by- Freny Manecksha
When veteran leader and former trade unionist George Fernandes died earlier this year, obituaries referred to his days during the Emergency and the Baroda dynamite conspiracy case which was a key chapter in his life. Fernandes, it may be recalled, was arrested in June 1976 for alleged conspiracy to procure dynamite sticks to blow up bridges and vital rail and road infrastructure. In the case handled by the Central Bureau of Investigation, Fernandes was shown to be “mastermind” of the conspiracy and as accused number one. The trade unionist himself charged that the CBI had cooked up the charges and, later when the Janata government came to power, the case was withdrawn against him and other accused.
Conspiracy cases to quell dissent is now new to India’s political history. As a former judge wrote recently it was the British who, so cleverly, made it a crime in 1913 and used it widely.
Criminal conspiracy, which still exists in the Indian Penal Code, was defined as “two or more people agreeing to do an illegal act.” If the conspiracy involves a crime punishable with death or life imprisonment the conspirator can be sentenced to two years in prison or more.
The British would use the law to register a case of criminal conspiracy in one part of the country and then charge people from all over, regardless of whether there was any basis for such a charge, since the purpose was quite simply to launch a witch hunt.
Among the notable examples of the British Raj using criminal conspiracy laws to stem political dissent are the Kanpur Conspiracy Case of 1924 and the Meerut Conspiracy Case of 1929.
The Kanpur Conspiracy Case was triggered by fears of the growing influence of the Communist International and the foundation of the Communist party of India under M N Roy. Fearing radicalisation of the freedom movement the British began applying the law to various trials like that of Communists in Peshawar, but it was the Kanpur conspiracy that attracted public gaze like no other.
Newspapers splashed sensationalist Communist plans and detailed accounts of Communist activities. On March 17 1924, trials began at the court of the Joint District Magistrate. The case for conspiracy was based on intercepted letters written by Berlin based M N Roy to various people in India. Initially eight persons were named but, in the end, four people_ Shaukat Usmani, Muzaffar Ahmad, Nalini Gupta and Shripad Amrit Dange were charged individually and sentenced to four years rigorous imprisonment. The charge was of treason and conspiracy for wanting to remove the British Emperor of India and to gain control of the Indian National Congress.
The vernacular press like Prabhat and Pratap protested strongly against the verdict calling it an infringement of civil liberties and, the case in fact, helped bolster the Communist movement by crystalizing the disorganized and scattered rank and file of Communists in India.
In 1929, the British government, now thoroughly alarmed by the success of different Communist groups in different industrial cities that had led to a large number of strikes and hartals by industrial workers, hatched the Meerut Conspiracy. Initiated in March 1929 and decided in 1933, the case saw several trade unionists, socialists and Communists, including three English men being arrested for organizing a rail strike in India. S A Dange, Usmani and Ahmed were among the 33 people, labelled as Bolsheviks, who were put on trial under Section 121 A and awarded stringent sentencing in January 1933. On appeal the sentencing was reduced partly on the grounds that the accused had already spent a considerable part of their sentence whilst waiting to be sentenced.
It became evident that the aim of the British was not to establish conspiracy but to keep the people in jail and out of activities. However, the Meerut conspiracy came to be defined as a watershed moment in anti -imperialist politics in South Asia because of the way the defendants turned the courtroom into a public platform to espouse their cause. It attracted attention from trade unionists the world over.
Revisiting history, one cannot help notice the striking similarities between these cases and the Conspiracy case of 2018 (which is still unfolding) or the Bhima Koregaon case as it has come to be known.
The numerous twists and turns and slew of cases has been covered by sections of the media at various stages as has the Public Interest Litigation intervention in the Supreme Court filed by Romilla Thapar and others, but, it would be pertinent to at attempt a brief recapitulation and highlight some of the complex strands, various histories and baffling contradictions that have been woven into the conspiracy plot. How and what led to the arrests of trade unionists, human rights activists, lawyers, writers and workers? And what was the Elgar Parishad which sparked off the case?
What is the Bhima Koregaon commemoration?
An obelisk built by the British stands in Koregaon village near Pune as testimony of the last Anglo-Maratha war fought on the banks of the Bhima river. It pays homage to the soldiers who fought with the British. It was Babasaheb Ambedkar who saw potential in seeing this as a sign of victory of the Mahars, who were among the soldiers, against caste oppression of the Peshwas.
In 2017, several Dalit and anti caste organisations came together to commemorate the 200 year anniversary of the battle culminating with a gathering or the Elgar Parishad at Shaniwarwada in Pune on December 31. Several lakhs of people gathered at the site. On the stage were Jignesh Mewani, the popular Dalit leader from Gujarat and famed orator, Umar Khalid student leader of JNU, Soni Sori, the noted Adivasi leader from Chhatisgarh and Radhika Vemula, mother of Rohith Vemula _all leaders whose popularity is strongly rooted in the masses. The presence of several Maratha outfits in the gathering held in Shaniwarwada, traditionally associated to be a bastion of the Marathas, was reflective of a new politics in which previous hostilities between OBCs and Dalits could be set aside. The function echoed with the call to fight the new Peshwai _ leaving no one in doubt that it was one of the largest gatherings in Pune rallying against the ruling Hindutva forces. Two retired judges, B G Kolse Patil and P B Sawant, went on record several times to assert that it was they who organised the function and that they had arranged to use the same stage from an earlier function so that organising costs could be cut down.
The next day January 1, 2018, was the commemoration function held at Bhima Koregaon which was attended by hundreds of Dalits. But it was marred by violence when right wing forces holding aloft saffron flags attacked them and set buses ablaze. One person died. What set off this attack?
Parallel story of commemoration
In the adjoining hamlet of Wadoo (Budruck) is a mausoleum commemorating Sambhaji. According to historian Bendre, Sambhaji was killed by Aurangzeb and his body dismembered at the behest of Brahmins who resented his knowledge and rise as scholar in Sanskrit. It is said that the body was then stitched up by a Govind Mahar so that it could be cremated with honour.
But then another narrative has been spun in which a certain Sevale, a Maratha, is credited with the service of having performed the final rites for Sambhaji. This seething under- current of tensions between Marathas and Dalits in the villages was exploited by right wing forces to set off bloody clashes.
A fact finding team presented its report stating the riots were pre planned and efforts made to distort history but was rejected by the state. https://countercurrents.org/2018/01/15/really-happened-bhima-koregaon-fact-finding-report/
Tale of two cases
The Pune rural police, acting on a complaint filed by Dalit activist Anita Ravindra Savale, probed and filed FIRs against the Samastha Hindutva Aghadi president Milind Ekbote and the founder of the Shiv Chhatrapati Pratisthan, Sambhaji Bhide, for instigating the violence. Charges included murder, unlawful assembly and rioting and also crimes under the Schedule Caste and Schedule Tribes Prevention Act. Ekbote was arrested at the end of the month.
Several Dalit organisations held a bandh in retaliation in Maharashtra. Huge numbers poured out on the streets of Mumbai on January2, 2018 blocking traffic, trains and a few buses were burnt. The city came to a grinding halt in a manner that has not been witnessed for several years. It may be recalled that besides the Shiv Sena which periodically demonstrated its massive show of strength on the streets, it is the Dalits who have the numbers to do likewise as during the time of the Ramabai Nagar in 1997.
A two member judicial commission consisting of Justice JN Patel from West Bengal and state secretary Sumit Mullick was announced by the state in in February 2018. But the extremely slow pace at which it proceeded has irked many Dalits who say they do not have much faith in it and have demanded a CID probe.
Another complaint pertaining to Elgar Parishad was also filed by small time businessman of Pune, Tushar Damgude, on the allegedly provocative speeches that took place during the meeting. It is this inquiry that suddenly spiralled into a major “conspiracy” case with charges being levelled of Maoist funding the events, of certain allegations against lawyers and activists having Maoist links, of buying arms and weapons and also of “a Rajiv Gandhi like assassination plot” on the Prime Minister.
It is pertinent to note how the earlier rural case by the Shikrapur police with FIRs against some 22 people petered out. Ekbote, who was arrested, was released within a month on bail. The chief minister Devendra Fadnavis declared in the state assembly there was no evidence against him. But till date many of the Dalits who were arrested for the bandh are still in jail.
And curiously the second complaint of conspiracy gained huge traction and acceleration. The angle of funding of the event by Maoists persists in police narratives despite the vehement assertions by Justice Kolse Patil and Sawant to the contrary.
Among the first to be arrested by Maharashtra’s Anti-Terrorism Squad (ATS) were workers of Reliance Energy/Infrastructure. Migrant labourers from Telangana, they were picked up in January and February 2018, under the draconian Unlawful Activities (Prevention) Act. The first to be targeted for alleged Moist links to the Elgar Parishad, they were active members of the Mumbai Electric Union and were being defended by lawyer Arun Ferreira until his own arrest in September 2018. The workers got default bail in February 2019 after the Bombay High Court on December 17 set aside an extension that the special court had granted to the ATS to file a chargesheet.
Indications of a major switch in focus from the instigators, Bhide and Ekbote, towards a leftist “conspiracy” was confirmed with police raids and then the first wave of arrests of five people under UAPA on June 6. Who were these “dreaded” five?
First wave of arrests
Ironically one of the accused, Surendra Gadling is a noted lawyer from Nagpur, acclaimed for his expertise on the very law under which he was arrested. Gadling has been the lawyer of G N Saibaba, the wheelchair bound JNU professor, who is in jail for his alleged links with Maoists. He has also represented several Adivasis held under UAPA and represented Dalits and those suffering from police excesses. He had also represented Arun Ferreira, the noted activist and lawyer when he was first arrested by the state in 2007. After serving five years Ferreira had been acquitted of all charges.
One of the interesting sidelights of the court proceedings of this case is how Gadling, shorn of his lawyer’s black coat has still argued eloquently on behalf of his co accused and raised questions on whether dissenting voices can be termed as a terrorist act in the Pune court. Or more recently when he argued that the police had not supplied copies of the electronic evidence in the case.
Among the June arrests were also Sudhir Dhawale, publisher of Vidrohi, a Marathi magazine that focusses on issues of land, labour and caste and founder of the Dalit rights organisation, the Republican Panther. Significantly he too had been arrested in 2011 and later acquitted.
Another accused was Mahesh Raut of Gadchiroli, a student from Tata Institute of Social Sciences, who was awarded Fellowship of the Prime Minister’s Office of Rural Development. Raut has been actively fighting displacement and gram panchayat leaders have publicly acknowledge his invaluable contribution in enabling gram sabhas to safeguard their rights over forest produce and labour.
The fourth person was Rona Wilson from Delhi, public relations secretary of the Committee for Release of Political Prisoners, an organization that has been campaigning for people falsely implicated in terrorism cases.
Lastly there was Shoma Sen, a professor from Nagpur University, affiliated to many well-known feminist organisations and who has also worked for Dalit empowerment.
Second wave of arrests
The bid to arrest more activists, the court’s verdict on house arrest following a PIL initiated by Romilla Thapar and others is what catapulted the case into the highest court in the land and the public eye. But, following the rejection of the petitioners (with a dissenting note by Justice Chandrachud) the way was paved for a second round of arrests. Among those taken to Pune’s Yerawada jail were:
Sudha Bharadwaj, a prominent trade unionist and lawyer who has lived among workers for years and fought for the rights of Adivasis and who is professor at National Law University, Arun Ferreira lawyer and human rights activist who had been earlier arrested and acquitted, Vernon Gonsalves social activist who was also arrested in 2007 and was convicted of a charge under the Arms Act which he has challenged. Gonsalves was released as he had already served his sentence. And finally there was Varavara Rao, poet and activist who played a prominent role in the Telangana struggle.
Gautam Navlakha who was under house arrest won a reprieve.
The Pune police have also sought to arrest Anand Teltumbde noted civil rights worker, academician, Dalit activist and professor at the Goa Institute of Management. Curiously Teltumbde was in fact someone who had dissented and actually critiqued the Bhima Koregaon commemorative function in an essay.
From these bio-sketches it becomes evident that all are political dissidents who have fought fiercely against inequality, discrimination and political biases. Some of them have challenged police excesses.
The bizarre manner in which a probe on the violence at Bhima Koregaon morphed into a Maoist plot becomes even more complex when the prosecution in the Supreme Court suddenly discounted the Rajiv Gandhi like assassination plot.
What is the evidence? Principally, the Pune police claim they have found incriminating evidence in the laptop of Rona Wilson and cite letters and emails that they claim they have seized. Many lawyers have opined that this is not sufficient and that finding names in letter is not tantamount to committing crimes.
Advocate Yug Choudhry arguing in the Bombay High court for bail of Sudha Bharadwaj, points out:
“These are undated, unsigned, unverified letters written by A to B, mentioning C and found on the laptop of D, which cannot be accepted as evidence under the law and the police want to keep the applicant in jail only on the basis of such documents which cannot be proved in a court.”
What is even more remarkable in this conspiracy case has been the way these letters were bandied and leaked to the media even before the police had named some of those subsequently arrested.
#Urban Naxal and trial by media
It was Republic TV and Arnab Goswami, an unabashed supporter of the BJP, who through his channel made sensationalist accusations and levelled charges of links with Maoists and with Kashmiri separatists against Sudha Bharadwaj and Gautam Navlakha even before the police had named or arrested them. They claimed to have letters in their possession. The word #Urban Naxal was also flung at random. First coined by Vivek Agnihotri, a small time film director, who then released a book with the same name, the word gained traction as propaganda to describe anyone or anything that had different opinions from the government. Interestingly minister Arun Jaitley also used the word “Half Maoist” (whatever that may mean!) in one of his tweets.
The role of the Pune police in such selective media leaks and the holding of a press conference even as the court was deliberating over the PIL in the Supreme Court drew the ire of the Bombay High Court and Supreme Court.
And before her own arrest Sudha Bharadwaj filed a case of defamation against the channel.
But what empowers the police to make “arbitrary, illegal and reckless” arrests. Words that have been used by Romilla Thapar and others to describe the nature of the arrests in their PIL to the Supreme Court?
At this juncture, it would be pertinent to examine how UAPA, the over-arching anti terror law, facilitates such arrests much in the way anti conspiracy laws were used by the British.
Making of the “unlawful”
The UAPA law, introduced in 1967, is legislation that sets restrictions on fundamental freedoms under Article A _ such as freedom of speech, right to assemble peacefully and right to form associations and unions. The object of the bill was to make powers available for dealing with activities directed against the integrity and sovereignty of India and unions. In line with its stated objectives UAPA punishes the commission, funding and support of “unlawful activities” and “terror acts.”
Legal experts point out the provisions of UAPA are so extremely wide in ambit in defining “unlawful activities” that even questioning territorial integrity of India or then “disaffection against India” can invite trouble. As Gautam Bhatia points outpunishing such things could come close to establishing a regime of thought crimes.
This repressive law allows the government/executive to ban or brand as terror group any organisation that it so wishes. With no definition of membership it enables investigative agencies to use even the flimsiest of excuses to book people as members of unlawful association or terrorist organizations ranging from possession of books and pamphlets to expressing sympathy. As it promotes guilt by association, a vast range of unconnected people and ordinary activities can fall under UAPA’s scanner.
Moreover UAPA has draconian procedural aspects. There can be no anticipatory bail and section 43 D doubles the amount of time one can be remanded to police custody. It allows 90 days of judicial custody before the charge sheet must be filed as against the normal period of 60 days.
Indeed the extraordinary nature of UAPA becomes evident in the time spent between arrest and then bail or acquittal.
UAPA overturns one of the fundamental principles of jurisprudence _ the presumption of innocence to the presumption of guilt. The entire period of detention becomes the punishment.
The other draconian feature of the law and the way it is deployed is that it allows fresh cases to be foisted. Surendra Gadling and Varavara Rao have also been charged by the Gadchiroli police in the Surajgarh mining case and were brought from Yerawada jail where they were in judicial custody to Gadchiroli district to be put in police custody for several days in January.
As noted human rights lawyer Indira Jaisingh argued before the Supreme Court on 11 December 2018, “the police was indulging in ever-greening of FIRs against Surendra Gadling by producing a summon against him in a 2016 FIR.” She added, “It is the modus operandi of the police to implicate people in one case after another.”
It is for this reason that legal activists, ironically some of them who are now under arrest, have been in the forefront, for the struggle to strike down this law that vests untrammelled powers in the police and state.