Experiments with truth, Part 2: Truth and dare in Bhima Koregaon

The Bhima Koregaon–Elgar Parishad 'Maoist' conspiracy case is a grand experiment with truth where the State is daring the people to stand up for justice.

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'TRUTH or dare' is a mostly verbal party game requiring two or more players. Players are given the choice between answering a question truthfully, or performing a 'dare'. The premise is simple: Players take turns asking one another 'truth or dare?' If they choose truth, they have to answer a question of the asker's choosing. If they choose dare, the asker dares them to do something rather than make a confession.

Suppose the State were to subject its citizens to a macabre version of this game by cooking up a conspiracy case and locking up people behind bars. Then tell them that in order to win their freedom, they have to choose the 'truth' of the conspiracy or the 'dare' to dissent.

This is the absurd logic that plays out when you try to make sense of the Bhima Koregaon conspiracy case.

To make sense of the bizarre scenario, some of us drew a parallel between the conspiracy cases of the colonial period and some of the later ones.

What came to be known as the Peshawar conspiracy case was a trial against the muhajirs (migrants), who had tried to sneak into India from Russia in order to start a communist movement in India. There were five cases which continued from 1922 to 1927.

The British rulers in India were terrified by the idea of the spread of communism. It was not the only case that became popular and stimulated the imagination of the young population of the Indian subcontinent, there were many similar cases.

Among them is the Kanpur Bolshevik case of May 1924, where the newly emerged communists of India M.N. Roy, Muzaffar Ahmed, S.A. Dange, Shaukat Usmani, Nalini Gupta, Singaravelu Chettiar and Ghulam Hussain were arrested by the British and were tried for conspiring against the government.

Also read: Five years of Bhima Koregaon arrests: CDRO marks 'black day.'

Perhaps the most well-known of all the communist plot cases brought by the British government was the Meerut conspiracy case of 1929. A British government plot to prevent the spread of communism in India, this had enormous political importance for the working class movement in India, where 31 labour leaders, including three Englishmen, were detained on conspiracy charges.

In the Kanpur conspiracy case, the accused were charged with trying "to deprive the King Emperor of his sovereignty of British India, by complete separation of India from imperialistic Britain by a violent revolution." Sounds familiar?

This trend continued when, after the decade of euphoria of swaraj post-1947 in India, the scales of justice fell, as it were, from the eyes of the people as it became clear to them that the newly emerged republic retained all the repressive laws of the British Raj to equally suppress those who dared to speak the truth. 

The Bhima Koregaon case, in which 16 prominent human rights activists, lawyers and academics were implicated from June 2018 to October 2020 and put behind bars, that too during a pandemic, came as a shocker to those arrested, their families, their lawyers.

If it is difficult for those affected to comprehend, and the 'godi' media spreads the lie of the prosecution, you cannot blame the public for believing in the 'conspiracy' theory.

The more dangerous aspect is how the case became the template for similar arrests that have taken place in different parts of the country since 2018. A first information report (FIR) is lodged in a case of violence instigated by right-wing leaders. Those leaders are allowed to go scot-free. Then random, unconnected persons with a common thread of being dissenters are jailed, trapped in a web of conspiracy theories and a draconian law— the amended version of the Unlawful Activities Prevention Act, 1967 (UAPA) from which the road to freedom is like a tunnel with no light at the end.

The FIR in this case was lodged eight days after the violence that was orchestrated by two Hindutva leaders, Sambhaji Bhide and Milind Ekbote on January 1 and 2, 2018, at Bhima Koregaon in the outskirts of Pune city, Maharashtra.

Also read: On Father Stan Swamy's second death anniversary, two letters, a painting and the triumph of memory against forgetting

Various 'experiments' with truth or dare were conceived by a caucus of police officers stationed in Pune city at the time. The zero FIR lodged in Pune city on January 2, 2018 by braveheart witness to the violence Anita Sawle, where she had named Bhide and Ekbote, had to be countered.

So even though there was not a single FIR against the December 31 Elgar Parishad event held at Shaniwar Wada, Pune, at the Vishrambaug police station alleging that the event created law and order problems or enmity between groups, the first experiments with truth were already brewing.

As if in retaliation to the Anita Sawle FIR, specifically naming Hindutva leaders Sambhaji Bhide and Milind Ekbote, the next day (on January 3), the first FIR was filed in Pune city by one Akshay Bhikkad, naming two prominent speakers of the Elgar Parishad as responsible for the violence.

Not satisfied, and further building on the lies, came the second FIR of January 8, eight days after the Elgar Parishad, connecting the Parishad to the next day's violence at Bhima Koregaon, 28 km away from Pune city, by bringing in a "Maoist" angle.

Six of the Elgar Parishad organisers were named in this FIR by Tushar Damgude, an open follower of Sambhaji Bhide. Other prominent organisers of the parishad, such as Retd Justice P.B. Sawant (Supreme Court) and Retd Justice B.G. Kolse-Patil (Bombay High Court) and advocate Prakash Ambedkar, condemned the police action and challenged them to take action against the real perpetrators of the violence at Bhima Koregaon.

In fact, a number of fact-finding teams exposed the truth that the violence was perpetrated by the armed bands of Sambhaji Bhide and Milind Ekbote. On 12th January 12, a Rashtriya Seva Dal team led by Dr Suresh Khairnar found that a mob of thousands of saffron flag-wielding persons moving from Vadhu Budruk to Bhima Koregaon executed the violence.

On January 20, another committee formed by the inspector general of police, Kolhapur region, and led by Dr Siddharth Dhende identified forces of Hindutva ideology as the cause of the violence.

Also read: What is Section 207 CrPC, an essential piece of the Bhima Koregaon case puzzle?

A month later, on February 13 and 14, a fact-finding investigation led by Justice B. Chandrakumar, Retd Judge, Telangana and Andhra Pradesh High Court, identified social media messages in the name of Bhide to observe Black Day and bandh on January 1 and that a mob of 2,000 persons carrying lathis and saffron flags marching from Vadhu Budruk to Bhima Koregaon caused the violence.

The building bricks of lies continued after this when, under Section 120B of the Indian Penal Code (IPC), conspiracy charges were added to the FIR. This happened two months later, in March 2018, after the takeover of the case on January 24, 2018, by a special investigation team (SIT) specially created to handle it, with the investigating officer being assistant commissioner of police, Swargate, Shivaji Pawar.

This resulted in raids in April 2018 on all six accused in the FIR, with the addition of the names of two more persons unconnected to the parishad to the FIR. These two persons were Delhi-based rights activist Rona Wilson and Nagpur-based leading criminal lawyer Surendra Gadling. They were listed as "suspected accused", a term not defined anywhere in criminal law.

This was followed by the addition of various provisions of the draconian UAPA the next month in May, when the names of two more rights activists, human rights and feminist scholar, Prof. Shoma Sen; and forest rights activist, Mahesh Raut, were added to the list.

This cascading of events culminated in the shocking arrests of five of the 10 named or later added in the Tushar Damgude FIR. Of these, only one, Sudhir Dhawle, had any connection to the parishad; two were those whose names were added in April— Rona Wilson and Surendra Gadling— and two more were added in May— Prof. Shoma Sen and Mahesh Raut.

Two months later, on August 28, five more persons were in the dragnet of the Pune police as accused in what began to be labelled as the Bhima Koregaon conspiracy case— activist, teacher, poet and writer, P. Varavara Rao; academic and writer, Vernon Gonsalves; human rights activist, Arun Ferreira; lawyer and trade union activist, Sudha Bhardwaj; and human rights activist and journalist, Gautam Navlakha. Two more names were added as "suspected accused", Dalit scholar and activist, Dr Anand Teltumbde; and Jesuit priest and tribal-rights activist, Fr Stan Swamy.

Also read: The remedy of bail : From securing liberty to 'digital jail'

By this time, it had become clear that the State was playing its own version of the game of truth. From June 2018 itself, digital experts began questioning the authenticity and veracity of the letters shown to be found on the devices of two of the accused, Rona Wilson and Surendra Gadling, based on which all the accused were charged with a Maoist conspiracy.

Between June and July 2018, Vernon Gonsalves and Arun Ferreira, who had been writing joint columns on the state of Indian prisons and highlighting instances of malicious prosecution by the State, published two columns with a detailed explanation of the obvious contradictions in the incriminating evidence on which the Bhima Koregaon case has been built by the police and the State.

They pointed out how a "plot to assassinate the prime minister" was fabricated by the police to justify the arrests. Drawing on their previous experience, Vernon and Arun reminded readers of how the Indian State is constructing a "fake political narrative" to target human rights defenders as "urban naxals" in front of an unsuspecting public. They, too, became targets and were named as accused in the second round of arrests on August 28, 2018.

By the end of 2020, the Caravan published two exposes on how the evidence found in the devices of Rona Wilson and Surendra Gadling had been planted.

In 2021, Boston-based Arsenal Consulting, one of the foremost digital forensics firms in the world, released three forensic reports on the Bhima Koregaon case, accumulating further evidence against an already weakened case against the 16 accused.

In its first report, released on February 10 and second report, published on April 20, Arsenal Consulting had analysed a total of 34 files from the electronic copy of Rona Wilson's laptop and showed that each was inserted by an attacker using Netwire, a remote access malware infrastructure.

By June 2021, Arsenal Consulting released a similar finding on the devices of Surendra Gadling— that the documents used as evidence to charge the petitioners and 14 others had been remotely planted using a malware that infiltrated his devices.

The forensics analysis showing that the documents were remotely planted had placed the National Investigation Agency (NIA)'s case against the accused under intense scrutiny and raised significant questions on the credibility of the prosecution's case since both had been targeted from 2016.

The findings were even more startling when the devices of Fr Stan Swamy were examined by Arsenal Consulting, that he had been targeted from as far back as 2014.

Two petitions were filed by Rona Wilson and Prof. Shoma Sen based on the findings in Arsenal Consulting's reports. The affidavit filed by the NIA in the Bombay High Court on April 29, 2021, raised technical objections regarding the maintainability of the petitions without addressing the merits of the Arsenal's findings.

Also read: Gonsalves and Ferreira bail judgment: A step in the right direction but where will we go from here?

A worldwide pandemic was raging from 2020 after the NIA took over the investigation. Another lie was mounted to thwart the efforts of the newly installed Maha Vikas Aghadi (MVA) government in Maharashtra to set up SIT to investigate the conspiracy behind the violence and the subsequent arrests of human rights defenders.

The forensic evidence of fabrication gave a clear basis for the release of these prisoners and for the grant of bail. Instead, seven more people were arrested between April 14 and October 9, 2020— Dr Anand Teltumbde, Gautam Navlakha, Prof. Hany Babu, three more named in the original FIR, musical performers anti-caste activists Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap, and, lastly, 83-year-old Fr Stan Swamy, who could not survive the ordeal and died in judicial custody on July 5, 2021.

The judiciary's experiments with truth

Many jurists, retired judges and law practitioners have chimed in chorus with those unjustly incarcerated in India's increasingly repressive regimes, pointing out that the judiciary has played an alarmingly status quoist role rather than as watchdogs of democracy.

Over the last decade, the interpretation of bail provisions of laws like the UAPA by the courts has witnessed the reversal of judicial principles to mean jail rather than bail as the rule, and guilty-until-proven-innocent.

The Supreme Court in National Investigation Agency versus Zahoor Ahmad Shah Watali (2019) curtailed the extent of scrutiny that courts could have over the prosecution case, thus further limiting the scope for bail or individual liberty.

In fact, the Bombay High Court first used the Watali precedent to reject bail for Sudha Bhardwaj, Vernon Gonsalves and Arun Ferreira in November 2019. While Sudha Bhardwaj was enlarged on default bail by the Bombay High Court in November 2021, Vernon and Arun took their merit bail rejections to the Supreme Court.

The significance of Vernon versus State of Maharashtra delivered by a two-judge Bench of the Supreme Court on July 28 this year granting them bail is that it is the first instance of the Supreme Court granting bail 'on merits' in the Bhima Koregaon set of cases by reading down Watali— along with other aspects such as delay in trial and period of incarceration. Some poetic justice there!

But what about actual justice and freedom for the remaining 10 languishing in detention, five of them for over five years? All of them are awaiting hearings either in the Supreme Court or the Bombay High Court.

The late Justice Hosbet Suresh who passed away on June 12, 2020, had openly condemned these arrests, particularly the arrests of the three lawyers— Surendra Gadling, Sudha Bhardwaj and Arun Ferreira, all office bearers of the Indian Association of People's Lawyers (IAPL), of which he was the President.

But little did he imagine that his name would get dragged into the case by a police machinery armed with impunity which would stoop so low as to threaten to arrest a respected retired judge of the Bombay High Court and an internationally acclaimed jurist known for standing for justice for the downtrodden and the powerless.

Also read: Can Father Stan Swamy's PIL be the blueprint for justice to thousands of undertrials lodged under UAPA?

This happened on October 21, 2018 when following the refusal of the Supreme Court in the Romila Thapar & Ors versus State of Maharashtra petition to put a stop to the persecution of activists, bail applications of Sudha, Vernon and Arun were being heard by the special judge, Pune.

The defence lawyers argued that a so-called frontal organisation Indian Association For People's Lawyers (IAPL) was headed by Retd Justice Suresh. To which the then investigation officer in the case, Dr Shivaji Pawar, declared from the witness box that they would have no hesitation to arrest Justice Suresh also if their investigation found it necessary.

There was utter disbelief and a stunned silence in the court after hearing this proclamation!

The special judge too remained silent and did not reprimand the police officer for not only lowering the prestige of a high court judge but also for the impunity with which a police officer could even hold out such a threat in the open court about a high court judge.

A day later, an unfazed Justice Suresh holding a copy of the Maharashtra Times of October 22, where the news of the threat of his arrest appeared on the front page, said that he could not believe that the police could stoop so low, more so because he had such a staunch belief in the rule of law.

He unflinchingly accepted the challenge of the prospect of the police hounding him while remarking that never before had lawyers been arrested like this. He added that they were being targeted to silence those who speak against the atrocities of the government. "You cannot imagine how low we have fallen," were his final words.

To my mind, there cannot be a further travesty of justice than the overturning of well-known Supreme Court precedents such as Hitendra Vishnu Thakur versus State of Maharashtra and Sanjay Dutt versus State through CBI Bombay in denying default bail to Surendra Gadling and four others by the Supreme Court in February 2019.

By the principles of these two landmark judgements, as well as the principles of Section 43D of the UAPA, Justice Mridula Bhatkar of Bombay High Court had set aside the extension granted by a Pune special court to the prosecution to file a chargesheet vide its Order dated October 18, 2018.

By this Order, all five of those arrested in June 2018— Surendra Gadling, Sudhir Dhawle, Rona Wilson, Shoma Sen and Mahesh Raut— ought to have been the first ones to walk free— on default bail.

Unfortunately, all five are behind bars at the time of writing because a Supreme Court headed by the then-CJI Ranjan Gogoi overturned its own precedents and set aside the Order of the Bombay High Court.

At present, though Mahesh Raut was granted bail by the Bombay High Court on September 22 this year, based on the Anand Teltumbde versus State and Maharashtra and Ors and Vernon Gonsalves judgments, his freedom is still awaited as the NIA has challenged the Order before the Supreme Court.

Very often, history comes to our rescue to understand events that engulf us. While drawing a parallel to the conspiracy cases of colonial times, it is also worth remembering the infamous Dreyfus affair case, a scandal that rocked France in the late 19th and early 20th centuries, involving a Jewish artillery captain in the French army, Alfred Dreyfus (1859–1935).

In 1894, Dreyfus was falsely convicted of passing military secrets to the Germans after a French spy at the German embassy in Paris discovered a shredded letter in a waste basket with handwriting said to resemble that of Dreyfus.

Dreyfus was court-martialed, found guilty of treason and sentenced to life behind bars on Devil's Island off of French Guiana. In a public ceremony in Paris following his conviction, Dreyfus had the insignia torn from his uniform and his sword broken and was paraded before a crowd that shouted, "Death to Judas, death to the Jew," reminding us of the current narrative around "urban naxals".

Two years later, when the army's intelligence unit uncovered the plot, the army suppressed the news. The perpetrators were later exposed but never punished.

It was then that a French newspaper published an open letter titled "J'Accuse…!" by well-known author Emile Zola in which he defended Dreyfus and accused the military of a major cover-up in the case. As a result, Zola was convicted of libel, although he escaped to England (later managing to return to France).

The Dreyfus affair deeply divided France, not just over the fate of the man at its centre but also over a range of issues, including politics, religion and national identity.

We are witnessing issues such as the Bhima Koregaon detainees, the anti-Citizenship (Amendment) Act, 2019 protestors behind bars and many such cases all over the country.

Indeed, we are living in dark times— where the experiments with truth carried out by the State are churning out more and more victims. The question staring at the face of our democracy is: Will justice dare to prevail in the end?