Unwilling to Give Delhi High Court Details of Navlakha's 'Hasty Transfer', NIA Gets SC Stay

After failing to raise jurisdictional issues earlier and undertaking to submit an affidavit on its handling of the matter, the government now says a single judge of the Delhi high court has no locus to hear a plea for interim bail under the NIA Act.

New Delhi: In a move that pits one constitutional court against another, the National Investigation Agency on Tuesday chose to rush to the Supreme Court for a stay rather than comply with an order by Justice Anup Bhambhani of the Delhi high court asking for the complete record of the process it had followed in moving Gautam Navlakha to Mumbai in a “frantic hurry”.

The noted civil liberties activist was put on a train for Mumbai at five minutes notice on May 25, even as his interim bail application was still pending before the high court.

In an ex-parte hearing by a bench headed by Justice Arun Mishra, the apex court on June 2 stayed the high court’s proceedings and said it would hear the NIA’s plea that the Delhi high court lacked jurisdiction in the matter in mid-June.

Navlakha’s lawyers were not served with a copy of the NIA’s special leave petition, which appears to have been listed by the Supreme Court’s registry in record time.

Accused by the NIA of involvement in the Bhima Koregaon case, Navlakha was taken into custody by the agency in Delhi on April 14 under the draconian Unlawful Activities (Prevention) Act. Though the NIA’s Mumbai office is conducting the investigation, the COVID-19 pandemic and ensuing lockdown meant Navlakha’s transfer to that city – expected in due course – was put on hold and he was instead remanded to Tihar Jail in the national capital as a temporary but indefinite arrangement.

Last month, citing the raging coronavirus cases in Mumbai, including in its prisons, and the 68-year-old Navlakha’s medical condition and co-morbidities, his lawyers moved the Delhi high court for interim bail. Though the UAPA and the NIA Act normally require all bail matters to be heard by the designated special court, the high court was the only forum available as the NIA courts in Delhi were not functioning and even Navlakha’s remand had been handled by a regular court.

NIA had accepted HC jurisdiction

At the first hearing for interim bail on May 22, the NIA did not challenge the jurisdiction of the single-judge high court bench for the grant of interim bail but sought time to furnish a reply, which was duly given and the next hearing was set for May 27. The judge noted that the NIA had observed it “plans to transfer the accused to Mumbai, step for which is likely to be taken soon in view of opening up of the air travel,” but added that he had been assured this would be done “after obtaining necessary orders from the competent court”.

On May 25, however, the NIA took Navlakha to Mumbai by train and secured his judicial remand from an NIA court there the next day. Since then, he was been held at Taloja jail at the eastern end of the city.

Irked by what it described as the NIA’s “unseemly haste” in “whisking away” Navlakha, the Delhi high court on May 27 demanded that the agency produce the complete record of his transfer and not just the production warrant it secured from the NIA court in Mumbai and the transfer order granted by the NIA court in Delhi. The missing documentation includes the NIA’s application for the production warrant and the description, if any, the agency provided the NIA courts of Navlakha’s medical condition.

The issue at stake is whether the ‘competent court’ which allowed Navlakha to be moved from Delhi at the time of a raging epidemic had all the facts at its disposal, and whether the NIA – as Navlakha’s counsel suggested – had suppressed from it any relevant information, such as the prisoner’s medical condition.

The high court set June 3 for compliance with its order but on June 2, the NIA, represented by solicitor general Tushar Mehta, secured a stay on those proceedings from Justice Arun Mishra’s Supreme Court bench.

The Supreme Court’s stay order has raised eyebrows in the legal fraternity given the high court’s territorial jurisdiction over subordinate courts in Delhi.

“Under the Indian constitution, high courts are constitutional courts and while challenges to high court orders lie in the Supreme Court, each court occupies a status and the high courts are not in any way inferior to the Supreme Court,” a senior advocate told The Wire, requesting that his name be withheld. “What this hasty challenge in the Supreme Court brings out is a concern that constitutional courts which have both judicial and administrative power over authorities within their jurisdiction – including courts subordinate to the high court – ought not to be restrained from inquiring into the propriety of the action of a subordinate court,” he added. “If that is to be done, then the high courts are liable to lose the confidence they enjoy, especially when all that [Justice Bhambhani was trying to do] is enquire into the manner in which an agency of the government has conducted itself  – which is well within the jurisdiction of the high court.”

High-powered committee bail recommendations

Navlakha’s lawyers contend that the reason inter-state traffic had been suspended during the lockdown was due to the immense risk on account of COVID-19 and that even after such travel was allowed, his medical condition needed to be taken into account before any transfer was made.

Though UAPA under-trials are not entitled to regular bail,  the Supreme Court and Bombay high court had constituted committees to recommend the decongestion of jails to combat the spread of COVID.  Indeed, the high-powered committee set up by the Bombay high court categorically said that even those held under UAPA would be entitled to move for interim bail  if they were over 60 or had medical conditions rendering them more vulnerable.

As a 68-year-old patient of hypertension and other ailments, Navlakha fit the bill.  Since he could not move the special NIA court in Mumbai as he was confined in the capital and had been remanded by a non-NIA Court in Delhi, he moved the high court for bail under the ordinary provisions of the CrPC, which were the only provisions applicable and accessible to him in the circumstances.

Faced with the prospect of Navlakha securing interim bail, the NIA moved quickly to remove him from the Delhi high court’s jurisdiction.

Hasty transfer

On May 24, 2020 – a Sunday – the NIA special court in Navi Mumbai was approached and a warrant  secured, directing Navlakha’s production before the court on May 26. Between  Sunday afternoon and Monday morning – Monday being a gazetted holiday for Eid – the NIA and the Tihar jail superintendent processed and secured on email, without informing Navlakha or his lawyers, permission from a Delhi NIA court for his shift to Mumbai.

Navlakha was then given five minutes to pack and bundled into a Mumbai-bound train on Monday, May 25. It was only after he reached Mumbai and was safely remanded that his family was informed by the investigating officer that Navlakha had already been shifted. When Navlakha’s partner was able to speak to him subsequently, she learned that his BP had shot up to 200/100.

Interestingly, the status report on Navlakha’s medical condition filed by the Tihar jail authorities in the Delhi high court on May 26 2020 recorded his blood pressure at 146/95 (while under medication and therefore abnormal), thus confirming his own submission in his interim bail plea. The jail also found it advisable to keep Navlakha in an isolated ward, presumably to minimise the risk to him of contracting COVID.

At the May 27 hearing, Navlakha’s counsel asked whether the NIA courts in Mumbai and Delhi which sanctioned his transfer had been apprised of these facts, prompting the high court to requisition the full record from the NIA.

Violation of jail manual

The fact that Tihar jail and Taloja prison, where Navlakha has been held in Mumbai, have both seen  COVID-19 cases, suggests his transfer may also have been a violation of the Delhi Jail Manual, section 680 of which states:

“Prisoners shall not be transferred while cholera or any other epidemic disease is present in either the transferring or the receiving prison. Transfer along a route where cholera or any other epidemic is prevalent, shall also be avoided as far as possible.” (emphasis added)

When the matter came up on May 27, the high court asked the NIA’s IO to clarify what the great haste was to shift Navlakha to Mumbai before the court could consider his plea for interim bail.

At that hearing, as indeed in the counter-affidavit the NIA submitted on May 26, the agency as represented first by SG Tushar Mehta and then ASG Aman Lekhi, raised no objection to the Delhi high court’s jurisdiction. Nor would they have had grounds to object, as Navlakha was in a Delhi jail, by virtue of remand orders passed by a Delhi sessions court, and the regime following a special court which could try the offence under the NIA Act after taking his custody was yet to kick in.

As late as May 27, in fact, the SG undertook to file an affidavit to allay the high court’s doubts about the “whisking away” of Navlakha. The NIA’s sudden challenge to the court’s jurisdiction is evidently an afterthought.

That there was no urgency at all is evident from the fact that there were no proceedings before the special court in Mumbai for which he needed to be rushed, that too in a cloak and dagger manner.