Bombay High Court Grants Bail to Gorkhe, Gaichor in Elgar Case - 2026-01-24

Bombay High Court Grants Bail to Gorkhe, Gaichor in Elgar Case

In a significant development for one of India's most contentious anti-terrorism probes, the Bombay High Court on January 23, 2026, granted bail to activists Sagar Gorkhe and Ramesh Gaichor in the Elgar Parishad–Bhima Koregaon case. The division bench, citing the principle of parity and the prolonged pre-trial incarceration of the duo—now exceeding five years—overturned earlier denials by a special National Investigation Agency (NIA) court. This ruling leaves only one accused, human rights lawyer Surendra Gadling, in custody among the original 16 charged under the stringent Unlawful Activities (Prevention) Act (UAPA). The decision underscores mounting judicial concerns over delays in UAPA trials and the balance between national security imperatives and fundamental rights, offering a potential precedent for other long-pending cases involving activists and dissenters.

The Elgar Parishad case, which has captivated national attention since 2018, exemplifies the tensions between free speech, caste-based activism, and allegations of Maoist insurgency. As legal professionals dissect this order, it highlights systemic flaws in handling terror-related prosecutions, where pre-trial detentions often stretch into years without trials commencing.

Background on the Elgar Parishad Case

The roots of the case trace back to December 31, 2017, when the Elgar Parishad—a conclave organized by over 250 Dalit and human rights groups, including the cultural troupe Kabir Kala Manch—was held in Pune to commemorate the 200th anniversary of the Battle of Bhima Koregaon. This 1818 clash between British forces and the Peshwa army is a symbol of Dalit resistance against upper-caste oppression. The event featured speeches by prominent figures, poets, and activists, including historian Anand Teltumbde and lawyer Sudha Bharadwaj, addressing caste violence and social justice.

The following day, January 1, 2018, violence erupted near the Koregaon-Bhima war memorial on Pune's outskirts, resulting in one death, several injuries, and widespread unrest. Maharashtra Police filed an FIR, alleging that "provocative" speeches at the conclave incited the clashes. The initial investigation by Pune Police claimed backing from Maoist groups, including the banned Communist Party of India (Maoist) (CPI-Maoist), portraying the event as part of a conspiracy to destabilize the government.

By 2020, the probe was transferred to the NIA, which escalated charges under UAPA, accusing the organizers of hatching a "larger Maoist conspiracy to stoke caste violence, destabilise the Union government and assassinate Prime Minister Narendra Modi." The NIA invoked Sections related to terrorist organization membership, conspiracy, and waging war against the state. Over two years, 16 individuals—comprising lawyers, academics, poets, and activists—were arrested. Nine were nabbed by Pune Police in 2018, including trade unionist Shramik Sena founder Sudhir Dhawale and writer Rona Wilson. The NIA arrested seven more in 2020, including Delhi University professor Hany Babu and the latest duo, Gorkhe and Gaichor.

Gorkhe and Gaichor, both members of Kabir Kala Manch—a Pune-based cultural group known for anti-caste performances through songs, plays, and street theater—were arrested on September 7, 2020. The NIA alleged that Gaichor delivered "inflammatory speeches" at Elgar Parishad to "propagate Naxal activities and Maoist ideology," while Gorkhe used his "performances of cultural songs and dances" to incite violence and spread Maoist propaganda. Interestingly, the NIA initially approached them as potential prosecution witnesses, but their refusal led to UAPA charges for being "active members" of CPI-Maoist and conspiring to overthrow the government.

Kabir Kala Manch itself has a fraught history. In 2011, under the Congress-led Maharashtra government, the group was accused of being a front for Naxal activities, leading to prior arrests of Gorkhe and Gaichor in unrelated cases. An earlier pending case against them underscores the pattern of scrutiny on cultural activists challenging caste hierarchies.

The case's gravity was amplified by the death of 84-year-old Jesuit priest and tribal rights activist Father Stan Swamy in July 2021. Arrested in October 2020, Swamy died in custody from COVID-19 complications while awaiting trial, sparking outrage over the treatment of elderly accused under UAPA and raising questions about "custodial deaths" in terror probes.

The Bail Applications and High Court Ruling

Gorkhe and Gaichor's bail journey began in the special NIA court in Mumbai, which in February 2022 rejected their pleas alongside those of Hany Babu and Jyoti Jagtap. The lower court accepted the prosecution's narrative, finding "no ground to depart from the statutory bar on bail" under UAPA's Section 43D(5), which denies bail if the court finds reasonable grounds for believing the accusations are prima facie true. It deemed their roles in Elgar Parishad and alleged Maoist links as fitting the "serious conspiracy" to overthrow the Modi government. However, the NIA court granted interim bail to Gorkhe for law examinations (noting his compliance with past conditions) and later extended temporary releases, including from November 20 to December 16, 2025.

Undeterred, the duo appealed to the Bombay High Court, represented by senior advocate Mihir Desai. On January 23, 2026, a division bench comprising Justice A.S. Gadkari and Justice Shyam Chandak allowed the appeals. The bench observed the "prolonged incarceration" of Gorkhe and Gaichor—arrested in 2020 and lodged at Taloja Central Prison—and the "unlikelihood of the trial commencing in the near future." With charges yet to be framed and discharge applications pending, the court invoked parity, noting that most co-accused had secured bail from higher courts.

As the bench stated: "Several other accused in the case have been granted bail due to prolonged incarceration and the unlikelihood of the trial commencing in the near future." It further held: "Hence on the ground of parity, the two appellants (Mr. Gorkhe and Mr. Gaichor) too deserve to be released on bail."

The detailed order, yet to be published at the time of reporting, directed the activists to furnish personal bonds of Rs 1 lakh each with sureties, report to the NIA's Mumbai office on the first Monday of every month, and adhere to standard conditions against tampering with evidence or influencing witnesses. Additional Solicitor General Anil Singh, assisted by Special Counsel Chintan Shah, appeared for the prosecution.

Grounds for Granting Bail: Parity and Prolonged Detention

The ruling pivots on two intertwined legal principles: parity and the right against excessive pre-trial detention. Parity, while not explicitly codified, is a judicially evolved equitable doctrine ensuring similarly situated co-accused receive uniform treatment unless distinguishing factors exist. Here, the court aligned Gorkhe and Gaichor's situation with successful bails for others facing identical UAPA charges, emphasizing that differential treatment would be arbitrary.

Prolonged detention, a recurring theme in UAPA jurisprudence, invokes Article 21 of the Constitution, which guarantees the right to life and personal liberty. The Supreme Court has repeatedly cautioned against "trial by incarceration," as seen in cases like K.A. Najeeb v. Union of India (2021), where it held that UAPA's bail bar cannot override fundamental rights if trials are unduly delayed. Gorkhe and Gaichor's over five-year stint without trial commencement mirrors this, especially given the NIA's failure to hand over key electronic evidence despite repeated extensions.

Critically, the decision sidesteps a deep dive into the merits, focusing instead on procedural infirmities—a pragmatic approach in a case plagued by evidentiary doubts.

The Broader Landscape: Other Accused and Case Delays

With this bail, 15 of the 16 original accused are now out, either on permanent, interim, or medical grounds. The Bombay High Court has granted relief to Rona Wilson, Sudhir Dhawale, Sudha Bharadwaj, and Hany Babu (in December 2024). The Supreme Court intervened for poet P. Varavara Rao (medical grounds), lawyer-activists Shoma Sen, Vernon Gonsalves, and Arun Ferreira (on merits in 2023), journalist Gautam Navlakha (with Rs 20 lakh costs for house arrest expenses), scholar Anand Teltumbde, and interim bails for Jyoti Jagtap and Mahesh Raut. Only Surendra Gadling remains incarcerated.

The case's trajectory reveals stark delays: Filed in 2018, charges are unframed after five extensions; discharge hearings continue while the NIA withholds "key" digital evidence. A 2023 Supreme Court observation in related bails critiqued the NIA's primary evidence—alleged letters—as having "weak probative value or quality." Compounding this, a report by U.S.-based digital forensics firm Arsenal Consulting concluded that false evidence was "planted" on accused's devices, eroding prosecution credibility and fueling claims of a "political witch-hunt" against critics of the government.

Legal Implications Under UAPA

UAPA's Section 43D(5) erects a formidable barrier to bail, inverting the presumption of innocence by allowing denial if the state's case appears prima facie valid. However, courts have carved exceptions where incarceration becomes punitive rather than preventive. This Elgar Parishad ruling exemplifies how higher judiciary is recalibrating UAPA's application, prioritizing constitutional safeguards over statutory stringency.

The parity principle gains traction here, as seen in Dipak Kashinath Mahalikar v. State (though overruled on other aspects), reinforcing equity in multi-accused conspiracies. Moreover, evidence tampering allegations invoke due process under Article 20(3), potentially warranting quashing of charges if substantiated. For legal scholars, this aligns with global critiques of anti-terror laws (e.g., UN reports on India's UAPA) that enable prolonged detentions without trials, akin to Guantanamo-like concerns.

The NIA's narrative—that Elgar Parishad masked a Maoist plot—relies on interpretive leaps from speeches to sedition. As one source quotes the agency: "The NIA has accused Gaichor of using the Elgar Parishad event to make inflammatory speeches to incite violence and 'propagate Naxal activities and Maoist ideology.'" Yet, without robust forensics, such claims falter, as the Supreme Court noted regarding the letters' "weak" quality.

Impacts on Legal Practice and Human Rights

For practitioners, this decision arms defense counsel with ammunition for parity-based arguments in UAPA and similar statutes like sedition (IPC 124A, under review). It signals a judicial pivot toward time-bound investigations—potentially influencing petitions for UAPA amendments, including Supreme Court pending challenges on its constitutionality post-2019 expansions.

In human rights practice, it bolsters activism against caste violence without fear of reprisal, reviving Kabir Kala Manch's role in public discourse. Broader justice system impacts include pressure on NIA for transparency; delays like these (5+ years sans trial) erode public trust and overburden prisons. Stan Swamy's death amplifies calls for safeguards like mandatory medical bail for seniors.

Globally, it positions India amid debates on draconian laws, drawing parallels to U.S. post-9/11 PATRIOT Act critiques. Legal firms specializing in constitutional litigation may see increased caseloads, while policymakers face renewed advocacy for reforms, such as sunset clauses on UAPA detentions.

Conclusion: A Step Toward Justice?

The Bombay High Court's bail to Gorkhe and Gaichor marks a cautious victory for liberty in the Elgar Parishad saga, affirming that even in national security cases, justice delayed cannot be justice denied. By invoking parity and decrying prolonged detention, the bench not only humanizes the accused but critiques the machinery of terror prosecutions. As the case limps toward trial—beset by evidence disputes and political undercurrents—this ruling could catalyze broader reforms, ensuring UAPA serves security without stifling dissent. For legal professionals, it is a reminder: In the scales of justice, equity must temper terror's shadow.