Even cloned copies of planted evidence 'not supplied' to Bhima-Koregaon accused

Counterview Desk 

The National Campaign to Defend Democracy, which claims to be a coalition of 100 human rights organisations, in a note signed by about a dozen senior activists*, has asked leaders of all opposition parties to ask the Central government to ensure that all Bhima Koregaon accused, currently languishing in jail, some for the last five years without trial, be released on bail immediately.

Stating that their incarceration in a false and fabricated case by planting evidence of links with Maoist network is a violation of "civil liberties and democratic rights" of the accused persons, who happen to prominent human rights defenders, the detailed note insists, an unconditional apology should be tendered by the state for the loss of life of Father Stan, one of the accused, and loss of so many productive years of others.

Also seeking criminal prosecution against those who conspired to fabricate evidence to keep the accused in jail, the note wants the opposition leaders to also seek repeal of the anti-terror Unlawful Activities (Prevention) Act (UAPA), the law that "criminalises the constitutional right of the freedom of speech, expression and association."

 Text:

The National Campaign to Defend Democracy which is a coalition of over 100 organisations working on human rights issues would like bring to your attention the situation of five years of unjust incarceration under false and fabricated evidence of some of India’s finest intellectuals, thinkers, activists and lawyers.
This injustice which goes by the name of the Bhima Koregaon – Elgar Parishad Conspiracy case – started its nightmarish journey five years ago. Even as of today, 16 noted academics, intellectuals, lawyers, writers, poets, activists, stand charged with conspiring to overthrow the elected government, indulging in terrorist acts, sedition etc., although the evidence the back these tall claims of high treason is still absent. Of the 16 accused, one - Father Stan Swamy, an 83 years old Jesuit priest - succumbed to illness while in imprisonment. Eleven of them are still in prison, of which 7 have spent 5 or more years behind bars. Three of the accused are out on bail, and one is under house arrest, all facing many restrictions on movement and speech.
The Campaign believes that the continued unjust incarceration in a false and fabricated case is five years too long and we renew our call for the release of all of the BK-16.
What began as an investigation into the Bhima Koregaon violence on January 1, 2018 eventually became a roving enquiry into a “Maoist network”, supposedly comprised of various civil liberties and democratic rights organizations around the country, who were all mere “front organizations” of the Maoist party according to the investigative agencies. Leading human rights activists were arrested, based on their names being mentioned in secretive letters and documents of unknown provenance unearthed on electronic devices recovered during the raids conducted first by the Pune Police, and later by the National Investigation Agency (NIA).
The order of the arrests was as follows:
6th June, 2018: The first 5 people to be arrested in this case, were arrested from Bombay, Nagpur and Delhi. All of them are still in jail. They are

• Surendra Gadling (age 54): A leading criminal lawyer from Nagpur and a Dalit rights activist, he is also the General Secretary of the Indian Association of People’s Lawyers. He represented G. N. Saibaba, besides Sudhir Dhawale, Arun Ferreira, Vernon Gonsalves, and the Kabir Kala Manch activists, who are ironically, now his co-accused.
• Shoma Sen (age 65): A reputed academician, she was the Head of the English Department at Nagpur University at the time of her arrest. She is a Dalit and Women’s rights activist and has been actively involved in the Committee for the Protection of Democratic Rights.
• Sudhir Dhawale (age 53 years): A renowned cultural activist, writer and anti-caste campaigner from Mumbai, he was the editor of Vidrohi magazine, and a member of the Republican Panthers party. Amongst all those arrested that day, he was the only one to have been actively involved with Elgar Parishad, and had recited a poem by Bertolt Brecht that formed part of the FIR against him.
• Mahesh Raut (age 35): He is a tribal rights activist from Gadchiroli, associated with the Bharat Jan Andolan. He graduated from TISS in Mumbai and worked as Prime Minister’s Rural Development Fellow in Gadchiroli. He is also a co-convenor of the anti-displacement platform, Visthapan Virodhi Jan Vikas Andolan (VVJVA).
• Rona Wilson (age 52): A champion of political prisoners, he is the Public Relations Secretary of the Committee to Release Political Prisoners in Delhi. He had worked for the release of Prof GN Saibaba, and campaigned against draconian laws such as the UAPA and the NSA.

28th August 2018: There were many raids on this date, and 5 people were arrested. They were put under house arrest for two months while the Supreme Court deliberated on the arrest, eventually upholding it by a split verdict. Later, however, the arrest of Gautam Navlakha was quashed by the Delhi High Court on procedural grounds. The others arrested that day are:

• Sudha Bharadwaj (age 62): She is a trade unionist and lawyer from Chhattisgarh. Associated with the Chhattisgarh Mukti Morcha (Mazdoor Karyakarta Samiti), she is also the National Secretary of the People’s Union for Civil Liberties, and Vice President of the Indian Association of People’s Lawyers. She was released on the 9th of December, 2021 on default bail.
• Varavara Rao (age 82): He is a renowned poet and a retired college lecturer based in Hyderabad. Ex-editor of a literary magazine, Srujana, he is one of the founders of Virasam (Revolutionary Writers’ Association). He is an acknowledged Maoist ideologue, and has been jailed many times, but has been discharged or acquitted each time. He has been released on medical bail due to his advanced age and related health problems.
• Arun Ferreira (age 50): He is a writer, a cartoonist and a lawyer. Hailing from Thane, he was arrested in 2007 and then serially rearrested each time he was acquitted, due to which he spent nearly five years in jail before being finally acquitted in all cases. He wrote a prison diary of that period which has been published as “Colours of the Cage.”
• Vernon Gonsalves (age 66): A writer, translator and ex-trade unionist of unorganized labour in Chandrapur, Maharashtra. He is a gold medallist from Mumbai University who joined trade unions after giving up a corporate job. He spent nearly six years in jail, before being acquitted in 18 cases in 2013. He was convicted in one, which is currently being appealed in the Bombay High Court, and a discharge application in another is pending before the Gujarat High Court.

14th April 2020: After the NIA took over the case in January 2020, it made two arrests of elderly activists, while the country reeled under the corona pandemic.

• Anand Teltumbde (age 72): A reputed author and Dalit scholar, he has written extensively on issues pertaining to caste atrocities. An engineer and graduate of the Indian Institute of Management (Ahmedabad), he is a former professor at the Indian Institute of Technology (Kharagpur) and was a senior professor at the Goa Institute of Management at the time of his arrest. He was released on bail on 26 November 2022.
• Gautam Navalakha (age 70): He is a well-known journalist, writer and civil rights activist based in Delhi. He is an ex-editor of Economic & Political Weekly, and the managing editor of Hindi literary magazine Hans. He is currently under house arrest in Bombay due to his medical conditions.

28th July 2020: After 5 days of interrogation, Prof Hany Babu was arrested on this date.

• Hany Babu (age 56): An Associate Professor in the English Department of University of Delhi. He is a Linguist, a scholar of caste and language, and has been active in the pro-reservation and other social justice movement within the University of Delhi.

7th and 8th September 2020: Three cultural activists with the Kabir Kala Manch were arrested over these two days.

• Ramesh Gaichor, Sagar Gorkhe, Jyoti Jagtap: These are all poets, singers of the Kabir Kala Manch, a Dalit group with a left philosophy based in Pune. Earlier also, Gaichor and Gorkhe had been arrested in 2013 and were in jail for three years before being granted bail by the Supreme Court. They were all part of the organizing committee of Elgar Parishad and had been named in Damgude’s FIR. But it was only after two years and nine months of harassment, that they were arrested on this date. They all continue to be in jail.

8th October, 2020: A Jesuit priest, Father Stan Swamy, was arrested by the NIA in Ranchi and produced before the NIA court in Mumbai the next day. 

• At 83 years, Father Stan became the oldest accused in this case. Suffering from Parkinson’s Disease, Father Stan’s situation kept worsening in jail. He was eventually moved to a hospital, where he was found to be suffering from Covid, and he eventually passed away on July 5th, 2021, while the high court was still deliberating upon his medical bail application. (Late) Father Stan Swamy (died at 84 years): He worked for the rights of Adivasis and other underprivileged groups in Jharkhand for four decades. Among other issues, he worked on displacement, corporate loot of resources, the condition of undertrials and PESA. He had been a vocal critic of the BJP government’s attempts to amend land laws and the land acquisition act in Jharkhand.

From the very beginning this case has been about protecting the real perpetrators of violence, and prosecuting political dissidents. On January 2, 2018, the day after the violence at Bhima Koregaon, an FIR was filed by Anita Sawle, a Dalit activist and an eye witness to the violence of the previous day. The FIR alleged that an armed mob attacked the Dalits and specifically named Hindutva leaders Sambhaji Bhide and Milind Ekbote as those who had masterminded the attack. However, this FIR was never investigated, although several journalist accounts and fact-findings have corroborated these accusations. Instead, it was the other FIR filed by Tushar Damgude several days later, that served as a convenient prop to a biased investigation intended to persecute activists.
The police story appears to be that the Elgar Parishad, which is to blame for inciting Dalits to commit violence on Jan 1, 2018, is a part of a larger conspiracy by the Maoists in India to overthrow the elected government. Multiple chargesheets running into thousands of pages try to establish a nefarious Maoist conspiracy that includes assassination of the PM, proselytization by Christian missionaries, liberation of Kashmir, and ties with the ISI in Pakistan– all familiar bogeys of the BJP government.
That this case has more to do with domestic politics than any real or imagined crime is evident from the circumstances under which the investigation was transferred to the NIA. For two whole years, the Pune police conducted the investigation of this case. The State elections in late 2019 brought about a fall of the BJP government. Just as the new coalition government started raising questions about the investigation into the cases against activists, the Central Government intervened and unilaterally turned the case over to the National Investigation Agency (NIA) on January 24, 2020. This move, coming after two years of investigation into this case, underlined the political importance of this case to the Centre.

Eleven stalwart citizens are behind bars, many for over 5 years, even as the trial shows no signs of starting

The conspiracy theory of this case relies entirely on documents seized primarily from computers belonging to a few accused activists, which are all in the form of unsigned, unverified, uncorroborated type-written letters. Many of these letters are undated, and from unknown people to other unknown people. These letters are not even originally created on the computers from where the prosecution claims to have found them. Thus, these letters can never be admitted into evidence in any trial, or marked as an exhibit. However, they are sufficient to deny bail to people accused under UAPA!

That these letters are fabricated is upheld by three different courses of inquiry:

1. Dissenting Opinion in the Romila Thapar case: In 2018, just after some of the arrests in this case, five prominent citizens –historian Romila Thapar, economists Devaki Jain and Prabhat Patnaik, academic Satish Deshpande and Maja Daruwala - filed an urgent Public Interest Litigation (PIL) before the Supreme Court (SC) of India “to subserve larger public interests and to prevent stifling of honest dissent so as to protect democratic values and the democracy,” and sought independent investigation under a court-monitored Special Investigation Team. Although the Supreme Court dismissed the petition, in his minority judgement, Justice DY Chandrachud (as he was then) raised doubts over the authenticity of the letters that had been shared with the bench. In one particular letter written in Hindi, he noted the allegations that the Marathi spellings used for common Hindi words showed that the letter had been written by a Marathi speaking person.
2. Cyberforensic Evaluations: In a series of four reports, the Arsenal Consulting, a well-known cyberforensics firm based in Boston, revealed that the computers of Rona Wilson, Surendra Gadling and Father Stan Swamy had been compromised for 20-22 months prior to their arrests. A malware called “Netwire” had been surreptitiously placed on their drives, allowing a remote hacker to do extensive surveillance of their computers and connected devices. This malware also allowed the remote hacker to plant files on their computers in hidden folders without the user’s knowledge. In fact, these reports concluded that almost all the “incriminating documents” on these computers which were relied upon by the prosecution to argue against the bail applications of the accused, had indeed been planted using the malware.

These reports are also supported by preliminary investigations conducted by the English periodical Caravan, which had also discovered the malware Trojan, and raised questions on the issue of tampering of electronic devices.

• On July 17, 2021, the Washington Post and The Wire both reported that at least 8 of those arrested in the Bhima Koregaon case also figured in the list of potential targets for Pegasus software. This matched the earlier investigations by WhatsApp and the Toronto-based Citizen’s Lab that several family members and close colleagues of the Bhima Koregaon accused were victims of the Pegasus spyware introduced into their phones, presumably by the Indian government.
• Independent Corroboration by SentinelOne: A data security firm, SentinelOne, looking into phishing attacks identified a threat actor, Modified Elephant, that is used to attack hundreds of individuals or groups with spearphishing ( the fraudulent practice of sending emails ostensibly from a known or trusted sender in order to induce targeted individuals to reveal confidential information) in order to conduct surveillance and deliver potential malware. Some of these individuals also overlap with the Bhima Koregaon accused.

The trial in this case before the Special NIA Sessions Court is far from starting. Till now, even the cloned copies of all the evidence that is relied upon in the chargesheet has not been supplied to all the accused, 5 years after they have been arrested. Currently, applications are being pursued in the NIA court seeking these cloned copies. Meanwhile, applications for discharge are also being argued on behalf of all the accused. It is only after all these applications have been disposed of, and the cloned copies of all the evidence have been supplied to the accused, that the trial can begin.
So far, bail has been granted to three people in this case – Sudha Bharadwaj, Anand Teltumbde and Varavara Rao. The bail applications of the others are stuck in various courts for a variety of reasons.

• The SC has reserved the order on the bail petitions of Arun Ferreira and Vernon Gonsalves since March of 2023, and it is not clear when the order will eventually be pronounced. The bail petitions of Shoma Sen and Jyoti Jagtap have also been admitted for hearing by this bench, and the next hearing will be after the court resumes work after vacation.
• Separate bail petitions for Mahesh Raut and Gautam Navlakha have been put up before the Bombay High Court, after being rejected by the NIA court. The default bail petitions for Surendra Gadling, Sudhir Dhawale, Shoma Sen, Mahesh Raut and Rona Wilson are pending before the Bombay High Court.

Incarceration of these human rights activists has meant more than just loss of the freedom of movement and association. In blatant flouting of jail rules, these activists have to face a variety of deprivation inside the prisons. For instance:

• Father Stan Swamy, suffering from Parkinson’s Disease, was not allowed a sipper cup which allowed him to drink liquids without spilling.
• Multiple requests for mosquito nets have been denied on the pretext that they can be used to commit suicide, even as one of the arrested (Vernon Gonsalves) contracted Dengue, a painful and potentially life-threatening disease, due to mosquito bites.
• Medical treatment is difficult to come by, and jail authorities routinely deny hospital visits, medicines sent by families, and even diet supplements and herbal medicines. A delay in medical care cost Father Stan Swamy his life and almost caused the loss of vision in one eye of Prof Hany Babu. It was only after the Supreme Court intervened that the High Court took up the case of medical treatment for the elderly Varavara Rao, by which time he had contracted Covid and lost his memory. Vernon Gonsalves was moved to a public hospital only after his fellow inmates protested and an application was moved in court, by which time his condition was so serious that he needed oxygen support for two weeks.
• Gautam Navlakha was denied reading glasses after he had broken his pair, till the jail was pulled up by the Bombay High Court for its inhumane treatment.

Eleven stalwart citizens are behind bars, many for over 5 years, even as the trial shows no signs of starting. Bail has been repeatedly denied to them and the conditions inside jail continue to dehumanize. The evidence in this case, besides being sparse and inadmissible, is of dubious provenance and demonstrably fabricated. This case is a testament to the politicization of our criminal justice system, which is being used to criminalize political foes and put inconvenient dissidents out of the way.
With every day, every hour, every minute of this unjust imprisonment, we know that this injustice becomes more apparent and visible to the world at large and increasingly unviable. We know that justice demands that persons unjustly incarcerated for over five years must be released. We are convinced that the legal and ethical rationale behind release of the BK-16 become stronger with each passing day.
We request you to also write to the Central government with the following demands:

• The state must not oppose the immediate release on bail of those of the BK 16 still in jail. Five years of unjust imprisonment is enough!
• The prosecution be withdrawn against all 16 on the basis that the evidence against them is false and fabricated.
• An unconditional apology be tendered by the state for the loss of life of Father Stan and the loss of so many productive years for the others.
• Criminal prosecution be launched against those who conspired to fabricate evidence to keep the BK- 16 in jail.
• The UAPA must be repealed as the law criminalises the constitutional right of the freedom of speech, expression and association.

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*Kavita Srivastava, President, PUCL, Navsharan Singh, Apoorvanand, Fr. Cedric Prakash, Henri Tiphagne, Fr Solomon, Fr. Joe Xavier, Rushda (NFIW), Suresh (PUCL), Arvind Narrain (PUCL), and Shalini Gera (PUCL)