THE persecution and eventual death of 84 year old Father Stan Swamy while in judicial custody has brought out many aspects of the perversion of the criminal justice system under the Modi regime.

The use of the draconian Unlawful Activities Prevention Act (UAPA) against political and social activists; the use of the NIA and central agencies to carry out the political agenda of the ruling party; the role of sections of the judiciary, acting as an “executive judiciary”, conniving in the denial of fundamental rights of citizens and an inhumane jail system which violates basic human rights of prisoners.

All these factors were at work in the incarceration of Stan Swamy and fifteen others implicated in the so-called conspiracy in the Bhima Koregaon case.

The NIA Special Court had twice rejected the bail application of Stan Swamy – for interim and regular bail.  The concerned judge rejecting bail had said: “….collective interest of the community would outweigh the right of personal liberty of the applicant and as such old age or alleged sickness would not go in his favour”.  This, about an 84 year old man stricken by Parkinson’s disease and who could barely walk and feed himself.  Earlier, the same court had refused to order a “sipper” for him to use to drink.  This shameful episode will remain a blot on the judicial system. 

The use of the UAPA to suppress dissent and opposition voices is most glaringly exposed in the case of the sixteen accused in the Bhima Koregaon case. To put behind bars, well-known intellectuals like Anand Teltumbde and social activists like Sudha Bharadwaj is the most blatant misuse of the anti-terror law. It is virtually impossible to get bail given the stringent clause for bail in the UAPA, in which the judge has to be convinced that there is no prima facie case made out against the accused.

The division bench of the Delhi High Court gave a path-breaking order last month on granting bail to three student activists in jail under UAPA in the Northeast Delhi riot case.  This verdict should be the example to follow for the judiciary. However, the “executive” character prevails as seen when the Supreme Court frowned upon this order and said that it should not be a precedent. The Supreme Court is further set to re-examine the judgment which has exposed the way this draconian law is misused. 

But the worst aspect of the whole episode are the shocking revelations about how evidence was fabricated to show the involvement of Stan Swamy and other accused in the Bhima Koregaon case with Maoist activities. The day after Stan Swamy’s death, the third report of the US digital forensic company, Arsenal Consulting, was published.  With the help of the American Bar Association, the defence lawyers of two of the accused, Rona Wilson and Surendra Gadling, had got their hard drives of their computers examined. The first two reports had traced the malware planted on Rona Wilson’s computer. This malware and infiltration of his computer had begun in 2016, two years before his arrest. Communications purportedly between Maoist workers were planted in his computer without his knowledge.

The third report shows that a similar process was adopted to plant malware in the computer of the other accused, Surendra Gadling.  Significantly, the report reveals how the alleged “Maoist” communications were copied to Stan Swamy and Sudha Bharadwaj.

This explains what Swamy had said in a video interview before his arrest.  The NIA interrogators had asked him about e-mails on his computer between Maoists in which his name is mentioned. Swamy had denied any knowledge of this correspondence in his computer.

Not only was Swamy arrested under the UAPA but evidence cited for this was fabricated according to the forensic analysis.

Who else but a State agency could have undertaken such a technical and elaborate job extending over a period of two years or more?  This is a heinous abuse of State power. The NIA has claimed in court that the Regional Forensic Science Laboratory in Pune found no evidence of any hacking.

But given the damning and scientific analysis presented by Arsenal Consulting, it is incumbent upon the Bombay High Court to get the hard drives and other equipment examined by independent experts forthwith. This is the least that the higher judiciary can do to stop the perversion of justice. 

(July 7, 2021)