Why the SC Judgment Granting Bail to Vernon Gonsalves, Arun Ferreira Is So Significant

Aug 31, 2023
By Mihir Desai

Originally published in TheWire.in


The restrictive bail provisions of the Unlawful Activities (Prevention) Act have been widely used to deny personal liberty to activists, students, journalists and others.


At least in the past, the Supreme Court has not been very helpful. Similar provisions in other draconian laws have been held to be Constitutional. Besides, in cases such as Zahoor Ahmed Watali, the Supreme Court (in a judgment authored by Justice A.M. Khanwilkar) gave an interpretation to the bail provisions which made it virtually impossible to get bail by holding that at the time of bail, only the prosecution version has to be looked into and that too without testing the veracity of the same. As if this was not enough, recently the Supreme Court in Arup Bhuyan’s reference judgment (authored by Justice M.R. Shah) overturned earlier decisions and held that in respect of an association declared unlawful under UAPA, mere passive membership was enough to make it an offence and no active membership was required to be shown by the prosecution. The situation is made worse by UAPA allowing at the bail stage the use of statements of redacted witnesses.


Of course, in certain cases the Supreme Court side stepped Watali by releasing persons on bail after long period of incarceration in UAPA cases, reiterating that the fundamental right to a speedy trial was being violated, or granting statutory bail (as was done in Sudha Bharadwaj’s case) or medical bail (as in the case of Varavara Rao). The high court granted merit bail to Anand Teltumbde and this was upheld by the Supreme Court, but this was through a simpliciter rejection of the state’s appeal which jurisprudentially does not lead to it being treated as a Supreme Court precedent.


It is in this context that the July 28 bail judgment of the Supreme Court in Vernon Gonsalves and Arun Ferreira’s case needs to be seen. Undoubtedly for the two of them, who have been in jail for nearly five years, it has immense significance. But what should not be lost sight of is that the judgment also has substantial implications not just for the others still in jail in the Elgar Parishad case but also for the bail jurisprudence in UAPA cases.


Gonsalves and Ferreira, like many others in the Elgar Parishad case, had been primarily arrested on the basis of documents allegedly found on the computers of co-accused. Of course it needs to be emphasised that the quality of this evidence itself is seriously in doubt after the Arsenal Consulting reports, which find these documents to be planted. Additionally, some witness statements (pre-trial, of course) of redacted witnesses sought to implicate them as members of a banned outfit. Next, Ferreira as a lawyer was also implicated as a member of the Indian Association of Peoples Lawyers (IAPL), which according to the prosecution was a frontal organisation for the Maoists. Finally, incendiary literature was recovered from them, which according to the prosecution showed them to be active members of a banned organisation. Gonsalves was also earlier convicted in a UAPA case. All these grounds were held against Gosalves and Ferreira by the high court while denying them bail.


To begin with, the Supreme Court very significantly holds that mere possession of certain literature through which violent acts and methods of overthrowing democratically elected government may be propagated would not on its own attract the provisions of Section 15(1)(b) of the UAPA, which is the primary section dealing with terrorist acts. This is significant because it brings out the difference between believing  in a particular ideology and actually acting it out. What the Supreme Court is saying, though not in so many words, is that UAPA is not a thought control law but a law to control certain actions.


The court then goes on to hold that none of the material against these accused, whether the electronic recovery from the co-accused, material recovered from the accused themselves or the witness statements, attributed any direct violent act against them. This is significant because the courts have time and again rejected bail applications of arrestees even when there is no direct allegation of any violent act. The court is categorical that in the absence of such direct involvement in violent acts, persons cannot be denied bail by implicating them in terrorist acts.


Next comes the issue of raising funds. UAPA deals with two kinds of terrorist funding: Section 17 deals with raising funds for terrorist acts (where the punishment can be up to life) and Section 40 deals with raising funds for terrorist organisations (where the punishment can be up to 14 years). Certain statement of accounts recovered from a co-accused’s computer were relied upon. The court held that by itself, this was no evidence that actual money was transmitted. In the absence of some evidence about actual receipt of funds, such statements of account cannot be relied upon to deny bail.


Concerning the letters recovered from co-accuseds’ computers which name Gonsalves and Ferreira and their involvement in the activities of the banned outfit, the court came to a significant conclusion that since these letters were recovered not from the accused, they have “weak probative value or quality”. In fact subsequently the court goes on to hold: “(i)n the case of the Appellants, contents of the letters through which the Appellants are sought to be implicated are in the nature of hearsay evidence, recovered from coaccused.” This should be of great assistance to many of the other accused in the Elgar Parishad case, not only for bail but also in trial. as such evidence (which is the primary evidence against them) is held to be hearsay.


Another important issue concerned membership of a banned organisation. Between the time when the Anand Teltumbde judgment was delivered by the high court and the present one, a three-judge bench had overturned the decade-old judgment in the Arup Bhuyan case which had held  that mere membership of an unlawful organisation was not enough to implicate a person; the person has to be an active member of the organisation for being guilty. The reference judgment which overturned the earlier judgment held that even passive membership was enough for it to be an offence.


Fortunately, that judgment only dealt with Section 16 of the UAPA (which deals with unlawful organisations and not with terrorist organisations). Section 20, with which Teltumbde as well as Gonsalves and Ferreira were charged, deals with membership of a terrorist organisation. The Supreme Court could have easily been tempted to apply the same logic and could have held that even passive membership of a terrorist organisation  was enough to commit the offence under Section 20. In Teltumbde’s case, the Bombay high court had held that mere membership would not be enough to implicate a person unless it was coupled with a terrorist act. The Supreme Court upheld this interpretation, which will have a far-reaching consequence for all those charged with membership of a terrorist organisation without any active involvement in a terrorist act.


Similarly, association with a terrorist organisation, which is wider than formal membership, is also made an offence under Section 38. Again here, the Supreme Court holds that mere association with a terrorist organisation is not enough but the association has to be with the intention to further the organisation’s terrorist activities. The court holds, “There must be evidence of there being intention to be involved in a terrorist act.”


The court also observed that there was no “reliable evidence to link IAPL with CPI (Maoist)” . This again is crucial. The ban under the UAPA is of CPI (Maoist), along with “all its formations and frontal organisations”. Frontal organisations are not listed, nor is there any government notification banning them. The chargesheet claimed that IAPL was a frontal organisation and Ferreira was a member. This organisation has hundreds of lawyers as members, all of whom would be criminalised if IAPL is treated as a frontal organisation.


This is the approach taken by the investigation agency in respect of many organisations in the Elgar Parishad as well as other cases, by claiming organisations such as Committee for Protection of Democratic Rights (established in 1977), Peoples Union of Democratic Rights (PUDR, established in late 1970s), Kabir Kala Manch and others are frontal organisations of the banned outfit. The consequence would be that if a person is a member of CPDR or PUDR or Kabir Kala Manch or many of the others branded as frontal organisations (and these organisations have large memberships), that person would be treated as member of the banned organisation and liable to be prosecuted and arrested under UAPA. The Supreme Court has provided a filter. Merely the investigation calling an organisation as a frontal organisation will not be enough to treat that organisation as frontal. The investigation even at the stage of bail has to show that there has to be reliable link to connect the so-called frontal organisation with the banned organisation. This again is an extremely crucial observation of the Supreme Court, which will prevent longterm incarceration on frivolous allegations.


Next, the court makes applicable to UAPA cases a crucial principle laid down in TADA matters, wherein it was held “when the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act.” To put it simply, the court should be extra cautious before accepting the prosecution’s version that an offence under the Act is made out. The Supreme Court has in the present judgment held that while this principle was laid down in cases under TADA, the same principle would be applicable to cases under UAPA.


The court then moves on to give a radical interpretation to the infamous Watali judgment of the Supreme Court. The determining principle for granting bail under Section 43-D (5) of the UAPA is that bail should be denied if the court has reasonable grounds to believe that the accusations against the accused are “prima facie true”. In Watali, the court  held that for determining if the allegations against the accused are “prima facie true”, only the version of the prosecution is relevant and that admissibility of such evidence produced at the bail stage cannot be gone into by the court. In short, go by what the prosecution says and don’t doubt the evidence produced by it. Thus bail became a virtual impossibility.


In Gonsalves’s case, the court dilutes this by observing, “(i)n our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality of probative value satisfies the Court of its worth.” This is a major shift. Earlier, by relying on a strict interpretation of the Watali judgment, courts were routinely rejecting bail applications by holding that at the bail stage, they could not go into the merits of the evidence produced by the prosecution. The present judgment is a marked departure from this view and would go a long way in helping accused in UAPA cases get bail and permitting the courts to look at the probative value of the evidence.


Finally, the court refers to the long incarceration of Ferreira and Gonsalves. The offences with which they are charged, if proved, can even lead to a life sentence. Thus the court observes that it cannot be said that the substantial part of the sentence has been undergone as undertrials by them. However, the court relies on the concept of liberty as guaranteed under Article 21 of the Constitution of India and holds that even so, when such a bail-restricting clause is being invoked on the basis of materials with prima facie low probative value or quality, the constitutional court can definitely resort to Article 21 to release a person on bail.


We have been witnessing widespread use of UAPA especially in the last few years against minorities, democratic rights activists, journalists, lawyers, academics, trade unions, student activists, cultural rights activists, and Dalit and tribal rights activists in a targeted manner, and the courts have been extremely reluctant to grant bail. In this scenario, the present judgment comes as a whiff of fresh air and will hopefully go a long way towards protecting personal liberty of the voices of the marginalised.


Mihir Desai is a senior advocate in the Bombay high court and the vice president of the People’s Union for Civil Liberties, India.