Bhima Koregaon: Justice delayed & denied

After the 2017 Elgar Parishad meeting became epicentre of arrests over the Bhima Koregaon violence, the first Elgar Praishad was held this year on January 30 in Pune

Nothing, it seems, can make a difference to the judiciary in the infamous Bhima Koregaon case in which 16 eminent Indian scholars and activists have been locked up for two years on the flimsiest of legal grounds.

Last week, a report in Washington Post revealed that an American digital forensics consulting firm that had studied the electronic gadgets belonging to activist Rona Wilson, one of the accused in the case, had found that fabricated evidence was planted in the gadgets, including a laptop and pen drive, which were seized from Wilson’s house in April 2018 and which led to his arrest two months later.

The Massachusetts-based firm, Arsenal Consulting, said Wilson’s computer was compromised by the same attacker for 22 months between 2016 and 17 April 2018, when the systems were seized by the police for his alleged links with the case, involving violence on January 1, 2018 during celebrations marking 200th anniversary of a Dalit victory over Maratha soldiers. Arsenal Consulting blamed a phishing attack sent from an email purported to have been sent by 80-year-old Varavara Rao, a poet and activist and a co-accused in the case.

For defence lawyers the revelations of Washington Post were in line with what the accused have been saying for several months. “This is what we have been saying from day one, that all these letters are fabricated, they do not inspire any confidence and if one looks at the content, from that itself it is clear that the documents are fabricated. Now, what we were saying stands fortified with technical details. We had certain indications in the FSL report itself, but those were not adequate. So, the Washington Post report makes it very obvious and clear scientifically that it is totally planted evidence,” Nihalsing Rathod, a defence lawyer in the case, tells Media India Group.

The defence lawyers say that the electronic evidence is not the only thing fabricated by the police in the case. Their claim does seem to have some basis. Most of the accused were in Pune on December 31, 2017 addressing a meeting of Elgar Parishad that had brought together speakers from across the country. The organisers included former Supreme Court judge, Justice P.B. Sawant, and former Bombay High Court judge, Justice B.G. Kolse-Patil. The event saw songs, street plays and speeches on various issues, including Dalit rights and criticism of the Narendra Modi government.

The Bhima Koregaon violence took place on January 1, 2018 and even the police does not claim that most of the accused were anywhere near the site of the violence. Moreover, after the violence two FIRs were registered. One blamed two right-wing leaders while the other accuses ‘leftist groups with Maoist links’ who spoke at Elgar Parishad for instigating the violence. Curiously, the police chose to pursue only one of the FIRs, even though one of the Hindutva leaders was arrested but released on bail soon afterwards.

Subsequently, all the arrests in the case have been on account of an FIR filed by a person who claims to have attended the Elgar Parishad meeting and accused the organisers of instigating violence as ‘inflammatory speeches inciting hatred amongst society’ were being delivered and ‘inflammatory books’ were kept for sale. Incidentally, the person who filed this FIR is a follower of the right-wing groups accused of violence.

Over the past three years, police has arrested 16 persons in the case including Jyoti Raghoba Jagtap, Sagar Tatyaram Gorkhe, Ramesh Murlidhar Gaichor, Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Shoma Sen, Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves, Anand Teltumbde, Gautam Navlakha, Hany Babu and Father Stan Swamy.

In May 2018, the police added serious charges under the anti-terror UAPA law, which makes bail nearly impossible, and filed the first charge-sheet of over 5,000 pages in Pune. The police claimed that Naxalites, members of banned Communist Party of India (Maoist), planned to assassinate Prime Minister Narendra Modi to destabilise democracy and wage war against India.

Defence lawyers, as well as human rights activists, say that the sole intent of the entire façade of the case, with weak or no evidence at all, is to crush dissent and make an example of the 16 eminent personalities who have done stellar work in their fields and have been vocal critics of Modi for years. This is the only reason that after the fall of the Bharatiya Janata Party government in Maharashtra, the Centre took over the case through its National Investigation Agency, they say.

‘‘Each of these 16 individuals is an institution in themselves. They have been vocal critics of the government, of casteism  and they have been articulating against government policies. They have also sharply criticised present Prime Minister for the 2002 Gujarat riots. Also, each of these individuals have played an important role seeking release of political prisoners or downtrodden people booked under stringent terrorist laws and without any defence lawyers. They helped so many people with free legal aid and secured their release. This the real reason why they have been targetted,” says Rathod.

Besides the serious charges, continuous media propaganda on the case, projecting the accused as convicted felons an entire edifice has been built around the case and the defence lawyers say that this does come into play when the issues of bail are discussed in the courts. “See how the media propaganda that has been happening and the way the prosecution presents the case in the court. They try to impress upon judges that this is a very serious matter pertaining to national integrity, security, sovereignty. All these terms they tell in one breath, that has been one of the reasons that the courts have preferred to deny bail than to take any chance. Apart from this there’s this Supreme Court’s precedence on this issue which mandates the courts, whichever court, to give prima facie value to the letter and not go into its admissibility or other things. So, whatever the prosecution places on record with the charge sheet, it will be accepted as truth till the trial is concluded,” says Rathod.

Judges failing fundamental rights 

The precedent set by a rather harsh ruling by Supreme Court in a 2019 case indeed makes a serious dent in personal liberties and fundamental rights of citizens. The court has gone against its own countless orders stating that bail is a right and jail an exception. However, over the past 4-5 years, the top court of the country has definitely taken a hard right turn in its stance and rulings on cases involving citizens versus the State.

The statements of a few judges while hearing bail petitions have been surprising, to say the least. In one famous instance in August 2019, when an accused, Vernon Gonsalves, pointed at lack of any evidence against him, a judge of the Mumbai High Court famously asked Gonsalves about Leo Tolstoy’s epic War and Peace having been seized from his house. He asked why a book about “war in another country” had been found in house. The judge did later try to ‘clarify’ that he knew about the epic and his query was related to another book.

There have been numerous such instances of the accused having been denied their fundamental rights, including right to wellbeing, as in the recent case of prosecution opposing that Varavara Rao get treated for an illness at a hospital. It was after intervention by the High Court that he was shifted to a hospital.

The defence lawyers accuse the prosecution of using all tricks to harass the accused and delaying the commencement of trial by not even sharing the evidence with the accused. Rathod says that for each shred of evidence, the defence has had to go to the bench to force the prosecution to share all the evidence as is required so that they can prepare for the trial.

“Prosecution has been successful in delaying this trial. First, because they know that in the trial none of the evidence is going to stand. Secondly the evidences that they have are in the nature of documents which are computerised documents. Now, at least Indian law requires that they must prove its content with a proof of fact. Even if they are able to prove that these letters were found in the computer there is no proof on fact and surely the case is going to fall apart on that count. They want to drag it further and therefore they continued arresting one person after another. There have been at least four or five sets of arrests. At the same time we could not press for initiation of trail as they had refused to give us cloned copies of the electronic material and hard disks. For that we had to fight for one year. This also delayed the preparation of defence of the accused,” he points out.

The defence lawyers say that objective of the NIA seems to be simply keeping the accused in jail for as long as possible as a punishment. For this they are also banking on a near certainty that the accused would not be granted bail by the courts. “Usually, the prosecution has to prove the guilt and until then they are treated as innocent but the UAPA law applied by them is rather grossly misunderstood. The stringency of law, the fear of the allegations and what if the Prime Minister is killed. These questions have made the judges reluctant to pass bail orders in this case,” says Rathod.

Yet, there are hundreds of precedents for the courts to see and realise that innocent persons have languished and continue to languish in Indian prisons for years, if not decades, on extremely serious charges. But the moment, the trial commences, the judges find the prosecution evidence to be so flimsy or entirely fabricated that they do not hesitate to acquit or at least grant immediate bail to the accused.

It is time that Indian courts played their role as guarantors of fundamental rights and the bulwark against mindless prosecution which is almost always bordering on criminal harassment of the innocent. The judges may simply wish to look at the India Justice Report 2020 which found that about 69 pc or 7 in 10 prisoners languishing in Indian jails are undertrial, meaning for each convicted person in jail, there are two who ought to be treated as innocent. It maybe time to let them go home.