BK16: Why Is The Judiciary Still Sleeping?

bhima koregaon

The Bhima Koregaon15 spending a single additional night in jail is a travesty of justice. The third report by Arsenal Consulting on evidence planting became public on July 6, with even more damning evidence corroborating the first two reports in February and April that confirmed extensive evidence planting on Rona Wilson’s hard drive, the first of the arrestees in the BK16 case. The third report meticulously documents transcripts of the malware and external activity on co-defendant Surendra Gadling’s hard drive from 2016 onward by the same attacker! Shouldn’t the judiciary take account of the Arsenal reports to declare a fresh line of investigation into the so-called Bhima Koregaon case and release the 15 immediately?

Arsenal Consulting is a bona fide world-renowned forensic investigation firm in Boston that the FBI contracts for investigations. It is an expert independent agency whose services have been sought after to solve several high-profile international cases. Arsenal’s findings were used by the Turkish court to free 13 journalists that had been imprisoned on false charges. Arsenal’s services were also used to solve the Boston Marathon bombing case. Based on the Arsenal reports of February and April, the case for bail for Rona Wilson and Shoma Sen are being heard in the Bombay High Court at this time. The latest report also shows that Father Stan Swamy and several others (including environmental activist Prashant Rahi jailed in Nagpur) were copied on the emails containing malware. Senior leaders in the Maharashtra government have denounced the custodial death of Father Stan but in the Bombay High court the same government is asking the court to reject the Arsenal reports and not consider them until trial! which as is well known only prolongs unjust incarceration under UAPA. As Teltumbde famously stated just before his arrest, and that many others have echoed since, ‘the process is the punishment’.

Several of the BK16 have been languishing in jail for over three years, others for over a year, and only one, the Telugu poet Varavara Rao is out on medical bail, and this only when he was literally at death’s door. Father Stan was also at death’s door but did not receive the bail he so desperately pleaded for to be able to die amongst his own. The Arsenal reports and their explosive findings are sufficient reason to grant bail to the arrested. Add to this the spread of Covid and overcrowding in prisons where the BK 16 (now 15) are being held. There is a clear and present danger to their lives. The prison conditions violate the constitutional guarantee of right to life for the imprisoned, and we know Father Stan paid with his life for this violation. One would think this situation offers the court sufficient grounds to grant the remaining bail. It is over a week since the third Arsenal report became public. Together all three reports present a damning indictment of the NIA, the Maharashtra police and the Regional Forensic Laboratory in Pune and their lack of will to carry out a proper investigation. Arsenal Consulting has done the work that they ought to have done. In fact Arsenal’s reports point to a carefully orchestrated and demonic plan to frame the accused that suggests powerful interests and agencies are involved. Only with a properly constituted special investigation team will the truth be known and citizens’ faith in the state be restored. The question is what is the judiciary waiting for? Why is it silent? Is it waiting for another one to be felled by the heartlessness and inaction of the judiciary? Is not the ignominy caused by the death of Father Stan enough of a wake-up call to the judiciary to take cognizance of the situation and act with promptitude? Will India’s judiciary use this wake-up call to demonstrate that the law is not a weapon to be used against its people but an instrument of succour and protection for its citizens? Is it not time for the judiciary to put into practice the distinction drawn so eloquently by the Chief Justice of India N.V. Ramana between rule of law and rule by law?

This week is Dr. Anand Teltumbde’s birthday, his second in prison. The forensic reports of surveillance and evidence planting on the laptops of two of the BK16 should urge the judiciary to release the BK16 (now 15) forthwith. In contrasting the rule of law with rule by law, the CJI clarified that the latter is but colonial law, intent not on fairness but on declaring guilty without due process and punishing those trapped by the state. The colonial use of law is what we are seeing in action in the rampant use of the UAPA in the BK16 case and others. With only a 2% conviction rate in UAPA cases, it is clear the prosecuting agencies should be in the dock, hauled up for the flimsy and untenable cases they are piling on, wasting the court’s time and causing grievous harm to those imprisoned and their families. A cursory review of international jurisprudence reveals that the UAPA and related laws do not belong in a sovereign democratic nation and these violate the fundamental rights guaranteed by the Indian constitution and must be repealed.

If the judiciary practiced rule of law, that is law that is humane and intent on delivering justice, then on his birthday, Dr. Anand Teltumbde would be with his wife in Rajgruha, the home of Dr. Babasaheb Ambedkar in Mumbai. Or is the judiciary waiting for Anand Teltumbde or the remaining BK16, to contact Covid, fall ill and die, as happened with Father Stan? Will their deaths be the occasion for the world to know of their inspiring and selfless work? Will the world only then know of Dr. Teltumbde’s brilliant scholarship and  insightful writings that are read in universities around the world? Just as the world has learned posthumously and is astounded by Father Stan’s prolific research (he authored 70 books) and the detailed studies he conducted of undertrials in Jharkhand trapped in the judicial system. Father Stan disseminated his research findings among the Adivasis so they would be aware of the transgressions of law and fight for their rights using democratic process. This is the kind of work that holds the BK16 in common. They have consistently exposed the lack of accountability of the criminal justice system particularly toward Dalits and Adivasis, with the singular purpose that the most discriminated and disadvantaged communities of India are able to exercise their rights. The wretched irony is that the same unaccountable criminal justice system that they spent their lives trying to save others from has trapped them, and in a far more diabolical and sinister manner as the Arsenal investigations show. Is it the fate of intellectuals, journalists, artists, and social activists in this country that they must die in order for their good work to be recognized and feted? Or will the courts do the needful, recognize the unjust incarceration of the BK15 as a public interest issue and release them on bail without further delay.

The countdown has started. How many more nights must the BK15 sleep in jail instead of in their own homes, how many more days and nights must their families worry about them, and about their health and survival? How long must the public be party to the scandalous miscarriage of justice? The world is watching and waiting, anguished by the unjust imprisonment. Will India’s judiciary act now?

Sangeeta Kamat is Professor of Education Policy Studies at the University of Massachusetts at Amherst. She is also a member of India Civil Watch International and InSAF India, an international solidarity network for academic freedom in India.

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