On Tuesday, May 14, the Supreme Court finally refused to continue enabling the prolonged incarceration of septuagenarian activist and journalist Gautam Navlakha.
Noting that the trial would take “years and years and years for its completion,” the Supreme Court refused to extend its stay on the Bombay high court’s order granting bail to Navlakha. But the apex court only arrived at their decision — “no need for extending the interim order of stay,” it said — after Navlakha had already suffered over four years of incarceration. This includes a period of four months after the Bombay high court had already found that there was no material to implicate him under terrorism-related charges.
Gautam Navlakha and 15 others have been booked under India’s stringent anti-terror law (the Unlawful Activities Prevention Act or UAPA), in connection with the Elgar Parishad case. The case by itself has garnered international infamy as a “bellwether” for the collapse of Indian democracy.
In an extensively-researched book, LSE’s Alpa Shah writes about how malware was reportedly employed and evidence appears to have been deliberately implanted in a seeming bid to incarcerate 16 human rights activists, lawyers and professors in India. One of the 16 accused, an octogenarian priest and activist, Father Stan Swamy died as an incarcerated under-trial in 2021. After his death, the Bombay high court noted that he was a “wonderful” person. Still, Father Swamy was not allowed bail in his lifetime. Therefore, the end of Gautam Navlakha’s incarceration must come as a relief for his family and friends, as well as for all who are alarmed by the manner in which this case has unraveled.
The end of Navlakha’s ordeal, however, is by no stretch of imagination an end to the Elgar Parishad case. The trial is yet to begin and is expected to uncoil over several years – “375 witnesses,” the top court noted. And many of Navlakha’s co-accused continue to languish behind bars, their lives caught up in procedural limbo or in the State’s attempts to thwart their release.
Tribal-rights activist Mahesh Raut, completed over 2,169 days in jail on May 14, even though the Bombay high court has already found that there is no prima facie evidence against him that warrants his continued incarceration. He was granted bail by the Bombay high court in September last year, but the order was subsequently stayed, at the NIA’s behest. The matter is, at present, awaiting progress in the apex court, where as per a media report from April, it has already come up for hearing 10 times. But the NIA’s appeal continues to gather dust, and the activist continues to await liberty.
Meanwhile, earlier this month, Delhi University professor Hany Babu withdrew his bail plea from the Supreme Court citing “a change in circumstance”. Notably, Babu is among at least four other petitioners, who have reportedly withdrawn their pleas after they were placed before a bench of Justices Bela Trivedi and Pankaj Mittal. Incidentally, neither Justice Trivedi nor Justice Mittal were previously hearing Babu’s appeal. It was earlier listed before Justices Aniruddha Bose and Sanjay Karol. However, after Justice Bose retired, instead of remaining with Justice Karol, the case ended up on a bench headed by Justice Trivedi. Not only does this change of both judges hearing the matter appear unusual, a handbook published by the Supreme Court in 2017 prescribes that if one of the judges on a division bench retires, the matter being heard should ideally go to a bench with the other judge.
Meanwhile, former Supreme Court Justice Madan Lokur also told this reporter: “The practice earlier was that if there are two judges on a bench, and one of them retires, then it goes to a bench in which the other judge is a member. But that practice seems to have been given up. I wonder why. There is no reason to change that practice, or for cases to randomly be assigned before a new bench.”
While we do not know the exact reason for why Justice Karol could no longer continue to hear this case, this is not the first time in recent history that the rostering of certain politically-sensitive cases has come under scrutiny.
In December last year, senior advocate Dushyant Dave had written a letter to Chief Justice of India DY Chandrachud lamenting “certain happenings about the listing of cases by the Registry of the Supreme Court.” He had, in November, expressed anguish over the fact that one of his cases, which was originally listed before a bench headed by Justice Bose, was suddenly moved to a bench headed by Justice Trivedi.
As per an analysis by Article 14, eight “politically sensitive” cases were moved to Justice Trivedi over a period of four months, in contradiction with existing rules and procedure. Advocate Prashant Bhushan too had written a letter to the registrar of the Supreme Court questioning the “arbitrary” listing of cases challenging the invocation of the anti-terror law against a group of journalists and lawyers.
Babu’s counsel, however, maintained before the apex court that they would like to revisit the High Court instead with their plea, owing to the fact that five of his co-accused have received bail. Legally, a case for bail becomes stronger as courts run out of reasons to withhold others incarcerated in the same matter. The principle of parity makes Mahesh Raut, Hany Babu and the other six who are still behind bars (Sudhir Dhawale, Rona Wilson, Surendra Gadling, Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap) eligible for bail.
Meanwhile, Babu’s wife Jenny Rowena shares that Babu spends his time in jail “trying to remain strong by reading, writing, and teaching English to the other inmates”. Jails in India are packed with under-trials (over 75% of the prison population is yet to be convicted in the cases against them). Many of them are unable to afford sustained legal representation, or even accurately interpret their legal circumstances.
Therefore, Rowena adds that Babu – who also has a law degree from Delhi University – does what he can to also help others in prison with their legal matters. This is consistent with the way Babu’s students remember him. In the aftermath of his incarceration, many of them wrote letters, describing him as “humble, fatherly and inspirational” and recalling how he spoke up against “the wrongs and injustices in the world”.
Finally, on being asked if bail for the other accused in the Elgar Parishad case has brought them hope, Rowena says: “Yes, we are really hopeful now but also angry that a clearly innocent man has to remain in jail.”
Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She has an LLB and an English honours degree and was formerly principal legal correspondent at The Quint.