'Supreme Court judgment has far reaching consequences'

'Notwithstanding the seriousness of the allegations made, every accused had a right to a speedy trial and the court had to take into account long periods of incarceration without trial as an additional consideration for grant of bail.'

A Supreme Court Bench of Justices Aniruddha Bose and Sudanshu Dhulia last month granted bail to Bhima Koregaon accused Vernon Gonsalves, five years after he was arrested under the anti-terrorist legislation UAPA.

The judgment may well pave the way for the release of his co-accused, as well as many undertrials languishing in jail under UAPA, a law which makes bail almost impossible.

Senior advocate Rebecca John, who argued the case, tells Jyoti Punwani how she approached this challenging case.

The concluding segment of two-part interview:

• Part 1 of the Interview: 'How can lynching defined as murder be punishable by seven years?'

Congratulations for the judgment. Did you anticipate such an order?

When I looked at the case file, I was confident that the case was arguable on law and facts and the case of the prosecution appeared to be bogus. We put forward our case and the Supreme Court concurred with most of our arguments. I don't anticipate any orders, but I just give my best to the case.

Did the history of this case in all courts, from the Supreme Court majority judgment in the Romila Thapar case (which turned down a plea for an independent investigation), to the rejection of bail at various levels, make you apprehensive?
Also the hype around the accused being labelled as 'terrorists' and 'Urban Naxals'.

As a lawyer I look at the evidence and whether it is enough to sustain the charge. When I was briefed, I could see there was no sustainable evidence that could justify further incarceration. I really wasn't concerned about the hype around the case.

Notwithstanding the hype and the history around the case, it was evident that if a court was willing to listen, it could be established that there was no evidence justifying refusal of bail.

So you went strictly by the evidence?

The arguments were very robust, and framed both in law and fact. As far as the law was concerned, UAPA placed restrictions on the power of the court to grant bail.

The Supreme Court's earlier judgment in NIA v Zahoor Ahmad Shah Watali, while interpreting section 43D(5) of the UAPA had made it very difficult for undertrial prisoners to get bail under the UAPA. We had to get past the judgment in Watali.

This required work and research. We placed reliance on similar provisions relating to bail in the earlier anti-terror laws, including TADA as also the judgments of the Supreme Court pronounced in connection with those statutes, and argued that the graver the offence, greater should be the care taken to see that the offense would fall within the four corners of the Act.

The UAPA says that the evidence produced by the prosecution if found to be prima facie true, would lead to refusal of bail. The judgment in Watali interpreted this to mean that once the prosecution produced evidence, whatever its quality, the court had no power to examine its probative value.

We demonstrated that the court's power to examine the probative value of the evidence produced was never intended to be taken away, and the Supreme Court agreeing with our submissions, held that regardless of the restrictions placed in the Act ,at least surface level examination of the probative value of the evidence had to be conducted by the Court.

In fact, the Supreme Court upon a probative examination of the evidence in Vernon's case, held that it failed the prima facie test and there was nothing to justify the further incarceration of the petitioner.

The two accused were lodged in Taloja jail.

Did the Bombay high court order granting bail to Anand Teltumde help?

Yes. The Bombay high court judgment, which was upheld by the Supreme Court, was relied upon by us while arguing the present case. There had been an examination of the probative value of the evidence presented by the prosecution, and that led to the court saying there was no prima facie case against Anand Teltumbde.

Will the Vernon judgment, which is being regarded as precedent-setting case law, help other UAPA detenues like Umar Khalid, for example?

The judgment of the Supreme Court has far reaching consequences in the manner in which these restrictive provisions are to be examined.

The Supreme Court has reiterated fundamental principles of bail and has held that regardless of statutory restrictions, the powers of Constitutional courts are not limited.

Also, notwithstanding the seriousness of the allegations made, every accused had a right to a speedy trial and the court had to take into account long periods of incarceration without trial as an additional consideration for grant of bail.

However, every case has to be viewed in the facts and circumstances of that case.

Not just Umar Khalid

The bail hearing in all these cases need to be fast tracked, keeping in mind some of the fundamental principles laid down by the Supreme Court in Vernon's case.

Well, we need to thank you for getting this judgment.

It was a long journey. We were in court for one-and-a-half years. The case saw many twists and turns. At one stage it was sent back to the trial court to see if charges could be framed within three months.

The trial court said that it required at least a year to frame charges. The Supreme Court then decided to hear the case on merits, leading to the judgment being pronounced on July 28, 2023.

Feature Presentation: Aslam Hunani/Rediff.com