Stay on bail for long period affects personal liberty and rights, feel experts

Raut, an activist arrested in 2018, was granted bail by the high court on September 21, 2023. Navlakha, who was arrested in 2020, was granted bail on December 19, 2023.

The court while granting bail to Raut, a former Prime Minister Rural Development fellow, said that “there is no corroboration at all” that he had received money from the co-accused belonging to banned organisation CPI (Maoist) or that a person was recruited through him. In activist-journalist Navlakha’s case too, the court said that there is no covert or overt terrorist act under the Unlawful Activities (Prevention) Act attributed to him.

In both the cases, immediately after grant of bail, the NIA sought a stay on the orders to file an appeal. The court stayed its order for three weeks in both cases, considering the NIA’s request. The central agency immediately filed appeals before the SC but the final decision on them is yet to be taken.

The appeal against Raut’s order was first heard by the SC on September 27, 2023, six days after he was granted bail by the high court. Since then, the case has come up for hearing 10 times. Twice each in October, November and December and thrice in January but has so far not had an effective hearing on the appeals. The appeal against Navlakha’s order came up four times for a hearing, once each in January, February, March and April. It will now be heard on April 9. During the hearings, the issue of tagging cases of other co-accused in the same case was mentioned by the additional solicitor general, to which the court had directed the registry to place the matter before the Chief Justice of India to “facilitate the feasibility of either posting these matters with any other matter or clubbing all of them together” before an appropriate bench.

Legal experts said that stay on bail orders for such a long period of time affect the liberty and rights of a person.

“If the Supreme Court feels at the first instance, prima facie as the lawyers would say, that a high court’s order granting bail is an egregious one, it can certainly stop the operation of the order. But I reckon if the Supreme Court stays or suspends the order, it ought to, in the interest of justice, decide the case at the earliest – say, within a month, for it involves the liberty of an individual and the order stayed has initial acceptance by a High Court – another constitutional court at that,” former High Court judge and senior advocate Dama Seshadri Naidu said. He added that stay or no stay, cases do take time given the enormous workload the Supreme Court faces.

“In such an eventuality, true to the constitutional spirit as often held by the Supreme Court, it’s always advisable that the Supreme Court may not stay or suspend the order. After hearing the parties, it may decide on the bail cancellation. Eventually if the bail is cancelled and the accused sent back to judicial custody, nothing irreversible happens. Perhaps, such a course of action only amounts to the Court erring on the safer side – on the side of constitutionally guaranteed liberty,” Naidu said.

In the Elgaar case itself, similar stays were granted in case of Sudha Bharadwaj who was granted default bail on December 1, 2021, and the Supreme Court ordered her release within eight days on December 9, 2021. In the case of co-accused Anand Teltumbde, too, the Supreme Court decided on the appeal on November 25, 2022, within a week of the high court granting him bail.

“When your bail is rejected, you start preparing for an appeal or are mentally ready that it may take time till the release eventually happens, but when an order is stayed it feels like an indefinite wait. The days in jail feel longer as you feel you are stuck in a limbo without any legal recourse. I had begun giving my books, woollen clothes, and other essential items to others in jail, hoping I will be leaving soon. But the wait seemed much longer,” said an undertrial, who faced such a stay.

In the past, similar stays were granted by the high court on a plea by the CBI which wanted to appeal the grant of bail to Peter Mukerjea, a former Star TV CEO, arrested in the Sheena Bora case. The agency eventually did not file an appeal after seeking a six-week stay and Mukerjea was released 45 days after being granted bail. Former Maharashtra home minister Anil Deshmukh had called the CBI’s plea seeking an extension on the initial 10 days granted by the high court on his release a “backdoor entry” and an “abuse of process of law” to keep the accused behind bars.

“Once bail is granted and it is challenged before a superior court, the court must either confirm it or set it aside. The court is dealing with the human rights of the person and it cannot prolong the decision and keep it in limbo once bail has been granted,” said senior advocate Colin Gonsalves.