Lawyers Withstood Pressures and Defended Activists in the Bhima Koregaon Case

Lawyers who defended activists in the Bhima Koregaon case risked being branded anti-national, but they believed that they were innocent and it was necessary to uphold the rule of law and constitutional values, says NIHALSING B RATHOD.

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As we leave behind 2020, with a new hope to resume our life, we leave behind not just memories, but many blistering wounds. Wounds inflicted by our government. Wounds that came from the judiciary. Wounds that came from our own. The drama that this year was, is multidimensional. It has many parallel stories.

While the Godi media will use expressions like "masterstroke" and "historical" for every petty move by the powers that be, stories and details of the narration of victims would find space only in the non-mainstream media. But, victims also can create their own medium to both preserve and narrate their stories. Let us call it, "Trolly Times".

These two divisions are rapidly polarising society to two extreme ends.  Ultimately, "rule of law," "constitutional morality", "due process", and the zealousness of the judiciary in guarding it all, will play a decisive role in the year to come.

The truth is that the faith of people in our judiciary is shaken. They now pin their hopes on individual judges and not on the institution. There is after all, "more than one Supreme Court of India".  If the judge gives any unfavorable orders, social media indulges in name-calling. Then abuses like "pappu ne kharida isko" to "sanghi hai" are freely made. It's like a cricket match, if a player fails to perform he immediately becomes subject of abuse. The only difference is there they don't target the umpire, whereas here it's the umpire that remains the focus of attention.

The  Romila Thapar case,  presented an opportunity to the  Judiciary to retain control over the arrogance of the power. Alas it is turning out to be yet another ADM Jabalpur moment for the nation. What followed thereafter over period of more than two years, encouraged State and Non-State actors to assault its opponents in the most brazen manner.

The Judiciary rejected the opportunity which the Romila Thapar Case presented  to verify whether the State fabricated evidence to detain, defame and discredit voices who are known for their political dissent.

Those nine who were jailed in the  Bhima Koregaon case by then, without any exception had also joined the case, endorsing the demand for an  independent probe. They  demanded  and  submitted to the probe which would reveal the whole truth exposing themselves to the danger of being exonerated or "fixed " by a probe. No sane person would do this if he or she did not have faith in their innocence and that they were not terrorists.

They said that they were being "framed"  by the investigation agency at the behest of their right wing political masters. In  the dock, was the Police of Maharashtra and the Union Home Ministry. They could have emerged clean by an independent investigation, they declined the offer .

They opposed the offer tooth and nail, with technicalities,  with cries of "national interest" being compromised, with "sealed covers"  and the help of a willing media .

Bhima Koregaon Heroes

The rejection of the Romila  Thapar petition by the Supreme Court was followed by hardship, denial of medical treatment, prolonged incarceration, character assassination, and media trial of these celebrated activists as a lesson for all of us to show us what the state can do to dissenters.

It gave such a  free hand to the investigating agency and prison administration that it had denied to the accused basic human rights necessary for survival. Spectacles to  Gautam Navlakha, denial of warm clothes, refusal to give family interviews, preventing exchange of letters with lawyers, alleging  that lawyers were couriers,  denial of medical treatment to a dying poet and straw and sipper to a Jesuit priest suffering from Parkinsons disease. Trial courts have not been an exception to the rule.

One of the detenues in case, Surendra Gadling, lost his mother to Covid-19. The situation at his family front was such, that his elder brother was bedridden in the same hospital where his mother breathed her last.  The rest of the family had to be quarantined, while one of the young boys from family also had to be admitted to hospital. The family had no one outside person to support them .  Mrs. Gadling had to control her emotions, hurl herself into the battle, take  charge, handle the wailing family while hiding the news from the family members in hospital.

In such a situation, interim bail for Surendra Gadling was sought. The hearing of the  Application was delayed for  three weeks, after which court rejected the bail application. The reasons given in the order dated 11.09.2020, rejecting the bail application dated 17.08.2020, are better reproduced than summarised:

"7. The applicant has filed present application for grant of temporary bail on the ground of death of his mother, stating that the applicant needs to join his family members for last rites and rituals. In this regard, the learned SPP has invited my attention to the fact that the death of the mother of the applicant has taken place on 15.08.2020 meaning thereby period of around more than 3 weeks is over. Considering this aspect it cannot be said that the presence of the applicant could be necessary for performing post funeral rites or rituals. The learned advocate for the applicant, Mr. Satyanarayan has made an attempt to submit that a meeting has been scheduled on 21.09.2020 amongst the relatives of the applicant. However, the submissions are made without producing any document to substantiate said contention. Therefore the same cannot be accepted." 

Soon thereafter,  brother of another detenue, Sudhir Dhawale, passed away. This time the application was supported with documentary evidence and an  announcement  card for the post funeral meeting and death certificate. The application was rejected only on the ground that the offence was 'serious".

In January, 2021  the  younger sister of Mahesh Raut was to enter  wedlock with her childhood friend.  The  wedding was put on hold hoping that soon Mahesh would step out and be able to attend to the wedding.  However after the rejection of interim bails for Surendra Gadling and Sudhir Dhawale, Mahesh does not even find it worth his while to invest energy and resources in seeking short term bail. No one can fault him for this loss of hope. After all, why approach a court to which the death of mother or brother did not seem enough reason  for temporary release, surely the court would not release him for " behen ki shaadi". Keeping  hopes alive to have them dashed, was pointless. It was best not to create hope, for it involved a  great amount of emotional turmoil.  Mahesh had lost his father at a  young age; his mother then brought up both Mahesh and his sister against all  odds. Mahesh, his sister, and the groom to be, amongst other siblings, were an un-separable group. It is another thing, that murder convict and gangster Arun Gawali was given parole leave to attend to his daughter's wedding and attending to his ailing wife, just few months ago.

The ailing revolutionary poet Vara Vara Rao, has been struggling for his life. Looking at the co-morbidities that he suffers from, an application for his bail on medical ground was moved. Not realising the urgency of the matter, it remained  pending for months. Repeated orders to produce his health records were not complied with. Later, the trial court passed an order, that the poet who was over eighty years old was not worthy of medical bail since the offence is  a serious one. His health deteriorated, he suffered from Covid-19, and he developed brain atrophy amongst many other things. The NIA had the audacity to argue that "elderly people are taking undue advantage of their health in order to obtain bail."

It was the  High Court that ultimately shifted him briefly to a hospital. The jail authorities sent him back to the jail where again his health deteriorated. It was only when a petition was filed alleging "cruel inhuman and degrading treatment" by the Jail, that the High Court directed to shift Rao to the hospital, and injuncting the state from discharging him without leave of the court. In the pandemic when the focus was on the health of an undertrial, one of the most uphill tasks was to obtain permission for his family to meet him.

Through all this it was a team of lawyers who never gave up the fight for justice behind bars.

Petty provision such a sipper and straw, which is life essential for a Parkinson's patient, also met with objection. Stan Samy  who tirelessly fought against injustice was a legend. He fought many battles seeking rule of law and due process. His fight for tribals, his efforts to resonate their voices, and his attempts to make them independent will definitely be noted by history.

Liberty is fundamental; it cannot be curtailed except in accordance with the procedure established by the law. The remand court being the first interface between liberty of the citizen msut be more vigilant in grinting remand.

The battery of lawyers starting from the Court of Pune, Bombay High Court, to Apex court and from prison to hospital has been a strong force in these two and half years of an exhausting battle. In normal course what is considered as "not a lawyers job" did not dissuade them from extending their unconditional support. They paid regular visits to prisons, looked after their day to day necessities, communicated their well being too far off placed families. They happily brought them medicines, books, writing material, at times clothes and supplied the same even after hours of torturous wait, and continue to do their work.

It is humanly impossible to note down their contribution in particular. However one could sense the respect, which moved them to appear for these activists. The most essential factor that brought them to run the risk of representing such people and then get branded as anti-national, is their belief in the innocence of these people, necessity to uphold rule of law and constitutional values. The more open court hearings happened, the more were the lawyers who joined in.

Despite the known fact that two of the counsels were threatened by the police itself, it has been the outpouring support of the brave hearts of the bar that has helped retain sanity in these mad times.

A grand salute goes out to all the legal heroes for defending the accused in the Bhima Koregaon case. They make us proud as they keep our hopes alive for rule of law.

(Nihalsing B Rathod is an advocate practicing at Bombay High Court.)