Recovering the Basics: The Supreme Court’s Bail Order in Vernon Gonsalves’ Case

Over the last decade, the bail provisions of the Unlawful Activities Prevention Act [“UAPA”] have been one of the most significant sites of constitutional struggles for personal liberty and State impunity (see here and here). A number of convergent factors (as discussed by Abhinav Sekhri in this piece) are responsible for this: the UAPA’s broadly-worded provisions (e.g. “membership” of terrorist gangs) lowers the threshold for initial arrest and custody, and the pace of the trial process means that years will pass before a final determination of guilt or innocence. In that context, bail is the only remedy that stands between an individual and a decade in jail without trial.

The Supreme Court’s notorious judgment in NIA vs Zahoor Ahmad Shah Watali (see here), by limiting the extent of scrutiny that courts could cast upon the Prosecution’s case during a bail hearing, created further challenges for individual liberty. Since it was handed down four years ago, Watali has cast a long shadow over the evolution of bail jurisprudence under the UAPA. Liberty and due process-minded judges have incrementally chipped away at Watali’s intellectual foundations, while maintaining formal consistency with precedent; on the other hand, philosophically pro-executive judges have found a ready shelter within Watali, where they can stay insulated from the task of challenging the State. The result has been a Janus-faced jurisprudence that is impossible to reconcile. On the one hand, a set of cases judgments from the Supreme Court and the High Courts that read the substantive provisions of the UAPA narrowly, and insist on the Prosecution bringing forward facts and not inferences (see “Back to the Basics“; “Staying with the Basics“; “Entrenching the Basics“; “Once again the Basics“); and on the other hand, another set of judgments that enlarge State power, and endorse incarceration on the basis of isolated facts bound together by (inferential) claims of conspiracy (see “Forgetting the Basics“, “Imprisonment by Metaphor“; “The Arup Bhuyan Review“). Indeed, so bewildering has this jurisprudence become, that the same judge has taken both these irreconcilable positions, in cases arising out of the same broad sets of facts, granting bail in one and denying it in another (see the section “The Contradictions of Justice Siddharth Mridul” in “Forgetting the Basics“).

This lengthy context is necessary to understand the significance of Vernon vs State of Maharashtra, delivered by a two-judge bench of the Supreme Court yesterday. In Vernon, the Justices Aniruddha Bose and Sudhanshu Dhulia granted bail to Vernon Gonsalves and Arun Ferreira, two of the accused in the “Elgar Parishad/Bhima Koregaon case.” While previously, a few of the Elgar Parishad detainees have secured bail from the Bombay High Court (see “Once again the Basics”) while others have had their bail applications rejected (see “Forgetting the Basics”), Vernon vs State of Maharashtra is the first instance of the Supreme Court granting bail on merits in the Bhima Koregaon set of cases. However, it is more than that: a close reading of Vernon reveals that it is a crucial contribution to the first line of cases mentioned above: it challenges State impunity, creates a modicum of breathing space for individual liberty and due process, and – perhaps for the first time – directly confronts some of the underlying premises of Watali.

The prosecution’s case against Vernon Gonsalves and Arun Ferreira followed a now-familiar pattern. Following their arrest, the National Investigation Agency [“NIA”] recovered various documents and pamphlets that – it was alleged – called for a Revolution; in addition, the Prosecution relied on statements from “protected witnesses” and third-party communication to link the accused with the banned Communist Party of India (Maoist), both with respect to membership and with respect to raising funds. In the absence of direct proof of association with the CPI-Maoist, the Prosecution narrative was completed with the allegation that the group that the accused were a part of – the Indian Association for People’s Lawyers (IAPL) was a “front” for the CPI-Maoist. Based upon this combination of facts and inferences, the Prosecution wove a narrative of a conspiracy to destabilise and overthrow the nation.

The Court’s response to the Prosecution’s version is instructive. In paragraph 15, the Court begins by noting that in an ordinary bail petition, it would not be required to scrutinise the quality of evidence; however, “in view of the restrictive provisions of Section 43D of the 1967 Act, some element of evidence-analysis becomes inevitable.” This is important, because ever since the Watali judgment, the State – and the second line of judgments discussed above – have attempted to shut the door on judicial scrutiny of evidence in a UAPA bail proceeding. As I have pointed out previously, this is akin to making the defence swim with both arms behind their back (see “Swimming with your arms tied behind your back.“) The text of 43(D)(5) already ties one arm behind the back when it statutorily bars the Court from granting bail if a prima facie case is made out on the basis of prosecution materials (recall that at this stage, the defence can neither submit exculpatory evidence of its own, nor cross-examine the prosecution). These judgments – which limit the extent to which the defence and the Court can examine even the prosecution’s (uncontradicted) materials then amount to tying the second arm behind the back, attaching dumbbells to the legs, and then shouting “swim, swim!” In that context, paragraph 15 is therefore important in that it categorically opens the door to substantive evidentiary scrutiny. This becomes important in the specifics, as we shall soon see.

Having set out the Prosecution’s evidence, the Court then proceeds to examine it. In paragraph 24, it notes: “as it would be evident from the analysis of the evidence cited by the NIA, the acts allegedly committed by the appellants can be categorised under three heads.” I want to pause here for a moment. Taxonomy – or classification – is never a neutral act. How the Court approaches the facts will determine the nature of the questions that it asks, and – thereby – the answers that it arrives at. In choosing to classify the Prosecution’s material into three distinct heads – and then proceeding to analyse each set on its own terms – the Court here rejects an approach to the case that would draw connections between these heads on the basis of inferences. As we have seen many times by now (most vividly in the Umar Khalid bail hearings), the Prosecution comes to court with a set of facts that do not individually make out a case under the UAPA; it then invites the Court to draw connections and fill in gaps using the glue of “conspiracy”: and suddenly, the whole has become more than the sum of its parts, an innocuous exchange of WhatsApp messages has become part of a sinister design to cause riots, and a speech calling for peace has become a conspiratorial dog-whistle to violence.

Paragraph 24, however, signals a decisive rejection by the Supreme Court to such a theory of the case. In the first category, the Court deals with the allegation of “association” with a terrorist gang through the alleged recovery of incriminating documents and witness statements. The Court reiterates the basic point (that a few recent judgments appear to have forgotten) that possession of literature – no matter how incendiary – is not a terrorist act (paragraph 26). With respect to funding, the Court notes that there is no evidence of money actually being transmitted, and that to by the accused, especially as many of the statements relied on have been recovered from laptops and are unsigned (paragraphs 27-28). The Court applies the same logic to the third-party communications and documents which – it notes – have at no point been recovered from the accused themselves (paragraph 29): in other words, the existing evidence against the accused is of “weak probative quality”, and therefore not enough to sustain a prima facie case under the UAPA. As the Court repeatedly points out – and this is important – even taken at the highest, none of the materials reveal any commission – or intent to commit – an actual terrorist act. (paragraph 29)

But what of the accusation of “membership” through association? Here, the Court was faced with something of a challenge, as the recent Arup Bhuyan review judgment had seemingly overturned the position that “membership” under the UAPA requires “active membership”, i.e. “incitement to violence.” The Court deals with this by holding, in paragraph 34, that the UAPA nonetheless the Prosecution to:

… facie establish their association with intention to further the said organisation’s terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision.

This is important, as the Court here brings back “a measure of fairness” (in Sekhri’s words) into the provisions of the UAPA, which the Arup Bhuyan review judgment had abandoned. Indeed, in his analysis of Arup Bhuyan (Review), Sekhri ended on a note of (bleak) hope, observing that the Court “limits its observations to membership of the ‘unlawful’ organisation under Section 10 of the UAPA and not those clauses that pertain to membership of terrorist organisations, where the arguments of mens rea would still be available.” Sekhri warned that this was a “mightily optimistic reading”, but in Vernon, this optimism appears to have been justified, as the Court has indeed read back in the mens rea requirement – and a requirement of specificity – in the context of terrorist offences and membership of terrorist organisations under the UAPA. Indeed, as the Court reminds us – another salutary warning that has been ignored too often of late – “when the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act.” (paragraph 35)

This approach informs that Court’s understanding of Watali itself. In paragraph 36, after noting Watali, the Court goes back to a review of the evidence against the accused, and holds that not only is there no allegation of any overt act or offence, on an analysis of the “quality and probative value” of the evidence, what emerges is that the “letters” on the basis of which the applicants are sought to be implicated are in the nature of hearsay. This seemingly innocuous observation is, however, crucial, because after Watali, courts have frequently taken otherwise inadmissible hearsay evidence as the basis for endorsing the Prosecution’s prima facie case and denying bail. Indeed, denial of bail to Umar Khalid (for example) was based in significant part on hearsay evidence (see “Stenographer for the Prosecution“). This is something that I have never quite understood: while it may be one thing to say that the Court can’t look too deeply into the quality of evidence, how can it be that evidence that is statutorily barred from being considered against an accused during the trial (such as hearsay) could nonetheless be relied upon to deny the accused liberty at the stage of bail? When I put this question to my criminal lawyer friends on reading the Umar Khalid trial court bail judgment, they smiled ruefully and said “Watali.” One can only hope that after today’s judgment, in future bail cases, trial courts will not need to ruefully say “Watali” and deny bail (at least on the basis of hearsay evidence!).

As a final point, the Court relies upon the judgment in K.A. Najeeb to note that, at the time of the judgment, the accused have spent almost five years in jail, something that raises serious Article 21 concerns. The Court clarifies that one need not have spent more than half the total sentence in jail before Article 21 concerns kick in (an absurd proposition that too many judgments have given credence to); but rather, the lapse of time is an objective factor to be considered under Article 21 (paras 42 – 43). On a combination of these factors, then, the Supreme Court grants bail to Vernon Gonsalves and Arun Ferreira.

In my previous analysis of the “liberty-oriented” line of UAPA judgments, I have noted that these judgments set out two important principles to be followed in considering bail under UAPA:

Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction. This was what the Delhi High Court did with respect to the meaning of “terrorism” in Asif Iqbal Tanha, what the Bombay High Court did with respect to Section 20 of the UAPA in Iqbal Ahmed Kabir Ahmed, and what the Supreme Court did in Thwaha Faisal.

Principle 2: The allegations in the chargesheet must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.

The judgment in Vernon Gonsalves affirms both principles, and adds a third:

Principle 3: Bail cannot be denied when the Prosecution’s evidence is of “low quality or low probative value”, and a Court must engage in an analysis of the evidence to determine that.

If applied properly in the future, this is a vital third safeguard that will help to undo a significant amount of the damage done to constitutional principles and due process by Watali. As always, the proof of the pudding will be in the eating.

A final point: while the Supreme Court’s judgment is welcome, it must be remembered that it took us five years to get here, during which time two separate courts rejected the bail applications of the accused, looking at the same evidence that the Supreme Court found to be completely unconvincing. This is become something of an unfortunate trend: as we have seen recently in Teesta Setalvad’s case, trial courts and High Courts all too frequently and reflexively deny bail and keep people in jail without trial, with the Supreme Court ultimately having to intervene and put things right. This is unsustainable: not only does it mean that people spend years in jail without trial until the case finally winds its way to the highest Court, but it also puts an unfair degree of pressure upon the Supreme Court to “get it right.” One can only hope that at least after today’s judgment, trial courts and High Courts will feel less constrained in granting bail under the UAPA. After all, as Sekhri wrote after the Arup Bhuyan review, “what is left if even hope is lost?”