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The recent Supreme Court judgment granting bail to Vernon Gonsalves and Arun Ferreira after five years of incarceration without trial reiterates several established principles of law for the protection of individual liberty and overturns the infirmities in Zahoor Ahmad Watali and Arup Bhuyan (2023), but will it have a ripple effect on the cases of the more than four lakh undertails incarcerated in Indian prisons?
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ON July 28, the Supreme Court granted regular bail to Vernon Gonsalves and Arun Ferreira, accused in the Bhima Koregaon–Elgar Parishad case.
Gonsalves is a trade unionist and activist and Ferreira is a lawyer and activist. The bail was granted considering their long incarceration without trial.
Both the accused have been held in custody since August 2018 on allegations of involvement in offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
The duo had filed bail applications before the Supreme Court challenging the Order of the Bombay High Court dated October 15, 2019, under which their bail pleas were rejected.
The Bench comprising Justices Aniruddha Bose and Sudhanshu Dhulia has observed that the materials eluded to as part of incriminating evidence against the accused persons cannot justify their continued custody.
In particular, the bail judgment holds that the letters recovered from the other co-accused persons, witness statements, or the mere possession of literature propagating violence or promoting the overthrow of democratically elected government, does not prove that the two accused were involved in terrorist acts within the definition of the UAPA.
The Pune police had alleged that "provocative" statements and speeches were made at the Elgar Parishad meeting in Pune on December 31, 2017, instigating the violence at Koregaon Bhima village on the following day, i.e., January 1, 2018.
The violence led to the death of one and injuries to several others. Leading activists, lawyers, scholars and artists were arrested and charged under several provisions of the Indian Penal Code (IPC) and the UAPA.
The accused are still awaiting trial.
“The duo had filed bail applications before the Supreme Court challenging the Order of the Bombay High Court dated October 15, 2019, under which their bail pleas were rejected.
A total of sixteen persons were arrested in the case as key accused. Gonsalves and Ferreira were among the five activists arrested on August 28, 2018, for allegedly being affiliated with banned Maoist organisations and provoking violence at Koregaon Bhima in Maharashtra on January 1, 2018.
The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses.
In view of the revelations made in 2021 about Pegasus spyware being used in India, Gonsalves, along with some other accused persons in the case, requested a Supreme Court-appointed technical committee to direct the National Investigation Agency (NIA) to hand over their phones for inquiry to the committee, to check for infection by a malware.
On August 22, 2022, a special NIA court rejected an application filed by Ferreira that sought directions for the prosecution to provide a copy of the formal Order of interception, by which his emails were intercepted by the NIA.
Ferreira argued that the interception of his emails, as retrieved by the NIA within an hour of being sent and used as electronic evidence, is illegal under Section 69 of the Information Technology Act, 200, which mandates a prior formal order.
Ten of the 16 accused persons are presently incarcerated, having now spent between two to almost five years in judicial custody without trial.
In addition to Gonsalves and Ferreira, three of the other accused persons, Sudha Bharadwaj, Varavara Rao and Anand Teltumbde have also managed to secure bail so far.
Another accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away in judicial custody in July 2021, after contracting Covid in prison. He was awaiting bail on medical grounds.
An investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that NetWire, a sophisticated malware, was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Surendra Gadling and Rona Wilson.
Arsenal's findings were published in four reports in 2021.
An analysis of the bail judgment shows that the court found no credible evidence against Gonsalves and Ferreira to attract Section 43D(5) of the UAPA.
According to Section 43D(5) of the UAPA, introduced by the 2008 Amendment, a person accused of offences under chapters IV and V shall not be released on bail if the court, "is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."
The Section, thus, lays down stringent conditions for the grant of bail to any person accused and arrested under the UAPA.
The bail judgment points out that in the case of Arup Bhuyan versus State of Assam and Another (2023), the Supreme Court had held that being a member of an unlawful organisation was enough to constitute an offence under Section 10 (penalty for being a member of an unlawful association), falling under Chapter III of the UAPA.
“An analysis of the bail judgment shows that the court found no credible evidence against Gonsalves and Ferreira to attract Section 43D(5) of the UAPA.
In Arup Bhuyan, a three-judge Bench of the Supreme Court overruled three decisions of the court in State of Kerala versus Raneef (2011), Arup Bhuyan versus Union of India (2011) and Sri Indra Das versus State of Assam (2011) while observing that a mere membership of a banned organisation under the now-lapsed Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) and the UAPA would not be enough to incriminate a person
Notably, the court has held that since both Gonsalves and Ferreira are charged under chapters IV and V of the UAPA, it could delve into ascertaining whether reasonable grounds exist for believing that the accusations are prima facie true.
In National Investigation Agency versus Zahoor Ahmad Shah Watali (2019), the Supreme Court held that while adjudicating a bail plea, courts should not go into questions of admissibility of the evidence produced by the investigation agencies.
The Bombay High Court, while rejecting the bail pleas of Gonsalves and Vernon, had relied upon the decision in Watali and held that the court is not expected to analyse individual pieces of evidence or circumstance. "The issue of admissibility of the document or evidence would be a matter of trial," the high court had held, following Watali.
However, in the present case, the court disagreed with the ratio of the Watali judgment on this point.
The judgment says, "[I]t would not satisfy the prima facie 'test' unless there is at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth."
The bail judgment also relies on older decisions of the Supreme Court, namely, Hitendra Vishnu Thakur and Others versus State of Maharashtra and Others (1994), Niranjan Singh Karam Singh Punjabi, Advocate versus Jitendra Bhimraj Bijaya and Others (1990) and Usmanbhai Dawoodbhai Memon versus State of Gujarat (1988).
In the aforementioned three judgments, it was observed that when the accused have been booked under statutes, such as TADA, that have stringent provisions, the courts should be careful in making an assessment of whether the statutory provisions would apply.
In the case of Bilal Ahmed Kaloo versus State of Andhra Pradesh (1997), the Supreme Court was hearing an appeal challenging the conviction under the provisions of the TADA and the IPC.
In the absence of any evidence to prove the charges under the provisions, including Sections 153A, 124A and 505, the court held that the accused "should not have been put to trial for those offences".
"Graver the offence, greater should be the care taken so that the liberty of the individual is not lightly interfered with," the judgment in Bilal Ahmed Kaloo remarks.
According to Section 2(m) of the UAPA, a "terrorist organisation" refers to an organisation listed in the first schedule of the Act or an organisation operating under the same name as an organisation listed in the first schedule of the Act.
In order to attract Sections 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA, the bail judgment states that evidence of the intention to further the terrorist organisation's activities should be established.
“In the present case, the court disagreed with the ratio of the Watali judgment on the point of what "prima facie" in Section 43D(5) of the UAPA means.
It is not sufficient to demonstrate that the alleged offender is associated with a terrorist organisation, the judgment says.
Notably, in the case of Kartar Singh versus State of Punjab (1994), a five-judge Constitution Bench of the Supreme Court observed that a person becomes guilty of terrorist activity only when all three ingredients, viz., "intention, action and consequence are found to be present".
In respect of Gonsalves and Ferreira, the judgment says that there is no evidence proving the intention to further any organisation's terrorist activities.
An analysis of the judgment reveals that the prosecution has relied upon statements of three witnesses who claim that Gonsalves and Ferreira were members of the Maharashtra state committee of the banned organisation, Communist Party of India (Maoist) [CPI (Maoist)].
Witness statements also claim that Gonsalves was "uniting intellectuals" to further the purposes of CPI (Maoist) and Ferreira was "creating a cadre" who were being sent to forests to join the Maoist.
The judgment holds that the link asserted by the statement of the protected witness was in respect of events between the years 2002–07, that is before the CPI (Maoist) was included in the first schedule of the UAPA, which lists banned terrorist organisations.
The judgment records that the court did not find any evidence of Golsalves Ferreira continuing their CPI (Maoist) memberships after the organisation was included in the first schedule of the UAPA.
The NIA has alleged that electronic devices recovered from several other co-accused persons including Surendra Gadling and Rona Wilson, as well as the documents seized from them, prove the involvement of Gonsalves' and Ferreira's with the CPI (Maoist).
Several letters written by the co-accused and other persons to one another were recovered during the forensic analysis of the devices, the NIA further alleges.
The NIA alleges that the contents of the letters prove that Gonsalves and Ferreira were senior leaders of CPI (Maoist).
It is further alleged that the letters prove that Ferreira was asked to manage funds for the legal defence of one Murugan and that Gonsalves and Ferreira "motivated" research scholars to get involved in the movement of CPI (Maoist).
According to the NIA, the letters also prove that Ferreira was involved in establishing the Indian Association of People's Lawyer (IAPL), a front of CPI (Maoist); and that Ferreira attended a seminar of the Revolutionary Democratic Front in 2012 while Gonsalves attended one of their seminar's in 2017.
In respect of the allegedly incriminating letters, the judgment clarifies that analysis of evidence is necessary in view of the restrictive provision of Section 43D of the UAPA.
The judgment has also held that there is no reliable evidence establishing that the IAPL is a frontal organisation of the CPI (Maoist).
Moreover, the judgment holds that the letters record only third-party responses to the activities of Gonsalves and Ferreira.
The letters are in the nature of hearsay evidence, the judgment adds.
Except for a few exceptions under the Indian Evidence Act, 1872, hearsay evidence does not hold evidentiary value and is inadmissible in a court of law.
“The judgment says that "mere holding of certain literature through which violent acts may be propagated" would not ipso facto attract the definition of "terrorist act" within provisions of Section 15(1)(b) of the UAPA.
The judgment says that mere participation in seminars of proscribed organisations cannot constitute an offence under the UAPA.
The judgment refers to the record of transactions allegedly recovered from co-accused Rona Wilson's device, saying Ferreira managed funds of CPI (Maoist).
Section 17 of the UAPA deals with punishment for raising funds for terrorist acts.
The court relied upon the Bombay High Court's rationale in dealing with allegations against Dalit scholar, academic, activist and co-accused Dr Anand Teltumbde of receiving funds from the banned organisation.
The high court also noted that the NIA had failed to provide corroboration and evidence that "Anand T.", as mentioned in the record of transactions, refers to Dr Teltumbde. "This document is unsigned and has been recovered from the laptop of one of the co-accused," the high court's judgment adds, while rejecting the NIA's claim.
The present judgment notes an absence of corroboration that "Arun" in the account statement refers to Ferreira.
Thus, in respect of the allegation of raising funds for a terrorist organisation, the judgment did not find the evidence "credible enough" for invoking Section 40 (offence of raising funds for a terrorist organisation) of the UAPA.
The judgment observes that the alleged activities of the accused referred to in the recovered letters are in the nature of ideological propagation and allegations of recruitment.
However, the agency fails to provide evidence of any persons actually recruited or inspired to join Maoist ranks by the accused persons, the judgment adds.
The judgment says that none of the letters that the prosecution relies upon to allege the association of Gonsalves or Ferreira with a terrorist organisation have been recovered from them.
The actual involvement of the appellants is not proved by the agency, the judgment says.
In respect of the NIA's allegation that Ferreira was handling funds of the CPI (Maoist), the judgment remarks that as per the documents, the transaction was made for the purpose of litigation on behalf of certain detained persons, one of whom was Murugan, and do not show whether or not they were part of any proscribed organisations.
The judgment also notes that the agency has failed to produce material to show that money was actually transmitted.
The judgment highlights that the NIA has allegedly recovered "extreme left-wing" literature, including books and pamphlets, from the residences of Gonsalves and Ferreira.
The NIA has alleged that the literature was used to propagate violence and promote the overthrow of a democratically elected government through an armed struggle.
The judgment clarifies that the NIA does not allege that either Gonsalves or Ferreira are authors of any of the pieces of literature recovered from their residences.
The court, thus, held that the "mere holding of certain literature through which violent acts may be propagated" would not ipso facto attract the definition of "terrorist act" within provisions of Section 15(1)(b) of the UAPA.
“The judgment acknowledges that Gonsalves and Ferreira, as undertrials, have not crossed a substantial term of the sentence of the serious offences alleged against them, which can extend up to life imprisonment.
The judgment says that there is no proof against Gonsalves and Ferreira to establish that they indulged in activities of "overawing" any public functionary by means of force, or for causing or attempting to cause the death of any such functionary, as required under Section 15(1)(b) of the UAPA.
The judgment refers to the principle laid down in the cases of Union of India versus K.A. Najeeb (2021) and Angela Harish Sontakke versus State of Maharashtra (2021) wherein delay in holding a trial was considered a relevant factor in examining the plea for bail of the accused.
In particular, the judgment relies upon the judgment in K.A. Najeeb, which holds that bail-restricting provisions of the UAPA cannot overrule the right to liberty guaranteed under Article 21 of the Constitution, in cases where evidence prima facie falls short of substantiating allegations.
The judgment acknowledges that Gonsalves and Ferreira, as undertrials, have not crossed a substantial term of the sentence of the serious offences alleged against them, which can extend up to life imprisonment.
However, upholding Article 21 of the constitution in the context of their long incarceration of five years since their arrest, the judgment decides that the allegations cannot justify their continued detention.
As this analysis shows, courts have vacillated in their interpretations of the bail restrictive provisions of stringent laws for considering bail pleas, namely Section 43D(5) of the UAPA.
“In overturning the decisions in Watali and Arup Bhuyan (2023), the present bail judgment can be built upon to set a tone for other accused persons suffering incarceration on similar grounds in several such cases.
In such an environment of seemingly frequent vacillation, the undertrials charged under the UAPA continue to be lodged in judicial custody for as long as five years without bail.
In overturning the decisions in Watali and Arup Bhuyan (2023), the present bail judgment can either be built upon to set a tone for other accused persons suffering incarceration on similar grounds in several such cases; or alternatively, the courts can go back into its exercise of providing varied interpretations to the bail restricting provisions.
Click here to read the judgment.
