A Professor's Supreme Court Bail Hearing Is A Bellwether Case For Govt's Use of India's Anti-Terror Law

23 Nov 2022 16 min read  Share

When the Supreme Court considers the case for bail to management professor and writer Anand Teltumbde this week, it will be one of a handful since 2018 to evaluate the merit of a government allegation of terrorism in a case against 15 academics, intellectuals and artistes. The hectoring of judges and attempts by government lawyers to stop bail, even though the trial has not begun after more than four years, appears to indicate how important the Bhima-Koregaon case is to the State's model of arrest and incarceration without trial using the Unlawful Activities (Prevention) Act.

Dr. Anand Teltumbde with Rama Teltumbde, his wife and grand-daughter of Dr B.R. Ambedkar/RAMA TELTUMBDE

Nashik (Maharashtra): “Taking up cudgels for the poor, speaking against the violation of democratic rights, or questioning the constitutionality of government actions do not go down well with the Indian state. To choke such dissent, the state has exerted all its might to discredit and eliminate individuals it deems a threat to its apparatus. Whatever its form, the essence of a working democracy is the protection it extends to citizens against the state’s overreach.”

This passage is from Republic of Caste, a 2018 book written by civil rights activist and management professor Anand Teltumbde.

On 14 April 2020, Teltumbde, among India’s most prolific anti-caste writers and author of 26 books in English and Marathi, was arrested by the National Investigative Agency (NIA) on terror charges in its ongoing high-profile  Bhima Koregaon case

On 18 November, the Bombay High Court granted the 73-year-old Teltumbde bail, holding there was no prima facie case made out against him by the NIA. On the day this story was published, Teltumbde, a former Bharat Petroleum executive director and Indian Institute of Technology (Kharagpur) and Goa Institute of Management professor, had already spent 953 days in prison. 

“Keeping a person in custody for almost a thousand days without recording a conviction (as in the case of Teltumbde) is ridiculous,” former Supreme Court Justice Madan Lokur told Article 14. “Others have suffered a worse fate. The courts have to wake up some time and give priority to hearing bail petitions.” 

The NIA’s charges against Teltumbde primarily rest on five documents and three witness statements, all of which the Bombay High Court looked at in detail, to eventually conclude that the material did not appear to have evidentiary value.

This in a case where trial has not even begun against Teltumbde and 15 other accused, some of whom have now spent more than four-and-a-half years in prison, with the oldest accused, the Jesuit sociologist, Stan Swamy, dying in state custody on 5 July 2021 at the age of 84.

Teltumbde’s prolonged incarceration and the Bombay High Court’s relief notwithstanding, a question mark remains over his release, since the high court stayed its ruling for a week on the NIA’s request, so the agency could appeal the decision in the Supreme Court.  

Filed on November 22 in the Supreme Court, the NIA’s petition argues that the Bombay HC “has erroneously granted bail by conducting a mini trial and a roving enquiry analysing each and every document and statement threadbare”.

It also argued that the high court “perused the charges in isolation and made observations that would influence the trial, erring to notice that laws dealing with national security and national integrity should be interpreted and applied with a strict yardstick as compared to other laws”. 

On 22 November, Chief Justice D Y Chandrachud said the Supreme Court will hear the NIA’s appeal against Teltumbde’s release on 25 November. 

“We remain optimistic about the Supreme Court upholding the well-reasoned bail order," Teltumbde’s lawyer, Advocate Mihir Desai told Article 14. "We believe that he should never have been arrested in the first place.”


Justice Chandrachud's Scepticism in 2018

India’s premier investigative agency has alleged that Teltumbde was deeply involved with the proscribed Communist Party of India (Maoist), and was an organiser of an event (called the Elgar Parishad), which the NIA alleges, led to violence in January 2018 in the town of Bhima-Koregaon, 28 km northeast of Pune city.

Four years ago, Chandrachud himself questioned the state’s accusations, as he gave a dissenting opinion in September 2018, when five academics moved the court against the arrest of accused in the Bhima-Koregaon case, such as the lawyer Sudha Bharadwaj. Teltumbde had not yet been arrested. 

“The use of the UAPA meant for exceptional and violent activity, against such persons, when there has been absolutely no evidence of any acts of violence by these activists is deeply disconcerting and calls for an urgent intervention by this Hon’ble Court,” the petitioners had argued before the Supreme Court in 2018.

While the 2018 bench led by Justice A M Khanwilkar ruled that the activists could be arrested, Justice Chandrachud, in his dissenting opinion, said there was “a cloud over whether the Maharashtra police had acted in a fair and impartial manner” in the case. He said that a special investigating team should be established and monitored by the court. 

“Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution," Justice Chandrachud had said then. "Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.”

First Bail ‘On Merit’ In Bhima-Koregaon Case

The Bombay High Court’s order is significant since it marks the first instance in the Bhima-Koregaon case of an accused being granted bail “on merit” or going by the evidence. 

As Article 14 had reported in March 2022, the Bhima-Koregaon case suggests how by using security laws, deploying surveillance technology, and leveraging national-interest narratives, the government of Prime Minister Narendra Modi has criminalised dissent and held ideological opponents in prolonged incarceration. 

Part of the security playbook so deployed by the government is a hardline approach of the government before various courts. 

Jail officials had argued against requests by Bhima-Koregaon accused for things as trivial as straws and spectacles (here and here), and even denied a  P G Wodehouse book to an accused, calling it a security risk. Most recently, the Supreme Court witnessed forceful, even hectoring, arguments by the solicitor general and his deputy in hearings related to the Bhima-Koregaon case. 

In an 18 November 2022 hearing in the Supreme Court, solicitor general Tushar Mehta asked how the court could not be "shocked" by the fact that the building where one of the Bhima-Koregaon accused, human rights activist and writer Gautam Navlakha, was to be placed in house arrest also had a library of the Communist Party of India (Marxist). 

"If that does not shock the court, I will leave it at that,” said Mehta.

“No it does not shock us," replied Justice K M Joseph, one of the two-judge Supreme Court bench.

“A person accused of indulging in a serious terrorist act being a Maoist (sic) is staying at some political party’s office,” said Mehta. “What is this institution being driven to?”

The Bombay High Court’s observations in the Teltumbde case indicated how the State is deploying broad-brush, anti-terror and anti-sedition laws to hold individuals in prolonged incarceration without trial, even when the evidence is thin.  

In mid-2018, when the Pune police made the first nine arrests in the Bhima Koregaon case, they accused the activists of plotting to assassinate Prime Minister Narendra Modi and delivering speeches, sending emails and circulating pamphlets that sparked violence in January 2018 against Dalits in Bhima-Koregaon.

Faced with questions and criticism, the police held a press conference in September 2018 and said they had seized “thousands of letters” that implicated the activists. 

Four years on—the NIA unilaterally took over the case in January 2020 from the Maharashtra police—the trial has still not started. 

All the accused have been repeatedly denied bail (here, here and here) by either special NIA or higher courts, other than the trade unionist and lawyer Sudha Bharadwaj (granted bail in December 2021 on a technical issue), and Maoist ideologue and poet Varavara Rao (granted bail in August 2022 on medical grounds). 

The NIA had booked Teltumbde on terror charges invoking nine sections of the Indian Penal Code, 1860 and eight sections of the  Unlawful Activities (Prevention) Act or UAPA, 1967. Those charges included being a member of and giving support to a terrorist organisation, funding terrorist acts, committing a terrorist act and criminal conspiracy.

The Restrictive Nature of UAPA Bail

One reason why Teltumbe’s hearing in the Supreme Court assumes significance, said experts, is because the Bombay High Court questioned the prima facie case made out by the NIA, even though a 2019 Supreme Court ruling, calling the Watali judgement, restricted the leeway of courts to give bail to UAPA accused.

The Watali judgement has been frequently criticised for making it almost impossible for judges to grant bail in UAPA cases: it said judges should only consider “broad probabilities” in UAPA bail hearings and deny bail if there were “reasonable grounds” to believe prosecution claims were prima facie true. 

 Even with these narrow parameters, the Bombay High Court in Teltumbe’s case said NIA claims did not appear to be prima facie true, even though the same bench of Justices Milind N Jadhav and A S Gadkari  had denied bail in  October 2022  to another Bhima-Koregaon accused, folk singer Jyoti Jagtap.

In July 2021, former Supreme Court Justice V Gopala Gowda, had said the Watali judgement needed to be reconsidered because it made bail almost “impossible”, as has been evident in the Bhima-Koregaon case, even with its often questionable evidence and changing accusations.

“The courts have to be pragmatic and appreciate that there is a very heavy and unrealistic burden placed on an accused to “prove” his innocence,” Justice Lokur told Article 14. “Therefore, considerable leeway must be given to an accused and only then can an accused have a fair chance of getting bail.

The Bhima-Koregaon case began with the police alleging in 2018 that the Bhima-Koregaon accused had plotted to assassinate Prime Minister Narendra Modi. They were, the police alleged, planning a “Rajiv Gandhi-like incident”. 

The claim seemed to justify the invocation of the UAPA, but little of this allegation appeared in the chargesheets ultimately filed in court. The allegations focused on the connections of the accused with hardcore communism’s revolutionary goals of overthrowing the government. 

Is The High Court Bail Order Significant?

The UAPA defines “terrorism” vaguely. Individuals or groups can be designated as terrorists, and no objective criteria guide the designation. The accused have no opportunity to explain their position; they are presumed guilty. Their properties and assets can be seized.

The prosecution argued during Navlakha’s anticipatory bail hearing (and lawyer Bharadwaj’s bail hearing) that the conspiracy aspired to “[seize] political power through armed revolution by mobilizing the masses”.

It was on the strength of these allegations that various sections of the UAPA were invoked, including those related to committing “unlawful” and “terrorist” acts (sections 13, 16, 18 of the UAPA), being members of, and recruiting persons to, terrorist organisations (sections 18B and 20 of the UAPA), and being otherwise associated with such organisations and garnering support (financial and otherwise) for their cause (sections 17, 38, 39 and 40 of the UAPA).

“It is arguable that the risks posed by terror crimes justify having more relaxed standards for displacing the twin presumptions of innocence and harmlessness that are discussed here,” Abhinav Sekhri, a Delhi-based lawyer wrote in April 2020 in Article 14

“But even so, surely we require serious conversations about where to draw these lines,” wrote Sekhri. “Must there not be a higher requirement in the law before the police are allowed to trigger the UAPA where the person is only accused of objectively harmless conduct?”

That higher requirement was what the Bombay High court appears to have called for in Teltumbe’s case.

In a 19 November 2022 blog post, constitutional lawyer Gautam Bhatia argued: “...the Court indicated that there existed a gradation of seriousness even within the UAPA, and that even on the basis of the prima facie case against him, there was no evidence that Anand Teltumbde had committed, or conspired to commit, a terrorist act”.

Teltumbde’s bail order was important, wrote Bhatia, “not just for its outcome, but also because, in this ongoing battle, it strikes an important blow for the jurisprudence of liberty”.  

“Until Watali remains the reference point, there is only limited significance that one can attach to these orders from a jurisprudential standpoint as ultimately the fight remains within the, highly unfair, rules as were set out in Watali,” advocate Sekhri told Article 14

“What the Bombay High Court order (in Teltumbde’s case) shows is that there is enough room within that jurisprudential framework to grant bail,” said Sekhri.

“A lot depends on how the Supreme Court decides,” said Justice Lokur. “If the order is stayed, the High Court judgement will be another statistic. If the judgement is upheld, it will give hope to thousands of under-trial prisoners.” 

The 56-page bail order goes into considerable detail in explaining why the NIA’s allegations did not appear to be prima facie true.


Court Refutes NIA's Maoist Argument

The NIA argued that Teltumbde was “a senior and active member” and “think tank” (sic) of the proscribed CPI (Maoist) party and that he had been involved in furthering the larger conspiracy and various crimes on behalf of the Maoist party. 

The NIA said that he received funds from the party to further the its agenda and to organise international seminars and lectures on Dalit issues. The NIA said that four documents seized from the computer of co-accused Rona Wilson made references to ‘comrade Anand’ and ‘brother Anand’ and these meant Teltumbde, since his younger brother Milind Teltumbde was a senior member of the Maoist party. 

The Bombay High Court said there was no other corroborative material that supported this allegation of the NIA. For example, it said, one letter spoke of funds being given to “comrade Anand” for party activities abroad.

“Invoking provisions of Section 15 [causing injuries or death/loss of or damage to property/disruption of essential services] of the UAPA Act is not acceptable and palatable to us when we read the letter as it is,” said the Court. “It is seen that Appellant is a man of intellectual prominence in the field of Dalit ideology / movement and merely because he is the elder brother of wanted accused Milind Teltumbde who had gone underground 30 years ago to espouse the cause of CPI(M) cannot be a sole ground (sic)  to indict the Appellant and link him to the activities of CPI(M).” 

"On reading the letter as it is we cannot presume that Appellant is an active member of CPI(M) without any other material to corroborate and support such a theory,” said the high court.

The court also noted that none of the material was seized from Teltumbde himself. For example, in the case of another letter, the court noted it had not been "recovered and seized" from Teltumbe. 

"Assuming that the reference in this letter i.e. ‘brother Anand’ is to the Appellant himself, prosecution needs to show the nexus and link of Appellant with the present crime or any specific overt act," said the high court. "There is no material save and except calling upon us to presume that the word ‘brother Anand’ named in the present letter is a reference to Appellant and as such he is directly involved with the activities of CPI(M).”


Hearsay as Witnesses Statements

The Bombay High Court disparaged the evidence offered by the NIA in the three witness statements, which the NIA used to argue that Teltumbde was a member of the Maoist party and guided his younger brother, Milind, in party activities. 

In court, Desai said that Teltumbde had not met or had any contact with his younger brother for the last 30 years. Two of the three prosecution witnesses are “protected”, which means their identity has not been made public.

The first statement is of a former Maoist party functionary called Pahad Singh based in Rajnandgaon, Chhattisgarh, who said that Teltumbde was “instrumental in aligning the Dalit movement with the Maoist party”. But the high court held that this was the only reference to Teltumbde in Singh’s statement and nowhere did he mention seeing Teltumbde with any CPI(Maoist) member. 

The second statement presented by the NIA was from a protected witness, who said that he had accompanied Milind Teltumbde to Bhopal, and he learnt from the latter’s “mannerisms” that he was to meet his brother, the professor. The court pointed out that the witness “has not witnessed such a meeting nor seen Teltumbde”, and so the information amounted to “hearsay”. 

Milind Teltumbde was among  26 Maoist rebels killed by the police in a firefight in the forests of Gadchiroli in eastern Maharashtra in November 2021.

A third statement by a protected witness said that Teltumbde used to attend international conferences “under the guise of academic visits” to many countries, such as the Philippines, Peru and Turkey, and brought back Maoist literature and videos to be shown to CPI(M) members during their training. 

Desai said his client had never visited these countries, apparent from an examination of his passport. The Bombay High Court noted that the NIA did not dispute this submission. 

The judges pointed out that during the hearing they asked the NIA to show them the material brought by Teltumbde from abroad, but the NIA said neither was such material part of the chargesheet and nor did it have any such material. 

Links to the Elgar Parishad

The NIA has also alleged that the CPI (Maoist) used the Elgar Parishad programme to further its agenda and ideology with the help of members of  “frontal organisations like Kabir Kala Manch and other underground urban cadres”. 

The NIA alleged that Teltumbde was one of the convenors of the Elgar Parishad programme, since his name appeared on publicity pamphlets and  invitation cards. The high court noted that the Elgar Parishad pamphlet had over 100 names as nimantraks (inviters). 

While the NIA argued that Teltumbde was guilty on the basis of this pamphlet, the court pointed out that it had not similarly indicted others named in the invitation cards. 

Desai argued that Teltumbde had agreed to be associated with the programme on a request from one of its organisers and former Bombay High Court judge, Justice Kolse Patil, and that Teltumbde in fact held contrarian views on the Bhima-Koregaon commemoration, as he had outlined in an essay for The Wire on 3 January 2018.  

The court also held that there was no prima facie evidence to show that Teltumbde had committed or indulged in a “terrorist act” as described in section 15 of the UAPA Act, which the NIA had invoked against him. 

The court pointed out that while the Bhima-Koregaon incident had resulted in the death of one person, “on reading the draft charges and the chargesheet (against Teltumbde), we prima facie find that NIA has not investigated or made any investigation in respect of this aspect”.

‘Courts Have Failed To Be Watchdogs of Liberty’

The courts that denied bail to Teltumbde since his arrest now face criticism.

“Keeping a person in prison for three  years without trial shows the utter failure of the criminal justice system and the court’s failure to be the watchdog of liberties of citizens,” Justice K Chandru, a former judge of the Madras High Court, told Article 14

“Earlier it was the CBI and now it is the turn of the NIA and the ED which have become the official political agents of the ruling party,” said Justice Chandru. 

"To call anti-caste positions as seditious is only to wipe out any political dissent,” said Justice Chandru. “It is a pity that the higher courts have taken so much time to decide such matters.”

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(Chitrangada Choudhury is a journalist and member of the Article 14 editorial board. She works on issues related to the environment, justice, indigenous and rural communities.)