The Supreme Court on Friday granted bail to activist Shoma Sen in the Elgar Parishad case, while observing that evidence against her does not prima facie show she has committed or attempted any “terrorist act” under the draconian law.
Ms. Sen has languished behind bars since June 2018, accused of Maoist links.
In a judgment spanning over 50 pages, a Bench of Justices Aniruddha Bose and Augustine George Masih countered National Investigation Agency’s (NIA) statements in court that bail was not a fundamental right and detailed the reasons behind its prima facie opinion that allegations levelled by the prosecution that Ms. Sen was a member of a terrorist organisation or that she had associations with one was not true.
The judgment authored by Justice Bose said any form of deprivation of personal liberty would result in breach of Article 21 (right to a dignified life) of the Constitution unless the state could prove that incarceration was based on reasonable grounds and after following a fair procedure.
“She is a lady of advanced age, suffering from various ailments,” Justice Bose observed. But the court said though her age or ailment may not be advanced enough to secure her bail, the very fact of delay in framing charges against her in the case, the long period of detention and the nature of the allegations against her all combine to form the conclusion that she should not be denied the privilege of bail pending further process, the court said.
Court’s conditions
The court asked her not to leave Maharashtra while out on bail, surrender her passport and be available on the mobile phone for the NIA case officer to check in her whereabouts.
Justice Bose highlighted that even the “bail-restricting provision” of Section 43D (5) of the Unlawful Activities (Prevention) Act of 1967 or UAPA should bow before the right to bail after prolonged incarceration. The provision mandated that a court should grant bail only after reaching a prima facie conclusion that the accused person was innocent. The Section has been criticised for single-handedly making bail a rare relief under the Act.
Repeatedly taking care throughout the text of the judgment to highlight that its views about the case against Ms. Sen was only “prima facie”, the Bench said the materials collected against her were based from third parties.
“Most of the materials have emanated from recovery of documents from devices of third parties and at this stage, on the strength of the materials produced before us, the prosecution has not been able to corroborate or even raise a hint of corroboration of the allegation that the appellant has funded any terrorist act or has received any money for that purpose,” the judgment gave its preliminary view.
The court said the evidence on record before it were mere third-party allegations that money was directed to be sent to her. “None of the materials reveal receipt of any funds by her or her direct role in raising or collecting funds,” Justice Bose observed.
The court prima facie discounted that Ms. Sen had conspired to commit a terrorist act. Justice Bose said the material before the court “only reveal her participation in some meetings and her attempt to encourage women to join the struggle for new democratic revolution”.
The court said it cannot rely on statements that she was “an urban Naxal working for CPI (Maoist)”. There was no reliable evidence before it to show she was a member of CPI (Maoist) or she had recruited for the organisation. The court also said there was no material to show that she was a member of a “frontal organisation of CPI (Maoist)”.
