Bombay High Court grants bail to lawyer-activist Surendra Gadling in Bhima Koregaon violence case

In a significant development that resonates deeply within the Indian legal fraternity and the landscape of civil liberties, the Bombay High Court has granted bail to lawyer and activist Surendra Gadling in the long-drawn-out Elgar Parishad-Maoist links case. This decision, rendered by a Division Bench comprising Justice Ajay Gadkari and Justice Kamal Khata, marks a pivotal moment in a case that has sparked intense debate over the balance between national security laws and the fundamental right to a speedy trial. As a Senior Advocate observing the evolution of our criminal jurisprudence, I see this order not just as a reprieve for an individual, but as a reinforcement of the constitutional mandate that personal liberty cannot be sacrificed at the altar of indefinite incarceration without trial.

The Genesis of the Case: Bhima Koregaon and the Elgar Parishad

To understand the gravity of the Bombay High Court’s decision, one must revisit the events of early 2018. The case originated from the Elgar Parishad conclave held on December 31, 2017, in Pune, which commemorated the 200th anniversary of the Battle of Bhima Koregaon. The prosecution alleged that speeches made at this event were provocative and led to caste violence the following day. However, the investigation soon pivoted into a larger conspiracy theory involving the banned Communist Party of India (Maoist).

Surendra Gadling, a Nagpur-based advocate known for defending those accused of being Maoists and representing marginalized communities, was arrested in June 2018. He was charged under various sections of the Indian Penal Code and the draconian Unlawful Activities (Prevention) Act (UAPA). For nearly eight years, Gadling remained behind bars as an undertrial, highlighting a systemic issue in the Indian judicial process where the process itself often becomes the punishment.

The Legal Hurdle: Section 43D(5) of the UAPA

The primary challenge in securing bail for an accused under the UAPA lies in Section 43D(5). This provision creates a high threshold for bail, stating that a person accused of an offense under specific chapters of the Act shall not be released if the Court, after reading the case diary or the report, is of the opinion that there are reasonable grounds for believing that the accusation against such person is “prima facie true.”

This “prima facie” test effectively reverses the traditional criminal law principle of “bail is the rule, jail is the exception.” For years, this provision has been used to keep activists and political dissenters in custody for extended periods. However, the Bombay High Court’s recent order follows a growing judicial consensus that statutory bars on bail must yield to Constitutional rights when incarceration becomes unreasonably prolonged.

The Rationale of the Bombay High Court

The Division Bench’s decision to grant bail to Surendra Gadling was primarily anchored in two factors: the length of his incarceration and the stagnation of the trial. Justice Ajay Gadkari and Justice Kamal Khata noted that Gadling had been in custody for nearly eight years. In the eyes of the law, such a duration without a conviction—or even the commencement of a trial—constitutes a violation of the right to life and personal liberty under Article 21 of the Constitution.

The “Najeeb” Precedent

The High Court’s reasoning heavily draws from the landmark Supreme Court judgment in Union of India v. K.A. Najeeb (2021). In that case, the Apex Court held that despite the restrictions of Section 43D(5) of the UAPA, Constitutional Courts retain the power to grant bail if they find that the right to a speedy trial has been violated. The Court observed that the rigors of such statutory provisions are intended to ensure a quick trial and that if the trial is not likely to conclude in a reasonable timeframe, the accused cannot be kept in custody indefinitely.

In Gadling’s case, the Bombay High Court observed that with over 300 witnesses to be examined and the trial yet to begin in earnest, there was no foreseeable end to the proceedings. The Court recognized that keeping an individual in jail for eight years while the state prepares its case is a travesty of justice.

Analysis of the Evidence and the Prosecution’s Claims

The National Investigation Agency (NIA) has consistently opposed Gadling’s bail, citing digital evidence allegedly recovered from his devices. These documents purportedly linked him to the organizational structure of the CPI (Maoist) and suggested involvement in funding and recruitment. However, the defense has contested the authenticity of this digital evidence, pointing to independent reports suggesting the possibility of malware infection and planted documents.

While the High Court, at the stage of bail, does not conduct a “mini-trial” to determine the absolute guilt or innocence of the accused, it is required to assess the weight of the evidence. In recent months, the Supreme Court has granted bail to several co-accused in the same case—including Vernon Gonsalves, Arun Ferreira, and Shoma Sen—by noting that the mere possession of literature or intellectual association does not necessarily equate to “terrorist acts” under the UAPA.

The Plight of the Undertrial in India

As a Senior Advocate, I find the Gadling case to be a stark reminder of the “undertrial crisis” in India. Statistics consistently show that a vast majority of the prison population consists of people awaiting trial. When an advocate of the High Court, who understands the nuances of the law, is subjected to eight years of pre-trial detention, it raises serious questions about the accessibility of justice for the common citizen.

The delay in the Elgar Parishad trial is particularly egregious. The case involves thousands of pages of charge sheets and hundreds of digital devices. The technical complexity, combined with the sheer volume of witnesses, makes a speedy trial almost impossible under the current judicial infrastructure. The High Court’s intervention is therefore a necessary corrective measure to prevent the UAPA from being used as a tool for “preventive detention” under the guise of criminal prosecution.

Impact on the Legal Profession

Surendra Gadling’s arrest also touched a nerve within the legal community. Lawyers have a professional duty to represent their clients, regardless of the charges against them. When lawyers are targeted for their professional work or their ideological leanings under the tag of being “urban Naxals,” it creates a chilling effect on the Bar. The High Court’s decision to grant bail to one of our own serves as a protective shield for the independence of the legal profession.

Comparison with Other Co-accused

The trajectory of the Elgar Parishad case has seen a gradual shift in the judiciary’s approach. Initially, bail was denied across the board. However, the tide began to turn with the medical bail granted to P. Varavara Rao and later the regular bail granted to Sudha Bharadwaj. The Supreme Court’s July 2023 order granting bail to Vernon Gonsalves and Arun Ferreira was a watershed moment, as it scrutinized the nature of the evidence more closely than previous benches had.

By granting bail to Gadling, the Bombay High Court has aligned itself with this progressive interpretation of the law. It acknowledges that the seriousness of the charges is not a sufficient ground to deny bail when the state fails to ensure a timely trial. This consistency in judicial outlook is crucial for maintaining public faith in the rule of law.

The Road Ahead: Conditions and Implications

While the bail is a victory for Gadling, it comes with stringent conditions. The High Court has stayed the implementation of the bail order for three weeks to allow the NIA to appeal in the Supreme Court—a standard procedure in high-profile UAPA cases. Once released, Gadling will likely face restrictions on his movement, the requirement to surrender his passport, and prohibitions on contacting witnesses or speaking to the media about the merits of the case.

The implications of this order extend far beyond the Bhima Koregaon case. It sends a clear message to investigating agencies that “national security” is not a blank check to bypass the fundamental rights of citizens. It reinforces the principle that the deprivation of liberty must be proportionate to the progress of the trial.

Conclusion: A Victory for Constitutionalism

As we analyze the Bombay High Court’s decision to grant bail to Surendra Gadling, we must view it through the lens of Constitutionalism. The Indian Constitution is a living document that prioritizes the dignity and liberty of the individual. When the state invokes extraordinary laws like the UAPA, the judiciary must act as a sentinel on the qui vive.

The eight-year wait for Surendra Gadling is a blemish on our criminal justice system, but the High Court’s order is a step toward rectification. It reaffirms that no matter how grave the accusation, the law of the land does not permit the indefinite detention of an individual without a verdict of guilt. This judgment will undoubtedly be cited in numerous other cases where undertrials languish in jails under stringent laws, serving as a beacon of hope for the protection of Article 21.

In the final analysis, the bail granted to Surendra Gadling is not just a procedural release; it is a judicial assertion that justice delayed must not result in justice denied. As members of the legal fraternity, we must continue to advocate for a system where the speed of justice matches its fairness, ensuring that the scales of justice remain balanced even in the most contentious of times.