This document provides an overview of the Bhima Koregaon case, the first arrests in which were made over two years ago. Section 1 provides an introduction to the 16 BK prisoners all of whom are prominent human rights defenders. Section 2 outlines the charges against them, and points to the absurdity of the charges and the numerous procedural irregularities of the case. Section 3 provides an overview of the Unlawful Activities Prevention Act (UAPA) under which they have been charged, as well of the National Investigation Agency, which is investigating the case. Section 4 explains the political importance of the Bhima Koregaon case for India’s BJP government as it proceeds to put in place a new anti-constitutional and repressive political order.
- The Bhima Koregaon 16
- The Bhima Koregaon Case
- The Unlawful Activities Prevention Act (UAPA)
- The Political Significance of the Bhima Koregaon Case
1. THE BHIMA KOREGAON 16
Rona Wilson, a long-time activist of the Committee for the Release of Political Prisoners, was arrested under the Unlawful Activities Prevention Act (UAPA) on June 6, 2018, in Delhi. Arrested on the same charges and on the same day (June 6, 2018) were Shoma Sen, Surendra Gadling, and Mahesh Raut in Nagpur and Sudhir Dhawale in Mumbai. In August 2018, a series of further arrests were made in the same case – of Sudha Bharadwaj in Delhi, Varavara Rao in Hyderabad, and Arun Ferreira and Vernon Gonsalves in Mumbai. Seven more arrests in the case were made in 2020 – of Anand Teltumbde in Goa and Gautam Navlakha in Delhi, in April, Hany Babu in Delhi in July, Jyoti Raghoba Jagtap, Sagar Tatyaram Gorkhe, and Ramesh Murlidhar Gaichor in Pune in September, and Stan Swamy in Ranchi in October. All 16 have been arrested under the UAPA.
These 16 individuals work in different parts of India. Eight of them are Dalit-Bahujans (members of India’s most oppressed and stigmatized castes), four are from minority communities. They represent some of India’s most illustrious and committed human rights defenders, with long histories of writing and working for the democratic rights of India’s poorest and most oppressed: Dalits, Adivasis, (Indigenous Peoples) and women. All of them have been outspoken critics of the ideology and politics of Hindutva, the upper-caste and patriarchal Hindu supremacist ultranationalism espoused and implemented by Prime Minister Modi’s Bharatiya Janata Party (BJP). The Hindutva order is in direct conflict with the Indian Constitution which enshrines a “socialist, secular republic” and guarantees equal civil and political rights to all.
Hany Babu is an associate professor in the Department of English, Delhi University. His areas of specialisation include policy, linguistic identity, marginalised languages and social justice. He is a strong advocate of Dalit rights and has been active in helping underprivileged Dalit students obtain their scholarships and reserved seats at the University. He had also been leading the defence team seeking the release of incarcerated human rights defender G. N Saibaba.
Sudha Bharadwaj2 is one of India’s best known ‘people’s lawyers’. She has fought numerous battles against powerful corporate powers and the state to defend worker rights to a living and dignified wage and conditions of work, and (Adivasis) indigenous people’s constitutional rights to their land, and to expose the frequent atrocities (rape and sexual assault against women, murders, and pillage of entire villages) committed by unconstitutional state-sponsored armed militia against people resisting forced displacement. She is the general secretary of the Chhattisgarh unit of the People’s Union for Civil Liberties (PUCL), a member of Women against Sexual Violence and State Repression (WSS), and a founder-member of the Indian Association of People’s Lawyers (which is affiliated to the International Association of People’s Lawyers).
Sudhir Dhawale is a Dalit civil liberties organizer and activist. He has been working as freelance journalist and full time social worker since 1995, and has been active in human rights defence work in Maharashtra.
Arun Ferreira is a human rights lawyer from Mumbai. He is a member of the Committee for Protection of Democratic Rights (CPDR) and the Indian Association of People’s Lawyers (IAPL). He has a long history of community organizing among urban workers and rural communities. Ferreira was arrested in 2007 in a much publicized case; over the course of four years, he had ten cases slapped against him under the Unlawful Activities Prevention Act (UAPA), none of which held up in court. He was acquitted of all charges in 2014. He was released from prison after spending four harrowing years, undergoing brutal torture and subjected to narco-analysis (which is illegal under Indian and international law).
Surendra Gadling is a human rights lawyer and General Secretary of the Indian Association of Peoples’ Lawyers (IAPL). Among those he has represented are numerous human rights defenders arrested on fabricated charges of being anti-national. He is also a prominent Dalit rights activist.
Vernon Gonsalves is trade unionist, activist, and academic (former professor of business management in a college in Mumbai), who writes extensively on Dalit and Adivasi rights, the conditions of prisons in India, and the routine violation of rights of prisoners. Along with Arun Ferriera (see above), he has authored a number of popular articles on the condition of Indian jails, the abuse of authority by Indian police, and draconian laws such as the Unlawful Activities (Prevention) Act (UAPA).Gonsalves was previously arrested under UAPA in 2007 and kept in jail for six years before being acquitted of all the cases against him except one, which is still pending.
Ramesh Gaichor, Sagar Gorkhe, and Jyoti Jagtap3 are all members of the Kabir Kala Manch (KKM), a cultural organization founded in 2002 as a response to the pogram in Gujarat that claimed over 2000 (mostly Muslim) lives. It is now one of Pune’s foremost progressive socio-cultural movements, using music and theatre to raise awareness about casteism, patriarchy, communalism, and farmer distress. Members of the Manch are drawn largely from working-class families in the region. In 2011, the group went into hiding after two of their members were arrested under UAPA. In 2013, after they emerged from hiding, four more members were arrested, including Sagar Gorkhe and Ramesh Gaichor. They were released on bail in January 2017. The Kabir Kala Manch was one of the 250 Dalit and human rights organizations that organized the Elgar Parishad,
Ramesh Gaichor joined the Kabir Kala Manch in 2002 as 19-year-old commerce student in Pune’s Wadia College. He helped build up the group with his commitment to social change through art and culture. Since the Manch did not make much money through their performances, Gaichor also worked part-time jobs as a hospital clerk and a lecturer over the years. This work stopped after members of Kabir Kala Manch were accused of having links with Maoists, and Gaichor spent three years as an undertrial in jail.
Jyoti Jagtap joined Kabir Kala Manch in 2007. She was already known as a fiery social activist in Seva Dal, a socialist youth group in Pune district’s Saswad town. She was a psychology student at Saswad’s Waghire College at the time, and took up a range of women’s issues in her activism. In 2007, Jagtap moved to Pune city to do her Master’s degree in psychology from SP College, and joined the KKM, where she worked full-time until 2017. In 2017, in order to make ends meet, she began working with a non-profit organization working with teenagers. In the past year, she had begun taking a short course in clinical psychology, with the aim of opening her own counselling center.
Sagar Gorkhe joined the Kabir Kala Manch in 2004. He came from a poor Dalit family in Pune where his parents moved from suburb to suburb taking up jobs as construction workers, security guards, and domestic workers. After school, he began living in the city’s Kasewadi slum and started studying sociology at the Babasaheb Ambedkar College. As a student, he worked as a sweeper and a car cleaner to be able to pay for college, but later he worked full-time with KKM, applying his love of song and poetry to talk about people’s rights and justice.
Gautam Navlakha is a Delhi-based veteran journalist, author, civil liberties, human rights, and peace activist best known for his sustained critique of the Indian state’s militarism against its own citizenry in the North-Eastern states, Kashmir valley, and the central Indian forested zone in Chhattisgarh. He has been actively involved with the People’s Union for Democratic Rights (PUDR) – one of India’s leading civil liberties and democratic rights defence organizations. He is well-known public intellectual, writing extensively since the 1970s in popular media and as a member of the staff & editorial team of India’s leading and internationally acclaimed academic publication, theEconomic and Political Weekly(EPW).
Varavara Rao, 80 years of age, is a well-loved Telegu poet and educator. He has some 15 poetry collections to his name. His thesis on ‘Telangana Liberation Struggle and Telugu Novel – A Study into Interconnection between Society and Literature’ is considered to be landmark in Marxist literary criticism in Telugu.
Mahesh Raut recently completed an MA in Social Work from the premier Tata Institute of Social Sciences in Mumbai. Following this, he was working, as recipient of the prestigious Prime Minister’s Rural Development Fellowship, on forest rights and other issues impacting Adivasis in eastern Maharashtra.
Shoma Sen was Professor and Head of the Department of English at the Rashtrasant Tukadoji Maharaj Nagpur University in Maharashtra. She is that rare combination – a committed scholar and teacher, and an equally committed political and social justice activist. She is a member of Committee for the Protection of Democratic Rights (CPDR), of the national collective, Women against Sexual Violence and State Repression (WSS), and of theCommittee against Violence on Women (CAVOW)which has investigated major cases of sexual violence by armed forces and organized legal aid for women political prisoners during the early 2000s.
Anand Teltumbde is an engineer, management expert, and academic presently teaching at the Goa Institute of Management. He is an outstanding and fearless public intellectual who has authored several trenchant critiques of Hindutva politics, neoliberal economic policies, and the attack on Dalit rights. His books and articles are regularly prescribed in courses on these subjects in universities in India and abroad.
Stan Swamy is an 83 year-old Jesuit priest who has spent his lifetime working closely with and defending the rights of Adivasi people against displacement by mines, land acquisition, arbitrary and unlawful arrest (on grounds of being members of the banned Maoist movement). As part of the Persecuted Prisoners Solidarity Committee, Stan Swamy along with Sudha Bhardwaj, hasquestionedthe illegality with which some undertrials were put in solitary confinement following the banning of their organization in 2017.
Rona Wilson is the Public Relations Secretary of the Committee for the Release of Political Prisoners (CRPP). He has spokenand written extensively on the history of anti-terror and preventive detention laws in India, and their use against those critical of the government, as well as against Muslims and Kashmiris in particular.
2. THE BHIMA KOREGAON CASE4
2A: The Charges
All 16 individuals were arrested under the following charges:
- Acting on behalf of, or being members of the outlawed Communist Party of India (Maoists) or simply ‘the Maoists’, and that the Elgar Parishad was an ‘anti-fascist’ front
- Plotting to assassinate the Prime Minister
- Making inflammatory speeches at the Elgar Parishad
The Elgar Parishad was 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, 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. 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 they also targeted the 16 prominent intellectuals and activists named above.
2B: Procedural irregularities
The absurdity of the 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.”
2C: Digital targeting of the BK defendants
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.8 See:
There is also growing evidence, documented below, of systematic spyware attacks against several of the BK defendants. Based on this, a report9 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.10 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 WhatsApprevealedthat NSO Group, an Israeli surveillance tool vendor, had exploited avulnerability on their platform to target 1400 individuals across several countries earlier in the year.11 In collaboration with Citizen Lab, WhatsApprevealedthat more than 100 of those targeted were HRDs, activists, and journalists and notified them of the breach.12 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.13 Subsequently, the government sought to shift the blame ontoWhatsapp,14 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 hadinformedthe country’s nodal cyber response agency when the attacks had first taken place.15 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 underinternational lawand 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.16
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.”17 Google, in its alert, has said that over500 potential targetsof the 12,000-odd targets across the world were from India.18
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 waschallengedin the Supreme Court to which the governmentrespondedwith 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.
3. THE UNLAWFUL ACTIVITIES PREVENTION ACT (UAPA)
3A. The UAPA19The draconian ‘Unlawful Activities Prevention Act’ (UAPA) is India’s foremost “anti-terror” law. Enacted in 1967, it was amended in 2004 to incorporate elements of the Prevention of Terrorism Act (POTA) which was repealed in response to widespread public opposition. Further amendments were made in 2008 and 2012 to make the UAPA even more repressive.20 The law allows the government to arrest citizens for crimes they might possibly commit in the future. Those arrested under the UAPA can be incarceratedfor up to180 days without chargesbeing filed.
UAPA criminalizes the holding of particular opinions, or even the mere possession of literature that might possibly cause “disaffection” with the state. UAPA also criminalizes various forms of non-violent political activity, including political protest.UAPA’sdefinition of “terrorist activity” is so broad as to be vague and includes activities that are legitimate and essential tothe work of human rights defenders.21
The UAPA allows the government to bypass constitutionally guaranteed civil liberties and fundamental rights that protect citizens from abuses of state power, such as the presumption of innocence, provision of bail or anticipatory bail, protection from warrantless search, seizure and arrest of individuals, time limits on detention by the police, requirements that the state must file a charge sheet within a specified time, etc. Accounts by those incarcerated under UAPA reveal that neglect, mistreatment,andtorture are common, including the use of solitary confinement even during pre-trial police custody.
UAPA authorizes the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings. A Supreme Court judgement in April 2019 further tightened UAPA by making it impossible to apply for bail on grounds of the inadmissibility of the evidence. It ruled that the courts could not examine what is admissible and what isn’t at the stage of granting bail. That can only be done at the stage of trial. Thus the quality of the evidence is of no consequence until the trial itself, and anyone arrested under the UAPA can be held indefinitely until the trial.22
International human rights organizations such as Amnesty International have argued thatUAPA violates international human rights treatiesand have raised alarm bells over its “sweeping definitions of ‘membership’ of organizations,” specifically referring to the 2012 amendment to UAPA’s Section 2 which criminalizes the right to form associations by expanding the definition of person to include “an association of persons or body of individuals, whether incorporated or not.” Human Rights Watch has issued multiplereportsabout the politically motivated use of UAPA and its use tocrack down on dissent.23
3B. The National Investigation Agency (NIA)
The BK case is being investigated by the National Investigation Agency(NIA). The NIA was established by an Act of Parliament in 2008 as acounter-terroristtask force and is empowered to deal with terror related crimes across states without special permission from the states. The BJP was in power in the state of Maharashtra in 2018, and the investigation was initially conducted by the Maharashtra police.
When a non-BJP government came to power in Maharashtra state in November 2019, it raised doubts about the police investigation and signaled a probe against the officials leading it. In response, in February 2020, the case was transferred by India’s Home Minister to the National Investigation Agency (NIA), thus making sure it remained under the direction of the BJP government at the center.24 The current Chief of the NIA, Mr. Y.C. Modi, appointed in October 2017, has been central to at least two previous highly controversial investigations that resulted in absolving Prime Minister Modi (when he was Chief Minister of the state of Gujarat) and his associates in cases related to the 2002 pogrom against Muslims in Gujarat.25
4. THE POLITICAL SIGNIFICANCE OF THE BHIMA KOREGAON CASE
All those arrested in this case work closely as lawyers or activists with Adivasi or Dalit populations, who are the worst hit by processes of displacement and dispossession. It is therefore also among these populations that the proscribed Maoist organizations work, and therefore also those defended by the armed Maoists. Hindutva ideology claims Dalits and Adivasis as part of the “Hindu majority,” despite their historical oppression and marginalization under Hinduism. The BJP government therefore cannot attack them directly, but instead seeks to cast all those who work for their rights as “Maoist” and “anti-national.” BJP ideologues have coined the term “Urban Naxal” to target academics, journalists, artists seen as sympathetic to the Maoists (or rather, the people and causes the Maoists are fighting for). The Bhima Koregaon case helps to create the sense of a widespread and growing “conspiracy” linking Maoists to urban sympathizers and creating a generalized sense of fear and threat, the conditions of an “emergency.”
The release by the police of “incriminating letters” supposedly found on Wilson’s hard drive to the media in a press conference enabled what has become a common practice in India today: trial by media. The accusations are read out in sensational tones by the anchors, and repeated endlessly with images, and talking heads are then invited into a spurious and tendentiously framed “debate.” This is all the proof the public needs to declare the accused guilty.26
The BK case has also become a model for the government’s modus operandi: the fomenting of violence in which the majority of the victims are members of the marginalized communities, and then the implication of human rights activists from these very same communities in fake cases to show that they provoked the violence. Hundreds of Muslims, youth, students, women’s rights activists who had been active in the protests in December 2019- February 2020 against the anti-Muslim Citizenship Amendment Act have been accused of fomenting the riots in Delhi in February 2020 and arrested under the UAPA.
The increased use of the UAPA to arrest and silence critics, dissenters, and human rights defenders is part of the growing clampdown on civil liberties and democratic rights, as well as civil society, under the BJP. Emblematic of this was the freezing, in September 2020, of Amnesty International India’s bank accounts by the (tax) Enforcement Directorate, bringing most of the work of the organization’s work in India to a grinding halt.
6 https://scroll.in/article/893686/13-letters-leaked-by-pune-police-show-why-it-s-hard-to-believe-claims-about-a-maoist-conspiracy; https://scroll.in/article/892850/from-pune-to-paris-how-a-police-investigation-turned-a-dalit-meeting-into-a-maoist-plot; https://scroll.in/article/914270/bhima-koregaon-supplementary-chargesheet-brings-little-new-information-to-the-case