Sudha Bharadwaj must apply for modification of bail conditions in future, say lawyers

After spending three years in jail, lawyer Sudha Bharadwaj was last week released on conditional bail. The court laid down that she would not speak to the media and she would not leave Mumbai as two of the several conditions. The Bombay High Court granted default bail to her.

As per law, the investigating agency has to file a chargesheet against an arrested accused within 90 days of their arrest, or seek additional time to do so from the court concerned. In case the agency fails to do both, the accused becomes eligible for bail by default.

By and large, however, the legal fraternity feels that in this case conditional bail was unfair and unnecessary.

Retired Justice Abhay Thipsay, contacted for his opinion, said that default bail is an absolute right and cannot come with conditions.

“In cases where an accused gets default bail, the only conditions that is laid down are that the accused must attend the trial and keep the court updated about their whereabouts. This includes the other implications of these conditions like not leaving the city or country without the court’s permission. Any additional conditions dilute the default bail and render it meaningless, as this is a right that the accused has obtained because the investigating agency has failed to do its job,” he pointed out.

Senior Advocate Majeed Memon also echoed this view, saying that the condition was bordering on a violation of Bharadwaj’s fundamental rights.

“However, her liberty is more precious than her freedom of speech, especially because she is a beneficiary of default bail. It is not advisable for her to speak to the media at this juncture, but she can, after conducting herself well, approach the court at a later stage seeking removal of this condition,” he said.

Bharadwaj was released from the Byculla Women’s Prison. Her daughter Maaysha (24) was at the prison to pick her up, and Bharadwaj, amidst flashes of cameras and cheers from friends and family members, walked out of the prison doors with a smile on her face.

One of Bharadwaj’s oldest friends, Smita Gupta, was also present to pick her up along with Maaysha.

“We are all very happy that Sudha is being released; while at the same time we are sad that she had to spend three years of her life behind bars in a case that everyone knows is a baseless one. The very basis of this case is being shot to bits with each passing day. We hope that the others who are implicated in the case are also released soon. Similarly, we hope that the UAPA (Unlawful Activities Prevention Act), which empowers the police to keeps someone behind bars for years together without a trial, is revoked,” she said.

The Bhima-Koregaon case has, over the last three years, become a subject that has invited intense criticism of the National Investigation Agency (NIA) as well as the central government. Father Stan Swamy, another accused arrested in the case, died in July while under treatment at the Holy Family Hospital in Andheri. Swamy (84), had been suffering from Parkinson’s Disease and had, through his lawyers, requested a sipper so that he could drink water easily. However, the NIA took a week to respond to this plea before it was finally provided to him. His applications for medical bail, too, were rejected and he was finally admitted to the hospital in May this year. The case also suffered a severe blow when news reports came to light in February this year, according to which the evidence allegedly recovered from accused Rona Wilson’s laptop was planted. The revelation reportedly came after a forensic audit of his laptop by Arsenal Consultancy, a US based private firm, at the behest of the American Bar Association.

The gag on speaking to the media has raised eyebrows, especially since the prosecution, media and government agencies are not forbidden to discuss the charges against her, to plant leading questions to sow seeds of doubt and influence the trial and prejudice the court. All this had been resorted to when she and the other co-accused were arrested in the Bhima-Koregaon case in the first instance.

So, is the gag order on her fair? Why can’t she talk about what she has gone through, her treatment in prison and the conditions in prison, for example? Surely that cannot influence the case which is ‘sub judice’?

Bharadwaj (60), a lawyer and an activist working in the field of human and tribal rights, was arrested by the Pune police on August 28, 2018 in connection with the violence that broke out in Bhima-Koregaon on December 31, 2017. Bharadwaj was one of the several activists who were arrested in the case, which was subsequently transferred to the NIA.

(This article was first published in National Herald on Sunday)