BHIMA KOREGAON CASE: THE CHARGES
All of the BK16 individuals were arrested under the following three charges:
- Acting on behalf of, or being members of the outlawed Communist Party of India (Maoists) or simply ‘the Maoists’
- Plotting to assassinate the Prime Minister
- Making inflammatory speeches at the Elgar Parishad, a conference that the state claimed aimed to “spread rebellious thoughts”, instigate violence at Bhima Koregaon and establish a nationwide “anti-fascist front” to “wage war against the government”.
The Elgar Parishad was in reality a meeting of some 260 organizations representing a diverse range of castes on December 31, 2017. Convened by two retired judges, Judges P.B.Sawant and B.G.Kolse-Patil (see their interview here), the Parishad was called against Hindutva sectarianism in India and in defense of the Indian Constitution. About 35,000 people attended the event in Shaniwarwada Fort, in the city of Pune in Maharashtra. The finale was a mass ‘oath of allegiance’ to the Indian Constitution.
On January 1, 2018, many of those present at the Elgar Parishad, along with thousands of Dalits, went to a village called Bhima Koregaon (about 30 kms from Pune) to celebrate the 200th anniversary of the battle of Koregaon of 1818 in which 49 Dalits were martyred fighting against the Peshwai (upper caste rulers of the region).
On the same day (January 1, 2018) violence broke out between members of Hindu Nationalist (Hindutva) groups and the Dalit community who had gathered at Bhima Koregaon. While the Hindutva groups claim that incendiary speeches were made during the event due to which violence broke out, a police appointed fact-finding committee appointed by the Pune Rural Police and headed by Pune Deputy Mayor Siddharth Dhende, found that Hindutva outfits had “pre-planned” the Bhima Koregaon violence.5 Two sets of First Information Reports (FIRs) were filed with the police in January 2018 based on these competing narratives. The first FIR was filed by a Dalit woman against two popular Hindutva leaders (Sambhaji Bhide and Milind Ekbote) for planning, inciting, and leading the mobs that attacked the Dalit community. Ekbote was arrested but released soon after; Bhide was never arrested (Read the fact-finding report on Ekbote and Bhide). The other FIR was filed by Tushar Damgude (a disciple of Bhide) and alleged that the violence was instigated by individuals with links to (banned) Maoist/Naxalite groups at the Elgar Parishad.
On January 3, 2019, a peaceful bandh (a protest shut-down of a city/town) was organized by Dalit groups. Seizing this moment, and despite the FIR against Sambhaji Bhide and Milind Ekbote for desecrating and spreading communal violence, the Pune police cracked down on Dalits and arrested more than 200 Dalit youth. At this point the state (Pune Police) also targeted the 16 prominent intellectuals and activists named above.
BK CASE: PROCEDURAL IRREGULARITIES
The absurdity of the above charges and highly irregular actions of the Pune police have been widely noted.6 The claim in the FIR filed by Tushar Damgude alleging that the violence was instigated by individuals with links to (banned) Maoist/Naxalite groups at the Elgar Parishad has been repeatedly denied by both the organizers of Elgar Parishad, Hon’ble Justice PB Sawant and Hon’ble Justice Kolse Patil. They have made public statements clarifying that neither the event nor the organizers or funders had any links with any banned group. Most of those arrested were not even at the event and were not named in the FIR filed by Tushar Damgude after the event. The charge that they had plotted to assassinate the Prime Minister has interestingly disappeared since their arrest and does not figure in any of the charge sheets filed against them in court.
A writ petition put forward in the Supreme Court by five eminent citizens in September 2018 had asked that the BK cases be transferred to a Special Investigation Team (SIT) because of the procedural irregularities committed by the Maharashtra police, including:
- Evidence claimed to have been recovered by the police was prima facie fabricated and the allegations against them were baseless;
- The unjustified pre-trial detention of Mr. Gonsalves, Mr. Ferreira, and Ms. Bhardwaj;
- The failure to translate the first information report into a language understood by the accused;
- Lack of independent public witnesses to the arrest and seizure of memos;
- Prejudicial public statements by the police, such as the release in a press conference of “letters revealing a plot to assassinate Modi” allegedly found on Rona Wilson’s hard-drive. (The police held two press conferences, the first proclaiming that they had sufficient evidence against the activists and the second where they selectively read letters that had not yet been authenticated implicating the activists in supporting and being a part of the conspiracy.)
- Statements by the police challenging the courts’ authority over these cases;
- A consistent pattern of previous filing of charges against some of the defendants without meaningful evidence of wrongdoing.
An American Bar Association report7 on the case states: “A preliminary review of the judicial records in this case raises serious concerns of procedural irregularities, abuse of process, and violations of fundamental human rights. Several United Nations’ (UN) experts on human rights have expressed concern that the arrests and charges were brought in retaliation for the defendants’ legitimate human rights work.”
BK CASE: DIGITAL SURVEILLANCE AND FABRICATION OF EVIDENCE
The ‘evidence’ against the BK-16 all boils down to files found on the hard drive of one of the arrestees – Rona Wilson – alleged to be ‘letters’ showing links with banned groups. In addition to the procedural irregularities noted above, there is evidence of the hard drives seized having been tampered with.
There is also growing evidence, documented below, of systematic spyware attacks against several of the BK defendants. Based on this, a report by Amnesty International and the Citizen Lab at the University of Toronto noted: “That some of these individuals were targeted multiple times shows that there is a disturbing pattern of spyware attacks against HRDs involved in the Bhima Koregaon case.”
Between January and October 2019, nine Human Rights Defenders (HRDs) in India were targeted with spearphishing emails containing malicious links that, if opened, would have installed NetWire, a commercially-manufactured Windows spyware, compromising the target’s Windows computers,in order to monitor their actions and communications. Eight of the nine targeted by the spyware had been working actively for the release of the activists arrested in the BK case. The ninth had been vocal in calling for the release of GN Saibaba, a wheelchair bound academic with severe health issues jailed in Maharashtra under the UAPA.
In October 2019, Facebook’s WhatsApp revealed that NSO Group, an Israeli surveillance tool vendor, had exploited a vulnerability on their platform to target 1400 individuals across several countries earlier in the year. In collaboration with Citizen Lab, WhatsApp revealed that more than 100 of those targeted were HRDs, activists, and journalists and notified them of the breach. At least 22 of these 100 were Indian activists, lawyers, and scholars, of whom at least three were among the nine HRDs targeted by the use of NetWire—JAGLAG (Jagdalpur Legal Aid Group), Nihalsing Rathod, and Degree Prasad Chouhan. Other targets of the Pegasus taps were Anand Teltumbde, one of those charged and imprisoned in the Bhima Koregaon case, and Ankit Grewal, who, along with Nihalsing Rathod and JAGLAG, is involved in the defense of Bhima Koregaon arrestees, including Surendra Gadling and Sudha Bhardwaj.
Several of those targeted by the Pegasus spyware in India wrote to the Parliamentary Standing Committee on Information Technology asking whether the government had authorized the use of this spyware. The Indian government’sMinistry of Home Affairsand theMinistry of Information Technologyrefused to give a straight answer to this question, only claiming that “no unauthorized interception” had taken place. Subsequently, the government sought to shift the blame onto Whatsapp, insinuating that the tech platform had allowed the breach to take place and had not informed the government about it. However, Whatsapp responded stating that it actually had informed the country’s nodal cyber response agency when the attacks had first taken place. Meanwhile, the NSO group insisted that it sold its products only to “government intelligence and law enforcement agencies” casting doubts on the government’s attempts to divert blame.
Illegally intercepting or accessing computer devices is recognized as a criminal act under international law and under India’s Information Technology Act. If the hackers were private actors, it is concerning as to why the Indian government has not yet released details of any criminal investigations against them, despite sufficient evidence of a crime having been committed against its own citizens.
Both Yahoo and Google have warned India-based targets that they may have been the victims of a snooping attempt by “government-backed actors.” The Yahoo alert reads: “We believe your Yahoo account may have been the target of government-backed actors, which means that they could gain access to the information in your account.” Google, in its alert, has said that over500 potential targetsof the 12,000-odd targets across the world were from India.
In December 2018, the Ministry of Home Affairsgave10 agencies blanket legal authority “to intercept, monitor or decrypt information generated, transmitted, received or stored in any computer.” This order was challenged in the Supreme Court to which the government responded with a statement that “the veil of privacy can be lifted for legitimate state interest.” The order continues to be enforced, pending a final judgement by the apex court.