On 14 May, a two-judge bench of the Supreme Court, comprising Justice MM Sundresh and SVN Bhatti, lifted the stay on the bail granted to Gautam Navlakha, a writer and civil rights activist, accused in the Bhima Koregaon case.
Navlakha had been in custody since 14 April 2020 and was initially lodged in prison but was later shifted to his house and placed under house arrest in 2022, after the Supreme Court allowed his plea for the same, on the grounds of his advanced age and medical condition.
The Bombay High Court in December 2023 had already granted bail to Navlakha stating that incriminating material against him did not show a prima facie case to draw the inference that he had committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of the Unlawful Activities (Prevention) Act [UAPA].
After taking into consideration the totality of the entire material and evidence against him, the court held that at the most it can be said that Navlakha is a member of the banned organisation — the Communist Party of India (Marxist).
The High Court, while granting bail, noted that he had been in "pre-trial incarceration for more than three years and eight months." The judge of the trial court had submitted a report to the High Court dated 18 September 2022, stating that it would require more than a year to frame charges. Hence, the possibility of a trial against Navlakha being concluded in the near future remained bleak.
However, the order granting bail was subsequently stayed for three weeks to enable the National Investigation Agency (NIA) to appeal before the Supreme Court (SC). Navlakha’s lawyers had expressed concern before the apex court that the bail order, which was passed on merits by the High Court, was stayed without even hearing the party. The stay was extended by the SC time and again.
However, this interim order was not extended by the SC on 14 May. The court stated that Navlakha had been in pre-trial incarceration for more than four years. The court further noted that the trial court might take an extremely long time to complete the trial, considering the list of documents and prosecution witnesses relied upon. The chargesheet consists of about 20,000 pages in 54 volumes and the prosecution has cited 375 witnesses in it.
To date, the trial court has not framed charges.
Direction to Pay Rs 20 Lakh for 'House Arrest' Expenses
As stated above, the Supreme Court had earlier placed him under house arrest on account of his medical condition, with the expense of surveillance and CCTV installation to be borne by Navlakha himself. In case he is acquitted, the amount will be reimbursed first.
The Supreme Court directed him to pay a sum of Rs 20 lakh towards the cost of his security within a period of two weeks as a pre-condition before the trial court for the grant of bail. The NIA had earlier quoted a sum of more than Rs 1.7 crore to retrieve the cost of the security cover of his house arrest.
This figure had been contested by his lawyers. Senior Advocate Nitya Ramakrishnan challenged the amount, contending that the house arrest is not a luxury, and has not been granted as a favour and that the charges do not take into account Navlakha’s income.
The Supreme Court in Romila Thapar v. Union of India had recorded the submission of the senior advocate appearing on behalf of the accused, that he had no objection if the court ordered that Varavara Rao, Arun Feriera and Vernon Gonsalves, the other accused in the case, if arrested, were kept under house arrest in their own homes. The same order was also extended to Navlakha and Sudha Bhardwaj, who were already under house arrest as per the High Court’s order.
Citing the judgment in Romila Thapar, the Supreme Court, in a detailed judgment authored by Justice KM Joseph clarified that house arrest involved the deprivation of liberty and would fall within the embrace of “custody” and forced detention under the Code of Criminal Procedure, 1973.
The court clarified that in appropriate cases, it could order house arrest depending on criteria such as age, health condition, the antecedents of the accused, the nature of the crime, and the ability to enforce the terms of house arrest.
Extensive conditions of house arrest were placed on Navlakha, including restrictions such as his prohibition from leaving his residence and interacting with anyone apart from his lawyers and the regular occupants of his residence. However, the Supreme Court refrained from delineating specific guidelines pertaining to the conditions imposed during the house arrest.
While reading house arrest as a form of custody is a good start, the Supreme Court has created much more ambiguity about its use and operationalisation.
Status of the Bhima Koregaon 16
Navlakha is the seventh out of the 16 accused in the Bhima Koregaon case to get bail.
In April 2024, the Supreme Court granted bail to Shoma Sen, after observing that there was no prima facie case against her. In 2023, Vernon Gonsalves and Arun Ferriera got bail on merits. In 2022, activist Anand Teltumbde also got bail on merits and Varavara Rao was given bail by the Supreme Court on medical grounds. In 2021, trade unionist and lawyer Sudha Bhardwaj got default bail.
In September 2023, Mahesh Raut was also given bail by the Bombay High Court on merits, but the order was stayed by the court and extended by the Supreme Court, as in Navlakha’s case. Father Stan Swamy, passed away in custody in July 2021, while the COVID pandemic raged.
The bail plea of Jyoti Jagtap before the Supreme Court has been adjourned to July. On 3 May, Hany Babu, a former Delhi University professor, withdrew his petition before the Supreme Court, seeking liberty to approach the High Court. The counsel for Babu informed the court that there had been a change in circumstances as five co-accused had been granted bail. Sagar Gorkhe, Ramesh Gaichor, Surendra Gadling, Sudhi Dhawale, and Rona Wilson also remain in custody and await trial.
In August 2022, the Supreme Court directed the trial court to decide on framing the charges against all the accused within three months. The SC bench, headed by then Chief Justice UU Lalit had asked the NIA to ‘segregate’ the trial and examine the culpability of the accused.
Despite these directions, the trial is yet to begin in the Bhima Koregaon case. The failure of the criminal justice machinery to expedite the trial violates the right of under-trial prisoners to speedy justice guaranteed under Part III of the Constitution of India.
The apex court in Union of India v KA Najeeb had observed that the provisions of bail under the UAPA were harsh and draconian, and paramount considerations regarding fundamental rights would step in where such rights were denied, notwithstanding the rigours of statutory language.
(Moksha Tarini is a lawyer based in New Delhi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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