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Not Thwarted by Watali: Why Bail for Vernon Gonsalves & Arun Ferreira Matters

The Supreme Court judgment flatly refuses to accept the prosecution's submissions without its own analysis.

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Law
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In the days that followed Father Stan Swamy's demise in 2021, the Bombay High Court is believed to have noted that he was "a wonderful person". The eighty-four year old, a UAPA accused in the Bhima Koregaon case, was awaiting bail at the time of his death.

Hearing his bail pleas posthumously, the Bombay High Court had reportedly said:

“Such a wonderful person. The kind of service he has rendered to the society. We have great respect for his work. Legally, whatever is there against him is a different matter."

But Stan Swamy's bail pleas had been rejected multiple times before. When the NIA court had rejected his bail plea (in March 2021), over 2,500 people from India and abroad wrote a letter expressing “shock”.

“We appeal for immediate bail for Stan Swamy, repeal of UAPA, and a return to the norm where bail is the rule not the exception," they said.

But when it comes to the stringent Unlawful Activities Prevention Act (UAPA), jail is rarely the exception. And Swamy died an incarcerated undertrial.

So, when his co-accused Vernon Gonsalves and Arun Ferreira were finally granted bail, with the apex court shredding the prosecution's case for their continued incarceration, Fr Stan Swamy's friend Fr Joseph Xavier told The Quint that Fr Swamy would have been "very happy and proud to hear of this", had he been alive.

"What happened to him, shouldn’t happen to others," Fr Xavier said.

But it is also worth pointing out that this bail order comes after five years of incarceration for Gonsalves and Ferreira. Additionally, as per PTI, their release may still be delayed as a special NIA court has rejected their pleas for temporary cash bail, and directed them to furnish a PR (personal recognisance) bond of Rs 50,000 each.

Denying them bail, the Bombay High Court had (in October 2019) said:

"There are reasonable grounds for believing that the accusation of commission of the offences…is prima facie true” and the argument about their “continued detention”, among others, cannot be considered

The Supreme Court, however, begged to differ.

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First Things First

Gonsalves and Ferreira have been booked under several sections of the IPC (including sedition and criminal conspiracy), as well as the UAPA.

The Supreme Court judgment flatly refuses to accept the prosecution's submissions without its own analysis.

SUPREME COURT'S VIEW

"Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them."
Supreme Court

In a judgment that came over three and a half-years after the Bombay High Court order, a bench of Supreme Court Justices Aniruddha Bose and Sudhanshu Dhulia held (among other things):

1) The materials employed by the NIA to implicate the accused were in the nature of hearsay evidence.

The Supreme Court judgment flatly refuses to accept the prosecution's submissions without its own analysis.

As per the Indian Evidence Act, hearsay evidence does not carry evidentiary value.

As an aside, the veracity of some letters has also come under scrutiny with independent digital forensic experts suggesting that some of the evidence may have been 'planted' in this case.

2) Mere presence of “literature” cannot incriminate an accused under the most stringent provisions of the UAPA that make grant of bail virtually impossible.

The Supreme Court judgment flatly refuses to accept the prosecution's submissions without its own analysis.

The Centre has often relied on literature to pad up their charges against a UAPA accused. But not always – and for a variety of reasons – to the top court’s approval.

Back when a pamphlet titled "Justice For Hathras Girl" were cited amid the Centre’s opposition to journalist Siddique Kappan’s bail plea, then CJI UU Lalit had verbally observed that "every person has the right to free expression."

In this case, the apex court pointed out that none of the literature was “specifically proscribed so as to constitute an offence" just by its mere presence.

3) An offence relating to membership of a terrorist organisation (Sec 38 UAPA) will only apply when the prosecution has prima facie established that there is an intention to further the said organisation’s terrorist activities

The Supreme Court judgment flatly refuses to accept the prosecution's submissions without its own analysis.

It also applied the same logic to Section 20 of the UAPA.

In doing so, the apex court pushed back against an increasingly restrictive approach, which was recently fortified by an apex court judgment that transmuted mere membership of an unlawful organisation into an offence under the UAPA.

The order in Gonsalves and Ferreira's case, as noted by Senior Advocate Mihir Desai in an article for The Wire, "will have a far-reaching consequence for all those charged with membership of a terrorist organisation without any active involvement in a terrorist act". Desai pointed out that the bench made this choice even when "(it) could have easily been tempted to apply the same logic (as the apex court judgment on membership of unlawful organisations)."

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But Most Importantly (How the SC Arrived at These Conclusions)

This judgment of the Supreme Court is a trailblazer to say the least. It recognises that Gonsalves and Ferreira's bid for bail could neither be restricted by Section 43D (5) of the UAPA, nor thwarted by the judgment in National Investigation Agency vs Zahoor Ahmad Shah Watali.

HOW?

Simply put, Section 43D(5) of the UAPA prevents grant of bail merely — if based on the material provided by the police — there are reasonable grounds to believe that the case against the accused is prima facie true. 

It becomes applicable as soon as a terror-offence (technically: an offence punishable under Chapters IV and VI of the UAPA) is invoked.

The Watali judgment of 2019 takes this one step further, by holding (as explained here) that the courts should not go into the details and the admissibility of the evidence, but look at the "totality of the material" produced by the investigating agency. 

Essentially, what this means is that a terror-accused under the UAPA cannot get bail if the court feels that the material provided by the prosecution might successfully implicate the accused during trial. And in order to arrive at this conclusion the court cannot venture any further than the overarching impression emanating from the sum-total of the material provided by the prosecution itself.

There seems to be little regard to the fact that during trial, the sum total  might be poked, prodded and picked apart by the defence. Little heed to the possibility of the accused eventually being found not guilty -- after spending years in custody already!

Together, the deadly consortium of 43D(5) and Watali have been frequently employed to deny bail to many UAPA accused —  including in an Allahabad High Court order denying bail to Kappan (prior to the SC order) and a Delhi High Court order denying bail to JNU student Umar Khalid.

But this time, the apex court was having none of it. Instead, it said: 

“What this ratio (of the Watali judgment) contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it 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.”

Thereby, in carrying out the surface-analysis, the court found that that the contents of the "letters" are in the nature of hearsay evidence, no overt or covert terrorist act had been attributed to the accused duo in these letters (or any other material on record), and that the allegations of ideological propagation and recruitment don’t hold much water either. 

And so, the court concluded that there was no credible evidence of the accused committing a terror act or entering into a terror-related conspiracy. And in the absence of that how can Section 43D (5) even apply – given as it comes into play only once the T word pops up?

The Supreme Court judgment flatly refuses to accept the prosecution's submissions without its own analysis.

Why This Matters...

The judgment flatly refuses to accept the prosecution's submissions without their own analysis, snatching from its clutches a win that is usually easy. Experts are of the opinion that this judgment will also help other incarcerated UAPA accused who have been languishing for years under the shadow of the UAPA–terror charges–Watali quagmire.

However, many others have also pointed out that it comes five years too late.

“The fact is that it took five years for them to get bail," Dr Jenny Rowena, wife of jailed DU professor Hany Babu (who is also an accused in the Bhima Koregaon case), told The Quint.

“We have been brought to such a situation that we are celebrating delayed bail verdicts like these. There is nothing to celebrate in this. We should continue to question the injustice that others are still facing."

Arguably, while this bail order is a start in the direction of fundamental rights and constitutionality, which is often missed in the jurisprudence surrounding UAPA, it will only meet its true objective once Gonsalves and Ferreira are actually out of jail. And it might only serve its true purpose if future orders in such cases borrow a leaf out of these 52 pages.

Anything else is too little too late.

As his health suffered a steady decline, Fr Stan Swamy, who was also afflicted by Parkinson’s disease, had told the Bombay High Court that all he wanted was to go home.

He breathed his last in Mumbai’s Holy Family hospital, on 5 July 2021, a day before yet another bail hearing. 

(With inputs from Livelaw, Bar and Bench and The Wire.)

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