More than five years after he was arrested in the Bhima Koregaon case, journalist and activist Gautam Navlakha was finally granted bail by the Bombay High Court on Tuesday. However, he is unlikely to walk out of detention soon.

Another person accused in the case, activist Mahesh Raut, was granted bail by the High Court in September. Nearly four months later, he is still in prison.

In both instances, while granting bail, the High Court simultaneously stayed its orders to allow the National Investigation Agency to file appeals before the Supreme Court.

The stay is presumably because the charges against Raut and Navlakha are serious. They are among 16 academicians, activists and lawyers charged under India’s stringent anti-terror law, the Unlawful Activities (Prevention) Act, for their alleged role in instigating caste violence at Bhima Koregaon near Pune in January 2018.

They have also been accused of links with the banned Communist Party of India (Maoist) and of conspiring to assassinate Prime Minister Narendra Modi.

However, the Supreme Court noted earlier this year that the National Investigation Agency’s primary evidence, a batch of letters, were of “weak probative value or quality”. This rationale also finds mention in the bail orders secured by Raut and Navlakha. A digital forensics firm, Arsenal Consulting, concluded that false evidence had been planted on the laptops and devices of the accused.

Despite this, most of the accused continue to languish in jail, including Raut, the youngest among them and a former fellow of the Prime Minister’s Rural Development Programme.

Most legal experts to whom Scroll spoke said that it is unusual for a court to stay its own orders, even though there is no legal bar on it. Some of them expressed concerns about the impact of such stays on bail jurisprudence in the country.

Raut’s bail order yet to be effected

Mahesh Raut was arrested in connection with the Bhima Koregaon case in June 2018 and has been in the Taloja Central Jail near Mumbai ever since.

On September 21, he was granted bail by the Bombay High Court. In its order, the High Court wrote that it “cannot be said that there are reasonable grounds for believing that the accusations against [Raut] is prima-facie true… [sic]”. The court, however, through an addendum in the order, stayed its bail order for one week at the National Investigation Agency’s request, to permit it to challenge the order before the Supreme Court.

The NIA filed the appeal before the Supreme Court on September 24. Three days later, a two-judge bench of Justice Aniruddha Bose and Justice Bela M Trivedi extended the stay on bail till the next date of hearing. Since then, the matter has been heard just once more, on November 6.

The Supreme Court website does not mention when the matter is scheduled to be listed for hearing next. However, it states that the matter is now listed before a bench led by Trivedi and comprising Justice Satish Chandra Sharma.

Trivedi’s parent high court is the Gujarat High Court. She served as Law Secretary to the Gujarat state government between 2004 and 2006 under the government headed by Chief Minister Narendra Modi.

Earlier this month, Article 14 drew attention to eight politically-sensitive matters being moved before Trivedi. After public interest lawyer Prashant Bhushan wrote an open letter to the Supreme Court Registrar about this, Chief Justice of India DY Chandrachud was forced to address these concerns in court.

The delay in the Supreme Court hearing the bail appeal in Raut’s case has effectively kept him behind bars.

Mahesh Raut is a former fellow of the PM's rural development programme. Photo: Facebook

Legal, but uncommon

In recent years, it has become common practice for the National Investigation Agency to, in the face of an unfavourable court decision, request the court to stay its order while it challenges the decision before an appellate court. However, lawyers that Scroll spoke with differed on whether granting a stay on bail orders is uncommon.

Said Dhruti Kapadia, arguing counsel at the Bombay High Court: “Interim stay orders are common in both criminal and civil matters whenever the other party wants to approach an appellate court.”

Mumbai-based lawyer Susan Abraham, whose husband, trade unionist Vernon Gonsalves was granted bail in the Bhima Koregaon case in July, said that such stays are often allowed to give time to the prosecution to approach the Supreme Court. But she described the three-week stay in Navlakha’s case as “unusual”.

Kapadia differed. “The grant of bail is contingent on the gravity of the matter,” she said. Bail is not always immediately given, she said.

Delhi-based advocate-on-record Prateek Chadha offered a slightly more nuanced view. “Typically, a court granting the stay certifies the need for appeal: it may be due to a question of law, or when one party is going to be irreparably harmed,” he said.

With reference to Raut and Navlakha’s cases, he said that the usual practice in cases when bail is granted and the government wishes to appeal against it expeditiously to the Supreme Court is that the Solicitor General of India may request the Supreme Court to list the appeal urgently.

In Navlakha’s case, the High Court may have granted stay for three weeks, according to Chadha, because the Supreme Court is on break till January 1, so the opportunity to mention the appeal for listing before the apex court is not available. “However, the high court order should expressly state this,” he said.

Both Raut’s and Navlakha’s bail orders do not mention any reasons to stay the order beyond the National Investigation Agency’s request for it.

On the other hand, Mumbai-based veteran criminal lawyer and former Rajya Sabha member Majeed Memon told Scroll that the “stay of bail is almost impossible and granted only in extraordinary conditions”. He was blunt in his assessment of the Bombay High Court’s decision to stay its grant of bail to Raut and Navlakha, calling it a “mistake” by the judges.

He was also critical of the slow progress of Raut’s bail matter before the Supreme Court. “Courts usually expedite hearings in cancellation of bail pleas,” Memon said.

Activist Gautam Navlakha. | Tauseef Mustafa/AFP

Ramifications for personal liberty

Legal experts expressed concern about the ramifications of bail being stayed, potentially indefinitely, after being granted on grounds of appeal.

“I don’t think it is setting the right precedent,” said Naveed Mehmood Ahmad, Senior Resident Fellow with the Criminal Justice Team at the Vidhi Centre for Legal Policy, a Delhi-based legal think tank.

“Bail upholds the right of personal liberty of an individual”, he said, “and if the court has arrived at the conclusion that bail must be granted, then there is little value in deferring to a higher court and waiting for an appeal to be decided.”

Chadha noted that “the threshold of bail in [Unlawful Activities (Prevention) Act] cases is extremely high”. He said: “The accused person has to practically show prima facie innocence.” That the High Court granted bail to Raut and Navlakha meant that this threshold was met in their cases, he pointed out.

According to Ahmad, the stay on their bail “only prolongs the detention when in the first place it has been found unnecessary”. The prosecution can appeal for cancellation regardless of the stay, he noted.

Ahmed added: “If an accused person deserves bail, he must be granted bail. If the circumstances demand, bail conditions can be set. But passing a bail order after due consideration of all facts and then staying it for weeks, does little in the way of upholding personal liberty.”

Abraham said that this has “ominous portents” for the rights to life and liberty. “The norm is to knock at the doors of the Supreme Court when the High Court rejects bail,” she said. “It is odd for the Supreme Court to slam the door on life and liberty after the High Court has opened that door.”