Since 2018, stringent UAPA rules, SC’s Zahoor Watali order, NIA takeover and allegedly ‘inadmissible’ evidence has made sure that all accused remain in custody.

APOORVA MANDHANI 31 October, 2020 11:52 am IST

Activists Varavara Rao, Sudha Bharadwaj and Stan Swamy. They are among the 16 arrested in the Bhima Koregaon case. | Illustration: Soham Sen/ThePrint
Activists Varavara Rao, Sudha Bharadwaj and Stan Swamy. They are among the 16 arrested in the Bhima Koregaon case. | Illustration: Soham Sen/ThePrint

New Delhi: On 31 December 2017, a group of activists, political leaders and even retired judges came together at Shaniwar Wada in Pune.

Called the Elgaar Parishad (Congress for Speaking Aloud), the organisers of this event 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. 

Elgar Parishad itself was a curtainraiser of sorts for a yearly celebration of the ‘Battle of Bhima Koregaon’. In 1818, it was during this battle that Dalit soldiers of the British army, mostly Mahars, trounced the troops of the local ruler, Peshwa Bajirao II, a Brahmin.

Every year on 1 January, Ambedkarite Dalits gather at Bhima Koregaon to pay their respect at the Vijay Sthamb (victory pillar). 2018 was to be the 200th commemoration of the battle. However, that year saw violent clashes between Dalit and Maratha groups instead, resulting in the death of at least one person and injuries to several others.

Two FIRs were then filed — one blamed two Hindutva Right-wing leaders for the violence; and the other blamed “Leftist groups with Maoist links” who spoke at Elgar Parishad for instigating the violence. It is the latter that has since been vigorously pursued by the authorities.

So far, 16 people have been arrested in the case as accused — 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. 

Most of the accused in the case were neither named in the FIR over the violence nor present during the 2017 event.

However, since 2018, stringent UAPA provisions, Supreme Court’s Zahoor Watali judgment, NIA taking over the case and allegedly ‘inadmissible’ evidence has made sure that all those accused in the case remain in custody — some for over two years now — without the trial even having begun.

Multiple charge sheets, UAPA provisions

All the arrests in what came to be known as the ‘Bhima Koregaon case’ can be traced back to an FIR dated 8 January 2018, filed by Tushar Ramesh Damgude under Section 153A, 505(1)(b), and 117 of the Indian Penal Code (IPC).

Section 153A is for promoting enmity between different groups on grounds of religion, etc; 505(1)(b) is for those who make statements with an intent to cause or likely to cause fear or alarm among the public, or any section of the public whereby any person may be induced to commit an offence against the State or against public tranquility; and 117 for abetting commission of offence by the public or by more than 10 persons.

A history graduate with a construction business, Damgude told the police that he came to know about the programme at Shaniwar Wada through a Facebook post. He attended the event and then told the authorities that at the event, “inflammatory speeches inciting hatred amongst society” were being delivered and “inflammatory books” were kept for sale.

The FIR had named 6 members of cultural organisation Kabir Kala Manch — Sudhir Dhawale, Sagar Gorkhe, Harshali Potdar, Ramesh Gaychor, Dipak Dhengale and Jyoti Jagtap. 

There was another FIR registered six days before this one, on 2 January 2018, blaming Hindu extremist leaders Milind Ekbote and Sambhaji Rao Bhide for the violence based on an eye-witness account. However, the probe has largely focussed on Dangude’s FIR.

While initially Ekbote was arrested and released on bail, Bhide was never arrested. Damgude’s Facebook posts showed that he is Bhide’s follower, referring to the latter as “Guruji”. 

Over the next few months, multi-city searches and arrests were conducted by the Pune Police. UAPA provisions were added to the case in May 2018.

In August 2018, internationally renowned historian, Romila Thapar, and other scholars approached the Supreme Court demanding an independent probe into the allegations and complaining against the “high-handedness” shown by the Pune Police. However, this was rejected by a three-judge bench of the Supreme Court, with Justice D.Y. Chandrachud dissenting. 

The Pune Police filed the first charge sheet in the case in November 2018 and a supplementary charge sheet in February 2019. However, in January 2020, the probe was transferred to the National Investigation Agency (NIA), which filed another charge sheet earlier this month.

Also read: Historians’ silence on Bhima Koregaon allowed BJP to brand it as ‘urban Naxalism’

Unsigned letters, CPI(M) literature

The charge sheets in the case largely claim that the accused in the case are “active members” of Communist Party of India (Maoist), which was declared a terrorist organisation by the central government in June 2009.  

The evidence mentioned in the charge sheets and that has been used to challenge bail applications includes literature on CPI (Maoist) and several unsigned letters — all recovered from the electronic devices seized from the accused.

The letters, primarily recovered from Wilson and Gadling’s electronic devices, make a wide variety of claims — from an alleged assassination plan against Prime Minister Narendra Modi to requirement for M4 rifles and 4 lakh ammunition rounds. 

The supplementary charge sheet spoke about how Gonsalves and Ferreira had enrolled members for banned CPI (Maoist) and that they had a front organisation called the Indian Association of Peoples Lawyers (IAPL). Bharadwaj, it said, was working through IAPL to accomplish objects of CPI (Maoist), i.e. destabilising the country. 

However, all these letters are typed, not handwritten and do not bear the signature of any of the accused or other people who wrote or sent them. Therefore, the authorship of these documents remains a mystery.

Additionally, the emails recovered from Gadling’s hard drive are all in .docx or .pdf formats, instead of being intercepted emails where the details about the sender, receiver and time of the email can be verified and confirmed by third party email platforms. 

One of the defence lawyers also told ThePrint that all the incriminating files on Gadling’s computer were “conspicuously” saved on his desktop.

Documents recovered from Raut and Rao include a document dated 27 January 2007 —before CPI (Maoist) was declared a banned organisation in 2009 — titled Strategy and Tactics of the Indian Revolution. It also included a document that deals with the work and strategies that need to be used in urban areas; another document titled Caste question in India — Our Perspective; an undated ‘Party Constitution’; an undated ‘Party Programme’; and several such documents.

The most recent charge sheet in the case, filed by the NIA, claims that the accused — Anand Teltumbde, Navlakha, Babu, Gorkhe, Gaichor, Jagtap and Swamy — “conspired with other accused persons to further the ideology of terrorist organisation CPI (Maoist) and abetted violence, brought into hatred & incited disaffection towards the Government”.

Also read: MPs Tharoor, Sule, Kanizmozhi join 8 others to seek UAPA repeal, release of Stan Swamy

No ‘hash value’, or independent panchas

Several defence lawyers pointed out lapses in the procedure that was followed in searching the houses and offices of the accused.

One of the lawyers said on condition of anonymity that for many of the raids conducted in the case at the houses and offices of the accused, the “hash value” of the seized devices was not provided to the accused. 

Hash value is popularly known as the “fingerprint of data”. According to the Information Technology Act, hash value is to be used for “authentication of electronic records”. So if a device is tampered with after seizure, then its hash value won’t match the value provided to the accused at the time of seizure.

In this case, the Pune Police did not provide several of the accused with hash values, or provided them months later.

More recently, People’s Union for Civil Liberties also pointed out that when Hany Babu’s house was searched in September 2019 for nearly six hours, no proper inventory or hash value or seized items was provided to him. His wife has since claimed that the devices seized from Babu have been tampered with. 

The Code of Criminal Procedure also makes it clear that the process of search, seizure and arrest needs to be carried out in the presence of two or more independent and respectable people — panch witnesses or panchas — from the locality in which such a raid or arrest is being carried out. 

However, in most raids and arrests carried out in the case, the Pune Police used panchas that they had brought along with them. In fact, the panchas for arrests made on 28 August 2018 were employees of the Pune Municipal Corporation.

This fact was considered by Justice Chandrachud, in his dissenting opinion in the Romila Thapar case, as a circumstance “which must certainly bear upon the fairness and impartiality of the process which has been followed by the investigating agency”.

Also read: Priest, activist, ‘Naxal backer’ — who’s Stan Swamy, latest NIA arrest in Bhima Koregaon case

‘Serious bone of contention’ on letter’s authenticity

In his dissenting opinion in the 2018 verdict, Justice Chandrachud had also noted certain discrepancies.

He had pointed towards absence of independent panchas and also noted how there was a “serious bone of contention in regard to the authenticity of the letter which, besides being undated, does not contain any details including the email header”. 

He was referring to a letter allegedly from Bharadwaj to ‘Comrade Prakash’. According to his order, this letter was also distributed to the media by the authorities, soon after the arrests.

Justice Chandrachud took note of the submission that “the letter is an obvious fabrication made by a Marathi speaking person because in as many as 17 places, it contains references to words scribed in Devanagari, using forms peculiar to Marathi”. The court was told that Bharadwaj does not know the language and therefore, could not possibly have written a letter in Devanagari utilising “essentially Marathi forms of grammar or address”.

Also read: Gautam Navlakha had links with Pakistan’s ISI, says NIA in Bhima Koregaon chargesheet

Multiple bail pleas rejected

Those arrested in this case since 2018 have had multiple bail applications rejected. For instance, Bharadwaj has been in jail since 28 August 2018. Her bail on merits has been rejected twice and interim bail on health grounds has also been rejected twice — once by the special NIA court and another one by the Bombay High Court.

She did approach the Supreme Court for interim bail on medical grounds, but withdrew it in September after the court suggested that she seek regular bail on merits. 

Similarly, 81-year-old Varavara Rao’s bail application on merits has been rejected once, and his interim bail application on health grounds has been rejected twice. This is despite the fact that he contracted Covid-19 and had to be hospitalised multiple times over the past few months. 

His wife then petitioned the Supreme Court on 15 October, after his interim bail on health grounds remained pending in the Bombay HC since 1 July, despite requests for urgent hearing. While the apex court did not direct his release, it said that it was “bothered” by the fact that the HC had not heard the plea since 17 September. In an order passed on 29 October, it requested the HC to take up the matter expeditiously owing to his health conditions.

While NIA has been opposing Rao’s bail claiming that he is taking “undue advantage” of the pandemic, advocate Sunil Fernandes, who filed the petition on behalf of Rao’s wife, told ThePrint that “Rao’s most recent medical report by Nanavati Hospital shows that he is suffering from neurological problems and because of his advanced age (81), comorbid factors and persistent hyponatremia in Covid 19 case, he will require close monitoring”. 

“On numerous occasions his health has been neglected by the jail authorities. The doctor’s advice has not been followed on many occasions, tests as advised have not been conducted, he has lost a lot of weight since his arrest and his health continues to be precarious,” he added. 

Those just arrested have also begun seeing the same trend, with Father Stan Swamy’s interim bail application having been rejected by a special NIA court on 22 October.

Opposing Swamy’s bail plea, the NIA used assertions similar to what it used against Rao’s bail plea. It told the court that Swamy “under the garb of the current situation on account of the global pandemic Covid-19, is trying to take an undue benefit of the situation”. 

What is keeping them inside is a combination of stringent UAPA bail provisions and a 2019 Supreme Court judgment.

Also read: Indians will regret their silence over Modi’s ever-growing list of political prisoners

SC judgment that ‘shut the door’ for bail

In regular criminal cases, bail is supposed to be the norm and pre-trial jail the exception.

However, Section 43D(5) of the UAPA says that a person accused of an offence under Chapters IV and VI (terrorism and belonging to a terrorist organisation) shall not be released on bail if the court, after perusing the case diary and police report, “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.

Delhi-based lawyer Nikita Khaitan explained that these harsh bail provisions in anti-terror laws can be traced back to Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA). 

She said, “While the UAPA bail provision is slightly differently worded from TADA and POTA, in effect, it has the exact same outcome — people languishing in jails for years without trial.”

Now the Delhi High Court, while hearing the NIA case against Zahoor Ahmad Shah Watali in 2018, granted him bail under this UAPA provision. In doing so, it noted that while the investigating agency did have a lot of material against Watali, a lot of it was actually not going to be able to be used at the stage of trial.

The Supreme Court, however, in April 2019 called the high court’s approach “inappropriate”.

“The Supreme Court said that courts cannot go into the question of what is admissible and what isn’t at the stage of granting bail. That can only be done at the stage of trial. So at this stage, whatever material the investigating agency has on you, whether you think eventually that would be used in trial or not, the court will be taking into account absolutely everything,” Khaitan explained.

“So the one judicial way out that the courts had been using to be in a position to give bail more easily under UAPA, the Supreme Court shut that door,” she added.

All the bail orders passed in this case since April 2019 have cited the Zahoor Watali judgment to refuse bail to the accused on merits.

‘Throwing arrows in the dark’

As for the NIA transfer, two petitions are currently pending in the Bombay High Court — one by Ferreira and Teltumbde, and another by Gadling and Dhawale — challenging the transfer of the probe to the NIA. 

The second petition alleges that what prompted the transfer of the probe to the NIA is the fact that the “BJP-led government was routed out of power in the State and that the newly formed Government (Maha Vikas Aghadi comprising of Shiv Sena, NCP and Congress) was intending to constitute an SIT to enquire into the circumstances that led to violence at Bhima Koregaon”. 

It further alleged that the transfer was made to ensure the trial does not proceed and accused continue to languish under the pretext that the investigation is on. It claimed the proceedings before the special court and thereafter the NIA judge have been adjourned on almost 60 occasions, just on the framing of charges.

Representing Anand Teltumbde, Swamy and Gonsalves, senior advocate Mihir Desai also asserted that the transfer itself was illegal.

A few days before the probe was transferred, Nationalist Congress Party chief Sharad Pawar had written a letter to the state home department, calling the arrest of activists “wrong and vengeful”. He had sought an SIT probe in the cases. 

Asked how the investigation has proceeded since the NIA took over, Desai said, “One doesn’t know what would have happened if this wasn’t done. It would’ve saved us six to eight months maybe. But it has been proceeding as illegally as it was proceeding earlier when the Pune police was involved.” 

He added, “They are just throwing arrows in the dark, trying to rope in as many people as possible and bring about some great major conspiracy case of which they don’t have a single peg.”