PUDR expresses relief at the Supreme Court’s granting of bail to Prof. Shoma Sen on April 5, after nearly six long years of pre-trial incarceration. Charged under the Unlawful Activities (Prevention) Act in the infamous Bhima Koregaon (BK) conspiracy case, Shoma Sen is the fourth accused to be released on ‘bail on merits’ by the Supreme Court, after Anand Teltumbde, Vernon Gonsalves, and Arun Ferreira. Extending the line of reasoning pursued in the granting of bail to other co-accused, the Court ruled that on perusal of the material brought before it, there was no prima facie evidence against Sen for commission or attempt to commit any terrorist act, for lending support to terrorist funding, or for membership of a banned organization (paras 30, 31, 33). Two others, Gautam Navlakha and Mahesh Raut, had also been granted bail on merits by the Bombay High Court which similarly ruled that despite the voluminous nature of the charge sheet, which runs into 20,000 pages, there wasn’t sufficient evidence to suggest their prima facie involvement in any terrorist activities. Significantly, the three Arsenal reports which unraveled the planting of evidence through malware in the electronic devices of the accused, and leaked databases which showed Pegasus spyware attack on the phone numbers of eight BK accused, and finally a series of bail orders on merits which reiterate that there is no evidentiary basis to the charges framed against the accused, point to the fabricated nature of the conspiracy. The reliefs, however, have been few and far in between as bail has been granted to only some after years of custody. Besides the continuing custody of several others who have been implicated in this case, it cannot be forgotten that the octogenarian Stan Swamy died for want of proper medical treatment as a pre-trial detainee.
In a scenario where cases of UAPA are registered routinely and the pendency rate of disposal of cases is increasingly high – 1005 new cases registered in 2022, 80% pendency rate of police disposal and 89% pendency rate of court disposal, as per the latest NCRB statistics – the current judgment granting bail to Shoma Sen makes two important points. First, it reiterates that courts have an obligation to guarantee constitutional protections to the accused. The delay in framing of charges and trial, and consequent period of pre-trial detention are grounds that courts cannot ignore. Second, it specifies that for an offence of terrorist activity under UAPA, there must be cogent material to connect the accused to acts committed with the intent to strike terror in people, individually or via terrorist associations. Mere meeting with “accused individuals or being connected with them through any medium” cannot be read as an offence under UAPA (para 35). This is an important reminder to the executive entrusted with the use of law.
At present, six of the BK accused have been released on bail while nine others continue to be in custody since the first round of arrests carried out in June 2018. Of these, the release of Gautam Navlakha and Mahesh Raut was stayed in spite the grant of bail by Bombay HC till such time as the NIA’s appeal against the grant is disposed by the Supreme Court. Raut was granted bail on 21 September 2023 and Navlakha on 19 December 2023. PUDR reiterates that while relief has come to Shoma Sen after inordinate delay, the bail appeals of the co-accused must be heard urgently, and that their petitions must be placed on par with those who have been released on bail.
PUDR urges the apex court to also deliberate on the conditions of bail which come at the cost of serious breach of liberty of movement and privacy, evident in the severe restrictions and personal surveillance imposed in the bail orders of Vernon Gonsalves, Arun Ferreira, and now in Shoma Sen’s. It needs to be reiterated that relief from custody cannot not be replaced by another regime of discriminatory restrictions which compromise fundamental liberties.
Joseph Mathai and Paramjeet Singh
Secretaries, PUDR
pudr@pudr.org
