Content Regulation / Censorship, Violence Against Speakers / Impunity
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On May 12, 2021, the Supreme Court of India refused to grant “default bail” to journalist and activist Gautam Navlakha, who was arrested in connection with the Elgar Parishad – Bhima Koregaon violence case. Elgar Parishad was a cultural event held on December 31, 2017, to commemorate the 200th anniversary of the Battle of Bhima Koregaon in which the Mahar Dalits (a historically oppressed caste in India) defeated the Marathas (who considered themselves to be a higher caste). At this event, violence broke out between individuals from Dalit and Maratha communities. Various human rights activists and journalists who were present were arrested on grounds of instigating the violence through their speeches. Gautum Navlakha, though not present at Elgar Parishad, was arrested on grounds of “plotting” the Elgar Parishad – Bhima Koregaon violence and for his “Maoist” links, about eight months after the event. After having been held in house arrest, police custody, and judicial custody cumulatively for over 90 days, he applied for default bail. Under section 167 of the Criminal Procedure Code, 1973, the maximum time period for which the accused can be detained is 90 days, after which they have to be released on “default bail”. Regardless, bail was denied by the court of first instance, the court of appeal and finally by the Supreme Court of India. The Supreme Court held that while house arrest can be counted in computing the 90 day period of “custody” to determine eligibility for default bail, in Navlakha’s case the order of house arrest was passed by a High Court and not by a Magistrate, and therefore must be discounted. Since the circumstances and backdrop against which house arrest was ordered by the High Court, were materially different from what Section 167 of the Criminal Procedure Code contemplates, the Supreme Court refused to recognize and count Navlakha’s period of house arrest as “detention”, and he was denied bail.
Human Rights activist and journalist Gautam Navlakha was arrested in connection with the Elgar Parishad – Bhima Koregaon violence. The Elgar Parishad-Bhima Koregaon incident refers to the celebration that took place on December 31, 2017, which marked the 200th anniversary of the victory of Mahar Dalits (a historically oppressed caste in India) over the Peshwa’s army i.e. the Marathas (who are historically a dominant caste). A coalition of 250 Dalit and non-profit groups were present at this event. On January 1, 2018 (the day after the event) violence broke out between members of Maratha and the Dalit communities, which the police allege was incited by the speeches made by various activists and journalists at Elgar Parishad. Several prominent academics, lawyers, activists, and journalists were arrested on charges under the penal code, national security laws and terrorism laws over their alleged part in the violence. These activists, including Gautam Navlakha who have been under arrest since 2018 are collectively called the “Bhima Koregaon 16″.
A First Information Report (FIR) was registered on January 08, 2018, and several activists were charged under the Indian Penal Code (IPC) for, inter alia, promoting enmity between different groups, and committing acts prejudicial to maintenance of harmony, criminal conspiracy. Subsequently, additional FIRs were filed on March 06, 2018 and May 17, 2018, vide which charges under the Unlawful Activities Prevention Act, 1967 (UAPA) were added. The UAPA is anti-terrorism legislation that provides for a “more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities”. The police allege that the Elgar Parishad – Bhima Koregaon violence is related to a larger Maoist conspiracy to assassinate Prime Minister Narendra Modi and overthrow the Indian Government. The basis of these claims are letters and communications the police found in raids conducted against activists in the context of the Elgar Parishad – Bhima Koregaon violence. These letters contained names and references to other activists who have been subsequently arrested, including Gautam Navlkaha. Importantly, all of the evidence used as a basis for this alleged conspiracy was recovered from electronic devices seized from the accused. According to reports from US based digital forensics consulting company named Arsenal Consulting, this evidence was planted on the computers of the accused. This report was also cited by two of the accused in the Elgar Parishad – Bhima Koregaon case, Rona Wilson and Shoma Sen seeking quashing of charges filed against them in a writ petition before the Bombay High Court.
Gautam Navlakha’s name was added to the FIR only on August 22, 2018 i.e. about seven months after the first FIR was registered on January 08, 2018. Navlakha was arrested on August 28, 2018 from his residence in Delhi. The police filed a “transit remand application” before a Magistrate in Delhi, seeking permission to take Navlakha from Delhi to Pune, since the FIR had been registered in Pune, and the matter fell within the jurisdiction of the court in Pune. Against his arrest, Navlakha immediately moved the Delhi High Court impugning the legality of his arrest. On August 28, 2018, the Delhi High Court stayed the Magistrate’s order, and directed that he be kept under house arrest in Delhi until further orders.
The next day i.e. on August 29, 2018, a writ petition was filed before the Supreme Court of India, by a group of public spirited citizens, stating that the arrests were “with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent.” They submitted that the arrests were unlawful and sought that the Court ensure that the investigation be carried out independently. The Supreme Court however rejected the plea for an independent investigation, but permitted the accused persons, including Gautum Navlakha, to continue their house arrest for four weeks, and to approach a court of competent jurisdiction for any remedy permissible under law.
On October 01, 2018, the Delhi High Court held that Navlakha’s arrest was unsustainable in law, and directed that his house arrest come to an end. Navlakha then approached the Bombay High Court, which was the jurisdictional High Court, seeking that the FIR be quashed. Although Gautam Navlakha was not present at the Elgar Parishad event, it was alleged that his name figured in communications regarding the event and to further conspiracies with Maoists. In an interim order, the Bombay High Court found that prima facie that there was nothing incriminating in the letters that were submitted to them. However, in September 2019, the Bombay High Court dismissed Gautam Navlakha’s petition after the state submitted documents containing the material against him in a sealed cover.
While the Bombay High Court dismissed the petition, it extended Navlakha’s house arrest by three weeks. Navlakha approached the Supreme Court challenging the Bombay High Court’s order of dismissal, however, the Supreme Court refused to grant anticipatory bail. The Supreme Court did however extend his period of house arrest, by four weeks. He was given the liberty to approach a competent court seeking anticipatory bail.
When Navlakha approached the Sessions Court, which is the court competent to grant anticipatory bail, his application was rejected, and once again Navlakha went through a series of appeals seeking anticipatory bail. Both the appellate courts i.e. the Bombay High Court and the Supreme Court rejected his plea for anticipatory bail. At this stage, not only did the Supreme Court decline to grant Navlakha anticipatory bail, but directed him to surrender himself custody. Navlakha surrendered and soon after was sent to judicial custody.
Navlakha applied for the grant of default bail under Section 167 of the Criminal Procedure Code, 1973 on the grounds that the period of his house arrest, police arrest and judicial custody cumulatively amounted to 90 days. Under Section 167, if the accused has been in custody for 90 days and the investigation authority has not completed their investigation, default bail has to be granted. Both the lower courts i.e. the NIA Special Court and the Bombay High Court denied Navlakha bail. Aggrieved by the denial of default bail, he approached the Supreme Court of India.
Justice Joseph of the Supreme Court of India delivered the judgement on behalf of the court.
The main issue before the Supreme Court was whether Navlakha’s house arrest would constitute “custody” for the purposes of default bail under Section 167 of the Criminal Procedure Code, 1973. Guatam Navlakha argued that the period of his house arrest should be considered as custody within the meaning of Section 167. Navlakha argued that during house arrest, the investigating officers were permitted to interrogate him, after obtaining the leave of the Delhi High Court and as such, he was in police custody. During his house arrest, the investigation against him by Maharashtra Police for charges under the IPC and UAPA continued. He further submitted that the Delhi High Court judgment dated October 01, 2018, finding that the period of his house arrest was illegal, does not make the period of his house arrest non est. The modification of the nature of remand, from transit remand in police custody to within the confines of Navlakha’s home, did not wipe out the period of detention.
On the other hand, the NIA argued that the very purpose of custody under Section 167 is to enable the police to interrogate the accused and if that opportunity is not present then such period of custody would not qualify for the purpose of Section 167. Further that, the period of house arrest ordered by the Delhi High Court was not detention under Section 167. The NIA argued that any detention can only “end” if the detainee is acquitted or given bail. Since there was no bail in favour of Navlakha and he was not remanded to judicial custody at the end of the house arrest, his house arrest would not qualify as “custody”.
The Supreme Court observed that under Section 167(2) of CrPC, the order of detention has to be by a magistrate. The Magistrate had initially directed the detention of Gautam Navlakha for a period of 2 days. The Delhi High Court then set aside the order of the Magistrate, finding the detention illegal and ordered house arrest. This order of house arrest, was not in furtherance of or modification of the order of the Magistrate. Further, the standards that are applicable to a Magistrate ordering detention under Section 167, were not followed by the High Court. The Supreme Court concluded that the house arrest was ordered by the Delhi High Court who “did not purport to act under Section 167” [p. 188]. Therefore, his period of house arrest could not be included within the period of 90 days required to be eligible for default bail under Section 167 of CrPC.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of India held that as long as the house arrest ordered by a Magistrate is in the nature of detention as contemplated by Section 167 of the CrPC, such period of house arrest qualifies as custody for the purposes of default bail. However in the present case, since house arrest was ordered by the Delhi High Court and not by the magistrate, the period of house arrest would not count as “custody” in computing the 90 day period prescribed under Section 167 of the CrPC.
The Court adopted a hyper-technical reading of section 167 of the CrPC, holding that the Delhi High Court’s ordering of house-arrest would not count as “custody” when computing the 90-day period under the section. Since section 167 operates to protect the civil liberties of individuals, the court could have considered a more liberal interpretation.
The judgement still holds that a detainee/arrestee’s authorized custody within the confines of their own house, may qualify as valid custody for the purposes of Section 167, as long as the order for such detention has been passed in terms of Section 167 CrPC. It upholds the rights of incarcerated activists and journalists like the Bhima Koregaon 16, including Gautam Navlakha who are arbitrarily arrested with little evidence, because of their speech. Due to the extremity of charges put against them, such as the terrorism and national security charges in the present case, courts are not inclined to easily grant them bail. Their rights under house arrest and bail therefore become important in protecting their liberty, and preventing criminal proceedings from having a chilling effect on free speech.
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