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Bombay High Court: default bail granted to Sudha Bharadwaj
Sudha Bharadwaj, a human rights lawyer who defends India's indigenous communities and protects workers' rights, has been held in pre-trial detention since August 2018 until her bail application was allowed by the Bombay High Court on December 1. The lawyer-activist was imprisoned for three years before the Elgar Parishad trial ever began. The bail applications of the remaining eight defendants, Sudhir Dawale, Dr. P Varavara Rao, Rona Wilson, Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Vernon Gonsalves, and Arun Ferreira, were all denied by the court. Sudha Bharadwaj has been ordered to appear before the Special NIA Court on December 8 to determine her bail terms. Sudha Bharadwaj was found to be eligible for default bail under Section 167(2) of the UAPA and Section 43-D(2) of the UAPA. Among the 16 activists and academics arrested in the case, Bharadwaj is the first to be granted default bail. Varavara Rao, a poet and activist, is now on medical bail. Stan Swamy, a Jesuit priest, died on July 5 this year in a private hospital in the city while awaiting medical bail.
Arrest of Sudha Bharadwaj
Five activists, including Sudha Bharadwaj, were detained in June 2018 under the Unlawful Activities (Prevention) Act after violence erupted between purported Hindutva sympathisers and Dalits following the Elgar Parishad gathering (UAPA). As a result, on August 28, 2018, Bharadwaj and four other human rights activists were detained. In November 2018, Pune police alleged that documents recovered from Bharadwaj's co-electronic accused's devices "incriminate her as a member of the proscribed CPI(Maoist)." UAPA charges were brought against her. Her second bail was denied in October of the same year, and the Bhima Koregaon case was moved to the National Investigation Agency in January of the following year. Bharadwaj had cited health concerns and sought bail throughout the rest of 2020 and 2021, citing her age, diabetes, hypertension, pulmonary TB, and COVID-19.
Default bail
On October 27, 2018, Pune police took Ms. Bharadwaj into arrest. She was taken into prison by Pune's Additional Sessions Judge, K.D. Vadane, who placed her in police detention for ten days. The public prosecutor filed a report on November 22 asking for an extension of the investigation term. She applied for bail under the Code of Criminal Procedure on November 26 after the 90-day time between her arrest and appearance before the magistrate had expired. Judge Wadane, on the other hand, increased the detention period by 90 days. The chargesheet was eventually filed on February 21, 2019. Judge Vadane took notice of the crime and served Ms. Bharadwaj with papers. The default bail of all the accused was also rejected by Additional Sessions Judge Ravindra Pande and S.R. Navandar.
Ms. Bharadwaj's lawyers, Yug Chaudhry and Payoshi Roy, moved for default bail, claiming that as a designated special court under the National Investigation Agency (NIA) Act, Judge Vadane lacked the authority to extend the incarceration by 90 days and to take cognizance of the offences. The lawyers maintained that none of the judges were selected by the federal government as special judges. The second argument was that Ms. Bharadwaj was entitled to default bail and should have been released on January 25, 2019, notwithstanding the fact that the chargesheet was only filed on February 21, 2019.
Sudha Bharadwaj's right to seek default bail crystallised on January 25, 2019, the date her former application was pending, according to the High Court. The NIA's claim that her application, which was submitted on November 26, 2018, was premature was rejected by the High Court.
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