LAW AND THE SUBVERSION OF JUSTICE IN INDIA

While purporting to investigate the Hindutva-fuelled riots of 1^st January 2018 following the Elgaar Parishad commemoration of the Battle of Bhima Koregaon, an iconic event in Dalit historiography, the state has imprisoned some highly respected intellectuals, scholars and social activists. 

The state doesn’t believe that poetry makes nothing happen. The arrestees include Varavara Rao, an 80-year-old sick and ailing poet, two Professors of English Literature, Shoma Sen and Hany Babu, and cultural activists and street performers Jyoti Jagtap, Sagar Gorkhe and Ramesh Gaichor. They also include: octogenarian Jesuit Father Stan Swamy, and National Law University Professor and union leader Sudha Bharadwaj, both highly respected, almost venerated, for protecting tribals and natural resources from corporate depredation; Dalit rights activists, Mahesh Raut and Sudhir Dhawale; prolific writers and scholars Anand Teltumbde and Gautam Navlakha; researcher Rona Wilson; writer and cartoonist Arun Ferreira, and teacher and trade unionist Vernon Gonsalves, both prosecuted hitherto in multiple similar cases where Ferreira was acquitted in all, and Gonsalves in all but one which is now pending in appeal; and finally, Surendra Gadling, a respected colleague at the bar, who, in the finest tradition of his profession, defended not only Ferreira, Gonsalves, and G.N. Saibaba – another English Professor from Delhi University accused of waging war against the state – but also scores of abjectly poor villagers accused of being Naxalites. Many of these sixteen are role models and heroes of our times: they have sacrificed themselves for the weak and the poor, deepened democracy, and given dignity and meaning to those surviving on the margins of existence ignored by successive governments. If at all they erred, it was in excess of love for those they served.

However, the government says they are Maoists, i.e. members of the proscribed CPI (Maoist) committed to usurping political power by fomenting armed revolution and waging war against the state. It says that they conspired to import arms and explosives for use against the security forces, assassinate the Prime Minister using a human bomb, raise money, indoctrinate and train the youth in warfare, make common cause with other separatist groups, and so on. In this Kafkaesque montage, no allegation is too absurd or grotesque. The police would have you believe that Bharadwaj, a person with impeccable credentials and a record of lifelong selfless public service acknowledged by previous governments, attended a Maoist women’s cadre meeting, undertook to lay booby-traps and train others to do so, recruited and sent volunteers for training in warfare to the Maoist heartland, communicated her plans to a senior Maoist leader and asked for money to execute them.

What is the evidence to support such serious allegations? Indeed, there is none. None, at any rate, that can be called evidence in law. The allegations are based almost entirely on images of typed, unsigned, unverified, often undated, letters of unknown provenance allegedly found on the electronic devices of some arrestees. The state’s case depends on the ludicrous proposition that a letter purportedly written by A to B, found in the possession of A, B, C, or D, which says that A, B, C or D committed murder is sufficient proof that A, B, C, or D committed murder, and it needn’t be proved that a murder has been committed, or, that A ever wrote such a letter, or, in some cases, who A and B are and that they even exist.

After almost three years of investigation the police have not found any evidence or witnesses to corroborate these allegations. So, for instance, they have not found anyone recruited or sent for arms training by Bharadwaj, or any bombs planted by her awaiting detonation. No arms, ammunition or explosives were recovered from any of them, nor proof found that they had ever ordered or handled such things. Even the allegation regarding assassination of the Prime Minister, the showpiece of their case, was withdrawn. I could go on. And the little that they have found falsifies their claims. Sen and Bharadwaj’s mobile phone records show that they both could not have attended the meeting of female Maoist operatives where bomb-making was discussed. Similarly, Bharadwaj’s presence at a Nagpur meeting which she allegedly writes about to a senior Maoist commander is contradicted by the minutes which state that Bharadwaj did not attend. 

Under Indian law, images are documents, and before admitting a document into evidence (i.e. reading it for what it is) its authorship and the truth of its contents have to be independently proved. If either is not, the document does not count as evidence. Further, documents should as far as possible be proved by producing originals rather than copies. Sound reasons underlie these rules. If the document’s author is unknown, its authenticity remains dubious. The author’s character – whether he was presumably honest or a renowned forger or habitual liar – affects our assessment of its credibility. Similarly, absent evidence of first-hand knowledge of the document’s contents, one cannot know whether it contains truth, exaggerations or gossip. And finally, unless the original document is produced one cannot know if it is genuine or counterfeit. Copies can be manipulated to hide tampering, and therefore strict conditions govern their admissibility, requiring minimally that they have been compared with and found to be true reflections of the original. Here again a witness will have to depose to this, but none exists. These images of letters are inadmissible on many counts: the originals are unknown and unseen, so the images cannot even constitute secondary evidence or true copies of anything; there is no evidence about the authorship or creation of these documents, or about the truth of their contents.

Evidentiary aspects apart, it beggars belief that of the hundreds of letters the police allegedly found, not even one is an original or even a hard copy of an original. Where did the original letters go? Did they ever exist? If their contents are so incriminating, why introduce their images into one’s hard drive but discard the originals? Where were they typed and why is there no trace of their creation in the impounded computers? Why are there no witnesses in this case, only documents? The unanswered questions and the gaping holes in the prosecution case support the arrestees’ claims that these images were planted on their computers. 

Normally, one wouldn’t dare cite such images as evidence or attempt to introduce them in court for they would be summarily discarded. However, when governments decide to get somebody they do not proceed under the normal law of the land; they resort to extra-ordinary laws which give them special powers. The UAPA does that in abundance. It enhances the maximum period of police custody from 15 to 30 days, and the maximum period of incarceration pending completion of the investigation from 90 days to infinity. Crucially, it sets the bar for bail unattainably high: the accused must prove he is innocent and the accusations are false. Proving a negative – that something did not happen – is extremely difficult and reverses the burden of proof which lies on the prosecution. Further, at the bail stage, when you can neither lead evidence nor go beyond the prosecution’s documents, how do you prove your innocence? Finally, the Supreme Court’s interpretation of the bail provision has made bail well-nigh impossible.

During a bail hearing, the court must suspend disbelief and assume that the prosecution material is admissible and its allegations are true, though the opposite is staring it in the face. It must believe the bald allegation that the accused committed the alleged acts, even if no evidence proves that such acts were committed. The admissibility, authenticity or veracity of the images, no matter how illegal or absurd, cannot be questioned. The applicant for bail must fight his case with both hands tied behind his back. Little wonder therefore that the sixteen arrestees are still in jail. We live in difficult times where the law is what the government says it is, and it has to only chant the mantra of national security for the courts to abandon their judicial function and rubber stamp the prosecution’s case. 

Why fear scrutiny? Why demand such uncritical acceptance of evidence? Well, quite simply, because the evidence in such cases is so flimsy and weak that it cannot withstand the most perfunctory probing. The UAPA bail provisions, like TADA and POTA before them, suffice to keep people incarcerated till the conclusion of the trial, whenever that may be. Since the prosecution still must prove its case beyond reasonable doubt, cases collapse at trial at an embarrassing rate. However, by then, prolonged incarceration of the arrestees in sub-human conditions would have broken their backs if not their spirit, and the evidence, flimsy though it may be, would have served its purpose. 

Thus is lawfare waged by a government against its own people, bringing both itself and the law into disrepute.