Not Thwarted by Watali: Why Bail for Vernon Gonsalves & Arun Ferreira Matters

Simply put, Section 43D of the UAPA prevents grant of bail merely — if based on the material provided by the police — there are reasonable grounds to believe that the case against the accused is prima facie true. Essentially, what this means is that a terror-accused under the UAPA cannot get bail if the court feels that the material provided by the prosecution might successfully implicate the accused during trial. Together, the deadly consortium of 43D and Watali have been frequently employed to deny bail to many UAPA accused — including in an Allahabad High Court order denying bail to Kappan and a Delhi High Court order denying bail to JNU student Umar Khalid. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail, and the quality or probative value satisfies the Court of its worth.” Thereby, in carrying out the surface-analysis, the court found that that the contents of the "letters" are in the nature of hearsay evidence, no overt or covert terrorist act had been attributed to the accused duo in these letters, and that the allegations of ideological propagation and recruitment don’t hold much water either.