BHIMA KOREGAON CASE HEARING: ARGUMENTS BY PETITIONERS AND RESPONDENTS.

BY KRITIKA A & NIKITA AGARWAL

The hearing on the petition Romila Thapar and Ors. vs. Union of and Ors., known as the Bhima Koregaon case continued on September 19, 2018 at the Supreme Court heard by

Chief Justice of India Deepak Misra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar.

In the long arguments which lasted till 4 o’clock with a one hour lunch break, both sides—for the five plus five activists’ arrested on June 6th and August 28th in connection to Bhima

Koregaon violence under FIR No. 04/2018 and the prosecution, the State of put forth their best arguments.

Senior counsel for the activists Abhishek Manu Singhvi opened his argument by pointing towards the first FIR filed by Anita Salve, a woman and eye witness to the violence unleashed by right wing extremist groups: “Anita Salve, an eye witness to the violence of 1st

January 2018, lodged FIR 2/2018 at P.S. Pimpri on 2nd January 2018, stating that violence was unleashed by a mob armed with swords, rods etc. against the and specifically names

Sambhaji Bhide, Chief of Shivajinagar Pratishthan and Milind Ekbote, Chief of Hindu

Janjagaran Samiti, as the perpetrators and conspirators of the attack.” He emphasised that a belated FIR was filed by Tushar Damgude, who is an Intervenor before this Court, on January 8th, eight days after the incident and seven days after the first FIR. This FIR is what is known as

FIR 4/ 2018 and the raids and arrests of the activists’ have taken place under this FIR.

Singhvi further argued around the only evidence against those arrested on August 28th which is based on some purported “letters” leaked by the police to the media, “letters” which are prima facia fabricated and cannot be relied upon. The police has been releasing them to the media in a concerted effort to create prejudice against the activists and have themselves not verified and authenticated the letters.

Counsel Singhvi went on to the notice of Hon’ble Apex Court that most of the letters are either addressed to or authored by some “Comrade Prakash”. Referring to Professor Saibaba who was indicted by the Nagpur Sessions Court alongwith six others in March 2017, he alleged that according to Maharashtra State’s own case, professor Saibaba’s alias was Prakash. It is interesting to note that the alleged “letters” are dated after his incarceration. He argues it is prima facie impossible for professor Saibaba to have written or received these letters from

Nagpur Central Jail. Furthermore, he added that these letters have neither been placed before any Court until now nor do they find place in the remand application. Senior Advocate Singhvi further invoked expert in counter terrorism and militancy, Ajay Saini, who has opined that these letters are fabricated. He further states that it is impossible for the police to not file FIR after recovering letters plotting Prime Minister’s assassination and no such FIR has been filed so far.

“A cloak of criminality has been cast upon the activists”, Singhvi pronounced—the arrested activists are systematically targeted and falsely implicated. , a 79 year old poet whose writing he does not agree with, but nevertheless a renowned poet who is critical to the government was falsely implicated in 25 cases only to be acquitted in all previously. In the same vein he mentions Arun Ferreira who was also implicated in 11 cases and acquitted in all. Vernon Gonsalves was implicated in 19 cases out of which he was acquitted in 17, was convicted in one and one is pending.

He brings to the notice of the court that all legal procedures as prescribed under the Criminal

Procedure Code were flouted by the police in carrying out the raids and the arrests. On one hand letters were leaked to media houses and on the other, process of search, seizure and arrest were carried out illegally with police tutored witnesses. The Criminal Procedure Code is explicit that search and seizure witnesses are to be unbiased persons from the local neighbourhood. However, in the present case, Municipal Corporation Workers and panchas were brought by the police as witnesses thereby compromising on the accused’s rights to a fair trial. He stresses on the point that the activists on August 28 were arrested because they were vocal in criticizing the June 6 arrest under the same FIR. Senior Counsel Abhishekh

Manu Singhvi closed his argument by referring to the various case laws which uphold and emphasise upon personal liberty. He pleads that under such extraordinary circumstances, the investigation be assigned to a credible, independent body like the Special Investigating Team and/or investigation monitored by the Supreme Court.

Senior Counsel Anand Grover, arguing on behalf of Surendra Galding’s wife Minal Gadling and for the five activists who were arrested on June 6th started his submissions emphasising on the work that those arrested have done for the rights of the oppressed, Dalits, Women and

Adivasis. He bought to the notice of the court that his client, Surendra Gadling is a lawyer for the last 25 years working on UAPA, POTA, TADA cases with 99% success Rate. He was also been appointed as Special Public Prosecutor. Grover further went on to say that Gadling while defending Professor Saibaba was threatened by the investigating officer Suhas Bawache that

Gadling will be ‘next’ if he kept representing Sai Baba. Shoma Sen, another arrestee on June

6 was a professor and Head of English Department, in Rastrasant Tukdoji Maharaj Univesity,

Nagpur. Mahesh Raut, a 32-year-old man was in the first batch of Prime Minister Rural Development Fellow and was involved in strengthening Gram Sabhas in the most Naxalite prone areas and getting villagers to vote and implement laws like The Schedule Tribe and Other

Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, and Panchayat

(Extension to Schedule Areas) Act (PESA) 1996. Sudhir Dhawale was previously arrested in one case was later acquitted.

Grover recounted the time line of the events starting from December 31, 2016 leading to the arrest in June 6 and alleges that the second FIR (4/2018) filed on January 8 by Tushar Damgude does not hold ground as an independent FIR. He cites T.T. Anthony v State of Kerala to support his point. He pointed out the Chief Minister of Maharashtra too had alleged on the floor of the house that the violence was incited by the right-wing extremist.

He submitted that raids carried out by the police in the houses of Surendra Gadling, Rona

Wilson and Sudhir Dhawale on April 27 was bad in law as permission was denied by Judicial

Magistrate (1st Class), furthermore search warrant under UAPA requires designated authority not below the rank of Joint Secretary in the Central Government or not below the rank of

Secretary of the State but the raids were carried out at a request letter by one ACP of Pune to another ACP of Pune itself. The arrests were carried out in violations with the UAPA and

CrPC. In this case, he submitted, a Special Investigation Team must be set up.

READ HIS COMPLETE SUBMISSION HERE https://twitter.com/TheLeaflet_in/status/1042313741981941761

Senior Advocate Ashwani Kumar argued that personal liberty of an individual cannot be deprived without due process of law and the courts cannot turn a blind eye to vexatious proceedings in criminal process. He requested the court to ensure fairness in procedure and prosecution. This case, he stressed is not so much about the criminal law, but about the actualization of constitutional rights. Referring to the content of FIR filed on January 8 which mentions a song sung by Sudhir

Dhawale- a translation of certain lines from The Good Person of Szechuan written by famous

German playwright and poet, Bertolt Brecht- as proactive, Ashwani Kumar quotes Sahir

Ludhianvi’s famous song- jalaa do use phoonk daalo ye duniye [set fire and burn this world] as analogy to insist that poets since the independence struggle have always spoken about the socio-economic injustices in the society.

He asserts that the petition is about the upholding of non-negotiable rights—of personal liberties and dignities. An arrest causes indignity and infringes on the liberty of the person leaving scars forever for the person and their family to deal with. Arrest is a tool of oppression.

The existence of the power to arrest is one thing but the justification of arrest is another. No arrest can be made without looking at the genuineness of the complaint and the need to affect the arrest. Stressing on liberty and dignity as the pillars of the constitution, he closed his arguments.

Senior Counsel Rajeev Dhawan opened his argument by pointing towards the breach of procedure carried out in the raids and arrests. He invoked DK Basu and Nandini Satpaty’s case to emphasise on the importance of procedure in carrying out arrests. Rajeev Dhawan further questioned the intent of Maharashtra police in leaking the alleged “letters” and documents to the media and contended that it is an attempt to bias the trail. He goes on to point to the statement of two retired judges- Justice PB Sawant and Justice Kolse Patil- who have come on record and said they have funded the Elgar Parishad. He questioned the police on not taking their statement and acting on the second FIR. He pronounces that an investigation is a narrow matter not meant for the media. The involvement of the five arrested on August 28 is nil.

Investigation is not supposed to start with the media. Referring to a certain “letter” leaked to the media which alleges that Sudha Bharadwaj is funding Jagdalpur Legal Aid group through

Maoist money, Rajeev Dhawan asserts that he is the one who is funding the Group. In response to the targeting of Jagdalpur Legal Aid group he says, “when did providing rigorous legal aid become illegal”.

Rajeev Dhawan furthermore submits that there is a certain kind of targeting by the police in this case. They are claiming that all those arrested are members of the banned Maoist party.

Referring to Tushar Damgude, Dhawan submits: “he does not know KKM [Kabir Kala

Maanch] and just reads one post on Facebook and says that the Maoists are influencing the

Dalits? Is this the foundation of an FIR!” The KKM is not a front organisation of the CPI

(Maoist). The organisations which organised the Elgar parishad is not a front organisation. It is not amongst the 55 organisations tagged as the front organisation by the state of Maharashtra.

He demands fairness in the investigation. “This is nothing more than a continuum of onslaught since 2010 against human rights activists. Destabilising the society requires planning and preparation! A few letters here and there will not serve those ends.” He concludes in flourish.

Senior Advocate Prashant Bhushan starts his arguments by pointing to the fact that the arrests are not based on the FIRs but on the basis of alleged letters that speak of the assassination of the Prime Minister, raising of funds for Maoist organisations and procuring arms for them.

They have not been placed on record before any court. Referring to the alleged “Comrade

Prakash”, he says these letters are supposed to have been written to someone and by someone who is in jail. Casting a doubt on the authenticity of the letter, he articulates that such inflammatory letters were recovered from a third person who is neither a recipient nor the author of the letters. Asking for a SIT he asserts that people arrested are known to have a track record of human rights activities and have openly registered their dissent against the present government. This is an extraordinary case, he says, and it is the duty of the court to ensure fair investigation. He rests his case.

The Case of the State: The counsel for the Pune Police, Tushar Mehta and the Additional Solicitor General, stated that all the arrests and raids were in accordance to procedures laid down under CrPC. He started his argument by stating that 6 persons were named in the second FIR and none of them were arrested immediately. It was on June 6 that one of the named accused in the FIR Sudhir

Dhawale was arrested, the only person to be arrested out the six whose names are mentioned in the FIR.

He submits a big case diary to the judges. Mehta says that on March 6, they found two more suspect- Surendra Gadling and Rona Wilson. They approached the court for search warrant, their application was rejected and they went ahead with the search. He contends that legally they do not need the warrant as it was being supervised by SP, DCP but nevertheless approached the court in the light of the sensitivity of the case. In the search they confiscated hard drives, laptops, etc which were seized and given for forensic science laboratory. Each step has been monitored and followed. As per the evidence found, material emerged which required the the arrest of the other 5. The entire search and seizure took place in presence of

‘panchas’. Justice Chandrachud interjects, “You carried two clerks of the Pune Municipal

Corporation to act as ‘Panchas’?” Mehta concedes and justifies the biased witnesses—this matter is very serious and often the witnesses turn hostile resulting in acquittals.

The Court informs that they will peruse through the Court Diary but for now, wants the Pune

Police to exhibit their best evidence. Mehta points that all those arrested are member of the banned organization by a government notification of 2009. He takes the court through what they have recovered. Every document recovered is in .doc format and not .pdf format clearly indicating that it has been typed in the laptop. Coming back to “Comrade Prakash” which were referred earlier by the defence too, Mehta says that the main contention that Prakash is Sai

Baba who is in jail is false. This is a letter written on March 2, 2018 and it is doubtlessly written by Prakash. Mehta refers to the judgment convicting professor Saibaba wherein Saibaba mentions that he has changed his name from Prakash to Chetan and is also Jadu in 2012. This piece of information has been allegedly recovered from Rona Wilson’s computer. He further states that collected information reveal that Saibaba addressed himself as Saibaba.

While skimming through an alleged letter where some Com. Mahesh is to be allegedly sent to the interiors to assess the situation, Justice Chandrachud intervenes: “sending someone to an affected area to understand the area and conduct research is not a Maoist activity. And how are seminars conducted by reputed institution a Maoist activity. Don’t produce seminar related documents. One may not agree with them but doesn’t mean harmful”. Justice Chandrachud continues by saying that there is a need to make a distinction between unlawful assembly, armed rebellion and generations of dissent. Mehta conceded. Referring to some encrypted file,

Mehta said that they found the algorithm in Rona Wilson’s computer and the file opened.

In order to prove the guilt of the arrested, Mehta says, except Surendra Gadling and Shoma Sen nobody have applied for bail as they are aware of the content recovered from their laptops.

Justice Chandrachud asks the counsel to speak about the August 28 arrest. He says that if someone dissents even from us then we should also be robust to accept it. “We may not like it but we have to accept it”.

Addressing Justice Chandrachud, senior Counsel Harish Salve for the State responds by saying that exhortation in the context is different. If someone says that burn the Constitution because it is unjust is different from someone being part of the banned organisation.

Senior Advocate defending the activists’ Prashant Bhushan responds, “our contention is that many of these letters are fabricated” to which senior advocate Rajeev Dhawan adds, “ we have to go to some rigor”. Salve agrees to the fact that they must take stock of where the investigation is. The authenticity of these documents has not been determined yet. Justice Chandrachud concludes, “Liberty cannot be sacrificed at the altar of conjectures…this case has to be examined with a hawk’s eye”.

Hearing adjourned to tomorrow [September 20]

The next day hearing started at 11:20. Tushar Mehta continued reading documents from the investigating. Casting a shadow of mystery, without mentioning names and incidents he referred to different pages and paragraphs. He reads out from a brochure allegedly recovered from Rona Wilson. He mentions about some fact finding mission cited in the alleged letters and goes on to talk about a ‘comrade’ who has a bounty of Rs. 40 lakhs by Chhattisgarh government and Rs. 50 lakhs by Maharashtra government. He also mentions the mines in

Surajgarh. Refers documents recovered from Surendra Gadling. Tushar Mehta comes back to professor Saibaba. He says Saibaba was referred by his original name afterwards. Earlier his name was Prakash then Chetan and then he has been referred to as Saibaba. Mehta indicates the judges towards some letter written by Varavara Rao where he allegedly talks about how to do combat and where to do combat.

Mehta refers to the letter allegedly written by Sudha Bharadwaj. He says that time and again there are directions in the letter to delete everything. Mehta says, when they found this person's hard-disk, it was formatted. He states that the ongoing investigation is by ACP level officer supervised by DCP. He says that all the material have been recovered from the hard drives.

Mehta again says that there has been abuse of process- most of those arrested never approached for bail. He asserts that this case is legally unacceptable. There is no vested right of the accused to seek monitored investigation. He says that the investigation is conducted responsibly, impartially and as per CrPC and is monitored by DCP. Mehta finally prays that the five individuals be directed to surrender to investigating authorities.

He closes his argument. Senior Advocate Harish Salve on behalf of the complaint, Tushar Damgude whose complaint has led to the ten arrest rises. He states that it is prudent for the court to look at all sides when cases like these come to them. He asks the court to interrogate on the extent to which an ideology can be allowed in the market place of ideas. Lines must be drawn on unlawful activities. He raises question on what is sedition? Answering his own question he says, “saying this country has not fared well is not sedition… I am setting a broad counter on what is free speech.”

He further articulates that this petition is to foster political ideology and in contrary the investigation would lead to detection of unlawful activities. Pointing towards the demand made by Chief Justice when he asked the prosecution to present few documents linking the arrestee to the banned outfit, Salve replied , “Your lordship does not want to see the process.”

So far as the prayer for the SIT is concerned, he contends that SIT is set up when the allegation is against the political class who is in power. Our judiciary is robust, he says, the present investigation should not be derailed. He points towards the incident when SIT was constituted such as the 2G Scam case. The idea of a SIT is to ensure that the investigation does not get derailed. Pointing towards the provision of CrPC he says there exists a parallel right to seek bail. All judges in High Courts cannot be termed untrustworthy. Every government comes with a political ideology and just because one does not trust the ideology of a present government then all the bodies- NIA, CBI- if cannot be trusted then the whole system will fail.

Praying that SIT should not be set up, he rests his case.

Senior counsel Abhishekh Singhvi representing the petitioners responds to the arguments made by the Tushar Mehta by pointing out that Mehta has only referred to the second FIR. There is no mention of the first FIR filed against Bhide and Ekbote. These FIRs are interlinked and none of these FIRs have the names of the second batch of accused. “Former Judges - Retired Supreme Court Judge, Justice PB Sawant and Justice Kolse Patil, retired

Judge. Both former Justices have made statements to the media categorically asserting that they had organized the Elgaar Parishad. They have also repeatedly stated that none of the activists presently under house arrest were associated with the organising of Elgaar Parishad.” The entire investigation is dubious as no effort has been made on the part of the investigating Officer to record a statement- formally or informally – of the judges.

He submits that there is an attempt by the Investigating Officers to implicate the people without

FIR by bringing in the Maoist angle. Asking the reason for no new FIR on ‘Rajiv Gandhi type incident’ mentioned in an alleged letter written to one “Comrade Prakash” by one R, dated

18.4.2017 after all these months, Singhvi submits that by doing this the entire sub-text of the proceeding has been conveniently shifted from Bhima Koregaon incident to a larger Maoist plot. “Does it take so long to carry out arrest in a conspiracy against the Prime Minister!” he wonders.

Questioning the mystery cast by the prosecution on the investigation while presenting his case before the court, Singhvi points that allegation of extending these FIRs into a larger plot is based on some letters and these “letters” were ‘leaked’ and distributed to the media and flashed on national television. He points to the best three (as per the submissions of the Pune Police), dated-18.4.17, 26.12.17 and one undated letter. Pointing to the case diary, he reminds the court that the case diary is a confidential document and should be read in the chambers and not even discussed openly in courts. However, he contends that these have been distributed freely in a press conference conducted by the Additional Director General of Police (Law and Order)

Param Bir Singh on August 31. He says that the press conference was uncalled for and unprecedented. Singhvi says that he knows the contents of these top secret alleged letters from the media. Tushar Mehta responds that they were not distributed to which Sindhvi responds sarcastically, “it reached to me miraculously”. ADG was present in the NDTV program, Truth or Hype. Senior advocate Harish Salve stands up, and says, “I am an ordinary citizen and I have never seen these letters.” He expresses that it would be appalling if such letters have been leaked by the police and contends that this is not the case. On contrary, he proposes that the letter was leaked by the accused. Mehta concedes to the fact that press conference was conducted.

Singhvi continues and goes on to discuss illegal procedures of arrest. The entire FIR is based on Bhima Koregaon violence which has been entirely disowned. The transit remand of the

August 28 arrestees relies on the disclosure statements of the June arrestees- No such disclosure statement has been made by the arrested persons- and finds no reference to the alleged letters.

Such disclosure statement is inadmissible under UAPA. Singvi presses the demand for an SIT.

Going back to if Prakash is Saibaba and Saibaba is Chetan, Singhvi further makes a case for

SIT saying there is a reasonable doubt that has been established to press for an SIT.

Sanghvi points to the July 4 ‘exclusive’ by Republic TV having ‘special access’ to the letter allegedly written by Sudha (assumedly Sudha Bharadwaj) to one comrade Prakash. The next day she issued a response distancing herself from the letter. On July 16, she sent a legal notice to The Republic to which they responded on August 7. Further dwelling on why the arrests are biased, Singhvi points to the fact that while carrying out raids and ‘seizure’, Pune Police

‘imported’ Panchas from Pune in direct contravention of the CrPC. Shockingly, Panch witnesses in this case were Pune Municipality employees and are stock witnesses, who travelled as part of the Pune police team. He reminds the court that Varavara Rao has been implicated in 25 cases out of which in 13 cases he was acquitted; discharged in 3 and in 9 cases prosecution was withdrawn. He has no convictions against him and is 79 years old; Arun

Ferreira was falsely implicated in 11 cases and has been acquitted in all; Vernon Gonsalves has had 19 cases foisted against him, out of which in 17 cases he has been acquitted; in one case the discharge application is pending; and his appeal against conviction in one case is pending before the Nagpur High Court, in which he has already served his sentence. Singhvi reasserted that it is pertinent that the court orders a Special Investigating Team.

Senior advocate Anand Grover and Advocate Vrinda Grover submitted a list of words from one of the letters allegedly written by Sudha to one comrade Prakash which was written in style akin to a Marathi person writing in Hindi. Sudha Bhardwaj who has spent most of her life in

Chhattisgarh writes in Central Indian Chhattisgarhi Hindi. Justice Chandrachud, himself a

Marathi agrees to Grover and reflects that a typically Maharashtrian person has written this letter. He says that Marathi is written as it is spoken.

The hearing comes to an end with the court asking the counsel to submit all the submissions by Saturday (September 22). Judgement is reserved.