombay High Court’s bail order, pending further hearings and decisions.

Court proceedings for interim bail

Advocate Aparna Bhat, representing Raut, presented the case, emphasising that the Bombay High Court had granted bail to Raut, although the order was subsequently stayed by the Supreme Court. She highlighted the recent passing of Raut’s grandmother in late May and the necessity for him to participate in the remaining ceremonies.

Justice Nath addressed the NIA counsel, seeking their submissions. The NIA counsel argued against the urgency of the interim bail, questioning the necessity of approaching the Supreme Court instead of waiting for parole. Justice Nath explained that the pending Special Leave Petition (SLP) and the stay granted by the Supreme Court justified the immediate hearing.

Justice Bhatti noted that applications for interim bail under such special circumstances should be considered, clarifying that this was not a request for regular bail but a temporary measure to allow Raut to fulfil family obligations. The court acknowledged the significance of the ceremonies scheduled for June 29-30 and July 5-6.

Court’s decision

Justice Nath dictated the order, noting the facts and circumstances of the case, including the period of incarceration Raut had already undergone and the specific nature of his request. The bench expressed its inclination to grant interim bail for two weeks, from June 26 to July 10. The terms and conditions of the bail were delegated to the Special or Trial Court, with the NIA given the opportunity to suggest stringent conditions to prevent any misuse.

Justice Nath emphasized that Raut must surrender without fail on July 10, concluding the court’s decision to grant the interim relief.

“Considering facts and circumstances, and period of incarceration already undergone, and nature of request made, we are inclined to grant interim bail of 2 weeks to applicant, which may commence from 26 June and end on 10 July. Terms and conditions may be determined by Special/Trial Court. NIA may impress upon the court to impose stringent conditions (as necessary). Applicant shall surrender without fail on 10 July.”

Case citation: National Investigation Agency v. Mahesh Sitaram Raut Crl.A. No. 003048 / 2023

Related:

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The post Bhima Koregaon Case: Relief for activist as Supreme Court allows for interim bail appeared first on SabrangIndia.

I wish to thank the Supreme Court for upholding the bail granted to me by the Bombay High Court. It proved to be a long wait but well worth it.

Although happy for myself, I am saddened that the fate of scores of fellow dissidents implicated in a variety of cases, still hangs in balance. Years of our life have been snatched from us as prisoners awaiting trial, which itself will take years to conclude.

Families of UTPs suffer as much, if not more, from this separation from their loved ones and their lives are greatly disrupted. A reality seldom acknowledged and rarely remedied. What disturbs me, as a democratic rights activist, is that justice appears as a distant dream. An over-burdened judiciary finds itself unable to provide a speedy, fair trial. As a captive, I often hoped that the judiciary would deliver on its lofty pronouncement that “Deprivation of liberty even for a single day is one day too many”. Because UTPs cling to this as a promise.

So, while I am pleased to breathe freer and finally get to meet my near and dear ones, I am aware that others still languish in a life of uncertainty. It hurts that Father Stan Swamy was denied bail while alive and will find redemption only posthumously.

My eighteen months of house arrest was made possible by the generosity of the Trustees of the BT Ranadive Trust and the Communist Party of India (Marxist). When all other options proved futile, they stepped in to provide shelter to me and my life partner Sahba Husain, for which I am deeply grateful.

I want to acknowledge the courteous and decent behaviour of the staff and officers of the Navi Mumbai police for all these 18 months. Both Sahba and I appreciate this.

Finally, I wish to thank my lawyers, friends, family, fellow activists and the independent media for standing by me. I drew much strength from their love and solidarity to face the ordeal of captivity.

Now that I am free…..

“Won’t you help to sing
These songs of freedom
‘cause all I ever have
Redemption songs….” (Bob Marley)

Gautam Navlakha
Belapur, May 19^th 2024

The post Gautam Navlakha’s letter on release from custody appeared first on SabrangIndia.

On May 14, the Supreme Court bench of Justices MM Sundresh and SVN Bhatti granted bail to Gautam Navlakha in Bhima Koregaon conspiracy case, arguing that the accused has already undergone 4 years of incarceration and the trial may take “years and years and years” to complete. The Supreme Court did not extend the stay on the bail, noting that the charges are yet to be framed and six of the co-accused in the case have already secured bail. It also said that the Bombay High Court has passed a detailed order on December 19, 2023 granting bail to Navlakha, against which National Investigation Agency (NIA) had filed this appeal. The bench took cognizance of the fact that there are 370 witnesses in the case, which would prolong the completion of the trial. Importantly, as a precondition to bail, Navlakha has been asked to pay 20 lakhs for the security expenses incurred during his house arrest. Pertinently, there had been an argument between the two parties over calculation of the cost incurred for his house arrest security, with NIA previously sending him the bill of over 1.64 crores, which Navlakha’s lawyer decried as ‘extortion’.

Brief Background

The case against Gautam Navlakha, a civil rights activist and former secretary of People’s Union of Democratic Rights (PUDR), pertains to his alleged involvement in Bhima Koregaon violence and broader conspiracy to overthrow democratically elected government.  On December 31, 2017, Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called ‘Elgaar Parishad’ in Shaniwarwada, Pune to celebrate 200th anniversary of the historic battle of Bhima Koregaon (in which Dalits led British Army had fought against Peshwa authority). During the said event, the police alleged that some of the speakers gave provocative slogans which led to violence the next day on December 1, 2018. Later, the police alleged that some of these speakers were associated with the banned Communist Party of India (Maoist) and wanted to permeate its ideology amongst the masses to misguide them towards violent “unconstitutional activities”. Following the Bhima Koregaon violence, two First Information Report (FIRs) were registered, the first one, registered on January 2, 2018, blamed right-wing elements including Sambhaji Bhide and Milind Ekbote and the second one, dated January 8, 2018, alleged that Maoist linked elements were involved in the violence.

While Navlakha was not present at the event, he is accused of being a member of CPI(M) and working with associate ‘Maoists’ who were allegedly involved in the preparation of the event and are accused of propagating radical anti-state activities and inciting Elgaar Parishad violence. The co-accused in the case include Sudhir Dhawale, Rona Wilson, Surendra Gadling, Harshali Potdar, Sagar Gorkhe, Deepak Dhenga             le, Ramesh Gaichor, Jyoti Jagtap, Shoma Sen, Mahesh Raut, Varavara Rao, Vernon Gonsalves, Arun Ferreira, Sudha Bharadwaj, Anand Teltumbde, and Stan Swamy (deceased).

The FIR registered on January 8, 2018, had listed the charges under Indian Penal Code (IPC) Sections 153-A (promoting enmity between groups), 505(1)(b) (making statement inciting public to commit offence against the State), 117 (Abetting commission of offence by the public) read with Section 34 (common intention). As the investigation proceeded, new charges were added to the case under Unlawful Activities (Prevention) Act (UAPA), 1967; it invoked UAPA Sections 13, 16, 17, 18, 18(B), 20, 38, 39, and 40. Notably, Navlakha’s name in this FIR was only added on August 23, 2018.

In 2020, after the January 24, 2020, order by MHA, NIA registered another FIR under Sections 153-A, 505(1)(b) and 117 and Section 34 of IPC and Sections 13, 16, 17, 18, 18B, 20, and 39 of the UAPA Act. On October, 9, 2020, NIA filed supplementary chargesheet against the Navlakha and co-accused under Sections 120-B, 115, 121, 121-A, 124-A, 505(1)(b) read with Section 34 of IPC and under Sections 13, 16, 18, 20, 38 and 39 of UAPA Act.

Navlakha’s journey in the case

Since the initial FIR was registered in Pune, Maharashtra, the police had demanded transit remand of Navlakha, after arresting him on August 28, 2018, from his New Delhi residence. On the same day, Navlakha moved Delhi High Court, and the court stayed his transit remand proceedings and directed him to be placed under house arrest. The bench of Justices S. Muralidhar and Vinod Goel had argued that “the documents produced before the learned CMM most of which (including FIR No. 4 of 2018 registered at Police Station Vishrambagh, Pune) are in Marathi language and only the application filed for transit remand before the learned CMM is in Hindi. However, it is not possible to make out from these documents what precisely the case against the Petitioner is.”

The Delhi High Court order dated August 28, 2018 can be read here:

The Supreme Court through various orders in the case of Romila Thapar vs. Union of India (Writ Petition (Crl) 260 of 2018)  continued to extend his house arrest, and on October 1, 2018, Delhi High Court quashed his arrest noting that “in all probability, when the IO appeared before the learned CMM…since the case diary was written in Marathi and since the translated version thereof was not available at that stage…the CMM could not have been able to comprehend as to what was written in the case diary. It is nobody’s case that the learned CMM was conversant in Marathi language. Consequently, the learned CMM would not have been able to appreciate whether the requirement of Section 41 (1) (ba) of the Cr PC stood satisfied.”

The Delhi High Court order dated October 1, 2018 can be read here:

After the Supreme Court bench comprising Arun Mishra and M R Shah dismissed the petition for further protection on March 16, 2020, Navlakha surrendered to NIA Delhi and was later transferred to Mumbai, where the NIA Special Court remanded him to judicial custody. The courts also rejected his default bail application, arguing that the period of the house arrest cannot be considered “custody” within the meaning of  Section 167(2) of the CrPC. Subsequently, due to his deteriorating health conditions, the SC sent him back to be kept under house arrest in November 2022, and since then, house arrest has been extended. In the meantime, Navlakha had already filed plethora of court cases for quashing the FIR registered against him and for annulling his arrest, but they were rejected by the courts.

The Supreme Court order dated March 16, 2020 can be read here:

The Bombay High Court verdict granting bail to Navlakha

After a long drawn legal battle, which is still far from over, the Bombay High Court on December 19, 2023 granted bail to Navlakha noting that “it cannot be said that there are reasonable grounds for believing that the accusation against the Appellant is prima facie true to attract Sections 16, 18, 20 and 39 of UAP Act”. The verdict delivered by Justices A. S. Gadkari and Shivkumar Dige also considered that co-accused Arun Ferreira, Vernon Gonsalves, Anand Teltumbde and Mahesh Raut have already secured bail, and given the parity, Navlakha should not be denied the same. Noting snail paced progress in the case, the judges observed that “the Appellant is in pre-trial incarceration for more than three years and eight months. The charge-sheet consists of about 20,000 pages in 54 Volumes and the prosecution has cited 370 witnesses…As a matter of fact, till date the trial Court has not framed charge. The possibility of trial of the Appellant being concluded in near future is very bleak.”

Speaking on the merits of the case, the Court observed that primary material against the Navlakha was in the form of literature/documents/letters, which itself does not proof any charges of terrorism against the accused. It noted the “content of these letters/documents through which the Appellant is sought to be implicated are in the form of hearsay evidence, as they are recovered from co-accused… 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. According to us, there is no material to infer conspiracy to commit an offence as contemplated under Chapter IV of the UAP Act.” It also noted that the charge that the accused is an active member of CPI(M) cannot be inferred from the fact that letters mentioned someone named “Gautam” in their communication, “as the identity of the said ‘Gautam’ is yet to be established beyond reasonable doubt by the prosecution”.

The bench further pointed out that some of the witnesses have not even mentioned Navlakha, despite that the prosecution has relied upon their statements to corroborate the fact of alleged terrorist activities of the accused.  The bench strongly relied on Vernon vs The State of Maharashtra (2023 SCC OnLine SC 885) to reiterate that “mere possession of literature, even if the content thereof inspires or propagates violence by itself cannot constitute any of the offences within Chapter IV and VI of the UAP Act”. The bench cautioned against blindly relying on the material recovered from the co-accused and said that “As far as the documents mentioned above which have not been recovered from the Appellant, however mentions his name are concerned, as held by the Hon’ble Supreme Court in the case of Vernon (supra) these communications or contents thereof have weak probative value or quality”.

The Court furthered emphasised on the distinction between active and passive membership of the terrorist organisation (though Navlakha has not been established to be part of any such organisation) and argued that “the Appellant only being a member of the party cannot be prima facie held to be a co-conspirator to it… According to us, the record prima facie indicate that, it was at the most the intention of the Appellant to commit the alleged crime and not more than it. The said intention has not been further transformed into preparation or attempt to commit a terrorist act, to attract Section 15 of the UAP Act.” The verdict noted that the “Perusal of statement of witnesses at the most indicate that, the Appellant is a member of CPI (M) and therefore it would attract provisions of Sections 13 and 38 of UAP Act.” The court recorded that there is no material on record to believe that the charges of UAPA under Sections 16, 17, 18, 20 and 39 are prima facie true.

The bench additionally relied on Union of India Vs. K.A. Najeeb (2021) 3 SCC 713 : 2021 SCC OnLine SC 50) and cited from the judgement, noting, “It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per-se does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statue as well as the powers exercisable under constitutional jurisdiction can be well harmonised.”

While the bail order was passed by the Bombay High Court on the aforementioned grounds, it had stayed its operation for three weeks on the request of NIA to appeal the decision in the Supreme Court. Thus, following the appeal by NIA the Supreme Court bench of Justices MM Sundresh and SVN Bhatti had extended the stay on the bail order on January 5, 2024. Since then, the stay was continuous extended until the latest order in which uplifted the stay, effectively paving the way for Navlakha’s release on bail.

Just last month on April 5, another accused in the case, activist Shoma Sen, was released on bail after SC noted that the charges of terrorism against Sen are prima facie untrue.

The Bombay High Court bail order dated December 19, 2023 can be read here:

The Supreme Court order dated January 5, 2024 can be read here:

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The post Gautam Navlakha granted bail by Supreme Court in Bhima Koregaon case; orders him to pay 20 lakhs for the expenses incurred during his house arrest appeared first on SabrangIndia.

It has been further been reported that the court also agreed to a three-week stay on its decision in which the National Investigation Agency can approach the Supreme Court. They urged the court to stay operation of the order for a period of six weeks. As per a report in Livemint, Navlakha has been granted bail on the surety of one lakh rupees.

The prosecution has relied on 336 witnesses in the case. The trial, however, is yet to commence. Recently, Navlakha was also named as an accused in the Unlawful Activities (Prevention) Act case filed in relation to the online portal NewsClick. Two people – Editor Prabir Purkayastha and HR head Amit Chakraborty – have been arrested in that case. Journalists’ bodies from across the country have criticised the police action in the case as an attack on media freedom. As per the report of the Print, the Delhi Police had recently asked for an extension of three months to complete their investigation in the NewsClick case, and said that they would be questioning Navlakha on Wednesday.

Brief Background of the case

The said case pertains to alleged inflammatory speeches delivered at the ‘Elgar Parishad’ conclave, held at Shaniwarwada in Pune on December 31, 2017, which the police had claimed to have triggered violence the next day near the Koregaon-Bhima war memorial, located on the outskirts of the western Maharashtra city, located around 200km from Mumbai.

The Pune police, which probed the case initially, had claimed the conclave was backed by Maoists. The NIA later took over the probe into the case, in which more than a dozen activists and academicians were named as accused.

Navlakha, who is a human rights activist and former secretary of People’s Union for Democratic Rights, was arrested in August 2018, but was initially placed under house arrest. He has been booked under the stringent anti-terror law Unlawful Activities (Prevention) Act (UAPA) in connection with the alleged conspiracy behind the Bhima Koregaon violence of January 2018.

Navlakha has been in custody since April 14, 2020, in the Taloja Central Prison in Maharashtra, after the Supreme Court directed him to surrender before the NIA after rejecting his bail application. His plea seeking an extension to surrender in view of the Coronavirus pandemic was also rejected.

On September 5, 2022, a special NIA court judge Rajesh J Katariya had rejected the bail plea of Navlakha. The NIA had vehemently opposed Navlakha’s bail plea by claiming that he had been introduced to a Pakistan Inter-Services Intelligence (ISI) General for his recruitment, which shows his nexus with the organisation. They had also described him as a member of the outlawed Communist Party of India (Maoist).

However, on November 10, the Supreme Court allowed his plea to be shifted back to house arrest for a month, albeit with rather stringent conditions. The bench of Justices KM Joseph and Hrishikesh Roy, had noted that while charge sheet has been filed against Navlakha on October 9, 2020 no charges were yet framed against him and that he has been in custody as an under trial prisoner since April 14, 2020. The Supreme Court was also ‘mystified’ as to why the High Court did not consider Navlakha’s age (70) as a basis to consider his application for house arrest. This was extended by another month on December 13.

Related:

Bombay HC quashes order rejecting bail plea of Navlakha by special court, orders expeditious rehearing

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Gautam Navlakha’s house arrest: Stringent Conditions Apply
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Elgar Case: 4 Days After SC Order, Navlakha Yet to be Placed Under House Arrest

Elgar Case: Special NIA Court Denies Bail to Activist Gautam Navlakha

Bhima Koregaon case: 5 years on, charges not framed despite repeat extensions 2022: Looking back at the best judgments from Indian courts

On the firing line:  Human rights warriors of 2022

Evidence planted on Jesuit-activist Stan Swamy’s laptop: Arsenal US Report

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As per Bar and Bench, the bench stated that “Prima facie section 13 (unlawful activities) and 38 (membership of terrorist organisation) of the UAPA are applicable and section 16 (terrorist act), 17 (funds raised for terrorist act) and 18 (conspiracy) are not made out.” The bench further provided that the bail conditions to be imposed on Mahesh Raut will be same as the ones imposed on Anand Temtumbe, who was another accused in the Bhima Koregaon Elgar Parishad Violence case.

It is essential to note that the Court stayed its bail order for one week after the National Investigation Authority (NIA) sought time to file appeal against the same before the Supreme Court. Notably, NIA had requested a stay of two weeks.

It is crucial to note here that Raut is the sixth person to get bail in the Bhima Koregaon case after Sudha Bharadwaj, Varavara Rao, Anand Teltumbde, Vernon Gonsalves and Arun Ferreira. Notably, Varavara Rao had been granted bail on medical grounds in August 2022. Another accused under the same case, Gautam Navlakha, has been placed under house arrest after the Supreme Court order to that effect. Of the total, 8 are still in prison and Father Stan Swamy has passed away.

The case against Mahesh Raut-

Mahesh Sitaram Raut was booked under the Unlawful Activities Prevention Act 1967 for allegedly having Maoist links and indulging in criminal conspiracy related to the Bhima Koregaon riots.  He was first accused by the police of plotting an assassination attempt against PM Modi and delivering speeches, sending emails and circulating pamphlets which reportedly sparked violence in January 2018.

Mahesh Raut was earlier denied bail by the Pune Session Court in 2019 and by the Special NIA Court in Mumbai in 2021. Raut had then moved the Bombay High Court, appealing against the rejection of bail by the NIA Court.

Arguments by counsel representing Raut: Senior Advocate Mihir Desai and Advocate Vijay Hiremath were representing Raut in the High Court. During the hearings, Advocate Desai had contended that National Investigating Agency (NIA) had built the case against Raut by relying on the two letters which were allegedly recovered from the computer of other two accused. He had submitted the court that neither the two letters were found from Mahesh Raut nor were they written or signed by Raut.

It was also argued by Desai that Raut had spent over 5 years in custody and deserved to be released since the trial was yet to begin. Additionally, Desai also sought parity with the high court’s order granting bail to Anand Teltumde in November 2022 and the Supreme Court’s order granting bail to Vernon Gonsalves and Arun Ferreira in July 2023.

Arguments by counsel representing NIA: Additional Solicitor General, Devang Vyas, appearing for the National Investigation Agency had argued before the high court that Raut was a member of CPI Maoist and the letter recovered from the co-accused referred to the state as an enemy. Vyas had contended that the CPI Maoists work in a structured manner and it had undertaken fact fact-finding mission to propagate their ideology. He added that Bhima Koregaon was a larger conspiracy that attempted to topple the democratically elected government.

The counsel had argued that it was not justiciable for Raut, accused under the Unlawful Activities Prevention Act (UAPA), to seek bail on constitutional grounds when his acts are against the interests of the State and society and the unity, integrity, security and sovereignty of India. Vyas had also relied upon evidence which allegedly showed that the Communist Party of India (Maoist) had given Raut ₹5 lakh along with co-accused Surendra Gadling and Sudhir Dhawale. Lastly, Vyas had also provided that Raut was an active member of the CPI Maoist and he had recruited people to deploy them in the forest in furtherance of the activities of CPI Maoist.

As per a report in the LiveLaw, while Vyas had claimed that the CPI Maoist “created a scenario that led to violence at Bhima Koregaon where a person was killed”, the bench had clarified that ‘There was no intention to ‘kill’ the person. The person died in the riots.”

A timeline of the Bhima Koregaon case can be accessed here.

Who is Mahesh Raut?

Mahesh Raut had been arrested in June 2018 and has remained in custody since. He was just 31-years-old then. He had graduated from the Tata Institute of Social Sciences (TISS) in 2011 after which he did a fellowship on conflict zones. He is forest rights activist and a former fellow of the prestigious Prime Minister’s Rural Development Programme and worked with the Gadchiroli Collector.

A deep dive in to his work can be read here.

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Bhima Koregaon case: Shambhaji Bhide’s name dropped!

Bhima Koregaon: Bombay HC castigates prison authorities while hearing Gautam Navlakha’s house arrest plea

On the firing line:  Human rights warriors of 2022

Evidence planted on Jesuit-activist Stan Swamy’s laptop: Arsenal US Report

The post Bhima Koregaon Case: Mahesh Raut, youngest accused, granted bail by the Bombay HC! appeared first on SabrangIndia.

“Allegations are serious but that does not mean bail cannot be granted. While forming our opinion of granting bail, we noted that he was earlier convicted of offences under 1967 Act. Hence, we propose to impose appropriate conditions while on bail. We set aside impugned order and release the appellant on bail,” the Court directed, as provided by the LiveLaw.

Justice Bose also took into consideration that Gonsalves and Ferreira have been in custody for more than five years. Gonsalves and Ferreira have been lodged in Mumbai’s Taloja jail since 2018.

As conditions for the bail, the court ordered that Gonsalves and Ferreira will not be allowed to leave Maharashtra till the trial in the case is over. The two activists will also have to surrender their passports. They have also been directed to use one mobile each and let the National Investigation Agency (NIA), which is probing the case, know their addresses, according to Live Law.

“They can have only one mobile connection during the period,” the court said added. “Their mobile phones should be charged round the clock and the location must be kept on and shared with the NIA [National Investigation Agency] officer for live-tracking. They shall also report to the investigating officer once a week,” as provided by the LiveLaw.

The bench further stated that if there is any breach of conditions, it will be open to the prosecution to seek cancellation of bail. Furthermore, if any attempt is made to threaten witnesses, the prosecution can move court to cancel bail, the Supreme Court added.

Notably, Justices Aniruddha Bose and Sudhanshu Dhulia had reserved the judgment in the current case on March 3, 2023.

 Background of the case:

Vernon Gonsalves and Arun Ferreira were among the sixteen activists, academics and lawyers who had been arrested in relation to the caste violence that broke out on January 1, 2018, in Bhima Koregaon village near Pune. The police had purported that the accused persons were involved in organising the Elgar Parishad event on December 31, 2017, to commemorate the 200th anniversary of the battle of Bhima Koregaon. The police had also alleged that inflammatory speeches made at the Elgar Parishad conclave had reportedly triggered violence the next day near the Koregaon-Bhima war memorial on the outskirts of the western Maharashtra city.

They have been jailed under the Unlawful Activities Prevention Act since the past five years, reportedly without any reliable evidence. The sixteen arrested persons had also been accused of conspiring to kill Prime Minister Narendra Modi and of having links with the banned Communist Party of India (Maoist).

In May 2022, Gonsalves and Ferreira, along with six others, had moved the Supreme Court, filing pleas against Bombay High Court’s December 2021 judgment refusing them default bail. Notably, on December 1, 2021, eight accused persons in the case had been refused bail by the High Court, while another co-accused Sudha Bharadwaj was granted bail. The High Court had distinguished Bharadwaj’s plea from the other eight and noted that Bharadwaj’s application for default bail was pending when an application was made by the Pune Police seeking an extension of time to file the charge sheet.

The eight of whom were denied bail had once again petitioned the Bombay High Court contending that there was an error in the December 2021 judgment and consequently, prayed that they be granted bail. However, on May 4, 2022, the High Court had rejected that plea too, stating that there was no factual error in the December 2021 judgment as claimed.

This had led to the current appeal for bail before the Supreme Court.

Notably, in August 2022, the Supreme Court asked the special NIA court to decide on framing of charges against Gonsalves within 3 months, while refusing to grant any interim relief at the time. Gonsalves’ bail plea was, however, kept pending before the top court. The Court had directed the special court to segregate Gonsalves’ trial from that of the other accused who are absconding.

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Bhima Koregaon case: Justice S Ravindra Bhat recuses himself from hearing Gautam Navlakha’s plea seeking house arrest

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Amidst contested accusations of an anti-India conspiracy, militancy, and violence, five long years have passed since the BK-16 have been imprisoned without trial. The case has thrown up loopholes in the conduct and investigations by the investigative agencies; yet the needle of justice delivery has not moved. Senior advocates, human rights defenders and journalists continue to be behind bars.

In the pursuit of justice and the protection of human rights, the Bhima Koregaon case has become a symbol of injustice inflicted upon human rights activists. For the past five years, these brave individuals, known in popular parlance as the BK-16, have been entangled in a web of false accusations and an alarming lack of progress in their trials. This distressing situation not only undermines the principles of fairness and due process but also sends a chilling message to activists across the nation. The prolonged absence of a proper trial, in this case, raises serious questions about the integrity of the judicial system and the treatment of those advocating for justice and equality. It is high time to acknowledge these grave injustices and work towards a society that values and upholds the rights of human rights defenders.

Among the starkest markers over the past five years have been the eloquent pleas of family members –daughters of Shoma Sen and Sudha Bhardwaj, son of Vernon, wives and families of the others and worst moment of all, the death while in custody of octogenarian, rights defender and Jesuit priest, Stan Swamy.

What is the historical significance of Bhima Koregaon?

Bhima-Koregaon is a small village located in the Pune district of Maharashtra. It holds significant historical importance in the Maratha history. On January 1, 1818, a British Army consisting mostly of Dalit soldiers achieved a victory over the Peshwa army, led by Peshwa Bajirao II, in the town of Koregaon.

The battle has acquired the status of a heroic legend. It is viewed as a triumph of the Mahars, a Dalit community, against the injustices perpetrated by the Peshwas, who were part of the upper-caste Maratha rulers in Maharashtra at the time.

In commemoration of the battle, the East India Company erected a pillar known as the Vijay Sthamb (victory pillar). Every year on January 1, thousands of Dalits gather at this pillar to pay their respects to those who fought for the British Army. On January 1, 1927, Dr. B.R. Ambedkar visited the Bhima-Koregaon site and initiated an annual tradition to celebrate the battle’s significance. Since then, every year lakhs of Ambedkarites from Maharashtra and other parts of the country peacefully assembled near the Ranstambh (victory pillar) in Perne village, Pune district, to commemorate the anniversary of the Bhima-Koregaon battle to honour the courage of the Mahar soldiers who fought against the Peshwa forces in the battle of 1818.

What transpired in 2017?

On December 31, 2017, commemorating the battle as well as the death anniversary of Mahatma Jyotirao Phule, a public gathering called ‘Elgar Parishad’ was organised by a group of 260 non-profit organisations and it had almost 35000 people attending the event.

Image source: The Scroll. These were known to be some of main organisers of the event.

During the gathering, various cultural performances, including Marathi hip-hop, took place, and several Dalit and Adivasi leaders delivered speeches. The meet was co-hosted by former judge of the Supreme Court, PB Sawant and former judge of the Bombay High Court, Justice BG Kolse Patil.

On December 31, 2-17 this gathering of activists, former judges and political leaders proclaimed their commitment to fight the repressive policies, economic, social, and cultural of the Modi regime. The Elgar Parishad that preceded the gathering at Bhima Koregaon on January 1, 2018 which was attacked and assaulted by some persons identified to be close to the sangh brigade. Shambhaji Bhide, along with Miling Ekbote were first accused of inciting Bhima Koregaon violence by giving inciteful and hate speeches just before the event which was the bi-centenary of the Battle of Bhima Koregaon. He is a controversial figure who has been active in propagating militant Hindutva ideology and building Shiv Pratishthan Hindustan. He has been rather active in the past three decades in supposedly ‘spreading awareness’ distorting facts related to the Shivaji Maharaj. He was formerly a worker with the Rashtriya Swayamsevak Sangh.

However, the Pune police –based on an FIR by a ‘Pune-based businessman’ subsequently alleged that the Elgaar Parishad event was part of a “Maoist conspiracy” aimed at overthrowing the Indian government. Consequently, the police conducted raids and arrested some of the organisers, accusing them of having connections with Maoist groups and using the meeting as a platform to incite public disorder. These arrests began in June 2018 and continued for a year and a quarter. However, retired judges involved in the event disagree with these claims, asserting that the gathering was intended to combat communalism and the increasing violence perpetrated by Hindutva groups, particularly those acting in the name of cow protection.

On the day of the commemoration on January 1, violence erupted as Dalit and Bahujan attendees reported being attacked by individuals carrying saffron flags. resulting in the death of a 30-year-old man from the Maratha community. A video capturing these events can be viewed here. On January 2, 2018, a local resident named Anita Sawale filed a First Information Report (FIR) against Milind Ekbote and Sambhaji Bhide, identified as Hindu extremist leaders. As a result of the violence that took place as many as 22 FIRs were registered in connection with the incident, with one of them implicating Mr. Dhawale and members of the Kabir Kala Manch (KKM) activist group.

This violence subsequently spread to other cities in western Maharashtra. In response, Dalit organisations called for a Bandh and even organised protest rallies on January 3, which resulted in a harsh crackdown by the police. In Mumbai alone, more than 300 Dalits, some as young as 14 years old, were arrested.

Who is Shambhaji Bhide?

Bhide, an influential socio-political leader known for his following in western Maharashtra, is an 84-year-old former member of the Rashtriya Swayamsevak Sangh (RSS). Prime Minister Narendra Modi referred to him as the “most respected Bhide Guruji” during a public meeting in 2014. Ekbote, on the other hand, is a 65-year-old former municipal corporator who was allegedly involved in communal riots in Satara district in 2003. The police claim that Ekbote now leads gau rakshak groups involved in extortion and violence, although both Bhide and Ekbote deny these allegations. Bhide asserts that he was in a different district at the time when the violence occurred.

June 2018 the assault begins on HRDs

In June 2018, Pune Police apprehended several activists, including Sudhir Dhawale, a Dalit activist and co-organiser of the Elgar Parishad event, and Surendra Gadling, a senior advocate, Shoma Sen, a professor at Nagpur University, and Rona Wilson, a human rights activist. Under the Unlawful Activities (Prevention) Act (UAPA), they were accused of being co-conspirators in the Bhima-Koregaon incident. The police alleged their involvement in arms smuggling, funding Maoist activities, and for a plot planning to assassinate Prime Minister Narendra Modi and wage war against the country. However, it is notable that most of those targeted and arrested had not attended either the Elgar Parishad or the Bhima-Koregaon commemoration.

Two months later, on August 28, 2018, the police conducted another round of simultaneous arrests across various locations, accusing activists and intellectuals Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Varavara Rao, and Vernon Gonsalves of having Maoist connections. This led to legal battles and disputes within the courts. Importantly, during this period, the Pune police chose to disregard their own First Information Report (FIR) against Ekbote and Bhide, dated January 2, 2018.

International Conspiracies, Spyware: An investigation run awry?

Amidst lack of evidence, allegations of forced statements, delayed trial, and bail due to no progress in the investigation, the Elgaar Parishad has traversed a bumpy ride for the authorities.

Exposes of news of spyware used against the BK-16 came to light. Researchers in the United States discovered a connection between the Pune police and a hacking campaign aimed at imprisoned activists Rona Wilson, Varavara Rao, and Hany Babu, all implicated in the Bhima Koregaon (BK-16) case.

A report from Arsenal Consultancy, a digital forensic firm based in the United States, has uncovered that the evidence presented by the National Investigation Agency (NIA) was deliberately planted by an unknown individual in the computers of Rona Wilson, Surendra Gadling, and most recently, Fr. Stan. 

The report raises serious doubts about the authenticity and integrity of the evidence collected. To address these allegations of unauthorised surveillance using the Pegasus spyware, the Supreme Court formed a technical committee on October 27, 2021, to conduct an investigation.

According to Wired, security firm SentinelOne uncovered links between hackers and the same Pune police agency that arrested multiple activists based on falsified evidence. Juan Andres Guerrero-Saade, a security researcher at SentinelOne, expressed concerns about the unethical and callous nature of these findings. The researchers strive to present as much evidence as possible to assist the victims.

What makes the case even more curious and murky was that the very first call for an alleged Maoist conspiracy related to the Elgaar Parishad did not emerge from the police but rather from a relatively obscure security think tank known as the Forum for Integrated National Security, located in Pune. Notably, Seshadri Chari, a prominent member of the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party’s (BJP) National Executive Committee, serves as one of its secretaries general.

Justice delayed is justice denied

Delayed justice meant death for the 84 year old human rights defender and Jesuit priest, Fr Stan Swamy. During the hearing of his bail in the Bombay High Court (proceedings which were delayed by callous authorities leading it to be called a “death in judicial custody”), and he had been with great difficulty temporarily allowed (delayed) treatment at the Holy Family Hospital, Bandra he succumbed. His illness and death could have been avoided, wrote CJP Secretary and human rights defender Teesta Setalvad, after Fr Stan’s sad demise.

Swamy’s health had deteriorated significantly during his time in Taloja jail which prompted his lawyers to seek bail, which was consistently opposed by the state and denied by the NIA court. Eventually, following a High Court order, he was admitted to a charitable hospital in Bandra. In addition to suffering from Parkinson’s Disease, he also contracted Covid-19 while in jail. The NIA, in a long list of cruelties, even denied Fr Stan a mug with a straw sipper so that he could drink water, as his Parkinsons prevented him from drinking normally. The NIA, in a callous display of carelessness, stated to the court that they do not have a straw and sipper to give to Fr Stan.

And thus, the tribal activist Fr Stan passed away on July 5 2021, at age 84, before his bail hearing. He had been on ventilator support at Holy Family Hospital in Bombay. The medical director of the hospital informed the Bombay High Court that Father Stan had suffered a cardiac arrest in the morning. The court expressed shock and grief upon hearing the news and directed that his mortal remains be handed over to the Mumbai Jesuits.

Malicious attempts leave a catastrophe for families in their wake

Families of each of the BK-16 have raised their voices against the injustice being meted out to their loved ones. They have spoken tirelessly and bravely about the losses they’ve faced and the seemingly endless targeting the state has started.

Speaking on the unjust incarceration of her mother, Prof Shoma Sen, Koel Sen states that ‘These arrests just show the true face of the state. Today anyone can be called an ‘urban naxal’. Sen also spoke about the stringent measures taken by the prison in which her mother is lodged saying that the prison authorities were not allowing letters to be delivered to the inmates (apart from those by family).

While she was imprisoned, Sudha Bhardwaj’s daughter Maaysha, wrote a heart-touching letter to her mother, “If fighting for the rights of Adivasis, fighting for the rights of workers and peasants, fighting against repression and exploitation, and giving up one’s whole life for them, is being a Naxalite, then I guess Naxalites are pretty good.”

‘One can understand that all of the prejudice that lies outside society is present in an intense form in prison’, speaks Sudha Bharadwaj to CJP after her release. She speaks about the trials and tribulations, and brutality women prisoners face in prison. Narrating about how she was shamed for having removed her dupatta in prison, Bharadwaj recalls how gender, class differences and abuse against women play out in the women’s prison.

During one height of the COVID-19 pandemic, Hany Babu had contracted a deadly eye black fungal infection largely because of the poor sanitary and health conditions in prison. His wife, Dr Jenny Rowena, had to file a petition in High Court seeking medical assistance, as well as interim bail. Bail was denied despite Dr Babu being on the verge of losing his eyesight as the disease spread. Negligence by prison authorities, and callous attitude of the investigative authorities almost left him to languish.

However, while Sudha Bharadwaj may have gotten released due to a technical lapse by the NIA, Dr Anand Teltumbde is the only one among the BK-16, an exception, who has been released on bail on merits, on the basis of no evidence found that incriminated him as an ‘alleged’ terrorist as the NIA falsely claimed. The rest of the remaining of the BK-16 still lie imprisoned behind bars.

In the wake of the devastating effect the state’s attack on India’s foremost human right’s defenders, CJP asks you sign our petition to the Maharashtra CM to release all the prisoners in the BK-16 case.

Related

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The Shrinking Space for Free Media under Modi rule

The post The long & derailed course of justice: Bhima-Koregaon case appeared first on SabrangIndia.

On March 2, in the case of Gautam Navlakha v. National Investigation Agency & Ors, the Bombay High Court issued an order quashing the impugned special court order, through which bail was rejected to the Bhima Koregaon accused Gautam Navlakha. A division bench of Justices AS Gadkari and PD Naik directed the special judge of the special court under the National Investigation Agency (NIA) Act to rehear the bail plea.

According to the division bench, the reasoning provided in the impugned order of the special court was cryptic and did not contain analysis of the evidence relied upon by the prosecution. The bench further noted that the landmark judgment of the Supreme Court in the Watali case has also not been appropriately considered by the special court while deciding the bail of Navlakha.

“No reason of whatever nature is given. Trial court has not given reasoning as required under section 43D(5) of Unlawful Activities Prevention Act (UAPA) while rejecting bail.  It also appears that the order of SC in Zahoor Ahmad Shah Watali case has not been considered while rejecting bail application”, the Court said, as provided by the Bar and Bench.

In view of this, the bench ruled that the bail application requires fresh hearing by the special court and remanded the case back to the court.

“The reasoning stated in the order is very cryptic and there is no analysis. The Additional Solicitor General fairly conceded to the said fact and submitted that the bail application be remanded to the trial court. In view of our observations, the matter to be remanded back to the trial court for fresh hearing”, the court stated, as provided by the LiveLaw.

It also directed the special judge to conclude the hearing within 4 weeks, without being influenced by the earlier order rejecting bail. The High Court bench further clarified that it has not made any observations on merit.

The court proceedings

During the hearing, the High Court had opined that they do not have the benefit of a reasoned order. Pertaining to this, the bench then asked the Additional Solicitor General (ASG) Anil Singh, appearing for NIA, to take instructions on whether the agency was willing to concede the bail plea. Alternatively, the Court said it would call for material which the special court had not considered. 

When the matter was called out and the decision was to be given, the ASG had submitted that he was consenting for quashing of the order of September 5, and remanding the matter back to the special court for reconsideration. He had requested the Court not to express any opinion on merits of the matter.

Navlakha’s counsel, Yug Mohit Chaudhry, had objected to the remanding of the case to the special court and requested that the High Court hear the appeal on the merits. The bench, however, stated that because it lacks the benefit of a reasoned order, it would be in accordance with judicial propriety to first allow the lower court to hear the matter properly.

Chaudhry then asked the High Court to expedite the hearing before the special court. As a result, the Court remanded the case to the trial court for a decision within four weeks.

“The special judge is requested to conclude within 4 weeks without being influenced from September 5 order and this order of today. It is made clear that this court has not made any opinion on merits,” the Court said, as was provided by the Bar and Bench.

Brief Background of the case

The said case pertains to alleged inflammatory speeches delivered at the ‘Elgar Parishad’ conclave, held at Shaniwarwada in Pune on December 31, 2017, which the police had claimed to have triggered violence the next day near the Koregaon-Bhima war memorial, located on the outskirts of the western Maharashtra city, located around 200km from Mumbai.

The Pune police, which probed the case initially, had claimed the conclave was backed by Maoists. The NIA later took over the probe into the case, in which more than a dozen activists and academicians were named as accused.

Navlakha, who is human rights activist and former secretary of People’s Union for Democratic Rights, was arrested in August 2018, but was initially placed under house arrest. He has been booked under the stringent anti-terror law Unlawful Activities (Prevention) Act (UAPA) in connection with the alleged conspiracy behind the Bhima Koregaon violence of January 2018.

Navlakha has been in custody since April 14, 2020, in the Taloja Central Prison in Maharashtra, after the Supreme Court directed him to surrender before the NIA after rejecting his bail application. His plea seeking an extension to surrender in view of the Coronavirus pandemic was also rejected. 

On September 5, 2022, a special NIA court judge Rajesh J Katariya had rejected the bail plea of Navlakha. The NIA had vehemently opposed Navlakha’s bail plea by claiming that he had been introduced to a Pakistan Inter-Services Intelligence (ISI) General for his recruitment, which shows his nexus with the organisation. They had also described him as a member of the outlawed Communist Party of India (Maoist).

However, on November 10, the Supreme Court allowed his plea to be shifted back to house arrest for a month, albeit with rather stringent conditions. The bench of Justices KM Joseph and Hrishikesh Roy, had noted that while charge sheet has been filed against Navlakha on October 9, 2020 no charges were yet framed against him and that he has been in custody as an undertrial prisoner since April 14, 2020. The Supreme Court was also ‘mystified’ as to why the High Court did not consider Navlakha’s age (70) as a basis to consider his application for house arrest. This was extended by another month on December 13. 

He is presently residing in Navi Mumbai city of Thane district. Navlakha had moved the High Court, the above-mentioned case, after the rejection of his bail plea by the special NIA court had.

Questioning the “fairness” in our Indian Judicial System

Gautam Navlakha, through his counsel, has been repeatedly arguing that no case has been made against him and no concrete evidence is there, no charges have been filed against him to show that he is connected to the violence that took place at the Bhima Koregaon. It is pertinent to note, that in the above-mentioned order of the Bombay High Court quashing the special court order rejecting his bail, the bench has basically noted the fact that the lower court did not really consider the arguments made by the defendant. The court also said that the special court did not even account for the precedents set by the Supreme Court in similar matters before rejecting the bail plea of Navlakha. Despite this, the High Court has only sent the case for rehearing to the same judge that had rejected his bail plea. 

When the counsel of Navlakha urged the High Court itself to hear the matter on the merits, the bench said that since the order issued by the special court is not a reasoned order, they will have to remand the case back to the special court, in accordance with “judicial propriety.” While this is the tedious process put in place in our Indian judicial system, an incarcerated defendant is being punished for the judicial callousness of a special NIA Court. There is also no reprimand of the special court for not appropriately following judicial procedure. The special court has been given four weeks to decide the case of an aged political prisoner who has had to live in custody for over a year, and is now abiding by the stringent rules of house arrest where he has to take “permission” to make an international call to his own daughter.

What has the system learnt in self-correction after the institutional murder of Fr. Stan Swamy, who died while being incarcerated in jail as his bail petition lay pending? Most of the people arrested in connection with the Bhima Koregaon case still languish in jail, even as forensic reports showing a brazen tampering of evidence, supporting their innocence have been released. 

Today, in 2023, the Bombay High Court has ordered the case to be heard expeditiously. However, it has been years since the Bhima Koregaon accused have had their freedom stripped from them. There is every probability that the said special court will reject Navlakha’s bail plea again, and then an appeal will again be filed in the upper constitutional courts. Why then, keeping in view the pattern of misuse of the criminal justice system with the aim of harassing human rights defenders, could the High Court not take up the case themselves at this stage itself?

That may have then resulted in a measure of self-correction by the institutions of justice delivery.

Related:

SC directs NIA to execute Gautam Navlakha’s house arrest within 24 hours

Gautam Navlakha’s house arrest: Stringent Conditions Apply
Bhima Koregaon case: Prof Anand Teltumbde granted bail on merits by Bom HC
Elgar Case: 4 Days After SC Order, Navlakha Yet to be Placed Under House Arrest

Elgar Case: Special NIA Court Denies Bail to Activist Gautam Navlakha

Bhima Koregaon case: 5 years on, charges not framed despite repeat extensions 2022: Looking back at the best judgments from Indian courts

On the firing line:  Human rights warriors of 2022

Evidence planted on Jesuit-activist Stan Swamy’s laptop: Arsenal US Report

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