New Delhi: It took five-full years of incarceration and several rejections of bail applications before both the trial court and the high court before the Supreme Court finally could notice that the country’s premier investigating agency, the National Investigations Agency (NIA), has shown no evidence to keep two men in their custody.
The Supreme Court on Friday, July 28, in a detailed 54-page bail order observed that human rights defenders Vernon Gonsalves and Arun Ferriera were both held in jail even when “no material has been demonstrated by the NIA before us that the appellants are members of the terrorist organisation”.
This is a significant observation coming from the top court of the country in a case where 16 human rights defenders and academics have suffered prolonged incarceration under highly questionable claims. The Elgar Parishad case, registered by the Pune police in 2018, when Devendra Fadnavis was Maharashtra’s chief minister and later handed over to the NIA soon after the BJP government fell in the state in 2020, has raised several pertinent questions about the credibility of the police’s claims.
Gonsalves and Ferriera have been in custody since August 2018. The prosecution has charged the two, like the 14 others in the case, under the draconian Unlawful Activities (Prevention) Act (UAPA). According to the chargesheet filed by the Pune police and later adopted by the NIA, Gonsalves and Ferriera had allegedly played an important role in “recruiting” young people into the banned CPI (Maoist) organisation. Ferriera, in addition to this, had allegedly handled the funds related to the organisation’s activities, more specifically, in the urban regions – which the prosecution terms as “Urban Naxal (-ism)”.
NIA contentions and Supreme Court’s observations
The division bench of Justices Aniruddha Bose and Sudhanshu Dhulia has, however, seen through the prosecution’s claims. The bail order breaks down the NIA’s contention mainly into three parts.
“The first is their association with a terrorist organisation which the prosecution claims from the letters and witness statements… But what we must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused,” the court points out.
The second head, the court states, is of the alleged offensive acts of keeping literature propagating violence and promoting overthrowing of a democratically elected government through armed struggle. “But again,” the court states, “it is not the NIA’s case that either of the two appellants is the author of the materials found from their residences, as alleged. None of these literatures has been specifically proscribed so as to constitute an offence, just by keeping them.”
Thirdly, pointing to the prosecution’s claim made against Ferriera of alleged handling of finances, the apex court has observed that, “But such finances, as per the materials through which the dealings are sought to be established, show that the transaction was mainly for the purpose of litigation on behalf of, it appears to us, detained party persons.”
The Supreme Court says, at the time of rejecting their bail applications, the high court had not “opined that there were reasonable grounds for believing that the accusations against such persons were not prima facie true”.
In the past years, the state government has termed several human rights and cultural outfits as a frontal organisation of the banned Maoist groups. In February, The Wire had reported about a report by a state Deputy Inspector General of Police (DIGP) terming as many as 15 organisations as frontal outfits. Among them is the Indian Association of Peoples Lawyers (IAPL), which also finds a mention in the Elgar Parishad chargesheet. The organisation, as the name suggests, is a loose network of lawyers working on issues relating to human rights violation across the country. The organisation, in 2021, was added to the list of “enemies” as mentioned under the Union home ministry’s “Union War Book”.
The Supreme Court makes a few pertinent observations about the organisation. Ferriera, a lawyer by profession, is accused of being a part of the IAPL. To this, the court says, “AF’s (Ferriera’s) involvement with IAPL as a frontal organisation of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the chargesheet as well. But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material.” The judges have gone to the extent of giving a clean chit to IAPL by saying, “There is no reliable evidence to link IAPL with CPI (Maoist) as its frontal organisation.”
Similarly, the NIA accused both Ferriera and Gonsalves of being a member of the CPI (Maoist). This allegation is based on the statements made by the protected witness (mentioned in the chargesheet). The Supreme Court, however, has pointed to the link that, the NIA claims, was made in relation to events between the years 2002-2007. This, the court points out, was “before the organisation was included in the First Schedule to the (UAPA) 1967 Act”. “No evidence of continued membership after the party was classified as a terrorist organisation has been brought to our notice,” the court says.
The NIA, along with witnesses, has based its allegations on the letters and electronic evidence it claims to have recovered from other arrested persons in the case. These letters purportedly point to both Gonsalves and Ferriera’s role in the Radical Student Union Initiative, among other “unlawful activities”. The letters, however, have been shown recovered from the co-accused and not the duo. “What we must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused.”
Before Gonsalves and Ferriera, only three others – poet and writer Varavara Rao, trade union activist and academic Sudha Bharadwaj and civil liberties activist and academic Anand Teltumbde – were released on bail. Among the three, only Teltumbde’s bail was decided on the merit of the case. Bharadwaj’s was a “default bail” and Rao was granted a medical bail.
The Supreme Court relies on the bail order by the Bombay high court in Teltumbde’s case. Teltumbde, who was released on bail in November last year, was also accused of “raising funds” for work that the NIA considers to be a terrorist act. The NIA claimed that Teltumbde received Rs 90,000 from his co-accused and foremost rights lawyer from Nagpur, Surendra Gadling.
This money, according to the NIA, was routed through Maoist leader Milind Teltumbde. Milind, also a younger brother of Anand, was killed in police firing last year. The high court has already found a “fallacy in the argument of the NIA”. The high court, in the bail order, had raised questions over the credibility of the NIA’s claims and the Supreme Court too has relied on the high court’s reasonings.