Bhima Koregaon: Surendra Gadling’s plea to allow him to appear in person pending before the Bombay High Court

In the application, Gadling detailed his right to appear in person and the tedious process of in-person visits for undertrial prisoners.

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On Monday, a division Bench of the Bombay High Court, comprising Justices Revati Mohite Dere and Sharmila Deshmukh, recused itself from hearing an appeal by human rights lawyer and Dalit rights activist Surendra Gadling for the grant of default bail. With its recent change in assignments, the high court is yet to decide on Gadling's application to appear in person and allow his production before the high court, where his appeal for grant of default bail is pending. The application was sent by Gadling from Taloja jail in November 2022.

The application was in response to the appointment of a legal aid lawyer to appear on his behalf by a division Bench of the high court, comprising Justices A.S. Gadkari and P.D. Naik. It was read by the Bench and was given to the counsel representing the National Investigation Agency (NIA) on March 1.

Gadling is an accused in the Elgar Parishad–Bhima Koregaon case and is lodged at Taloja in Mumbai. He has been in detention for almost five years now, having been arrested in June 2018. On October 13, 2022, Gadling filed an appeal at the high court seeking default bail, challenging the order of the Special NIA court in Mumbai dated June 8, 2022, which rejected it.

Gadling had appeared and argued his case before the special court.

Clarifying that he does not have any complaint against the appointed legal aid lawyer Yoshodeep Deshmukh, Gadling expressed his reasons in the application for not consenting to the legal aid lawyer's appearance on his behalf. Gadling pointed out that Deshmukh will need to explain issues arising from litigation that span over five years, involving multiple orders by the Supreme Court, the Bombay High Court, and sessions courts in Pune and Mumbai. He also pointed out that the chargesheet runs over 30,000 pages.

Highlighting the mandate of meeting with him in person at the Central Prison at Taloja, Navi Mumbai, to get an understanding of the issues involved, Gadling explained that, according to the prison manual, Deshmukh will be allowed to meet Gadling for not more than 20 minutes at a time. He detailed that Deshmukh will be required to personally and physically register himself before 8.30 a.m. and wait for his turn until 12–12.30 p.m. for each meeting.

Drawing the attention of the Bench to further specifications of in-person meetings in prison, Gadling stated that in those 20 minutes, Deshmukh will be permitted to interact across a window, separated by two layers of glass, with a poorly functioning intercom. This makes it difficult to get voices across, and to refer to papers and take down notes, he added. Since only two interviews per week are allowed for an undertrial prisoner, after the initial 20 minutes, Deshmukh will be allowed another 20 minutes on another day in the same week.

In the application, Gadling explained that any exchange of notes undergoes the scrutiny of jail staff. Moreover, despite repeated complaints objecting to the same, a copy of those notes or any other correspondence is sent to the NIA and other agencies by the prison officials, Gadling emphasised in the application.

Throwing light on the grim practicalities of the meetings with prisoners, Gadling's application specified that the provisions in the prison manual and other client counsel privilege laws, including the provision of space to interact with lawyers, the availability of chairs, and privacy to give instructions are not followed.

In view of the availability of only 20 minutes at a time and other above-mentioned factors involved, Gadling stressed that Deshmukh could not be adequately informed about the records, laws, facts and various related judgments.

"Unless the lawyer is fully ready with the matter, armed with complete information, details of the case, he cannot be expected to render full assistance and brief your lordships effectively that too in a case which pertains to my liberty," the application stated.

Gadling laid emphasis on his own professional experiences and explained that he has practised criminal, civil and constitutional law for over 25 years and is certain of his ability to render efficient assistance to the high court while seeking bail.

Through the application, Gadling submitted that he has a right to appear for himself, and no one can represent him without his consent. He, thereby, requested that his application for his production before the division Bench be allowed to enable him to espouse his case.

The Bench is yet to decide on Gadling's application.