Bhima Koregaon bail curbs State impunity

In a judgment delivered last week, a two-judge bench of the Supreme Court (SC) granted bail to Vernon Gonsalves and Arun Ferreira, two of the accused in what is popularly known as the Bhima Koregaon case, connected to the 2018 violence in Maharashtra that killed one person and sparked widespread backlash.

The verdict is significant, not only because Gonsalves and Ferreira spent almost five years in jail without a trial, but also because it represents one of the rare occasions when the SC has attempted to infuse an element of due process into the provisions of the Unlawful Activities (Prevention) Act (UAPA).

Put very simply, UAPA prohibits a judge from granting bail if, on the basis of material provided by the prosecution, the court is convinced that there are reasonable grounds for believing that the accusation against such a person is prima facie true. What this means, in simple language, is that at the time of a bail hearing, a court has only one version of the facts before it — the prosecution’s (or the police’s). At this point, the defence cannot cross-examine witnesses or lead its own evidence. According to UAPA, if — on the basis of this one-sided version — it appears that a threshold case against the accused is made out, then bail cannot be granted.

If this feels like it makes the defence fight with one arm tied behind its back, the apex court – in previous judgments – has attempted to tie the other arm as well. In a notorious judgment in 2019 called National Investigation Agency vs Zahoor Shah Watali, the top court held that at the time of bail, even this one-sided version could not be subjected to detailed or searching scrutiny. In the words of the criminal legal scholar Abhinav Sekhri, this led to an eyes-wide-shut approach by many courts in UAPA cases, where the police version is treated as gospel, and bail is accordingly denied.

This has been the fate of many other accused in the Bhima Koregaon case, and also in the 2020 Delhi riots cases, where the bail applications of individuals such as Umar Khalid have been denied by courts simply reciting the prosecution’s case, and even taking into account material – such as hearsay evidence – that is explicitly barred from consideration during a trial.

And, because of the long time that criminal trials in India invariably take, this approach essentially sentences people to years in jail without any proof of guilt, and only upon an accusation.

It is in this context that the apex court’s order in the Vernon Gonsalves case marks an important judicial push-back against State impunity. The court correctly noted that the very nature of the bail provisions under UAPA requires courts to engage in an analysis of the evidence provided by the police — both in terms of its quality, and in terms of its probative value. The court was careful to note that the more stringent the law, the more important it is to adhere to the principles of due process. Applying these principles to the facts before it, the court found that the evidence produced by the prosecution against Vernon Gonsalves and Arun Ferreira is of extremely low quality. At most, the two-judge bench noted, the pair were found to be in possession of revolutionary literature, which – the court stressed — is not a crime.

Other kinds of evidence against the pair involved letters written by third parties referencing their involvement with a banned outfit (which, the court correctly apprised, was hearsay), and membership of that outfit (which, the court noted, was insufficient without demonstrating an intent on the part of the accused to further the activities of that outfit).

Importantly, the court rejected the prosecution’s attempts to fill in the gaps in its case through vague allegations of conspiracy and refused to give credence to these charges without the existence of specific and particular facts.

Although some of the bail conditions set by the court – such as requiring Gonsalves and Ferreira to pair their phones with the police investigator, and keep their location on at all times — raise concerns around privacy, on its merits, this judgment strikes a few important blows against rampant State impunity under UAPA.

Objectively, the top court has only reiterated some basic principles of due process and fairness in investigations; but what makes the judgment important is not what it says per se, but that in so many other cases, so many other courts — from the trial court and the high court, to even the apex court itself – have repeatedly abandoned these principles, and looked the other way when individuals have knocked on their doors in pursuit of their constitutional rights.

The Supreme Court’s judgment is thus the flickering of light in the dark tunnel of UAPA, and now it is the task of other courts to illuminate the path forward.

Gautam Bhatia is a Delhi-based advocate. The views expressed are personal