Mumbai: After keeping Shoma Sen, a former professor at Nagpur University, in prison for close to six years, the National Investigation Agency (NIA) has now stated that they no longer need her custody. The agency, having completed investigation in the Elgar Parishad case, has already filed the chargesheet. But all along, and as recently as in December 2023, the agency had vehemently opposed her bail application both in the lower court and the Supreme Court.
Additional Solicitor General K.M. Nataraj, representing the NIA, made the statement after a bench of Justices Aniruddha Bose and Augustine George Masih questioned him on whether Sen’s continued detention was necessary. Nataraj’s statement was surprising given the fact that he, on the agency’s instruction, was opposing Sen’s application all along.
Sixty-five-year-old Sen, who suffers with hypertension and arthritis among other ailments, has moved bail applications before the trial court and the apex court on several occasions. Her bail application, however, came to be rejected each time.
Sen was among the first six human rights defenders and academics to be arrested in the Elgar Parishad case on June 6, 2018. Since then, Sen has continued to be in jail – first in Pune’s Yerwada prison and then in women’s prison in Byculla. Sudhar Bharadwaj, a lawyer and academic who was earlier arrested and now on bail, in her recently published book From Phansi Yard: My Year with the Women of Yerawada, gives a detailed description of the prison cell that she and Sen were made to live in while in Pune. Sen, like Bharadwaj, was kept in solitary confinement while in Pune and not allowed to mingle or converse with other prisoners.
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Among the 16 persons arrested in the case, five persons – Varavara Rao, Bharadwaj, Anand Teltumbde, Vernon Gonsalves and Arun Ferreira – have already been granted bail after many years of incarceration. Their co-accused Father Stan Swamy, an 84-year-old Jesuit priest, died in judicial custody in July 2021. Others who are still languishing in prison include Jyoti Jagtap, Sagar Gorkhe, Ramesh Gaichor, Mahesh Raut, Surendra Gadling, Sudhir Dhawale, Rona Wilson and Hany Babu.
Sen, represented by senior advocate Anand Grover, had moved the apex court on the grounds that there is no prima facie evidence against her or to show her association with the banned CPI (Maoist) outfit. Grover further argued that the material recovered from the electronic seizures carried out at her Nagpur residence were “planted”. Grover emphasised on both the lack of evidence and her health issues for grant of bail. Grover drew parallels with her co-accused Gonsalves’ case, who is already out on bail. “Mere holding of certain literature through which violent acts may be propagated would not ipso facto attract provisions of section 15 (1)(b) of the UAPA as observed in Vernon’s case,” Grover had argued.
The order in Sen’s application has been reserved for further hearing. “Heard the counsel for the parties. Arguments concluded. Judgment reserved,” the bench said. Sen had applied for bail close to a year ago. Since her bail application was heard, the court has not taken up applications filed by other accused in the same case. Jagtap, Gadling and Hany Babu’s applications are pending before the apex court for around the same time and are yet to come up for hearing.
The delay in deciding their applications, even when the NIA now, by its own admission, doesn’t require further custody, is only causing further incarceration of these human rights defenders. The apex court has from time to time has spoken of the need to dispose of bail applications speedily. As recently as in 2022, the top court had laid down that courts must decide bail applications within two weeks of filing and asked the government to consider enacting a separate legislation to deal with bail. However, similar promptness was not shown by the court in handling the bail applications filed by those facing prolonged incarceration in the Elgar Parishad case.
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Only after the court decides on Sen’s bail application, will it start hearing other pending applications in the case.
Earlier this month, the Maharashtra government faced a major setback in another similar case of false allegations against former Delhi University professor G.N. Saibaba and five others, who after facing 10 years of incarceration were finally acquitted by the Bombay high court. The NIA has claimed to have relied on Saibaba’s case during the investigation in the Elgar Parishad case.
