Supreme Court has granted bail to Bhima Koregaon-accused activists Vernon Gonsalves and Arun Ferreira, setting a crucial exception to the otherwise stringent interpretation of bail-granting powers under the Unlawful Activities (Prevention) Act (UAPA). This decision has effectively widened the scope for more undertrials to seek bail, a development of great importance for those detained under UAPA, which is notorious for its low conviction rates.

The groundbreaking ruling comes in the wake of the Watali principle, established in the 2019 case of Zahoor Ahmad Watali, where the Supreme Court set aside bail granted to a Kashmiri businessman by the Delhi High Court. 

The court held that at the pre-trial stage, there should be no attempt to delve into the merits of the case, and a determination on bail should be based on "broad probabilities" regarding the accused's involvement in the alleged offence. 

The court also emphasized that evidence placed on record by the National Investigating Agency should be considered, regardless of its admissibility or probative value, to decide bail applications.

However, the recent Vernon case has introduced a new dimension to the Watali principle. The bench, comprising Justices Aniruddha Bose and Sudhanshu Dhulia, ruled that the prima facie test envisioned in Watali would not be met without "at least surface-analysis of the probative value of evidence." This shift allows for a more thorough examination of the evidence presented during bail proceedings, potentially increasing the likelihood of granting bail in certain cases.

The Supreme Court's verdict also reminded courts of their heightened responsibility to safeguard the rights and liberty of UAPA accused, especially in cases involving severe offences. This principle was drawn from the context of the now-repealed Terrorist and Disruptive Activities (Prevention) Act, 1987, reinforcing the need for diligent scrutiny of cases under UAPA.

This landmark ruling builds on previous efforts to liberalize the bail jurisprudence under UAPA, such as the 2020 KA Najeeb case, where the court upheld the power of constitutional courts to grant bail based on a violation of the right to a speedy trial. Similarly, the 2021 Thwaha Fasal case attempted to soften the strict application of the Watali principle by clarifying that the embargo on bail would not apply if the charge sheet did not reveal a prima facie case.

With this recent development, the Supreme Court has taken a significant step towards striking a balance between safeguarding national security and protecting individual liberties. The decision holds the potential to pave the way for more undertrials to seek bail, reducing the burden of prolonged incarceration and ensuring a fair and efficient judicial process for those accused under UAPA.

"Supreme Court Criminal Appeals 639 and 640 of 2023: Vernon and Arun vs. State of Maharashtra"

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