After New Bhima Koregaon Revelations, Bombay High Court Can and Must Act

The assessment of these damning revelations can't wait till trial, HC should set up a commission of inquiry.

Gautam Navlakha, Rona Wilson and Sudha Bhardwaj, among the 16 Bhima Koregaon accused.

(Photo: Vedika Dawar/The Quint)

In September 2018, when the Bhima Koregaon case was still in its infancy and the Maharashtra Police were trying to arrest the second set of activists (including Sudha Bharadwaj and Gautam Navlakha), Justice DY Chandrachud of the Supreme Court had said:

“Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigating agency. Sufficient material has been placed before the Court bearing on the need to have an independent investigation."

Unfortunately, this opinion turned out to be a dissenting one, with the other two judges on the bench deciding there was no need for an independent investigation and allowing the Maharashtra Police under the Devendra Fadnavis regime to run amok.

Nearly four years later, the evidence is only mounting that the case and the investigation has never been fair or genuine.

The latest revelation comes from a report in the WIRED magazine, which features the findings of a cyber security firm called SentinelOne, establishing a link between the malware used to target several of the accused and plant 'incriminating material' on their computers, and an officer of the Pune Police who was involved in the investigation.

A previous digital forensic investigation by Arsenal Consulting had established that the NetWire malware had been used to plant key documents to the case (including a letter about a conspiracy to assassinate the prime minister) on the computers of Rona Wilson and Surendra Gadling.

The new SentinelOne investigation found that the email accounts of Rona Wilson, Varavara Rao, and Hany Babu had been compromised using the malware, and the hackers had added new recovery email addresses and phone numbers to their email accounts so that they could retain control even if the three of them tried to change their passwords.

The email address and phone number used for the recovery purposes is reportedly that of one of the Pune Police officers involved in the investigation till it was taken over by the National Investigation Agency in early 2020.

With this new revelation finally finding a link to demonstrate a connection between the hacking and the police, one has to ask: how can anyone take this case seriously any more?

Can the courts really continue to just pretend that this is business as usual, and not take these damning reports into account? Or will the academics, activists, and human rights defenders wrongly incarcerated in this case finally be able to secure their freedom after years in jail – without a conviction – at last?

How Can These Revelations About Tampering & Hacking Be Used by the Accused?

The revelations about the use of the malware, the planting of 'incriminating' documents, and now the evidence that links the police to this, are no doubt going to prove relevant in the case.

“Fairness in investigation is supposed to be looked into by every court at every stage of trial and even post trial. This should also be looked into during other proceedings including at the time of considering bail applications, or applications seeking suspension of sentence,” explains Justice Govind Mathur, former chief justice of the Allahabad High Court.

The problem for the accused is that, going by traditional procedure and precedent, it is going to be a while before it can actually be used to secure their liberty.

The unfortunate truth is that prior to a trial, courts are not supposed to be examining the evidence against an accused in detail. And given this is a case involving Unlawful Activities (Prevention) Act terror charges, which means it is very difficult for the courts to grant bail.

The NIA has also contested these claims about hacking of the accused's computers, so no matter how credible they may seem, they cannot be used as undisputed proof of malicious prosecution, which could have been grounds to get bail or interim release of some sort.

As a result, even though a lower court could ask for an independent assessment of the accused's computers, even though it can arrive at a finding of hacking after hearing both sides – this all can only properly be done by a trial court at the stage of, well, trial.

The problem, of course, is that "trials take forever," as senior advocate Rebecca John, one of India's leading experts on criminal law, notes.

"In this case charges haven't been framed, arguments on charge haven't taken place. When if ever will the stage of trial arrive? And when it does, with 300-400 witnesses to examine, when will the accused be able to contest the [Maharashtra Police Anti-Terror Squad's] fabricated evidence and the NIA's approval of the same? Why should these men and women remain in custody for so long?"

Senior advocate Rebecca John to The Quint

So if the special NIA courts can't take this into account at the stage of bail, and the trial court will only be able to look into this later, then does that mean the revelations are useless – from a practical point of view – at this point of time?

Absolutely not.

Following the original revelations about the use of malware against him, Rona Wilson had approached the Bombay High Court challenging the validity of the entire case. Others among the accused also filed pleas on similar grounds.

"Why can't the Bombay High Court, which is a constitutional court with far greater powers than a trial court, take action here?" asks John.

"The Arsenal reports have been put to the Bombay High Court and I think it is time now for the high court to take cognisance of all this and ask for an independent assessment of the electronic data which is the substance of this case," she elaborates.

The right to a fair trial is a fundamental right within the ambit of the right to life and personal liberty in Article 21, as Justice Mathur points out. This means that the high court can certainly exercise its jurisdiction as a constitutional court to take action if it finds that there has been a breach of the accused's rights.

So What Can the Bombay HC Do With These Reports?

While the reports on the way in which the Bhima Koregaon accused's devices were hacked appear to be credible, the high court cannot technically rely on them on their own to take some sort of action.

One thing which it can do is call for an independent assessment of the forensic reports by an expert of its choice in digital forensics, as part of the case filed by Wilson and the others. Rebecca John suggests that it would be best to get this done by an international expert rather than a domestic one to ensure it is fairly done, without any pressure by the authorities here.

But this isn't all. John also believes that the high court could appoint a commission of inquiry to examine the whole investigation in this case, like the Supreme Court did with the Justice VS Sirpurkar Commission into the encounter killing of four alleged rapists back in 2019.

The commission recently submitted its report to the court, with its findings that the encounter had been staged, and recommending that the police officers involved should be prosecuted for murder.

"At the very least you should have a commission of inquiry headed by a retired Supreme Court judge here too," Rebecca John argues. "If it could happen in that case, with the police being celebrated then by politicians and celebrities, why not here?"

The evidence collected by such a commission could then be placed before the Bombay High Court, which could then pass any orders that are reasonable at the time, including for interim release of the accused.

Justice Mathur believes that there should be no problem in securing interim release of the accused in light of these recent revelations, since the courts can easily impose conditions on them that will ensure their presence at trial.

Would It Set a Dangerous Precedent To Take Action Based on These Revelations?

One obvious objection to such an approach would be: what if this starts happening in every criminal trial? The accused makes an allegation of evidence being planted, and then the high courts just order their release? Shouldn't the proper procedures be followed, and have all this material looked at during trial?

After all, this is hardly the first case in India where the case rests on fabricated evidence, or forced confessions, or some other skullduggery by the police.

"We can't make this commonplace," explains Rebecca John. "But in extraordinary situations where there is so much material, you've got to devise ways and means of at least pretending that you're dispensing justice."

The way in which the police appear to have acted in bad faith in the Bhima Koregaon case does make it one of those extraordinary situations, in her opinion.

"It's quite incredible; a lay man wouldn't even know that such things are possible. To think that even at a time you weren't using the computer, materials could be inserted into your computer, it's an attack of a very high order. To think that ordinary citizens can be exposed to that kind of danger and a fabricated prosecution can commence on that, and one man has died in the middle – we have to ask how procedural law is really being followed."

Senior advocate Rebecca John to The Quint

John points out that the commitment to upholding procedural requirements by the authorities tends to be very two-faced.

If there has been a procedural error like failing to get transit remand, or even, as we saw in the Bhima Koregaon case, with a court which didn't have jurisdiction extending the time for the police to file their charge sheet, it will always be argued that this is a minor point.

But the moment there is a need to waive procedure to keep a citizen in jail, suddenly the prosecution and the courts will talk about strictly adhering to procedure.

In the meanwhile, however, the life and liberty of several Indian citizens is being wrongfully curtailed.

John gives an example from the case regarding the 2005 Diwali blasts case. Her client, Mohammad Rafique Shah, was one of those charged who was eventually acquitted by the court.

Accused of travelling to Delhi and planting one of the bombs, he consistently argued from the start that he had been attending college in Kashmir, and that the college records would prove this.

The Delhi Police Special Cell reportedly sent a query to the Registrar of his college, but no reply was allegedly received while Rafique spent 11 years in custody. Finally, at trial, all the records from the university were brought by John's team and submitted to the court, proving what Rafique had said all along.

Is it really right to be a slave to procedure and allow a person to languish in jail for years, even when there is mounting evidence that they've been falsely implicated in a case?

The use of sophisticated modern technology here doesn't make the Bhima Koregaon case morally worse than any other case where the police are planting evidence or acting in bad faith.

However, the usage of this kind of technology is something the constitutional courts need to nip in the bud, given how exponentially easy it makes it to ensnare law-abiding citizens, no matter how innocent they are and no matter what precautions they may take.

"The point of courts and trials and procedures are so that we can arrive at the truth," John points out. "When you're in pursuit of the truth, I think a constitutional court should be seriously looking at some of these things which have come up."

While this could be done by the Supreme Court as well, the way in which the majority decision in 2018 failed to take action means it should not be looked to as a protector of civil liberties that will do what's necessary.

Given the existing applications regarding the Arsenal Consulting reports before the Bombay High Court, however, they have a clear opportunity to ensure that they take a stand to protect Indian citizens from this kind of malicious abuse of the state's power.

One can only hope that it will do so with some degree of urgency, and with an understanding of just how serious the actions of the authorities are here.