“In the present case, the incriminating material as adverted herein above does not in any manner prima facie leads to draw an inference that, Appellant has committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of UAP Act. 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.,”
Justices A S Gadkari and S G Dighe, Bombay High Court, December 19
(Paragraph 19, page 33)
The court’s assessment in the Gautam Navlakha bail hearing highlighted the lack of substantial material linking Navlakha to terrorist activities. It emphasized that his alleged membership with CPI (Maoist) could, at most, implicate him under sections 13 and 38 of the Unlawful Activities (Prevention) Act, carrying a maximum punishment of ten years. Statements and documents referencing Navlakha were considered hearsay, lacking probative value. While granting bail however, the court stayed the order for three weeks, allowing the National Investigation Agency (NIA) to appeal to the Supreme Court.
The high court questioned the NIA’s attempt to establish Navlakha’s association with terrorist activities through recovered documents and communications, citing an absence of conclusive evidence linking him to any terrorist acts. It also rejected claims of Navlakha’s connection with Pakistan’s ISI, attributing a letter he wrote seeking clemency to individual action rather than organizational ties.
The court also remarked that the documents, which have not been recovered from Navlakha but mention his name, have “weak probative value or quality”. “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,” it said. “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 UAPA (terrorist activities),” the HC said. (Paragraph 17, page 32 of the Judgement)
Navlakha has, until this judgement was delivered, spent three years in jail, with the trial court yet to frame charges, casting doubt on the possibility of a near-future trial conclusion. The case originated from the alleged inflammatory speeches at the Elgar Parishad conclave in Pune in 2017, purportedly instigating violence near the Koregaon-Bhima war memorial. Navlakha is the seventh accused granted bail in this case. Navlakha was not present at the occasion.
“…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 in it. The learned Judge of
the trial Court has submitted a report dated 18th September, 2022 stating that, it will require more than a year to frame charge. 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,” the order states. (Paragraph 26, page 36)
After Despite earlier refusals of medical bail, Navlakha’s second appeal in the high court sought regular bail, contesting the special court’s opaque reasoning. The case involves a chargesheet exceeding 5,000 pages and aims to cross-examine around 200 witnesses. Out of the 16 accused, 11 remain incarcerated for up to five years without trial, while five have secured bail. Navlakha and another accused, Raut, await a Supreme Court decision regarding their bail status.
Tragically, tribal rights activist Father Stan Swamy passed away in judicial custody in July 2021 due to Covid complications while awaiting bail on medical grounds.
The court’s bail verdict hinged on the lack of substantial evidence linking Navlakha to terrorist activities, casting doubt on his alleged involvement and affirming the need for conclusive proof before implicating an individual.
The judgment meticulously navigates the legal intricacies surrounding bail provisions under the Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code (IPC), notably the application of Sections 13 and 38 of the UAP Act concerning Navlakha’s alleged association with CPI (M). It emphasizes the distinction between mere membership in a political party and involvement in specific unlawful activities, critically analysing the evidence against Navlakha. It questions the sufficiency of evidence linking Navlakha to specific unlawful activities, highlighting the importance of establishing prima facie evidence for charges under these acts.
“Therefore, in the present case, the said documents which have been recovered from the appellant (Navlakha) such as Agenda or Constitution of the Party or other related documents, which allegedly propagated violence, would not attract the provisions of section 15 of the UAPA (terrorist act),” the court said. (Paragraph 15, page 31)
The case hinges on the interpretation of seized documents, witness statements, and Navlakha’s alleged association with banned groups. It reflects the challenge of discerning evidential relevance and credibility while balancing individual rights against state interests. The nuanced legal landscape necessitates a comprehensive understanding of how evidence, especially seized documents, is interpreted within the context of the law. The legal complexity lies in understanding the nexus between Navlakha’s alleged involvements in the event and the subsequent violence. There’s a need to assess the evidentiary value of the materials presented and whether they directly implicate Navlakha.
The case necessitates both a nuanced examination of intention and execution of the alleged crime. While the prosecution attempted to tether Navlakha to the Elgar Parishad event, scrutinising the execution of his alleged actions became pivotal. The crux lay in discerning whether Navlakha’s purported association was an act of dissent or part of a larger orchestrated design leading to violence.
Assessment of Constitutional Rights
One of the most crucial aspects is the court’s stance on constitutional rights vis-à-vis statutory restrictions. The judgment emphasises the need to balance the state’s legislative policy against granting bail with the individual’s fundamental rights, invoking questions about the sanctity of activism and the overreach of state machinery. It also points out particularly the right to a speedy trial, a facet enshrined in the Constitution.
Human Rights and Activism
From a human rights standpoint, the case underscores the vulnerability of activists to prolonged detention and the implications of their lawful dissent being misconstrued as unlawful activities. Navlakha’s case demanded a meticulous dissection of the evidential jigsaw puzzle, attempting to substantiate his alleged actions within the charged events. The judgment highlights the chilling effect such arrests can have on freedom of speech and dissent, raising pertinent questions about the safeguarding of these rights. The central thematic issues encompassed the rights of activists, the boundaries of dissent, and the state’s obligation to protect civil liberties while ensuring national security.
Central Observations of the Court
The court finds insufficient grounds to prima facie support accusations under certain sections of the UAP Act against Navlakha.
With respect to the documents wherein the name simply referred to as ‘Gautam’ is concerned the bench said that,
“..there is another person by name Gautam @ Kosa @ Gopanna @ Sadha, who is the Central Committee Member of the CPI (M) and therefore it cannot be safely inferred that, it is the Appellant only who has been referred to in those documents. According to us, the identity of the Appellant being the same person ‘Gautam’ is in doubt as far as those documents are concerned. At this stage prima facie we cannot presume that, ‘Gautam’ is the same person as the identity of the said ‘Gautam’ is yet to be established beyond reasonable doubt by the prosecution,” the order states. (Paragraph 16, page 31)
Delay in Trials and Pre-trial Incarceration
The analysis also delves into the issue of delayed trials and pre-trial incarceration. The extended duration of Navlakha’s detention without a framed charge sheet or conclusive trial points to systemic inefficiencies and the impact of such delays on an individual’s right to a speedy trial. The emphasis on considering delay in trials as a factor for bail provisions sets a noteworthy precedent, urging courts to weigh individual rights against statutory restrictions in similar instances.
Social and Political Implications
This judgment reverberates beyond legal boundaries, sparking conversations about the state’s treatment of dissent and the broader socio-political landscape. It draws attention to the thin line between legitimate activism and allegations of unlawful activities, influencing public discourse on civil liberties.
“Even though in the said documents, the authors of it have expressed their intention to cause fatality to the politically influential persons or to cause tremendous disturbance in the Society at large, the Appellant only being a member of the party cannot be prima facie held to be a co-conspirator to it. From the material on record, it appears to us that, no covert or overt terrorist act has been attributed to the Appellant,” the order states. (Paragraph 18, page 33)
The case symbolises the ongoing struggle for justice and rights within the democratic fabric of India.
Gautam Navlakha’s case is a microcosm of the intersection between legal, ethical, and societal concerns, challenging the judiciary, the state, and civil society to introspect and strive for a more balanced, rights-centric approach in handling cases involving activists and dissent.
“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 accusation against the appellant is prima facie true,” the judgement said. (Paragraph 23, page 35)
The judgment’s ramifications reverberated on two fronts—positively highlighting the sanctity of constitutional rights while cautioning against potential precedents curtailing dissent. Its influence extended beyond courtrooms, impacting legal realms, and advocacy efforts, spotlighting the challenges faced by activists and the paramount need to safeguard fundamental rights. In subsequent legal proceedings and human rights advocacy, the judgment remains pivotal. It likely contributes to ongoing discussions on maintaining the delicate balance between protecting civil liberties and addressing national security concerns. Its impact reverberates across diverse platforms, influencing debates, legal arguments, and advocacy strategies aimed at upholding democratic principles. Gautam Navlakha’s case symbolizes the struggle between individual rights and state interests, resonating strongly within the realm of human rights and legal jurisprudence. The judgment, while granting bail, underscores the need to uphold constitutional principles, ensuring timely trials and safeguarding fundamental liberties.
The entire copy of the judgement may be read here.