BK16: Too Guilty For Bail, Too Trivial For Trial

In the Bhima-Koregaon conspiracy case, 16 activists were arrested. Stan Swamy, one of them, passed away in custody ahead of his bail hearing.

After the demise of the 84-year-old Jesuit Priest and Tribal Activist Father Stan Swamy, the Bhima-Koregaon conspiracy case is back in the headlines. For the last three years, in this alleged conspiracy case against the Indian state and Prime Minister, 16 civil rights activists, intellectuals have been arrested from across the country. Father Stan Swamy, picked up from Jharkhand’s Ranchi, was one of them. He was the oldest person in India to be arrested on terrorism charges. Though Maharashtra’s prisons routinely provide TVs, refrigerators, air conditioners, cellphones, and homemade food to hardcore criminals and politicians, we could remember how Stan Swamy had to go to the court and wait for over two weeks to get a straw and sipper to drink water. The police also denied a request to allow the family of Gautam Navlakha, who is 70, to send him prescription glasses. Before being released on bail for 6 months in February this year, another activist Varavara Rao faced similar hardships. The 81-year-old, as per his family, was denied a blanket by prison authorities. As his health deteriorated, the family had to knock on the doors of courts several times. Finally, while granting him bail, the court accepted that his health condition was “precarious” and sending him back to prison is fraught with risk. Another activist Sudha Bhardwaj, jailed in the same case, has seen worsening health over the months, her family has alleged.

Why are they in jail?

Three years back, violence erupted at Bhima Koregaon village, Pune, where lakhs of Dalits had gathered to mark the 200th anniversary of a battle where Dalit Mahar soldiers fighting for the British defeated the Brahmin Peshwa rulers of the Maratha empire. The Maharashtra police had initially investigated Hindutva leaders Milind Ekbote and Sambhaji Bhide for instigating the violence. Ekbote was briefly even arrested. However, a few months later, the police suddenly claimed that the violence was provoked by activists and human rights lawyers, some of whom had attended the Elgar Parishad, a programme organised by Dalit and human rights groups in Pune a day before the Bhima Koregaon commemoration.

The police connected the programme to Maoists, and arrested 16 human rights defenders, lawyers, and scholars. They were accused of being members of the frontal organisation of banned outfit CPI (Maoist). The larger conspiracy of CPI (Maoists) was to overthrow the democratic system in the country, and the accused were working in that direction, the charge sheet claimed. The charge sheet also accused the activists of conspiring to kill Prime Minister Narendra Modi and planning on procuring arms and ammunition with an intention of waging war against the country.

“Maoist leaders including…Rona Wilson and fugitive Kishan Da were conspiring the assassination of Prime Minister Narendra Modi and waging war against the country for which they were planning to procure arms and ammunition,” the charge sheet claimed.

The police cited several documents seized from the alleged Maoist leaders to make the claim on PM Modi’s assassination plan.

However, as the government changed in the western state of Maharashtra in late 2019 and the BJP lost power, the case was transferred from Maharashtra police to the National Investigation Agency (NIA).

‘Planted’ Evidence?

In an explosive report in February 2020, The Washington Post said key evidence against the jailed activists was planted on a laptop seized by police, as per a forensics report.

An attacker used malware to infiltrate a laptop belonging to one of the activists, Rona Wilson, before his arrest and deposited at least 10 incriminating letters on the computer, according to a report from Arsenal Consulting, a Massachusetts-based digital forensics firm that examined an electronic copy of the laptop at the request of Wilson’s lawyers, the Washington Post said.

This is one of many "process trees" Arsenal built from recovered application execution data on Rona Wilson's computer in the Bhima Koregaon case. You can see a NetWire RAT launch, delivery of a crucial document into a hidden folder, & creation of a new "Key Logger" file. #DFIR pic.twitter.com/vAG4IGz9wA

— Arsenal Consulting (@ArsenalArmed) February 10, 2021

Arsenal performs computer forensic analysis for companies, law firms and government agencies, and it has provided expert testimony in cases such as the Boston Marathon bombing.

Though Arsenal’s report on the Indian case does not identify the perpetrator of the cyberattack, three outside experts who reviewed the document at The Post’s request said the report’s conclusions were valid.

In the follow-up report of the February story, The Post in April said an unknown hacker planted more than 30 documents that investigators deemed incriminating on a laptop belonging to the activists. The report by Arsenal Consulting then showed that 22 additional documents were also delivered to the computer by the same attacker who planted incriminating letters on Wilson’s computer.

The attacker identified in Arsenal’s Reports I & II targeted Rona Wilson (& others) with multiple campaigns involving various malware, & remnants exist well beyond individual computers involved in the Bhima Koregaon case. We have analyzed many emails from these campaigns. #DFIR

— Arsenal Consulting (@ArsenalArmed) April 21, 2021

An attacker used NetWire, a commercially available form of malware, to compromise Wilson’s laptop for nearly two years starting in 2016, Arsenal said. NetWire is a commercial malware / Trojan that allows attackers to log keystrokes, take screenshots – and to upload and download files. Arsenal decrypted NetWire logs on Wilson’s computer, and found activity from 2016 until hours before Wilson’s computer was seized by police.

The report in April showed that 22 additional documents were placed in a hidden folder on Wilson’s computer. They included details of purported meetings of Maoist militants, alleged correspondence with Maoist leaders and details of funds received by the banned group.

Arsenal said the compromising of Wilson’s computer was just one element of a larger malware campaign and the same attacker also targeted his co-defendants. As per the Amnesty International report, eight people seeking to help the activists also received emails with malicious links that deployed NetWire.

After the death of Stan Swamy, one of the accused in the case, a new report has surfaced in this series of investigations. The latest Arsenal report, dated June 2021, analysed the hard drive of Surendra Gadling, 53, a Dalit rights activist based in Nagpur, finding even deeper proof of the planting of incriminating evidence. Gadling is amongst the 16 accused in this case.

Surendra Gadling’s computer had been compromised over two years before he was arrested through emails that he received, and on which others like Stan Swamy were copied, raising the possibility that Swamy’s computer too may have been targeted.

Gadling’s system was compromised for over 20 months between February 2016 and November 2017, and at least 14 incriminating letters were planted on the computer. This was done by the same attacker who targeted Rona Wilson’s system and planted 30 files there, the report says.

“It should be noted that this is one of the most serious cases involving evidence-tampering that Arsenal has ever encountered,” reads the report.

 

Wilson and Gadling are in jail for the last three years. Their lawyers had given the copy of their hard drive to Arsenal to analyse whether the letters and documents were planted.

Guilty Without Trial

The Judiciary ideally works on the principle of ‘presumption of innocence’. “Innocent until proven guilty” is what the courts presume in any case and the legal burden of proof is thus on the prosecution. However, different governments in the last few years have tried to have their way with existing laws to target dissenting voices.

The demise of Stan Swamy has once again raised several questions over the feasibility of the UAPA. All 16 of them, of which Stan Swamy was the oldest, have been arrested under the Unlawful Activities Prevention Act (UAPA), which enables prolonged detention for questioning. This anti-terror law’s main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India. Police normally have 60 to 90 days to investigate a case and submit a charge sheet failing which the accused may obtain default bail. However, under the UAPA, this pre-charge sheet time is extended to 180 days. Further, normal bail rules do not apply to an accused under 43(d)5 of the UAPA.

 

 

Citing the latest NCRB data on Crime in India, as per the report by The Times Of India, the Home Ministry in February this year told Rajya Sabha that 5922 people were arrested under UAPA between 2016 and 2019. However, the number of convictions in that same period is 132. This means the conviction rate under UAPA is a mere 2.2%.

The Road Ahead For BK16

In the Bhima-Koregaon conspiracy case, no witness has been examined so far. The court hasn’t taken cognisance of the charge sheet, which it has to do before charges are framed or the trial begins. The nature of the evidence provided by the investigation agency has been questioned since the first report by Arsenal came out. Defense lawyers rushed to move the High Court- to no avail. This has to do with the stringent provision of UAPA under Section 43 D(5) that bars the courts from awarding bail if, from a perusal of the case diary or the charge sheet, there are reasonable grounds to believe that the accusation against a person is prima facie true. As seen in several recent cases, including those against activists in the Delhi riots conspiracy case, the trial courts, more often than not, tend to agree with the prosecution on the prima facie truth of the case. This has led to prolonged incarceration of accused without trial.

However, in its recent judgement, Delhi HC granted bail to three student activists booked under the UAPA in the Delhi Riots conspiracy case. Though the SC said that the Delhi HC judgement will not have precedent value, the passing of Stan Swamy in custody and revelations by Arsenal consulting can make the High Court consider bail pleas of ailing activists in prison.