The matter is posted for hearing on January 30.
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ON Monday, a division bench of the Supreme Court comprising Justices Aniruddha Bose and Sudhanshu Dhulia decided to proceed with the hearing of bail pleas of civil liberties activists Vernon Gonsalves and Arun Ferreira after Justice Dipankar Datta recused himself from hearing the matter on January 12. Gonsalves and Ferreira have filed bail applications in the Supreme Court challenging the order of the Bombay High court dated October 15, 2019, which rejected their bail pleas.
Gonsalves, who is an academic and writer, having written extensively on Dalit and adivasi rights and the rights of prisoners, and Ferreira, a lawyer and human rights activist, who has been a member of the Committee for Protection of Democratic Rights and the Indian Association of People’s Lawyers, are accused in the Bhima Koregaon-Elgar Parishad case and charged under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’).
Senior Advocate Rebecca John, representing Gonsalves, explained that pursuant to the order of the Supreme Court on August 18, 2022, an application was moved before the trial court to open the case. On January 4, 2023, the trial court said they would open their case once all the discharge applications were heard. While the discharge application of several accused persons has been heard, Gonsalves’ subsequently filed discharge application is pending, John said. She emphasised that charges are yet to be filed.
John submitted that the order of the Bombay High Court granting bail to Dr. Anand Teltumbde, one of the accused in the Bhima Koregaon-Elgar Parishad case, and upheld by the Supreme Court, is squarely applicable to almost the same facts in Gonsalves’ case.
On Justice Dhulia pointing out that there were 20 cases previously filed against Gonsalves that have mostly resulted in acquittals, John confirmed that out of 20 such cases filed during 2007–10, Gonsalves was convicted in only one case for the offences punishable under the UAPA, and sentenced to three and five years of imprisonment on two counts, respectively. John further clarified that Gonsalves had already served the sentence and the appeal is pending at the Nagpur High Court.
According to John, in the present case, the rigors of Section 43D of the UAPA fail to apply. She highlighted the lack of additional material submitted against Gonsalves after those collected during the years 2005–10.
Additional Solicitor General of India, S.V. Raju, representing the National Investigation Agency (‘NIA’), argued that the accused persons in the case are assisting Naxals and the Naxals are, in turn, attacking the armed forces.
On hearing the parties, Justice Bose remarked that the bench will take up the matter and decide upon it.
The parties are permitted to file additional affidavits incorporating a compilation of judgments, which they seek to rely upon, on the next date. The matter is posted to be heard on January 30, 2023.
Background
Gonsalves and Ferreira were among five activists arrested on August 28, 2018, for allegedly being affiliated with banned Maoist organisations, and provoking violence at the Koregaon Bhima. After having been lodged at Yerwada Central Jail for over 14 months, in October 2019, the Bombay High Court dismissed their bail applications.
In view of the revelations related to the Pegasus spyware, Gonsalves, like other accused persons in the case, requested a Supreme Court-appointed Technical Committee to direct the NIA to hand over his phone for inquiry to the committee to check for infection by the malware.
On August 22, 2022, a special NIA court rejected an application filed by Ferreira that sought direction for the prosecution to provide a copy of the formal order of the interception by which his emails (electronic evidence) were intercepted. Ferreira argued that the interception of his emails, as retrieved by the NIA within an hour of being sent and used as evidence, stands illegal.
Gonsalves and Ferreira are still lodged at the Taloja Central Jail, and are awaiting trial.
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 well over four years in judicial custody without trial. Another accused, tribal rights activist and Jesuit priest Fr. Stan Swamy, passed away in judicial custody in July last year after contracting COVID in prison while awaiting bail on medical grounds.
