In view of his age and multiple health conditions, the court permitted Navlakha to be placed under house arrest for a period of one month under strict restrictions and conditions
ON Thursday, in Gautam Navlakha versus National Investigation Agency and Anr., a division bench of the Supreme Court, comprising Justices K.M. Joseph and Hrishikesh Roy, allowed the plea to place the petitioner, Gautam Navlakha, under house arrest for a period of one month subject to stringent restrictions and conditions.
Journalist and human rights activist Navlakha, an accused in the Bhima Koregaon-Elgar Parishad case, is charged under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’). During his custody as an undertrial prisoner, a charge sheet was filed on October 9, 2020, and charges are yet to be filed by the court. The petitioner, in custody since April 2020, stands accused along with 15 others. He is currently lodged at Taloja jail in Mumbai, awaiting trial.
Referring to the reports of the medical examination conducted at Jaslok Hospital as per the directions of the court dated September 29, Additional Solicitor General of India, S.V. Raju, pointed out that Dr. S. Kothari, the orthopedic surgeon and one of the senior doctors who gave an opinion in the medical reports, is in fact Navlakha’s brother-in-law. He alleged that the medical report warrants rejection on account of the possibility of bias in the report, and urged that the report be referred for a fresh independent assessment.
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Senior advocate Kapil Sibal, appearing for Navlakha, submitted that the team of doctors named in the report have all taken the oath of office. He contended that the medical reports are opinions based on scientific investigation, conducted by someone else, and in the context of the history of the patient.
The bench noted that in the medical report, Dr. Kothari diagnosed Navlakha with spondylitis, and recommended the use of a mattress, cot, and chair to avoid the aggravation of pain. Observing that Dr. Kothari’s opinion is based on the investigation carried on by other doctors, the bench held that there was no reason to reject the medical report.
On the direction of the bench on Tuesday, Raju presented a list of restrictions, in the event of house arrest. After arguments on both sides and analysis by the bench, it was agreed that Navlakha will be placed under house arrest with his partner/companion, Sahba Husain, without the use of the internet or any other communicating device in Mumbai. Husain is allowed to use a basic phone, without any internet facilities, during the course of house arrest. The house arrest was agreed to be held under the supervision of police personnel, wherein Navlakha was directed to deposit Rs. 2,40,000 towards the cost of deploying the personnel.
Further, Navlakha is allowed to use a mobile phone provided by police personnel on duty once a day for ten minutes in the presence of the personnel. He is also allowed to meet two family members once a week for three hours. Navlakha was granted permission to interact with his lawyers in accordance with jail rules and instructions. In line with the recommendations in the medical report, the bench allowed Navlakha to walk outside every day in the company of police personnel and not engage in any conversations. Navlakha is, further, allowed access to newspapers and television which is not internet-based.
While Raju urged CCTV cameras to be placed inside the rooms, Sibal vehemently opposed it due to the violation of the right to privacy. The bench directed CCTV cameras to be installed at the entrance and outside every room. It also directed the respondents to screen the house, where Navlakha is to be placed under house arrest, prior to occupying the house. The respondents are also permitted to inspect and search the premises, during the term of the arrest, only when there is a clear need to do so and not as a means to harass Navlakha.
On account of the suspicion by the respondents of a biased medical report, a medical re-evaluation of tests at KEM Hospital before the end of the period of one month of house arrest was directed by the bench. Further, in the event of medical urgency, medical facilities were directed to be made available to Navlakha, by escorting him to a suitable hospital.
Noting that Navlakha is a 70-year-old undertrial suffering from multiple health conditions, with no previous criminal record, the bench overturned the order of the Bombay High Court dated April 26, which refused him the facility of house arrest, and directed Navlakha’s custody to be transferred to house arrest within 48 hours.
The next date to review the order of house arrest is December 13.
On Wednesday, the division bench analysed the medical reports submitted by Jaslok Hospital, where Navlakha was admitted for medical treatments and tests, as per the directions of the Supreme Court. Referring to the results of the medical tests, Sibal had submitted that the required monitoring and supervision prescribed in the medical reports was not possible in jail, and in view of the recommendations under the report, Navlakha should be allowed house arrest.
According to Raju, vehemently opposed the prospect of placing Navlakha under house arrest on the ground that he is in touch with Kashmir extremists and the Pakistani intelligence agency, the Inter-Services Intelligence, and actively involved in guerilla movements that caused the deaths of jawans. He argued that Navlakha is charged with serious offences under the UAPA, and it would not be possible to monitor him if he is under house arrest. He alleged that the present plea of house arrest is the petitioner’s strategy to obtain bail.
Raju had referred to materials and letters allegedly written or addressed to Navlakha, and some records retrieved from his computer, as evidence of his involvement with the banned Communist Party of India (Maoist), and an indication of his intention to ambush and ‘destroy’ the country. To this, Justice Joseph replied, “It is the corrupt who want to destroy the country”.
The bench referred to trade-unionist, activist and lawyer Sudha Bhardwaj, a co-accused in the Bhima Koregaon matter who was released on default bail in December last year after over three years of incarceration, referred to in the letters attached as evidence. The bench also referred to Catholic priest and tribal rights activist Father Stan Swamy, another co-accused in the matter who died after contracting COVID in judicial custody last year after nine months of incarceration on account of being denied medical bail.
Sibal emphasised that Navlakha was appointed by the Union Government as an interlocutor in 2005 whereby he secured the release of security personnel kidnapped by Maoists. Sibal further submitted that the chargesheet did not refer to any actual activity of active participation by Navlakha in the alleged activities that threaten national security.
The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Thirteen of the 16 accused persons are presently incarcerated, having now spent between two to over four years in judicial custody without trial.