On trial for thoughts

Although it is a fact that the Indian judicial system is not known for expediency, trying a crime is fairly easy — a probe agency gets wind of a crime, investigates its, charges the accused, who are then tried based on the evidence against the accused of that crime. But this process can easily be indefinitely extended when people are found to be put on trial for their thoughts.

Some of the country's pioneering rights activists, professors, lawyers and human rights advocates have been languishing in jail for years now by precisely this modus operandi — and their trial is yet to even begin.

When violence was unleashed upon Dalit-Bahujan pilgrims on their way to the war memorial at Bhima Koregaon, some of the first people to have been named and booked for perpetrating the violence were prominent Hindutva leaders of Maharasthra — Milind Ekbote and Sambhaji Bhide. But in a subsequent case that was registered, the Pune Police found a "Maoist conspiracy" to allegedly "instigate" people in an event organised a day before the violence on December 31, 2017 — the Elgar Parishad event in Shaniwarwada.

Of course, the National Investigation Agency has now filed charges against eight minority rights activists for trying to further their purported "Maoist conspiracy" by holding the Elgaar Parishad event. But what is it that activists and lawyers, intellectuals and poets such as Rona Wilson, Varavara Rao, Sudha Bhardwaj, Gautam Navlakha, Anand Teltumbde, Professor Hany Babu, Father Stan Sway and others are being tried for?

Most of these activists have been in jail since 2018, some were arrested in 2019 and some others were put in jail after they surrendered as late as earlier this year. All of them are still in custody with multiple bail pleas rejected. Ekbote was arrested on March 14, 2018, released on bail in a little over a month in April. Bhide was never questioned or arrested by the police in the case.

Questions on the authenticity and veracity of the Pune Police's investigation have been raised time and time again and especially since the government in the state changed. However, the NIA's investigation into the case has not been much different from the probe presented by local police and even largely relies on "evidence" collected by Pune police — evidence, the integrity of which is already under a cloud.

While the evidence presented by the NIA and the Pune Police to substantiate the alleged "Maoist conspiracy" is largely in the form of letters and documents purported to have been recovered from the homes of the accused, the veracity of some of which has been questioned, the evidence presented by the NIA in their 10,000-page chargesheet specifically with respect to the events of December 31, 2017, gets thinner.

THE CHARGES

The NIA's chargesheet is it's first and the third one filed in relation to the case against the activists. Two others were filed by the Pune Police when they were probing the case. The NIA has charged Father Swamy, Anand Teltumbde, activist Gautam Navlakha, DU associate professor Hany Babu, members of cultural group Kabir Kala Manch, Jyoti Jagtap, Sagar Gorkhe and Ramesh Gaichor and absconding accused Milind Teltumbde, alleged to be a top leader of the banned Community Party of India (Maoist).

The agency, in its chargesheet, claimed that Swamy was a Maoist actively involved in the outfit's activities, and had been receiving its funds. The agency claimed that documents, including propaganda material and literature, were found in his possession.

However, two days before being arrested, Swamy said the NIA had placed several extracts before him, implying his connection to Maoist forces. He said these were "fabrications stealthily put into my computer".

The NIA also claimed that Swamy convened the Persecuted Prisoners Solidarity Committee (PPSC), which identifies itself as having an objective of focusing on the plight of Adivasi and marginalised prisoners suffering under the criminal justice system in the armed conflict zones of central and eastern India. Sway, in his statement, said his work involved challenging indiscriminate arrests of thousands of young Adivasis labelled as "Naxals". The NIA claimed the PPSC was a frontal organisation of CPI (Maoist).

Swamy is a Jharkhand-based Jesuit priest and a tribal rights activist.

The NIA claimed that the role of various other frontal organisations had also emerged. It is also called Kabir Kala Manch, one such organisation, claiming that its poets and singers, Jagtap, Gorkhe and Gaichor, were trained cadres who attended meetings to organise the Elgaar Parishad event.

The NIA also stated that Babu was "instrumental in organising visits" of foreign journalists to Maoist areas and was instrumental in making efforts for the release of convicted accused GN Saibaba and links with other banned groups. The agency claimed that Teltumbde was one of the convenors of "Bhima Koregaon Shaurya Din Prerna Abhiyan" and was present for the Elgaar Parishad event on December 31, 2017, and that Navlakha was assigned the task "to unite intellectuals against the government".

Significantly, none of these contents of the chargesheet reported in the public domain contain references to the alleged speeches that purportedly led to the violence which killed one and injured many others. While the evidence presented by the NIA and Pune Police against Wilson, Bhardwaj, Teltumbde, Rao or Swamy are documents that purportedly "prove" their links to alleged Maoist organisations — evidence the veracity of which is being questioned; not much is said about the allegedly "instigating and inciting" speeches.

Elgaar Parishad

What has been made amply clear by the investigation in this case so far — both by the police in Maharashtra and the NIA — is that the crux of the prosecution's case is this: These activists were somehow members of a banned leftist organisation and had allegedly conspired to organise the Elgaar Parishad event, where they had allegedly planned to deliver "instigating" speeches, which as a result had purportedly led to the violence.

However, when the probe agencies arrive at the crucial juncture of their case, i.e., the part about these activists delivering inciting speeches, the witnesses submitted by the NIA to the special court do not have enough materials.

For instance, of the 48 witnesses to the Elgaar Parishad event cited in the most recent chargesheet, most told the agency that they did not manage to enter the venue because of the large crowds and could not hear the speeches that were delivered at the event.

Two witnesses have told the agency that the speeches at the event were "provocative" and one took issue with a song performed by the Kabir Kala Manch and called it "aggressive in nature". However, while similar statements were given by other witnesses about the speeches, none specified the contents of the speeches or who was delivering a particular speech.

Most of these witnesses said that they could not manage to enter the venue either because of the crowds or because of police restrictions and as a result heard the speeches from outside on the footpath. Many of them were also unable to specify who all had spoken that day.

One witness, a Mumbai coordinator of the Vanchit Bahujan Aghadi, said that he went to the event with four others and that he could not see the speakers. "However, due to the rush, the police did not allow us to enter the venue," he said, according to a report, which added that similar statements were given by a freelancer and a union member with a civic body. They said they heard the speeches from outside and could neither tell who gave the speeches nor form an opinion on the nature of the speeches.

Burning questions

Now, coming to the veracity of the documents that police claim to have recovered from accused such as Swamy, Wilson, or lawyer Surendra Gadling. While 83-year-old Swamy has already claimed that these evidentiary documents were placed in his computer, there is now enough material from forensic examinations available to show that the Pune Police failed to follow due procedure in collecting the electronic evidence.

In fact, the timestamps put together with the forensics show that the systems from which these documents were retrieved had been accessed after being taken into police custody. Some detailed reports on these materials also show that Gadling's system was accessed after the police raids and the files being referred to appeared to have altered formatting after the seizure. Some of this material has been cited by the prosecuting authorities to implicate activists like Bhardwaj.

Moreover, other reports show similar discrepancies with the seizure of documents from the system of Rona Wilson. One report showed that a memory card seized from her had been accessed three hours after the police had completed their raid. There is also now evidence suggesting that the police did not disclose the amount of data seized correctly to the accused, another violation of the procedure to gather electronic evidence under the Information Technology Act.

Nihalsing Rathod, the lawyer for Wilson said, "They have given us clone copies, but not mirror copies. They recovered 25 TB data, and copy-pasted eight TB of that for us, saying this is the relevant data. But mirror copies contain the exact window log, which we can examine to ascertain whether or not the data was tampered with."

So, with witnesses to the Elgaar Parishad saying they do not recall the contents of the alleged "provocative" speeches and a large part of the evidence linking activists and lawyers to a banned Maoist organisation already being questioned for the way it was collected, what is it that the prosecution is looking to try them for?

Now, given the fact that much of this evidence was cited by the NIA, it is pertinent to note that the role of senior police officers in Maharashtra has also come under the scanner. After the Uddhav Thackeray-led government came into power, the probe was meant to be scrutinised by an SIT. But soon after, the probe was handed over to the central probe agency, reportedly based on a tip-off from a senior police officer in Maharashtra. The probe was eventually handed over to the NIA the same day a high-level meeting was held in the state regarding the formation of this SIT.

Since their incarceration, many of these activists who are over 60 years of age, in the time of a pandemic and with jails becoming cesspools of the virus, have sought bail under medical and humanitarian grounds, only for them to be rejected. As a result, 81-year-old Varavara Rao was diagnosed with COVID-19 in July and taken to the Nanavati Hospital, from where he was discharged in August and sent back to Taloja Jail.

Bhardwaj has filed for bail multiple times, only for all of them to be rejected. She has been in custody for over 700 days now. However, a ray of hope came earlier this year for her when her bail plea landed with the Supreme Court of India. The top court dismissed the bail plea that was filed on medical grounds but not before allowing Bhardwaj to withdraw the plea and file a fresh one based on the merits of her case — hinting that she might just be eligible for bail based on the merits of her case.

And of course, to think of the fact that while these activists languished in jail, Delhi saw one of its worst communal riots in decades, which court documents now show were to a large extent perpetrated against locals protesting the contentious Citizenship law. And even in this case, the police and the state machinery have chosen to pin the blame on the protesters.

In his statement recorded before his arrest earlier this year, Swamy said "he was happy to be a part of this" because it meant he was "not a silent spectator". Despite the wide range of social work, activism and backgrounds the Elgaar Parishad accused come from, the thing that bound them was their thoughts, as Swamy puts it — the thought that one should not be a silent spectator to atrocities and assaults on democratic institutions — something they have in common with the anti-CAA activists as well. So, what are the Elgaar Parishad accused being tried for? For having the thought that no one should be a silent spectator or for voicing that thought?