Maharashtra’s prisons routinely provide TVs, refrigerators, air conditioners, cellphones, and homemade food to hardcore criminals and politicians. Yet, they refused to give a drinking straw to Stan Swamy, an 83-year-old scholar and activist awaiting trial. The police also denied a request to allow the family of Gautam Navlakha, who is 70, to send him prescription glasses. The courts were petitioned but they did little to help. The apathy shown by the police and the judicial system towards Swamy and Navlakha should not come as a surprise given that they are jailed in a case where the violation of human rights, disregard for rules and misuse of law has been apparent since the beginning. The Koregaon Bhima case it’s called.
It’s three years since 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. Initially, the police investigated Hindutva leaders Milind Ekbote and Sambhaji Bhide for instigating the violence. Ekbote was briefly even arrested. A few months later, however, the police suddenly claimed 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 goups in Pune a day before the Bhima Koregaon commemoration.
The police swiftly connected the programme to Maoists, and arrested 16 human rights defenders, lawyers and scholars. And every step of the way, they violated the law and the rights of the accused. Here’s a list, nowhere near exhaustive, of the violations that have marked the case.
On March 9, 2018, the investigating officer, Shivaji Pawar, asked the Judicial Magistrate First Class, Pune, for a search warrant, claiming that the accused possessed documents linking them to the Koregaon Bhima violence which needed to be seized. He also claimed the accused wouldn’t cooperate with the police if they sent them a notice under Section 91 of the CRPC, without, of course, ever sending them such a notice. The court denied his request saying he couldn’t assume the accused wouldn’t cooperate. About a week earlier, Pawar had submitted a similar request which had been rejected as well.
In spite of the court’s refusal to issue a search warrant, the Pune police on April 17, 2018 raided the Nagpur house of lawyer Surendra Gadling and the Delhi and Mumbai residences, respectively, of activists Rona Wilson and Sudhir Dhawle and confiscated their computers, hard drives, portable drives, personal DVDs of wedding and birthday parties. The police even seized a laptop of Gadling’s niece that contained her college engineering project.
On August 28, 2018, the Pune police raided the Hyderabad residence of poet Varvara Rao as well as the Delhi houses of lawyers Sudha Bharadwaj and Vernon Gonzalvez, and writer Gautam Navlakha, again without any warrant.
For their raids on the activists, lawyers and scholars, the police brought along witnesses from Pune, in violation of the law which mandates that when a house is raided and any material confiscated it must be witnessed by residents of good public standing from the same locality.
A list of the material confiscated during a raid must be submitted in a local court, but the police didn’t do so after seizing equipment from the houses of Wilson, Gadling and Dhawale. From Dhawale’s offices in Mumbai, the police not only seized his computer but also the laptops of other people present there. Dhawale’s office is a place to crash for social workers who come to Mumbai.
Though the police were accompanied by a cyber expert and a videographer, they didn’t provide hash values of the seized equipment to the owners. Among this equipment was Wilson’s computer on which the police alleged to have found letters detailing a plot to assassinate Prime Minister Narendra Modi.
The Information Technology Act of 2000 lays down that the hash value of confiscated electronic evidence must be taken before it’s sent for forensic analysis to ensure that it’s not tampered with. The hash value is unique, much like a fingerprint, and it changes if, say, a document or file is planted on the device, allowing the owner to find out if it has been tampered with.
The equipment seized on April 18 was sent to the Regional Forensic Lab in Pune from where the police obtained the files stored on them on April 25. They were sifting through these files, the police alleged, when they found the letter detailing Modi’s assassination.
It was bewildering that despite learning about the alleged plot on April 25, the police didn’t arrest Wilson and other activists until June 6, over 40 days later. The police, in fact, did not even call Wilson, Gadling and Dhawale for questioning during that time.
As per the police’s records, the raid at Wilson’s house began at 6.05 am and ended at 02.02 pm, when all seized devices were sealed. The memory card of the camera the police used to videograph the raid was also sealed in an anti-static bag. But the forensic report says the memory card was last used at 05:22 pm. It also points out that Wilson’s computer was turned on from 11:16 pm to 11:20 pm the same day.
If police make an arrest in a place which is beyond their jurisdiction, they are mandated by law to get a transit remand for the suspect from a local court. On June 6, 2018, when the police arrested Surendra Gadling from Nagpur they didn’t take him to a local court. Instead they took him to Amravati. When the Amravati court objected to police’s conduct and refused to grant a transit remand, the police simply took Gadling to the Nagpur airport and flew him to Pune without a transit remand. They did the same with Shoma Sen, Swamy and Bharadwaj who were arrested from Nagpur, Ranchi and Fariabadad, respectively.
The police didn’t provide arrest memos to the families of the accused and did not let them get lawyers when they were produced in a Pune court on June 7, 2018. The police themselves chose a lawyer for the accused. Gadling, himself a lawyer, objected to being represented by the police’s lawyer but the police's lawyer papers had already been filed in court. So there was nothing the arrested activists could do.
The Nagpur Bar Association appealed the court to allow Gadling’s associates and other lawyers to meet him. The court granted the request. Later, when Gadling and his associates tried to find the lawyer chosen by the police, he was nowhere to be found.
Legally, when a person is arrested the police are required to give them in writing, in a language they can understand, an explanation of the reasons they are being held for. Rao, Bharadwaj, Wilson, Navlakha and some of the other people arrested in the Bhima Koregaon case were given documents in Marathi though they didn’t know the language.
Gadling developed a heart condition in custody and he was admitted in Pune’s Nayar hospital for 3-4 days but the police didn’t allow his wife to meet him. She would sit outside his room every day because she only had permission to watch her husband from afar.
The cost of Gadling’s treatment was borne by his wife even though it was the state’s responsibility. The police also refused to give Gadling’s medical records to his wife and when she tried to obtain them through an RTI application, the hospital bizarrely said they couldn’t give her someone else’s medical records.
Another accused, Mahesh Raut, suffered from a gastronomical disease and had to undergo a biopsy. The police refused to give him his biopsy report afterwards, telling him he was just fine. His lawyers appealed many times for his medical reports, but to no avail.
Sen suffers from arthritis. It was extremely difficult for her to use the Indian commode in jail, so she appealed the court to provide her with a commode chair. The court told the police to give her the commode if the rules permitted it. Sen’s daughter brought a commode chair, but she was turned away. She tried the second time but was again unsuccessful. The third time, the jail authorities took it away from her. It was about a month before it was given to Sen.
Similarly, the jail administration refused to give Gading a sweater despite a court order, claiming that woollen sweaters couldn’t be provided inside the jail, only thermal sweaters. When his wife took a thermal sweater for him, she was turned away with the jail administration claiming that full sleeved sweaters weren’t allowed either and that she must get a half-sleeved one.
The prosecution refused to provide books by Swami Vivekanand to the accused claiming that the books in question might be banned.
According to the law, in a case where the Unlawful Activities and Prevention Act is applied, it must be heard by a special court. If a special court isn’t available then it can be heard by a regular court. In the Bhima Koregaon case the matter went to a sessions court and the chargesheet was filed despite Pune having a special NIA court. The law also states that the chargesheet mustn’t be filed directly in a sessions court, but the Pune police did.
Technically, the chargesheet is incomplete even after two years because the police have still not provided the mirror images of the accused's hard drives and other devices.
The Supreme Court reprimanded the Pune police for showing undue hurry in completing the procedures for extending the deadline to file its chargesheet. When the chargesheet wasn’t filed for 90 days, the state’s lawyer asked the court for another 90 days. The request was made on a Friday and the accused were told they had to appear in court on Saturday. The accused obviously could not inform their lawyers about this and the police didn’t inform them either. When the accused were produced in the court on Saturday, they protested against the prosecution's hurry and asked for 2-3 days so they could inform their lawyers. Despite their requests, the special hearing was held the very next day, a Sunday.
On April 14, 2020, Navlakha surrendered to the National Investigative Agency, which the central home ministry had given the case to a few months earlier, and was lodged in Delhi’s Tihar jail. He approached the Delhi High Court for bail. A day before the bail hearing, he was taken to Mumbai without the court’s permission. The high court reprimanded the police for this and sought answers.
The Pune police arrested writer and activist Anand Teltumbde despite the Supreme Court granting him protection from arrest for four weeks. A Pune session court deemed his arrest illegal and ordered his immediate release.
The way this case was assigned to the NIA also raised questions. When a case is registered under the UAPA, the state government has to inform the central government within five days. The central government then decides and informs the state government within 15 days if the NIA would investigate the matter or it should stay with the state police. If the government doesn’t decide within 15 days then the matter goes back to the state government by default.
Once the investigation is handed to the police, it cannot be reassigned. The NIA seemed satisfied with the Pune police’s investigation in 2019 and didn’t want to take it over. But in November 2019, after Maharashtra’s BJP government was voted out, the central home ministry suddenly took this case away from the Pune police and gave it to the NIA.
Hardore criminals routinely get bail to attend weddings of their relatives but the people held in this case haven’t been allowed to attend even the funerals of their family members. When Gadling asked to attend his mother’s funeral, his application was denied on the grounds that it didn’t have his mother’s death certificate without which they could not accept that she was dead.
When he did provide the death certificate, they said the funeral had already been conducted, so there was no reason for him to be let out. He then applied to attend a condolence meeting for his mother but was again turned down because he hadn’t attached a copy of the meeting with his application.
Similar tactics were used to deny Dhawale permission to attend his elder brother’s funeral and condolence meeting.
On September 4, 2020, the NIA summoned Ramesh Gaichor and Sagar Gorkhe, members of the Kabir Kala Manch, for questioning. They were allegedly compelled to accuse the people arrested in the Bhima Koregaon case of being Naxalites. The next day, however, they refused to make such false statements. So, they were called again via witness summons on September 7 and arrested.
When Gaichor and Gorkhe told a Mumbai sessions court that the NIA was pressuring them to give false statements, the court didn’t deem the agency’s conduct to be improper. The court claimed that Gaichor and Gorkhe hadn’t complained about bad treatment from the police, even though it accepted that they had been pressured to make statements.
Varvara Rao’s family and lawyers had to fight tooth and nail to get him treatment for a urinary tract infection and dementia. Rao’s health began deteriorating in May and the police admitted him to JJ hospital, only to hurry him back into jail before his medical tests could be completed. His family wasn’t given his medical reports either. When his condition worsened in July he was again sent to the hospital. There, his family members saw him sitting in the corner of a bed soaked in urine. His pyjamas were soaked in urine, too. He was later found Covid positive and sent to St. George Hospital. When the National Human Rights Commission intervened, he was admitted to the Nanavati hospital. However, in August the state sent him back to jail without informing the court or his family. It took a two-month legal fight for him to be admitted to Nanavati Hospital again.
A version of this report was published on .