The death in custody of Stan Swamy, a Jesuit priest who has been working for the rights and welfare of tribal people for decades, in jail for charges related to spreading Maoism, underscores the process.
The Pune police had arrested and charged 16 people in connection with the Elgar Parishad, a protest gathering to mark the 200th anniversary of the Battle of Bhima Koregaon, in which a regiment comprising Dalits, specifically, Mahars, had defeated the Maratha forces of the Peshwa. Dalits observe the anniversary as a symbol of their rejection of the caste system and of the posited superiority of the so-called upper castes, demonstrably dismantled by the Bhima Koregaon victory of the Dalit regiment.
On the day after the Elgar Parishad, there was violence in which one person died.
A Dalit woman named two leaders of self-styled Hindu organisations, Milind Ekbote of the Hindu Ekta Aghadi, a former BJP corporator, and Sambhaji Bhide, of the Shivraj Pratishthan in a case she registered with the police, accusing them of orchestrating the violence. But the police did not proceed with investigations in the case, especially after a witness died.
The police filed another case against a number of Dalit and Left-wing activists, whose numbers grew to 16, including many people who have never visited Bhima Koregaon. Telugu poet Varavara Rao, lawyer Sudha Bharadwaj, civil liberties activist Gautam Navlakha, Father Stan Swamy and several well-regarded academics figure among the 16, apart from activists involved in staging plays and organising speeches at the Elgar Parishad.
They were charged under Unlawful Activities (Prevention) Act, their alleged crimes including an attempt to assassinate the Prime Minister. As for the evidence for these charges, the police had some documents supposedly recovered from the personal computers of the some of the accused, secured by the police without the due process that entails recording the hash values of the data on the PCs (the hash value changes if any data is altered subsequently, so noting the hash value at the time of taking possession of a PC becomes allows detection of any tampering of the files on a computer while in police custody).
The accused have been denied bail time and again. Evidence was handed over to presiding judges in sealed envelopes, a practice that has no valid basis in the Constitution.
If the Marathi film, Court, in which routine postponements, career-related considerations of the legal personnel involved and their insular preoccupations that blind them to the indefinite incarceration of an activist, violating his basic right to life, liberty and due process, is a parable of the banality of evil, it told the tale of the lower judiciary. In the case of the 16 charged under UAPA, the locus is the higher judiciary.
Father Stan Swamy is no more. Varavara Rao is ailing. Prisons are ideal breeding grounds for Covid. Other accused could also die. Many of them have been in jail for three years now.
If the government has any substantial evidence against the accused, it should prosecute them, and find them guilty and, in the process, give them a chance to establish the hollowness of the charges against them. If the government is not ready to prosecute them, let them go on bail.
Bail is the norm and jail, the exception, ruled Justice V R Krishna Iyer. Unless an accused poses the risk of flight, destruction of evidence and repeating the offence, there is no rationale for denying him or her bail. The police have collected whatever evidence it wanted to in three years, the accused lead fairly public lives and are unlikely to flee. Will they continue to defend the rights of the subaltern? They probably will. But that is not a crime. Or is it, in today’s India?