Bhima Koregaon: NIA in a quandary as bail condition for mobile phone tethering turns out to be a tug

The bail conditions set by the Supreme Court during the grant of regular bail to Vernon Gonsalves and Arun Ferreira mandated pairing mobile phones of the duo with the devices of the investigating officers. Now the National Investigation Agency has said that the concerned investigating officers stand to lose their privacy.

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"IF you gaze for long into an abyss, the abyss gazes also into you," wrote German philosopher Freidrich Neitszche in his book Beyond Good And Evil.

The National Investigation Agency (NIA) seems to have discovered the meaning of the quote recently.

On July 28, a division Bench of the Supreme Court, comprising Justices Aniruddha Bose and Sudhanshu Dhulia, granted regular bail to Vernon Gonsalves and Arun Ferreira.

Gonsalves is a trade unionist, activist and academic, while Ferreira is an activist and a lawyer. The two are accused in the Bhima Koregaon–Elgar Parishad case and charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

They had been incarcerated for almost five years without a trial. 

Among the conditions of the bail, the duo were required not to change their mobile phones, keep their phones charged at all times, keep the location status of the phones 'active' all through the day, and pair the devices with the devices of the investigating office of the NIA.

These harsh bail conditions did nothing to protect the right of the duo to a minimal level of privacy, as the bail conditions intend to keep the duo tethered to the authorities at all times.

The bail conditions were perhaps also an indirect recognition of the commonplace notion that mobile phones are used as surveillance tools by authorities.

Today, an NIA special court of judge Rajesh Katari heard the difficulty faced by the NIA in complying with the bail conditions.

On the issue of non-compliance with the bail condition of pairing devices, the court suggested installation of applications that can assist in pairing and tracking the devices on the mobile phones of the accused and the NIA officials.

To this, the counsel representing the NIA raised concerns about the possible infringement of privacy of the concerned investigating officers of the NIA if the devices were to be paired.

What does the law say?

As held in the case of Justice K.S. Puttaswamy and Another versus Union of India and Others (2017), the right to privacy is protected by Article 21 (protection of life and personal liberty) of the Constitution.

Section 5(2) of the Indian Telegraph Act, 1885 allows electronic tapping and interception under certain conditions, including on the occurrence of public emergency, in the interest of public safety and for preventing incitement to the commission of an offence.

In the case of People's Union for Civil Liberties versus Union of India and others (1996), the Supreme Court held that interception of telephones and wiretaps was a serious invasion of privacy.

Notably, mobile phone tracking remains a grey area around the globe. In July 2018, the United State Supreme Court mandated a warrant for tracking a suspect.

What did the court say?

Today, the court directed the NIA to conduct a thorough verification of the bail conditions. It also directed the NIA to apprise the court of the difficulties in complying with the bail conditions on the next date.

Further, the court observed that if the NIA is not able to meet the bail conditions, it will have to approach the Supreme Court to seek modifications of the conditions. 

The matter is posted for hearing on the plea of the accused persons for the NIA to comply with Section 207 (supply to the accused of a copy of the police report and other documents) of the Code of Criminal Procedure (CrPC).

During the previous hearings, the accused persons had raised the grievance that despite filing several applications with the investigating authorities under Section 207 of the CrPC, they had not been allowed access to the compact disks, which are an important piece of evidence furnished by the NIA in the case.

The matter will be further heard on September 5. 

Background

In connection with the Elgar Parishad–Bhima Koregaon case, on June 6, 2018, Pune police arrested human rights lawyer and Dalit rights activist, Surendra Gadling; Dalit rights activist and editor of the Marathi magazine Vidrohi, Sudhir Dhawale; activist and researcher, and member of the Committee for the Release of Political Prisoners, Rona Wilson; former head of the English department at Nagpur University, and Dalit and women's rights activist, Shoma Sen; and forest rights activist and former fellow of Prime Minister's Rural Development Fellowship Programme of the Union Ministry of Rural Development, Mahesh Raut.

On August 28, 2018, activist, poet, writer and teacher Dr P. Varavara Rao; trade unionist, activist and lawyer, Sudha Bharadwaj; Arun Ferreira; Vernon Gonsalves; and human rights activist and journalist, Gautam Navlakha were arrested and lodged in Mumbai's Taloja jail.

In the subsequent months, scholar, writer and civil rights activist, Dr Anand Teltumbde; tribal rights activist and Jesuit priest, Father Stan Swamy; an anti-caste activist, Hany Babu; and musical performers, anti-caste activists and members of the cultural troupe Kabir Kala Manch, Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap, were also arrested.

Trial is yet to begin in the Bhima Koregaon case. The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses.

Ten of the 16 accused persons are presently incarcerated, having now spent between two to almost five years in judicial custody without trial.

In addition to Gonsalves and Ferreira, who were granted bail today, three of the other accused persons, Sudha Bharadwaj, Varavara Rao and Anand Teltumbde have also managed to secure bail so far.

Another accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away in judicial custody in July 2021 after contracting Covid in prison while awaiting bail on medical grounds.

An investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Surendra Gadling and Rona Wilson.

Arsenal's findings were published in four reports in 2021.