Vinod Mubayi

The heartbreaking details of the arrest, hounding in custody and eventual death of Father Stan Swamy who had spent most of his life fighting for the rights of the poorest and most marginalized sections of Indian society -the tribals and Adivasis of mineral-rich Jharkhand- have been extensively reported in the media. The lawless and criminal behavior of various agencies of the Indian police: the Pune police, the Maharashtra police, and the National Investigation Agency (NIA), who arrested Father Swamy on what have now emerged as utterly false and fabricated charges was matched by the callous and disgusting actions of the Taloja prison staff who denied an 84-year-old man with advanced Parkinson’s disease a sipper-straw to enable him to drink water. This behavior of the police is perhaps to be expected—their chief at the level of the Central government, the Union home minister, is a man who was in jail himself on charges of murder a few years ago and was acquitted only after Modi became the Prime Minister under circumstances that could be described in polite language as highly dubious.

But the most deplorable feature of the Stan Swamy case, along with the cases of the other 15 Bhima-Koregaon (BK) detainees, is the behavior of the judiciary, a body that is supposedly constitutionally independent but has shown itself in practice to be intimidated and afraid of the overbearing tactics of the prosecutors who slap charges under draconian laws at their whim and fancy under orders from their political masters. One expects this timidity at the lower levels of the judiciary, but it is shameful to see it displayed at the levels of the higher courts like the Bombay High Court or the Supreme Court.

Who and what were the Bombay High Court and even the Supreme Court judges so afraid of when they delayed ruling for many months on the numerous bail petitions put forward by Father Stan Swamy’s lawyers? Why were they afraid or unwilling to grant him medical bail even after he had become infected with the covid virus in jail? The judges behaved as if they were just another bureaucratic arm of the carceral state with no moral sense or understanding of their own independent constitutional role as a check on executive power. As (retd.) Justice A.P. Shah, former Chief Justice of the Delhi High Court wrote after Father Swamy’s demise: “Indeed, our judiciary today suffers from a great many flaws besides mere weakness. In Father Swamy’s case, the judges displayed apathy of a shocking order.”

It is clear that Father Swamy, a lifelong Jesuit priest, was arrested due to his work for the rights of the Adivasis and Dalits of Jharkhand, a mineral rich state coveted by numerous corporations, including multinationals, that wish to implement extractive mining projects. His tireless advocacy on behalf of the most marginalized sections of the population to prevent their ouster from the lands and forests they had lived on for centuries made him a thorn in the flesh of the corporate vultures and their patrons in government. The charges against him of being in league with Maoists were ludicrous but treated with great seriousness by the judges simply because they were levied under the Unlawful Activities Prevention Act (UAPA). Under this law, that has no place in a country that calls itself a democracy, the normal principles of justice, viz. that an accused is presumed innocent until proven guilty and that bail is the rule and jail the exception, are reversed. Under UAPA, the accused is assumed to be guilty based on the prima facie charges levied by the police and jail is the rule and bail the exception. Only a small fraction of the cases under this law ever make it to trial and the conviction rate is a negligible 2%. The logic of the justice system is completely perverted under UAPA; guilt or innocence is irrelevant, the process itself is the punishment.

Father Swamy is gone, martyred by the brutal and vengeful Indian state for daring to stand with the poor and deprived against the most corporate-friendly government India has witnessed since independence. But the other BK prisoners still remain in jail with the sole exception of the octogenarian poet Varavara Rao who was granted conditional bail after becoming virtually demented in jail and unable to control his bodily functions.

The meticulous forensic investigation carried out by Arsenal Consulting of Boston, MA, have established beyond a reasonable doubt that what became the BK case started with some individual or agency connected to the Indian state planting malware and fabricated files on the hard drive of the computer of Rona Wilson, the first person arrested. Arsenal further established that similar malware was placed on the computer of another arrestee, Surendra Gadling, a Dalit lawyer, by the same attacker. In bail hearings of various BK detainees, the judges ignored these findings because the government’s National Investigation Agency disputed them on the grounds that they had not been confirmed by any Indian agency.

In an important article in the Quint of July 21, Anand Venkatanarayanan has demonstrated that the Arsenal reports conclusively prove “the planting of evidence through the use of malware.” on the computers of some of the BK activists that was then used by the police to put them all in jail under UAPA. He indicates, for instance, that “the [Arsenal] report reveals that the implanter made a crucial mistake – The implanted files were created in Word 2010, but the activists’ only had Word 2007, a much older version, which hence can’t be used to create these documents.”

In a paragraph entitled How Arsenal Report Dismantles the Bhima Koregaon Case, Venkatanarayanan offers this devastating conclusion: “At this point, the case against the activists has fully collapsed because the Arsenal report has proved that (1) Documents were not created in their devices. (2) They were never even opened once in their devices. (3) It was planted by the Netwire malware …”.

Now with the revelations from the Pegasus gate scandal of cell phone hacking using the Israeli NSO group software flooding the media for the last several days, will the judiciary finally remove the blinkers from its eyes? The extensive international investigation coordinated by French media non-profit Forbidden Stories along with Amnesty International’s Security Lab and 17 major international news organizations of the Israeli NSO group that sold its phone hacking Pegasus software to many governments around the world including India has established that in addition to hacking the cell phones of politicians, journalists, judges, and human rights activists, the cell phones of some of the BK arrestees such as Sudha Bharadwaj and their family members were also hacked. It is believed that India’s deal with NSO to acquire Pegasus occurred shortly after Modi visited Israel in 2017.

Planting of the malware along with fabricated letters purporting to be from a Maoist leader on Rona Wilson and Surendra Gadling’s computers that is supposed to have taken place in 2016 was the initial criminal act on the part of the attacker, most likely an agency of the government that remains unknown so far. This foray into criminality on the part of the State was compounded by the Pegasus phone hacking of over half of the BK arrestees along with their family members and friends perhaps a year later followed by the arrests themselves in 2018.

With this mounting evidence of criminal acts and related wrongdoing on the part of one or more agencies of the state it is high time for the judiciary to step in to ensure that the law is upheld. The first step should be the immediate release of the remaining BK detainees, victims of malicious and fabricated charges. forced to endure years of incarceration in a pandemic at grave danger to their health and safety just to serve the agenda of some powerful individual or entity in government. This needs to be followed by a meticulous and conscientious investigation to establish responsibility for the BK case, viz. to identify the person or agency that infiltrated Rona Wilson and Surendra Gadling’s computers and planted fabricated documents to incriminate them. As Anand Venkatanarayanan’s piece in the Quint points out “the government can easily find out the actor who did it, by tracing the ownership of the domain “xxx.zapto.org” which was used for commandeering the malware.” However, the government can scarcely be trusted to honestly investigate itself in case one of its agents is itself the perpetrator. Thus, it is necessary that the investigation be carried out by an independent team appointed perhaps by the Chief Justice of India and armed with sufficient powers to unearth the facts. Once the identity of the perpetrator(s) is established, condign penalty needs to be imposed on those responsible to act as a deterrent to any future malicious prosecution and persecution of political and human rights activists. Since Father Swamy died as a result of his incarceration in the BK case, a charge of murder against those who ordered him to jail would not be inappropriate. Moreover, generous compensation needs to be given by government to all surviving BK detainees whose lives have been so grievously impacted by the false prosecutions. In other democratic countries, like, for example, the US, states and cities often have to pay millions of dollars to citizens and residents who have suffered damages from wrongful acts of the police or other government employees.

Finally, it is time to reconsider the legality of “laws” like UAPA that should have no place in a country that calls itself a democracy. The Supreme Court, in particular, needs to take another look at its unfortunate Watali judgement that makes bail under UAPA virtually impossible. It is unfortunate that after independence the Indian state chose to keep colonial-era laws that had been abolished in Britain, such as the law on sedition or of preventive detention, on the statute books and even added more undemocratic laws like UAPA or POTA (prevention of terrorism act, now thankfully defunct) over the years. Both major parties, Congress and BJP, are responsible for enacting undemocratic legislation but the practice and, in particular, it’s has reached new heights under the Modi-Shah regime that has put the country under an undeclared Emergency.

The prolonged struggle by farmers to repeal the undemocratic and pro-corporate farm laws, a struggle that is still continuing and has set a record for the longest and largest non-violent struggle against unjust laws, is a beacon that other democratic struggles that call for freeing the BK detainees, punish their jailers, compensate the victims and strike black laws like UAPA from the statute books must imitate.

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