Kolkata: The knock on the door came at 6.30 am on 17 April 2018, as singers Jyoti Jagtap and her husband Ramesh Gaichor were preparing to leave their home in Pune, a city of nearly 7 million people long known as a centre of culture and resistance to whoever ruled India.
Around 15 policemen entered the house, showing no warrant and refusing to answer questions, according to Jagtap, then 31. The police rummaged through clothes and confiscated event pamphlets, as well as a calendar featuring Babasaheb Ambedkar, the architect of India’s constitution and an icon for Dalits, historically considered the lowest of India’s castes. The police left with phones and computer hard disks.
Jagtap and Gaichor are artistes with the Kabir Kala Manch, a cultural organisation of young Dalit musicians, formed after the Gujarat riots of 2002—in which more than 1,000 people, the majority of them Muslim, were killed. The Manch sing for democracy, opposing caste divisions, inter-religious strife, and the majoritarian politics of Hindutva—the right-wing Hindu ideology of India’s ruling Bharatiya Janata Party (BJP), its ecosystem of allied organisations, and Prime Minister Narendra Modi.
As a consequence, members of the Manch, like Jagtap and Gaichor, have become targets.
While the police didn’t say, the trigger for the raid that morning was their performance at an event that the pair had helped organise four months earlier at Shaniwar Wada in Pune. The Elgaar Parishad, meaning “Loud Declaration Council”, took place on 31 December 2017 to commemorate the 200th anniversary of the Battle of Bhima-Koregaon, 28 km to Pune’s northeast, a place where lower caste Mahar soldiers of the British colonial army defeated upper caste rulers that the Dalit Mahars considered tyrants.
The historical event is celebrated annually by many Dalits, thousands of whom stream in from across the country to celebrate Dalit pride. This causes anger among those who consider it a celebration of Indian defeat, and resent the present-day inspiration Dalits take from the defeat of upper caste rulers two centuries ago.
In the run-up to the event, there was opposition from Hindutva organisations, and an unsuccessful attempt to get official permission denied. Two days before the event, as provocative casteist messages filled social media feeds, a signboard at a tomb venerated by Dalits was found desecrated. Tensions grew.
Amid this febrile atmosphere, on the last day of 2017, about 35,000 people crammed into six tents for Elgaar Parishad. They took in a colourful event of music, drama performances, and anti-casteist speeches. It was the culmination of planning by some 250 groups, each with differing ideas but of a shared anti-caste persuasion, led by two retired Judges.
The next day brought violence.
Videos shared on social media showed a mob of saffron-clad men attacking people on their way to Bhima Koregaon, with no police in sight. Vehicles carrying Dalit pilgrims were allegedly pelted with stones. Dalits protested this. One person was killed, many others were injured, and property was destroyed in the subsequent violence.
In the days that followed, Dalits in Pune and across the country protested at the lack of protection of their event, and initiated road blocks. They claimed the police had allowed the violence to take place.
A first complaint to the police, filed by the event organisers on 2 January 2018, alleged two upper caste leaders from the Hindutva ecosystem, Sambhaji Bhide and Milind Ekbote, were the instigators of the attack on the tomb that, they said, triggered the violence. Ekbote, a Hindutva activist known for cow vigilantism, already had 12 outstanding cases against him. Bhide, meanwhile, chief of a local organisation, was influential and connected—when Modi visited Sangli district in 2014, he said he came “on his (Bhide’s) orders”. Organisations like Bhide’s Shiv Pratishthan’s are vital to the spreading of Hindutva ideology endorsed by Modi’s BJP.
According to the Elgaar Parishad organisers, it was a scheme planned months in advance to mark the bicentennial celebration. Organiser and former Supreme Court Justice P B Sawant (who died in February 2021), told me in 2018: “The Hindutva groups wanted to achieve two things—divide the masses between Dalits and non-Dalits; also show Dalits their place ahead of the 2019 general elections.”
About 50,000 gathered in Mumbai to demand the arrest of Sambhaji Bhide, one of the Hindutva leaders named as an instigator. A 10-member commission constituted by Pune rural police in the aftermath found he and Ekbote had caused the violence.
But the police in the then-BJP ruled state seemed reluctant to follow up. A different narrative had almost immediately emerged.
A counter complaint, filed with police on 8 January 2018, alleged that it was the satirical and confrontational performances at Elgaar Parishad the day before that had caused the violence. The complainant, a businessman called Tushar Damgude, who had been photographed with Bhide and referred to him as “Guruji” (great leader), accused Jagtap, Gaichor and three others.
Of the two Hindutva accused, Bhide was never arrested. Ekbote was only taken in after almost two months had passed and an exasperated Supreme Court ordered the police to stop stalling and “do your job”. He was released on bail six weeks after. Members of Bhide’s organisation called for the case against him to be withdrawn, and for the Elgaar Parishad organisers to be arrested instead.
By March 2018, another development in the story of the Bhima Koregaon violence was being promoted. A think tank report claimed a Maoist conspiracy had planned the violence. Maoist rebels continue to fight security forces in some isolated areas of India.
Police announced they were now investigating Maoist links to the violence.
Meanwhile, the body of one of the original witnesses against Bhide and Ekbote, a 19-year-old Dalit woman called Pooja Sakat, was found floating in a well. The police said it was suicide, and that they had no reports of her being threatened. Her family said they reported threats, but the state took no action to protect her.
“If you want to interview us you’ll have to hurry,” Jagtap told me in May 2018. “Else, you might have to wait a few years till we come out of jail.”
Though they were only singers, she knew there was precedent. Four Manch members had been arrested in 2013 in a different case, also accused of Maoist links. They spent four years in jail without trial.
Jagtap was in no doubt. “The State is coming for us”, she said.
In the four years since, her prediction has come to pass.
The Elgaar Parishad, an event which closed with a retired judge leading the crowd in an oath of allegiance to the Indian Constitution, became the starting point for a government case that claimed an international conspiracy involving secret urban Maoists, operating under the cover of being human rights activists, lawyers, writers, and artists, was planning to violently overthrow the government and assassinate Prime Minister Narendra Modi.
Jagtap, Gaichor, and 14 other activists have faced the full force of the government’s expansive anti-terrorist powers. They have languished in prison without trial. One did not survive.
Domestic and international opprobrium about the treatment of “the BK-16” has grown as news trickled out suggesting the lengths the Modi government had gone to to silence and punish critics—even, according to an international expert assessment, planting the evidence upon which the entire case rests.
Behind the headlines, the Bhima Koregaon case is a bellwether episode in understanding how a potent national security playbook of anti-terror laws, digital surveillance technology, and national-interest narratives has been weaponised and executed to jail hundreds of civil society critics and stifle free speech in India since Narendra Modi’s government came to power in 2014.
What’s at stake in the world’s largest democracy, is democracy itself.
1. GUILTY UNTIL PROVEN INNOCENT
‘They are not innocent. They are intelligent persons’
Though it was the first time he had been arrested, Rona Wilson was no stranger to prison, nor the Indian security laws that allow the state to put away citizens for years without trial almost regardless of the evidence against them.
As a founding member of the Committee for the Release of Political Prisoners (CRPP), Wilson would regularly be seen in the dank corridors of Delhi’s Tihar jail, providing counsel and legal aid to those accused of being terrorists.
Now, he himself stood accused. On the morning of 6 June 2018, in south Delhi’s crowded Munirka village, neighbours were woken by the urgent ringing of a doorbell and a large posse of policemen outside his door. He knew they might come. They had confiscated his electronics and documents on an earlier visit.
The Maharashtra state police picked up four more citizens in coordinated raids across India that day: lawyer Surendra Gadling, women’s rights activist and literature lecturer Shoma Sen, forest rights activist Mahesh Raut, and Elgaar Parishad organiser Sudhir Dhawale of the Kabir Kala Manch.
On 28 August 2018, another round of raids led to the arrest of trade unionist and lawyer Sudha Bharadwaj, human rights activist and writer Gautam Navlakha, workers rights activist Vernon Gonsalves, lawyer and prisoner rights activist Arun Ferreira, and poet Varavara Rao.
Thirteen letters the police said they had found in the homes of the accused were leaked to the press. By this point the case was no longer just about speeches given at the Elgaar Parishad.
The police were investigating a conspiracy that, based on the letters, went something like this. The electoral success of Modi was threatening the Maoists. The jungle-based revolutionaries were depending on these lawyers, writers and poets, for money, weapons, recruitment, and logistics. The group was operating internationally, including a meeting in Paris, and involving the Chinese and Russians. In doing so, the secretive group members were exchanging explicitly incriminating messages with each other using their real names or initials.
A letter purportedly found in Rona Wilson’s house referenced “another Rajiv Gandhi type incident” (India’s former Prime Minister was assassinated in a 1991 bomb attack), and the need to procure M-4 assault rifles.
“Please destroy the letter after you have read it. Be careful that it should not fall in the hands of the enemy,” said a letter purporting to be from Maoist leadership that, according to the police, Rona Wilson, the would-be assassination plotter, had saved onto an external hard drive the police were able to take in the raid.
Even in the interim period between the first and second tranche of arrests, Maoist leadership apparently continued to send more letters, using real names, to Rao. The ageing poet was, the police believed, procuring arms from Nepal. Ferreira was recruiting young people to Maoism through his photo exhibition of lynchings by mobs. Not only that, he was using “creative methods” like humour with the intention of “penetrating Maoist thoughts” into students.
Maharashtra public prosecutor Ujjwala Pawar said the accused were members of the Communist Party of India (Maoist) but also constituted an “anti-fascist front”.
“The aim of the front is to overthrow the government, and they want to establish this front all over India,” said the public prosecutor. “They are not innocent. They are intelligent persons,”
All the accused denied the veracity of the letters, but it didn’t matter. They were the latest of hundreds of activists to be thrust into a multi-year odyssey of incarceration without bail, of fruitless hearings, and uncertainty.
That this is possible in India because of a law called the Unlawful Activities (Prevention) Act (UAPA), 1967, often employed alongside a 150 year old colonial-era sedition law, section 124A of the Indian Penal Code, 1860.
“The use of the UAPA has been normalised now where general law is used less and less,” said veteran Supreme Court Advocate Rebecca John. “The state used the argument of having an anti-terrorism law, but when you look, it is largely used against non-violent citizens.”
Over four years to 2019, more than 5,105 people were arrested under the UAPA, the number of cases rising 72% over this period, according to government data (submitted to Parliament in February 2021.)
Between 2014 and 2020, 10,552 UAPA cases were filed but only 253 were convicted, according to this analysis of National Crime Records Bureau (NCRB) data. A comparison with three years preceding this period is not possible because NCRB records make no mention of the UAPA.
The other law indiscriminately used, and against Supreme Court guidelines, is sedition, or spreading disaffection against the State. An Article 14 database records more than 800 sedition cases against about 13,000 Indians between 2010 and 2021, rising more than a quarter each year since Modi took office in 2014.
“Where are the instances of the security of the state being threatened?” asked John. “A large majority against whom the law is being used are people who have a different point of view.”
She described the UAPA as “a perfect way of silencing citizens”.
This is because the UAPA defines “terrorism” vaguely. Individuals or groups can be designated as terrorists, and no objective criteria guide the designation. The accused has no opportunity to explain their position; they are presumed guilty. Their properties and assets can be seized.
A series of vague offences, such as “conspiring in acts preparatory to commission of a terrorist act”, or “associating” or “supporting” a terrorist group, can land you in prison for 10 years. Almost any causing of injury or property damage can be labelled terrorism. Police can pursue you for attending a meeting with purported intent.
You must wait for court before you can disprove that intent, but reaching court can take years. 180 days of custodial interrogation is permitted without producing a charge sheet. Extensions of the same period are easily granted on producing even minor evidence, often creating a recurring loop. And in the interim, you will likely languish in jail without bail.
This is because, to grant bail, the court has to come to a finding there is no “prima facie” (the Latin legal term meaning “at first sight”) case against the accused.
“That’s a difficult finding—how does a court come to that certification?” asked John. “To make matters worse, the Supreme Court (in its Watali judgement) has virtually limited the powers of the court to grant bail. It’s a terribly-worded judgement and as draconian as the law itself.”
This Watali judgement interpreted UAPA as meaning that the court cannot scrutinise the evidence and materials the police have gathered, and must only consider the allegation.
For the Bhima Koregaon accused this meant that in bail hearing after bail hearing the police cited the content of outlandishly incriminating letters not even entered in evidence, and the judge ruled against bail.
How did this seldom-used 1967 law become the legal basis for Modi’s government to pursue the Bhima Koregaon accused and hundreds of others as “terrorists”?
It’s well known that after the Mumbai terror attack of November 2008, when Pakistani Muslim terrorists killed over 170 people, the then-United Progressive Alliance (UPA) government hurriedly passed two landmark pieces of legislation.
One was the National Investigation Agency Act, 2008, which in empowering a counter-terror task force to over-ride the authority of state police to investigate terror-related crimes came “perilously close to crossing constitutional limits” of federalism. The other was an amendment to the UAPA that doubled the period of custodial interrogation, broadened the definition of terrorism, and introduced a presumption of guilt (when certain evidence is produced).
Less well known is the role the international community and an influential but little-known Paris-based intergovernmental organisation played in encouraging further reforms that would, in time, empower Modi’s hardline Indian government to transform civic space in India.
The Financial Action Task Force (FATF) had been an innocuous inter-governmental organisation based in Paris focused on countering money laundering. Then, in the post 9/11 days, terrorism and terrorist financing became the focus, and the influence of the FATF mushroomed. On 1 October 2001 it issued its Special Eight Recommendations (one more was subsequently added) to counter terrorist financing.
India had been trying to gain full FATF membership since 1998. The potential rewards were clear. Compliant members profit from becoming a more attractive destination for foreign investments, ratings agencies and banks, said Vanja Skoric, program director for the European Center for Not-For-Profit Law (ECNL). Get a bad rating, and the country “will be shamed and lose credit ratings and investment”.
But the FATF is a selective club. All its 49 recommendations must be met. It was also a time when the G-8 countries felt India could be a vital ally in the US-led war on terror, but their intelligence agencies had become used to what they called in one Wikileaks cable “India's famous go-it-alone outlook” on terrorism prevention.
In meetings with Indian officials in 2008, documented in Wikileaks, US assistant secretary O’Brien emphasised that the focus of the FATF mutual evaluation of India will be effectiveness. “...It behooves the [Government of India] to emphasize concrete actions it is taking in supervision and enforcement to demonstrate robust implementation of their [Anti-money-Laundering/ Combating financing of terrorism] regime,” he said.
In 2010, India gained membership based on the assurance that the country would “make suitable amendments” by 31 March 2012. That’s what the Indian government sought to do as it amended UAPA once more.
A cross-party 160th Report—no longer available online but a copy of which is with Article 14—on the UAPA amendment bill 2011 shows how the home ministry was guided by the FATF while formulating far-reaching changes to India’s primary anti-terror law. Non-compliance with India’s commitment to the FATF would lead to “diminution in the stature of the country”, the home secretary stated on 1 March 2012. He “apprised the members that the proposed amendment in the principal Act is meant to comply with the guidelines of the Financial Action Task Force (FATF)”.
Some of those guidelines seemed to fly in the face of conventional notions of the rule of law.
For example, recommendation 5 states that countries should criminalise not just the financing of terrorist acts “but also the financing of terrorist organisations and individual terrorists even in the absence of a link to a specific terrorist act or acts.”
This is echoed in recomendation 4, which says countries should confiscate property it believes linked with terrorism “without requiring a criminal conviction”.
The resulting 2012 amendments to the UAPA expanded the definition of an accused “person” to include “an association of persons or a body of individuals, whether incorporated or not”. Any person could be charged merely on contacting a suspect. It also widened the definition of “terrorist act”—including any action that threatens the economic security of India.
As global watchdog Human Rights Watch was in 2012 calling the beefed up UAPA a “dangerous tool in the hands of officials,” India was being lauded by the FATF. In its 2013 Mutual Evaluation Report (MER) of India the body commended “implementation of effective confiscation and provisional measures through amendments to the PMLA and the UAPA”.
However, in one area India remained non compliant: NGOs. Indian officials believed the risk of terror financing through NGOs was low. The FATF disagreed.
The UPA government, like most international governments in the post 9/11 era, had certainly not been shy to pass potentially draconian measures.
But a new government was soon to come to power in India, one which had pioneered an intensely authoritarian style in Gujarat, and was not lacking in “political will” to tighten the screw on civil society actors.
Narendra Modi had only been the state’s chief minister for one year when the Gujarat riots broke out, the latest and worst of a series of deadly riots the state had suffered since 1969.
On 27 February 2002, a busy train went on fire, killing over 60 people. Many of the passengers were Hindu pilgrims. Modi declared it an attack by terrorists. In days of brutal violence that followed, up to 2,000 mostly Muslims were killed in retribution, and 150,000 people became refugees.
“Gujarat has shown the way to the country,” said Pravin Togadia, then Modi’s colleague, describing a “Hindu awakening”. The BJP’s senior spokesperson at that time, JP Mathur, called it a “reaction of nationalist forces”. The police commissioner of Ahmedabad conceded the involvement of those meant to protect. “Police were not insulated from the general social milieu,” he said.
Some thought Modi’s response and the subsequent bloodshed could finish his political career. Instead, the model would come to characterise it.
The politics of Hindutva-fuelled polarisation yielded immediate electoral dividends. In the elections that quickly followed the 2002 riots, despite huge losses prior to the riots, Modi and his party eventually romped home, winning 79 of the 102 seats from the 13 worst riot-affected Gujarat districts.
As chief minister Modi began to take steps that he would later take to the national stage.
Modi aligned with corporates who, in pursuit of profit, were willing to overlook the many controversies associated with his rule.
One of these was the targeting of civil society critics. NGOs that worked with victims of Gujarat Riots, or were seen to debunk Gujarat’s model of development, were targeted and hounded.
Running for PM in 2014, Modi pitched this Gujarat Model as something for the rest of India to aspire to.
Soon after coming to power in 2014, Prime Minister Modi’s new Hindu nationalist government was presented with a classified document from the Intelligence Bureau (IB) that identified several foreign-funded NGOs as “negatively impacting economic development” by as much as 2-3% of the country’s gross domestic product (no basis for this calculation was included.)
A massive crackdown on NGOs and civil society organisations followed. “My friends, you have voted me to rid the country of these diseases”, said Modi in 2016, claiming a civil society conspiracy against him.
Between 2015 and 2019, the registration of 16,683 non-government organisations (NGOs) were cancelled, a fivefold increase in cancellations compared from the four years prior to Modi’s election: 14,500 NGOs were barred from receiving foreign funds. Funding dropped by 90% from 2018 to 2019. This, when the income of the poorest 20% of Indian households has halved since 2016.
In 2020 the Modi government, having asked states to monitor NGOs for “anti national activities”, also passed The Foreign Contribution (Regulation) Amendment Act, 2020, further tightening the government’s hold on the foreign-funded non-profit sector, scaling up rules that restrict, monitor and surveil its operations.
As for the FATF, it has never made any critical statements about the targeting of activists through the laws it encourages in India. “Good practice guidelines” to Non-Profit Organisations (NPOs) to ensure FATF compliance is provided in the 2020 Act’s annexure.
By January 2020, there seemed some hope for those accused in the Bhima Koregaon case. A commission of inquiry into the violence in Pune was making progress. Modi’s party, the BJP had lost control of Maharashtra state to a coalition, and the new state administration wanted answers about the BK case.
It was reported that in a meeting with law enforcement, new deputy chief minister Ajit Pawar said the letters and evidence against the imprisoned activists must be substantiated within 15 days, or the state government would appoint a special investigation team to investigate the case and its handling.
However, it was then that another controversial security law, The NIA Act 2008, was brought into play.
Two years on from the arrests, with an inquiry threatening to derail the case against the activists, the National Investigation Agency (India’s equivalent of the FBI) unilaterally took over the case from the state. The powers meant that a special NIA security court would be responsible, with witnesses protected from public scrutiny. It caused an outcry, but to no avail.
The commission of inquiry into the violence was suspended due to Covid, but under the NIA, arrests continued.
Anand Teltumbde and Hany Babu were arrested in April and July respectively (Gautam Navlakha was arrested a second time). Babu was a professor of linguistics at Hyderabad. Teltumbde, a public intellectual. was the brother of a Maoist fugitive (who was killed in 2021) but described himself as a bureaucrat who had published work critical of Maoists. He was arrested on the 129th anniversary of his grandfather-in-law Dr Ambedkar’s birth.
The basis for Teltumbde’s arrest was the mention of a “Comrade Anand” in one of the letters found in the electronic devices of the other accused, and that phone records showed he had been in contact with some of them. The NIA said he was also the convenor of the Elgaar Parishad. Babu was propagating “Naxal” activities and Maoist ideology.
The case involved alleged incitement that “promoted enmity between various caste groups and led to (Bhima Koregaon) violence, resulting in loss of life & property and state-wide agitation in Maharashtra", the NIA said.
That July, the NIA officer leading the BK case inquiry received a union home minister’s medal for excellence, “with the objective to promote high professional standards of investigation of crime”.
As the scope of the Bhima Koregaon violence—Maoist nexus was again stretched by the NIA, the case against Hindutva leaders Sambhaji Bhide and Milind Ekbote had stalled. Ekbote was out on bail, while Bhide had never even been questioned. No UAPA offences were filed.
“If Ekbote and Bhide are also accused of instigating the violence, why weren’t similar charges pressed against them?” Retired Justice B J Kolse Patil had asked back in 2018.
Preferential treatment of Hindus is baked into the substance of the UAPA.
The Bhima Koregaon accused were accused of being part of CPI (M), one of the 32 terrorist organisations specifically listed in the First Schedule of UAPA. Communist, Khalistani, and separatist organisations figure on a list, which is dominated by Islamic organisations.
No extremist or militant Hindu right-wing organisations are named.
Even when Hindutva extremists have been accused of the most serious terrorist crimes under UAPA, they have often been treated very differently.
For example, between 2006 and 2008, India was rocked by four major acts of terrorism. They targeted areas of large Muslim gathering, killing scores and injuring hundreds. NIA investigations led to a web of far-right, extremist Hindutva groups.
In 2014, after Modi took power and gained control of NIA, the special prosecutor in 2006’s Malegaon bombings case, Rohini Salian, said she was asked to “go soft” on the Hindutva accused by an official of NIA. She was soon denotified. Claiming the initial probe was dubious, the NIA softened charges on all accused, and sought to exonerate the prime accused, Pragya Thakur. The court refused the exoneration and framed charges against her under UAPA.
However, out on bail, UAPA charges didn’t stop Thakur from joining the BJP and winning 2019’s Bhopal parliamentary constituency election as the party’s candidate—the first time in India’s history that an alleged terrorist entered India’s Parliament.
“No Hindu can ever be a terrorist, and if he is a terrorist, he can never be a Hindu," said Modi, reacting to a question following Thakur’s claim that Nathuram Godse, the Hindu who killed Mahatma Gandhi, was a patriot.
Meanwhile, as Covid cut through India’s dire, overcrowded jails in 2020, the older Bhima Koregaon accused suffered.
Rao, by now aged 81 and a cardiac patient with intestinal ulcers, was vomiting and feeble. Shoma Sen, who cited her history of hypertension and osteoarthritis, was told the fact she had “some disease” didn’t mean she should be released. Sudha Bharadwaj developed a heart condition, in prison, to add to her diabetes, blood pressure and history of pulmonary tuberculosis.
Bharadwaj later got bail on a technicality and Rao on medical grounds.
For some of them it was not even the first time they’d been accused under UAPA. Gonsalves was imprisoned for five years in a different case, before being acquitted. Ferreira, accused in 2007, was tortured and suffered in jail for years before acquittal. Rao was found innocent in 20 cases against him.
According to government data, only 2.2% of those charged under UAPA between 2016-2019 ended up convicted.
This shows how the UAPA has been designed, according to the senior Supreme Court advocate John, to make “the process as the punishment”.
On the morning of 8 September 2020, Manch member Jyoti Jagtap’s prediction of more than two years earlier finally came true. She was arrested by the Maharashtra Anti-Terrorism Squad (ATS) while she stopped on her motorcycle at a traffic signal. Her husband Ramesh Gaichor was taken in the previous day with bandmate Sagar Gorkhe.
After they were arrested, a pre-recorded video by Gorkhe and Gaichor was released on Facebook. In it, they alleged the investigating agency had sought to force them to turn witness against those previously arrested, to avoid arrest themselves. They had refused.
Jesuit priest Stan Swamy, an activist who had spent much of his life advocating for detainee and tribal rights, had also been raided and interrogated by the NIA. On 6 October, knowing the inevitable was coming, he too issued a video statement.
He spoke of the issues facing tribal society in Jharkhand, of displacement, land alienation due to mining, factories, dams, and of minimal compensation and state unaccountability. He spoke of co-founding the Persecuted Prisoners Solidarity Committee for providing legal recourse to those thrown in jail for claiming their rights. Representing around 3,000 young jailed Adivasis (a collective name for the indigenous people of India), Swamy filed a case against the Jharkhand state.
“This became a bone of contention with the state and they wanted to put me out of the way. One easy way was to implicate me in some serious cases,” said Swamy.
On 8 October 2020, the 84 year old was arrested in the Bhima Koregaon case. It was a place he’d never been to.
“They don’t want any dissent from civil society and if you put some leaders behind bars, it will have a chilling effect on the rest,” said his lawyer, Mihir Desai.
Desai himself faces that risk.
While going through the affidavit filed by the investigative agency against his client, he noticed something. His organisation, India’s biggest human rights organisation, the People’s Union of Civil Liberties (PUCL), was cited—“Front organisation of the CPI (Maoist)”.
“They are creating a situation where I could be arrested too,” said Desai.
He engaged with this risk, but he never saw his client freed.
Stan Swamy had Parkinsons. At one point, press reports suggest he waited for more than 20 days in prison to get access to a straw and sipper to drink.
His health deteriorated. By May 2021, he had been imprisoned for nine months, and was being treated in hospital.
As Swamy told judges in an unsuccessful interim bail hearing: “When I came to Taloja [jail], whole systems of my body were very functional, but during these eight months there has been a steady slow regression of whatever my body functions were...
Eight months ago, I would eat by myself, do some writing, walk, I could take bath by myself, but all these are disappearing one after another. So Taloja jail has brought me to a situation where I can neither write nor go for a walk by myself. Someone has to feed me.”
On the afternoon of 5 July 2021, Swamy passed away while in judicial custody at a Mumbai hospital after contacting Covid and suffering a heart attack. At 84, he was the oldest Indian to be accused of terrorism under the UAPA law. He was not once interrogated in custody by the NIA.
Like the other accused, Swamy was imprisoned on the basis of documents the police said they had taken from his computer, documents he continuously said he “denied and disowned”.
“These extracts were all interpolations put into my computer,” he had said.
Reports released by a US forensic consulting firm suggested he and the other imprisoned activists were right.
At 5.04 pm on 11 January 2018, 11 days after the Bhima Koregaon violence, some files were saved onto Rona Wilson’s hard drive. They included incriminating details of Maoist action, those that the police would sensationally share with the media after his arrest, and which formed the basis of the case against the activists.
But, while it was Rona Wilson’s hard drive, it wasn’t him that moved the files.
A remote device was responsible, installed via a sophisticated Trojan horse called Netwire. His laptop had been compromised back in June 2016. The source was someone using his co-accused Varavara Rao’s account. A total of 32 documents were planted. They included the letter reportedly written by Wilson discussing a Maoist assassination plot. The files were never accessed or opened by any users of Wilson’s computer.
Further back, in July 2017, the attacker was active on Gadling and Wilson’s computers only 20 minutes apart. This was when a document about funding of Maoist groups was put into both.
Gadling’s computer was infected with Netwire nearly two years before he was arrested, when in February 2016 he received an email full of malware. He was one of 14 recipients. Among them was Stan Swamy. Anyone who opened the mail would be left with powerful malware, a type that could not only monitor, but control their computers.
These were the discoveries of a small US digital forensics firm called Arsenal Consulting, who had been assessing copies of the hard drives of some of the arrested activists, and detailed their findings in a series of reports in 2021.
New findings by the US cybersecurity firm SentinelOne disclose that Wilson was targetted by two different groups of cyber criminals, one of which is known for its cyber-espionage campaigns against India’s enemies, Pakistan and China, while the activities of the other “aligns with Indian state interests”.
It was only the latest controversial news to emerge about the use of surveillance technology to target India’s citizens.
Back in 2013, Citizen Lab published a report asserting that India was among 25 countries where servers of FinSpy, a spyware widely criticised for aiding authoritarian governments in targeting opposition and dissidents, were located. Privacy International suggested that the spyware, sold by a company called Finfisher, was able to perform potent surveillance operations.
Finfisher—“your reliable partner and trusted advisor to effectively prevent and investigate terror and crime” says its website—had grown within a burgeoning post 9/11 surveillance tech industry.
From “next to nothing” in 2001, the year of the attack, surveillance is now a shadowy $5 billion global industry, growing at 20% annually, according to Ilia Siatitsa, PhD, of Privacy International. Her organisation found 528 surveillance companies operating globally, selling secret products to government agencies from behind closed-door arms fairs.
One country emerged as the leader in this industry, one with close ties to India, and through one of its companies, to its persecuted activists.
In July 2017, after a three day diplomatic visit to Israel, Modi and Israeli then-counterpart Benjamin Netanyahu were pictured paddling together in Olga Beach in the northern coastal city of Haifa. “There’s nothing like going to the beach with friends,” tweeted Netanyahu afterwards.
It’s a friendship based on the trade of deadly arms. India is by far Israel’s biggest arms customer, from 1950 to 2020 accounting for 23 percent of its total arms exports. However, recently Israel has become a central player in the business of surveillance. The country, which itself runs a surveillance state in Gaza (which has been described as the world’s largest open-air prison since blockades that started in 2006), nearly doubled its surveillance technology sales from 2018 to 2019, with snooping tech now accounting for 14% of all “defence” exports.
Cyber security was one of the key areas to be discussed with Narendra Modi ahead of Modi’s 2018 visit. India and Israel signed a pact on cyber security during the visit, where Modi and Netanyahu held extensive talks on “identifying role of non-state actors in promoting terror”.
Israel’s intelligence services, considered among the most well trained in the world, and the country’s status as a “start-up state”, ensures a conveyor belt of former operatives set up private security-focused tech companies with advanced tools for sale.
The NSO Group, whose technology played a role enabling the grisly murder of Saudi journalist Jamal Khashoggi and has since been sued by Facebook and Apple, is the most notorious.
‘Used exclusively by government intelligence and law enforcement agencies to fight crime and terror’
Rupali Jadhav makes some money by selling t-shirts printed with the image of some of the Indian progressive icons she venerates. On the surface, she seems an unlikely target for some of the world’s most technologically advanced spy technology.
But she also runs social media for different progressive organisations in India, including the Kabir Kala Manch. This, she thinks, made her a target.
In October 2019, her mobile phone number figured on a database of the NSO group, which uses its Pegasus spyware to infiltrate mobile smartphones and conduct remote surveillance on targets. Research done by Citizen Lab, which accessed the database, revealed that Jadhav’s number was among at least two dozen phone numbers surveilled in the run-up to 2019’s Indian general elections. They included Indian lawyers, journalists, Dalit and cultural activists, professors and intellectuals.
Among them were a host of other individuals linked to the Bhima Koregaon accused.
These interpolations could, theoretically, have come from anywhere. Except, NSO claims its “products are used exclusively by government intelligence and law enforcement agencies to fight crime and terror”.
It would later become clear that the mobile phone surveillance net was cast far wider than just Modi’s critics.
In July 2021, Indian news website The Wire, which was part of The Pegasus Project, a collaboration of 17 international media organisations helmed by the Paris-based Forbidden Stories, came out with further damning revelations of Pegasus’ infiltration across 50 countries in the world, including India, involving 50,000 compromised phones.
Connected to the Bhima Koregaon case, these include eight of the accused (Hany Babu, Rona Wilson, Vernon Gonsalves, Anand Teltumbde, Shoma Sen, Gautam Navlakha, Arun Ferreira, Bharadwaj), but also their wider network: Varavara Rao’s daughter, Surendra Gadling’s wife and also his lawyer, Bharadwaj’s lawyer, a friend of Anand Teltumbe, and another of Mahesh Raut. And Kabir Kala Manch member Jadhav.
It suggested that the Bhima Koregaon accused and their associates had been wrapped in a web of phone surveillance. Pegasus offers unlimited access to mobile devices–locations, call details, encrypted communication, files, photos, videos, contacts, calls, real time screen capture.
But the list went far further. Pegasus surveillance did not target just the Bhima Koregaon accused, or even just activists.
The long list included politicians, including the head of India’s main opposition party and union cabinet Ministers, Supreme Court judges, an Election Commissioner, lawyers, academics, scientists, industrialists, CBI officials, lobbyists, national security figures, diplomats, Tibetan activists, Kashmiri and Northeastern dissidents, even a cricket administration official.
Back in Pune, Jadhav wondered why, going by 2016 rates, the government would want to spend Rs 50 lakh (approximately $67,000) to spy on her phone. “They could have spent that amount on the health and education of children in India,” she said.
“The state will do its work,” she said. “We have to keep doing our work.”
The Modi government’s reaction has been ambivalent on the question of buying and deploying Pegasus.
Legal experts and opposition figures have pointed towards the 10-fold increase in the National Security Council Secretariat’s budget under the new head “Cybersecurity and Research & Development”—up to Rs 300 crore (about $40 million). The NSCS advises the Prime Minister on strategic and security issues and reports to the national security advisor, Ajit Doval.
All NSO group contracts state that their products must only be used lawfully to stop terrorists, and it is to the law that minister of state for home affairs G Kishan Reddy demurred when refusing to deny the government had bought Pegasus.
He cited section 69 of the Information Technology Act, 2000, which “empowers the Central Government or a State Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource in the interest of the sovereignty or integrity of India”, The NewsMinute reported. The ministry also cited section 5 of the Indian Telegraph Act, 1885, which authorises specific individuals to view messages in the case of a public emergency or in the interest of public safety.
In August 2021, following the Pegasus spyware revelations, 11 leading global civil and human rights organisation alleged violation of the Right to Privacy judgement and called upon Indian authorities to independently and credibly probe the government’s alleged role. Their basis was a 2017 landmark Puttaswamy judgement—as it is called—where a nine-judge bench ruled the right to privacy was a fundamental right of all citizens, discounting the government argument that privacy was “an elitist concern”.
The organisations noted that “since then, the government, instead of overhauling the surveillance law framework and enacting robust data protection mechanisms, has used public safety and national security arguments in court and in parliament to deflect concerns about violations of privacy rights”.
Contrary to protecting the privacy of citizens, after the Personal Data Protection Bill (PDP) was tabled in Parliament on 11 December 2019, Justice (retired) B N Srikrishna, who headed the panel which drafted the original PDP bill, described the version tabled by the Modi government as “dangerous” and likely to transform India into “an Orwellian state”. Using “national security” as the basis for an all-encompassing exemption, the bill, which is now being analysed by a Joint Parliamentary Committee, gives blanket authority to the state to access citizens’ personal data without requiring their consent.
In 2008, according to a classified document available on WikiLeaks, Indian law enforcement did not have the capacity to trace cell phone calls beyond the transmitting tower. Now, legal under these laws, a shadowy mesh of high tech surveillance and biometric systems pervade–all justified and driven by security language.
“We are turning into an authoritarian, anti-dissident police state”, said Divij Joshi, a lawyer-legal researcher and tech policy fellow at Mozilla.
He set up the AI Observatory. A look through the AI systems installed by governmental authorities in India, especially law enforcement agencies, shows a growing dependence on facial recognition technology (FRT). Increasingly, it has been found tracking and identifying participants during the anti citizenship and farm laws protests, according to Joshi.
Home minister Amit Shah stated that 1,922 people had been identified in the 2020 Delhi riots case based on facial recognition software using data from voters ID, and driving licence and others. Recently, the home ministry has also announced the Automated Facial Recognition System (AFRS), which would be fed by multiple government digital databases and records. This is despite the fact that, through Delhi police’s own submission before the Delhi High Court, its facial recognition software provided merely 2% accuracy and sometimes mixed up genders of those being identified.
India is already home to the Aadhaar project, the world’s largest biometric identification system, alleged by many to be a surveillance engine. Around 1.3 billion Indians enrolled with a 12-digit unique identification number.
The germ of the idea came from a security crisis, 1999’s Kargil war, and focused on illegal immigration. While it came to be cast as a matter of welfare delivery, former Intelligence Bureau chief and current National Security Advisor, Ajit Doval told Tehelka magazine in 2009 that the original idea of a unique identity was “to wash out aliens and unauthorised people”, later “projected as a development-oriented initiative, lest it ruffle any feathers”.
“Aadhaar has completely morphed into a mass surveillance mechanism,” contends Gupta, who had served as a counsel on the Supreme Court’s Right to Privacy and the constitutional challenge against Aadhaar cases. Indeed, section 33 of 2016’s Aadhaar act clearly articulates the government’s right to obtain information on any person for the sake of national security, and 2020’s FCRA law amendment made providing Aadhaar details mandatory for the senior management of NGOs.
“The very root of fascism [is] where a totalitarian society expects individuals to completely invest themselves and be completely transparent towards public authorities,” said Gupta.
“Because, it is reasoned, what do they have to hide?”
While the Pegasus / NSO group revelations made waves around the world, at base they involved the use of technology to surveill and gather information, a practice used by all governments, to varying extents and in different forms. The Arsenal consulting revelations concerning the Bhima Koregaon accused, which suggested the use of technology to plant evidence against state critics, were of a whole different order.
“Please keep in mind that ultimately you do not need to take our word for anything we have shared in Reports I or II, as our findings can be replicated by competent digital forensics practitioners with access to the same electronic evidence,” said Spencer, head of Arsenal Consulting.
However, citing forensic analysis they claimed was done by a science lab in Pune, the Indian government said anything else was “distortion of facts”. (The regional science laboratory had, according to the record, not responded to questions of evidence tampering).
“We do not take cognisance of reports from private labs,” an NIA spokesperson told Article 14 at the time.
The Bombay High Court also rejected pleas by lawyers of both Sen and Wilson based on Arsenal’s findings. The matter was already sub judice, they said.
Police had throughout the case said that they had more than just the electronic evidence against the BK16. But nothing substantive ever materialised.
An independent organisation was saying the basis of their case was a sham and a set-up. It was making the analysis available for anyone else to scrutinise. The Arsenal findings called into question the integrity of the justice system, the Pune police and the NIA. It was reported in local and international press, and critiqued by international organisations.
And yet, the Indian government was saying it didn’t care. For the Bhima Koregaon accused, still awaiting trial, the revelations have made no difference.
“All that will remain in public memory will be the narrative that a bunch of urban Naxals were responsible for the violence, and the actual perpetrators of the violence will be forgotten,” said Susan Abraham, the wife of accused Vernon Gonsalves, quoted in the press on the stalled inquiry into the violence.
“It is myth-making, happening in front of our eyes.”
From the very start, when the story changed from one of Hindutva provocateurs instigating a riot against Dalits, to Maoist “urban naxals” inciting violence as part of a plan to overthrow the state, the Bhima Koregaon case has been about narratives, and the attempts of Modi’s government and supporters to use the power of the state to control what citizens believe.
The much vaunted Bhima Koregaon Modi assassination plot, parroted to the media by police from 2018, never even made it into the NIA’s 17 draft charges two years on. But that doesn’t matter if the recurring narrative of Modi’s life being under threat was nonetheless perpetuated.
In the same way, when the Bhima Koregaon case eventually reaches trial, whatever the outcome is, the state narrative will endure: activists and government critics are “anti-national” threats to India.
That was where the conflict over the Elgaar Parishad event first started back in late 2017, with Hindutva critics trying to ban the event, deeming the Dalit organisers, their different understanding of history, their competing narrative of the country’s past and present that equated current rule with that of the Peshwas defeated at Bhima-Koregaon, as “anti-national”.
In Modi’s India, narratives of “national interest” are frequently invoked, and violence against minority groups, whether through the state or its ideological proxies, very often follows.
On 24 February 2020, Faizan, a Muslim tailoring shop assistant, went to pick up his mother from the site of an anti-Citizenship Amendment Act protest in Delhi after violence broke out. Caught in the crossfire, the 22-year-old was reportedly beaten by the police.
A video recording of the incident showed Faizan, along with four others bloodied in tattered clothes, lying on the ground as surrounding policemen prodded them with sticks. As a policeman is seen filming with a mobile phone, one of the injured is forced to sing the Indian national anthem for the camera. Instead of a hospital, the injured Faizan was taken into police lockup, where further torture allegedly took place. Two days later, he passed away.
That a bloodied and injured man was forced to sing the national anthem by law enforcement shows the power of the nationalist narrative that underpins Modi’s security playbook.
Policy decisions like 2016’s high-denomination currency note cancelling Demonetisation, which left scores dead, millions jobless and the economy in shambles, were taken to stop terror-funding and weed out black money—in the national interest, Modi reminded India.
To ensure that “national interest” is a 360 degree undertaking, the government aggressively pushed Aadhaar, despite the Supreme Court ruling against making it mandatory and experts voicing concern on its data-leaking and mass surveillance characteristics. It was in the national interest.
The nationalist narrative, seen in these and the Bhima Koregaon case, is circular and goes like this. That there is a tremendous and enduring threat facing the state. Anything the government says it does to counter this threat, no matter how extreme, is in the “national interest”. Anyone who speaks against the government is an “anti-national” enemy. They pose a tremendous and enduring threat to the state. And so on.
In Modi’s India, who those anti-national enemies are was defined long ago.
In his 2008-published Gujarati language book, Jyotipunj, a biographical sketch of 16 people who inspired him, he dedicated the longest chapter to M S Golwalkar, the second sarsanghchalak (chief) of the Rashtriya Swayamsevak Sangh (RSS), and considered the ideological font and moral guide of the BJP.
According to Golwalkar’s writings, Hindu hegemony over Indian nationhood is preordained and irrefutable. All others are subordinate. The three major internal threats to Hindustan were Muslims, Christians, and Communists.
The man who Modi described as Pujniya Shri Guruji (Guru Worthy of Worship), praised a previous situation where nationalist narratives were leveraged for electoral success, the supremacy of one group was elevated, critics were purged, national institutions were captured, certain groups were scapegoated for national issues.
For Indians, the Nazi purge of Jews was, he wrote, “a good lesson for us”.
The mob lynching and persecution of Muslims is encouraged by Hindutva ecosystem individuals and groups who promote narratives of national threat to Hindus due to demographic changes. But violence against other minorities is also growing.
RSS head Mohan Bhagwat in a December 2021 speech warned Hindus about religious conversions in areas of high Christian population. Violent attacks of Christians and churches followed. A BJP legislator called for an India “free of veil wearing Muslims and Christian priests”. At rallies against “conversions”, BJP grandees have watched as far right leaders urge attendees to “arm themselves with axes” and call for beheadings. Far right Hindu religious congregations have openly called for genocide against Muslims. Let alone invoking the UAPA, little punitive action has been taken against the offenders.
Internally, the vilification of minorities and critics, the triumphalism of Hindu nationalism, and the constant identification of the “anti-national” enemy, Modi’s India in 2022 represents the culmination of Hindutva’s majoritarian dream.
On 24 September 2021, when Modi was granted a visit to President Joe Biden at the White House, the message was very different. In the usual exchange of pleasantries, Biden told him that Gandhi’s “message of non-violence, respect, and tolerance matters today maybe more than it ever has”.
According to the official White House readout, among other things, they “reaffirmed that the United States and India stand together in a shared fight against global terrorism”, they “welcomed opportunities to develop counterterrorism technologies", and even called for the release of political prisoners—albeit in Myanmar.
According to the readout, Biden didn’t mention the Bhima Koregaon 16, some of whom had by now been in prison for over three years, or any of the other thousands similarly imprisoned in India.
In his speech to the United Nations the next day, Modi highlighted that “the world faces the threat of regressive thinking and extremism”.
He called India: “the mother of all democracies.”
Yet maintaining the national interest narrative has required reorienting India’s democracy beyond recognition, far beyond the squashing of critics like the BK16 and NGOs.
US agency Freedom House in its 2021 report downrated India to “partially free democracy”. Swedish organisation V-dem describes India as an “electoral autocracy”. According to the inter-governmental think tank International IDEA, India is among the top three democratic backsliders in the world.
Democratic institutions that could hold the executive accountable and stem the tide have been co-opted. The Enforcement Directorate(ED), the Election Commission(EC), the Central Bureau of Investigation (CBI), the NIA, the National Human Rights Commission and Reserve Bank of India have all kowtowed to the government’s political agenda.
Four senior sitting judges of the Supreme Court of India—the most powerful judicial institution of the land—held a landmark press conference raising “doubts about the integrity of the institution”. They told the country: “unless this institution is preserved and it maintains its equanimity, the democracy will not survive in this country.”
The NGO crackdown has continued, and may worsen. In December, national security adviser Ajit Doval, addressing a passing out parade at the National Police Academy, said civil society organisations represent “the new frontiers of war” and could be “manipulated” to “hurt the interests of the nation”. He told the probationers that they had to ensure these interests were “fully protected”.
Particularly intransigent media houses, editors and journalists have faced intimidation, coercion, online threats issued by professional troll armies of the ruling party, largescale arrests, and even murder. One of Modi’s senior ministers coined the derogatory term “presstitute”. India is “one of the world’s most dangerous countries for journalists”, according to Reporters Without Borders, whose 2021 Press Freedom Index places India 142nd out of 180 countries.
Large sections of India’s mainstream media have remained devoted and unquestioning about the government’s agenda, some reliant on the Modi government’s astonishing Rs 700 crore annual expenditure on advertising. Other pro government outlets have amplified and exacerbated Hindutva’s hyper-nationalist and divisive hate campaigns. A 2018 sting by investigative outlet Cobrapost, showed through video how senior executives of dozens of Indian media houses were willing to push the BJP’s communally-polarising Hindutva poll plank for money.
Some influential national and regional outlets have, or have had, a direct association to the ruling BJP through owners or founders.
In seven years as Prime Minister, Modi has not once answered questions in a press conference. Meanwhile, the government was recently found restricting the media from reporting proceedings of the Indian Parliament.
And when the government deems that a subset of citizens still have too much access to information, like in Jammu and Kashmir, they can just switch off the internet. India has the ignominious record of enforcing the most internet shutdowns of any country, 109 of 155 globally in 2020.
It is only one way in which the Internet can be controlled in favour of the government narrative.
An image of Modi hugging Mark Zuckerberg in California in 2015 emphasised the importance of the colossal Indian market to Facebook. It is the app’s largest user base. But social media is also essential to Modi’s allies to promote and control narratives.
As then BJP president and current Indian home minister, Amit Shah, was heard telling the BJP’s social media volunteers in Rajasthan in 2018, the party is capable of delivering any message to the public, whether true or fake. Disinformation or misinformation has become a form of state violence.
According to author Paranjoy Guha Thakurta, who wrote “The Real Face of Facebook in India'”, Whatsapp, with 400 million users, has been weaponised. “WhatsApp (part of Facebook platforms) is the vehicle for hateful speech. It is not neutral or agnostic and it has been complicit in promoting Modi and the RSS well before 2014,” he said. “Behind every major communal conflict in India, WhatsApp messages and FB posts have been misused”.
2021 revelations from whistleblower Frances Haugen confirm Facebook knew about the deadly impact of their technology in India, and did little in response. Relative to the US, a country India dwarfs, it devoted almost no resources to classifying misinformation. Its technologies were not refined for the Indian context.
According to the Wall Street Journal, even in 2018 amid a carnival of anti Muslim violence, when it had identified two key sources of Islamophobia, a senior Facebook India official, a Modi sympathiser, refused to punish hate speech violations by BJP politicians as it would damage the company’s business prospects in the country.
It’s clear what the possible consequences are, even for hugely powerful social media companies, if they don’t tow the line in India. Twitter labelling the forged tweet of a ruling party spokesperson as “manipulated media” triggered a police raid on the American microblogging platform’s India offices. The Ministry concerned called it an attempt by Twitter to defame India.
And despite Facebook’s policy of appeasement, Modi’s government has forced the removal of Facebook posts unfavourable to the ruling party and threatened expulsion from the country if the new Information Technology Rules, 2021, which allow for the prising open of end-to-end encryption, are not followed.
Through these different forms of control, narratives can be built and maintained in tandem by the pro-government mainstream media and the political establishment, often using dubious evidence, then accelerated by social media—sometimes with deadly outcomes.
By the time Banojyotsna Lahiri saw the gun held near the stomach of her partner, it was too late. The assailant had pulled the trigger
Luckily for Umar Khalid, said Lahiri, the bullet didn’t release.
It was late 2018, anti-Muslim violence was raging across the country, and Facebook and Whatsapp were filled with hate speech. Khalid, then a PHD student, had become a known target as one of nine students charged with sedition and raising anti-national slogans after the JNU incident in February 2016, where an annual leftist anti capital punishment protest led to televised clashes. He was out on bail.
The attacker and an accomplice—both claimed to be cow vigilantes—claimed the killing of Khalid would have been an Independence Day gift to the country and punishment for the “mad dogs (the JNU gang) that is making the country weaker.” Later released on bail, the attacker was rewarded with a ticket to contest Haryana state elections by the Shiv Sena, then a BJP ally.
“I’m still alive alright, but I’m no longer free as before,” Khalid told me, six months later. Sometimes in public, strangers would hurl abuse at him for being a traitor and anti-national. He avoids the metro and sleeper trains for his safety.
The reality of the JNU incident was heavily distorted through social media and partisan news.
Two other videos aired on prime time television were found to be edited with audio added.
Some channels claimed Khalid had been to Pakistan, when in reality, “he didn’t possess a passport”, according to Lahiri.
A news website cited an unnamed report that claimed Umar Khalid’s group stuck naked pictures of gods and goddesses to vitiate JNU’s atmosphere
“He was particularly singled out, and a special kind of propaganda went on around him because of his religion” said Lahiri. “They wanted to show through Umar that Muslims are quintessentially anti-national”.
It was the 2019 UAPA amendment that finally got him.
Khalid, with many other students and activists charged in the Delhi Riot case, has now been in jail for over a year without bail or trial. He is accused of being one of the main conspirators involved in the Delhi violence, where days of communal rioting resulted in at least 53 deaths and large-scale destruction of property. The police alleged that Khalid had delivered provocative speeches at two different places appealing to people to come out on the streets and block roads during US President Donald Trump’s visit to India to spread propaganda internationally.
On 23 August 2021, during Khalid’s bail petition before a Delhi court, it came to light through his lawyer, Senior Advocate Trideep Pais, that the Delhi Police based its evidence on a truncated, edited 30 second video from Khalid’s 20 minute speech at Maharashtra’s Amravati on 17 February, 2020. In it, he promised that during Trump’s visit “we will say that the Prime Minister and the government of India are trying to divide the country”. He exhorts people to the streets.
In the rest of the speech, however, as reported in this Quint report, he explicitly says “we won’t respond to violence with violence”.
“If they fire bullets, then we will hold the Constitution. If they jail us, we will go to jail singing, “Saare Jahaan Se Acha Hindustan Hamara”—better “than the entire world, is our Hindustan”.
Khalid’s lawyer informed the court that “Delhi Police had nothing but Republic TV and News18 for the case.” The channel said the clip actually came from a tweet by BJP member, Amit Malviya, the national in-charge of the BJP’s Information Technology department.
Regarding the prosecution’s allegation that Khalid had conspired with others on 8 January 2020 to create riots during President Trump’s visit, the ministry of external affairs didn’t even announce the visit until February, Pais told the court.
Behind all this, the “national interest” narrative has proved to be very lucrative for some of India’s capitalists.
On the day Modi was travelling from Gujarat to Delhi to take oath as Prime Minister of India in May of 2014, photos showed him climbing onto an aircraft with ‘Adani’ inscribed on its body. As PM, Modi soon stopped the tradition of inviting the Indian press corps on diplomatic foreign visits. Instead, he took Gautam Adani to as many as 18 countries to sign business deals. Adani was a corporate ally who stood by Modi when some other industrialists raised uncomfortable questions related to the Gujarat Riots and communal harmony.
Critics like Teesta Setalvad contend that, following the rights based legislation of the previous UPA government, on forest rights, land rights, and food security, “vested interests were deeply affected and didn’t like that”. In her view, they colluded to help Modi become Prime Minister.
For decades, Stan Swamy’s indigenous rights and pro-people activism had focused on Jharkhand, an eastern state blessed with 40% and 29% of India’s mineral and coal reserves respectively. He fought against dilution of the law that guaranteed autonomy to indigenous communities. He critiqued the government’s indifference towards the Supreme Court’s 1997 Samatha judgement that provided safeguards against mineral excavation on adivasi land. He challenged Jharkhand’s erstwhile BJP government’s inaction towards implementing forest rights laws, and perceived favouring of private or corporate motives. Corporate interests suffered with the wider social empowerment and resistance he helped foment.
More recently, he went against one of Modi’s closest allies, Gautam Adani, questioning how land at discounted rates was acquired while getting easy environmental clearances for a Jharkhand power plant by Adani Power.
Swamy, by many accounts, made powerful enemies. “We are seeing a three-headed project,” said former bureaucrat and social activist Harsh Mander. “First is to divide us almost irretrievably on the basis of religion. Second, to crush every dissenting voice cruelly. And the third is the handing over of our resources and agriculture to corporations, even doing away with the little bit of labour protections we had.”
Tribal rights linked other members of the Bhima Koregaon 16. Sudha Bharadwaj, Prof G N Saibaba, Rona Wilson, Saibaba’s counsel Surendra Gadling, and journalist Gautam Navlakha—all interlinked through upholding the common cause of tribal rights against rampant corporatisation of natural resources.
Labour activism was the primary reason behind the UAPA arrest of five contract workers with Reliance Energy inc in January 2018. The last of the five got bail recently after spending 1185 days in custody.
They had earlier fought for the rights of contract workers hired by the company and had scored some big successes on their behalf.
Article 14 reported that the workers linked the timing of their arrests to the takeover of Reliance Energy by Adani Transmission in December 2017, their arrests coming two months later.
The police charged them under 10 UAPA sections, claiming the contract workers were linked to the outlawed CPI (Maoist) and a “Bhima Koregaon poster” was found on them. The workers denied the first charge, though admitted visiting the Bhima Koregaon event as Dalits.
In effect, by connecting their arrests to the Bhima Koregaon event and the CPI(Maoist) the narrative was set for the subsequent arrest of the BK-16. While granting bail after 3.2 years to the last of the five workers, the Bombay High Court judge ruled that prima facie the material against the accused did not indicate offences committed.
“That contract workers can be implicated in terror laws for their union work is the most shocking aspect of this case,” advocate Susan Abraham, who helped the workers get bail, told Article 14.
It shows the distance traveled by the UAPA—from Ajmal Kasab, Pakistani terrorist charged under section 16 of the UAPA for being directly responsible for the killing of 72 persons and injuring 130 during the 26/11 attacks in 2008, to ordinary citizens charged for carrying posters, attending meetings, speaking out, even just singing.
The Kabir Kala Manch are mentioned in the Bhima Koregaon charge sheet as singing a particular song, the lyrics cited as evidence of incitement to violence:
“Jab zulm ho to baghawat honi chahiye shahar men, agar baghawat na ho to, behtar ho ke, yeh raat dhalne se pahle shahar jal kar raakh ho jaye".
It translates as “When there is oppression, rebellion should break out in [the] city.”
In India, it feels like that’s what is happening. Hemmed in from all sides, and with little recourse to redressal, Indians in cities across the country have taken to the streets in protest to protect their rights. If cases like Bhima Koregaon were intended to intimidate activists, they seem rather to have galvanised them.
On 19 November last year, protest and civil society won their biggest victory in the Modi era. Farm protests rose five times between 2017 and 2021, opposing three new agricultural laws hastily passed by the NDA government which are felt to prioritise corporate interests over that of farmers. Protestors had the whole Modi playbook thrown at them. But still they came in their millions.
Protests across India have forced the government to shelve plans of the nationwide rollout of the communally and ethnically-sensitive National Register of Citizens and has stopped it from operationalising the Citizenship Amendment Act close to two years after it was passed in parliament. Earlier in Modi’s tenure, rising protests against proposed amendments to the land acquisition law compelled Modi to announce its withdrawal.
Smaller but influential protests by writers and artists returning their government awards demurring against the killing of public intellectuals allegedly by Hindu rightwing groups, saw a scaling down of such incidents. The largely urban, civil society-organised #NotInMyName protests against the tide of mob violence and dozens of beef-related lynchings saw Modi, for the first time, condemn cow vigilantism—“killing people in the name of gau bhakti is unacceptable”, he said.
After spending over 40 days in jail, the 25-year-old Dalit female labour union organiser from Haryana is currently out on bail. On 12 January 2021, Kaur, spokesperson and member of Mazdoor Adhikar Sangathan (MAS), or Workers’ Rights Organisation, was arrested while mobilising workers near a site of the ongoing farmers protest in Delhi. She was working at forming solidarity between industrial workers and farmers “since the farm laws will affect us all”, said Kaur.
Her story connects to a critical component that has been at the heart of the resistance to Modi government’s policies and Hindutva politics in India—women protesters rising to the forefront of oppositional politics.
Student-activists Safoora Zargar, Devangana Kalita, Natasha Narwal and Gulfisha Fatima; the 19-year-old journalism student hauled up for shouting “Long live Pakistan” even though she also hailed India and other neighbouring countries, Amulya Leona Noronha; and the 22-year-old environmental activist Disha Ravi, for uploading an activists’ toolkit on Google; have all braved jail terms on charges of terrorism and sedition for acting on their outrage at the citizenship and farmers’ laws.
While the Modi government showcased the passing of the Triple Talaq law, which criminalises the Muslim practice of instant divorce, as an act safeguarding Muslim married women’s rights, Muslim grandmothers took the initiative to organise mass sit-in peaceful protests in Delhi’s Shaheen Bagh. The dadis (the Shaheen Bagh grandmothers) ignited protests across India. One of them, Bilkis, was named one of Time magazine’s 100 Most Influential People of 2020 list.
At one of the longest running women’s protests Shaheen Bagh inspired, at Kolkata’s Park Circus, I heard a Muslim woman teaching her audience of largely Muslim women how to raise slogans: “I will say, ‘NRC ko, NPR ko tod ke dikhaya hai (We have destroyed the NRC and NPR)’, and you will say, ‘Desh ki mahilayon ne rasta dikhaya hai (The country’s women have shown the way).’” The chorus was instantly picked up and with a deafening roar.
A well-known public interest lawyer and civil rights activist, Prashant Bhushan, had told Article 14: “You only have to lose your fear of going to jail.”
The women had done that. While the protest forced a government retreat from its stated position on implementing the CAA-NRC-NPR system, police cracked down hard on Delhi protesters under the cover of the Covid 19 lockdown.
A large number were charged under sections of UAPA. Most continue to be in jail.
“Silence is going to save you is a misnomer people have,” said Teesta Setalvad, reflecting on how she had stayed out of jail over the years. She cited the crucial role of alternative media, and also NGO solidarity. “We always spoke for others who were under attack in the wider human rights fraternity."
Yet India’s size and significance means that most countries have publicly turned a blind eye to the deterioration of its democracy in favour of good political and economic relations.
“We can’t fight India on civil society, but we can leverage pressure on the FATF,” said Katerina Hadzi-Miceva Evans, executive director of the European Centre for Not-for-Profit Law and a member of the civil society umbrella pressure-group, the Global NPO Coalition on FATF. The coalition has gained the ears of FATF seniors at the body’s Paris headquarters through advocacy aimed at mitigating “the unintended consequences of countering the financing of terrorism (CFT) policies on civil society”. The body has been increasingly responsive, publicly warning countries like Serbia against the misuse of its recommendations to target civil society.
The FATF and Modi’s government seem to remain close. Recently, a working group for a new national policy to regulate civil society organisations was announced “following directions from the Prime Minister’s Office”. It will include high level FATF participation. The FATF says this is necessitated by reports of violations of regulations, including of the FCRA, and to ensure that the Indian government complies with the FATF guidelines.
“We will inform the FATF that this country is misusing your language and goals not to fight terrorism but to fight civil society, and you have to consider this while evaluating the country.
“India should not get a good rating and should be regarded as non-compliant,” Evans said. “The country should not be rewarded if its misusing FATF’s goals.”
Lawyers continue to take the fight to the court with public interest litigation seeking to strike down the laws that underpin the oppression, with signs emerging of judges being more receptive.
In June this year, while granting bail to student activists arrested under UAPA for their alleged role in the Delhi protests, Justices Siddharth Mridul and Anup Jairam Bhambani of the Delhi High Court wrote in an order granting bail: “In its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity is getting blurred. If this mindset gains traction, it would be a sad day for democracy”.
“The phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences…” the order read.
However, in recent months, since Justice N V Ramana took over as the 48th Chief Justice of India, it has shown signs of playing a stronger role as protector of human rights.
For the Bhima Koregaon accused and others like them, four years on from Elgaar Parishad, now numbering 15 after the death of Stan Swamy, time is still passing. As of February 2022, only two of them, Varavara Rao and Sudha Bharadwaj are out on bail.
While in prison and with his health declining, Swamy, who never stopped advocating for indigenous people, had said, “a caged bird can still sing”.
When I spoke to Deepak Dengle, a Kabir Kala Manch singer, in Pune, he recited the lines of a poem he had written while himself in jail under UAPA.
‘How many will you imprison? Millions are the birds of freedom, how many will you imprison? They will fly away with the cage and you won’t even get to know.’
(Shamik Bag is an independent journalist based in Kolkata.)