New Delhi: It’s been 48 days since advocate Sudha Bharadwaj, one of 11 activists arrested in connection with the 2018 Bhima-Koregaon violence in Pune, approached the Bombay High Court for bail on medical grounds.
A patient of diabetes who also has a heart condition, Bharadwaj, 59, applied for bail after a fellow woman prisoner at the Byculla jail, Mumbai, tested positive for Covid-19.
Her lawyers have pointed to her condition, and the fact that the comorbidities make her more vulnerable to Covid-related complications, to seek an urgent hearing. But it has all been in vain.
Since she filed it on 10 June, her bail petition has been listed for hearing nine times. On five of these occasions, the petition was not heard at all because the court hours were up before its chance came.
At the most recent hearing, on 28 July, the court asked the NIA, which is investigating the case, to present a written response to the petition and deferred the case to 4 August.
This demand came as a surprise to Bharadwaj’s legal team because the NIA had already submitted its response, opposing bail, after an earlier request from the court.
In an affidavit filed a month ago, the agency said the charges against Bharadwaj are serious, and she does not merit bail. It also accused her of taking undue advantage of the pandemic.
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Legal experts acknowledge that the charges against Bharadwaj make bail difficult, but say her petition warrants an urgent hearing as it invokes medical grounds. Some have described the delay as “appalling”, noting that Indian law prioritises bail over jail for undertrials.
Meanwhile, for Bharadwaj, who has already spent 700 days in jail since her arrest in 2018, the wait for bail continues, until 4 August at least.
The Elgar Parishad case
Bharadwaj and her 10 co-accused face stringent anti-terror charges under the Unlawful Activities (Prevention) Act, 1957 (UAPA). She is alleged to be a member of the banned CPI (Maoist), a charge Bharadwaj has denied.
The FIR against her also invokes sections of the Indian Penal Code that deal with non-bailable provisions — sedition, promoting enmity between different religious groups religion, race, place of birth, residence, language, waging war against the country, and inciting riots.
The Bhima Koregaon case stems from the Elgar Parishad, an event held in Pune district on 31 December 2017 to mark the 200th anniversary of a battle where Dalits, fighting for the British, defeated a much larger Maratha army. The event triggered local caste-based tensions and large-scale violence ensued, which killed one person and even singed Mumbai.
A local businessman, Tushar Ramesh Damgude, subsequently filed a complaint with Pune police, blaming the banned Communist Party of India (Maoist) or Naxalites for the violence and citing speeches and performances made at the programme. He claimed to have attended the programme after learning about it from a social networking site.
Bharadwaj was never named in the FIR registered by Pune police. Her alleged role came under the scanner following nationwide raids in April 2018, when the state was led by a BJP government.
She was accused of mobilising cadres for Naxals and arranging funds for the CPI (Maoist). These allegations were based on emails retrieved from a computer of a co-accused, which Bharadwaj has disputed.
The Pune police filed two charge sheets in the case, but the NIA took over the probe in January this year, two months after the Shiv Sena-NCP-Congress combine formed a new government in Maharashtra.
In their bail petition, Bharadwaj’s lawyers have noted that the National Law University Delhi professor is diabetic and suffers from a heart condition. They first approached a special NIA court on 19 May, but the plea was rejected on 29 May because, according to the judge, Bharadwaj was receiving adequate medical care in Byculla jail.
Nine hearings, no outcome
Bharadwaj filed her plea in the Bombay High Court on 10 June. A perusal of court orders since reveals that there has either been no hearing at all, or been adjourned to further dates.
Between 10 June and 28 July, when the case was last heard, the case was listed nine times.
On 23 June, the first date, the matter got adjourned to 26 June, after the NIA took time to file its reply to the petition. Although the agency’s affidavit was subsequently presented before the judges, the matter was adjourned on the next three dates too — 26 June, 30 June and 3 July — because the court’s time was up.
“It always showed on the list but never made it to a hearing due to lack of time,” a lawyer from Bharadwaj’s legal team told ThePrint.
Finally, on 10 July, a brief hearing happened, but the case was again adjourned after the judges issued verbal instructions to the NIA counsel to find out about the conditions at Byculla jail.
On the sixth date, 17 July, the matter was again not called up. On the next date, 20 July, the matter did not proceed further because the medical report submitted by the NIA counsel — prepared by the medical officer of Byculla jail, and confirming that Bharadwaj has diabetes mellitus, Ischemic disease and osteoarthritis — was found to be ineligible because it was handwritten.
The NIA was given three days to file a typed copy of the medical report. However, on the next hearing date, on 23 July, the case could not be taken up again. The next hearing was fixed for 28 July.
On Tuesday, a bench of justices R.D. Dhanuka and V.G. Bisht deferred the hearing to 4 August. The matter was listed at number 54, which was at the end of the board, but the bail petition was called out.
The judges made no reference to the medical report, and instead granted the NIA another chance to respond to Bharadwaj’s plea and place legal precedents on which it wants to rely upon in support of its stand.
As stated before, the direction left Bharadwaj’s lawyers puzzled since the NIA had already opposed her bail application in writing.
Speaking to ThePrint, legal experts said the UAPA lays down strict conditions for bail that require a court to come to a “prima facie” conclusion that the accused is innocent.
But since Bharadwaj has asked for bail on medical grounds, experts insist she should be heard without delay.
Senior Supreme Court advocate Sanjay Hegde described the delay in Bharadwaj’s case as appalling. “The law for undertrials is bail not jail. However, when even hearing of medical bail gets delayed, it effectively amounts to a denial of basic human liberty. If police excess is not checked by the judiciary, the descent into a police state becomes inevitable,” he said.
Senior advocate Ajit Kumar Sinha said Bharadwaj cannot be left to languish in jail in such times. “Either way, the court must decide her bail petition,” he added.
In its affidavit opposing Bharadwaj’s plea, the NIA has quoted the Pune police chargesheet to highlight her alleged complicity and role in the Bhima-Koregaon case. Six months after it took over the probe, the agency has not been able to furnish fresh evidence against her.
However, experts say the arrest of co-accused Gautam Navlakha and Anand Teltumbde in April this year has given the NIA an opportunity to oppose her release on the ground that the investigation in the case is still in progress.
Advocate Gyanant Singh said the transfer of the probe to the NIA makes the prospect of early regular bail for Bharadwaj “bleak” . “Now, the discretion is with the central agency. They can delay chances of her release, saying the investigation is at a crucial stage,” he added.
Advocate Yug Chaudhary, who represents Bharadwaj, refused to comment. “Since my client is involved in this case, I don’t want to say anything about how the matter is being dealt with by the court since my client’s chances may get prejudiced.”
Bharadwaj had approached the Bombay High Court for bail last year as well, but it was rejected even as Chaudhary sought to highlight her past record, work for tribals and marginalised sections.
Chaudhary had argued that the documents produced by the NIA could not be relied upon as primary evidence because they were not generated in the devices from where they were retrieved, and the author was unknown.
The court held that the question of whether such a form of document is admissible can be decided only at the stage of trial. However, on the basis of the same documents, it said, “prima facie”, Bharadwaj’s role cannot be ruled out in the Bhima-Koregaon violence.
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