Why Sudhir Dhawale’s acquittal in a 2014 case of Naxal involvement is relevant to the Bhima Koregaon arrests

On 6 June, in a joint operation across Delhi, Nagpur and Mumbai, the Pune Police arrested five individuals for allegedly being “top urban Maoist operatives” who incited the violence in Bhima Koregaon—a town in Maharashtra—this January. Sudhir Dhawale, one of the five accused, is a prominent Mumbai-based activist who has worked extensively on Dalit rights. He has previously been arrested, and subsequently acquitted, in another case of alleged involvement with Maoist rebels.

Dhawale was one of the organisers of the Elgar Parishad, an event held on 31 December last year, on the eve of the two-hundredth anniversary of a battle at Bhima Koregaon. The battle culminated in the victory of a small British battalion, largely comprising soldiers from the oppressed Mahar caste, over an army of dominant-caste Peshwas. On the day of the bicentenary celebrations, mobs of people carrying saffron flags attacked the predominantly Dalit gathering at Bhima Koregaon. A week later, the Pune Police registered a first information report in relation to the violence, in which Dhawale was named as an accused. Following this FIR, Dhawale and four others were arrested early this month.

None of the other four persons arrested—Rona Wilson and Mahesh Raut, both prominent activists, Surendra Gadling, a Nagpur-based lawyer known for taking on political cases, and Shoma Sen, an activist and professor at a Nagpur university—were named in the FIR. All five have been booked for serious offences under the Indian Penal Code and the Unlawful Activities (Prevention) Act, including on charges of being a member of, providing support to and raising funds for a terrorist group. Two days after the arrests, the police seized a letter from Wilson’s house, which opens with the declaration, “Red Salutes!”—an unusually literal translation of the customary communist greeting “Lal Salaam”—and mentions a “Rajiv Gandhi style” plot to assassinate Prime Minister Narendra Modi.

In 2011, the Maharashtra police arrested Dhawale on charges of sedition and being a member of and providing support to a terrorist organisation. In May 2014, after Dhawale had spent 40 months in incarceration, RG Asmar—a judge presiding over a special UAPA court in Gondia, a district in Maharashtra—pronounced the judgment acquitting Dhawale and eight others of all charges. The judgment was strongly worded, and the court came down heavily against the state police for its investigation. Asmar noted, “The investigating agency has not only failed in observing and following the procedural aspects contemplated for arrest, seizure and collection of evidence in the matter, but also failed to comply the mandatory formalities on their part which were the incurable lapses in the investigation.”

The judgment illustrates concerns about the standard of evidence and the necessary procedure in UAPA cases that are pertinent for the ongoing case against Dhawale. Several prominent social activists were the prime accused in both cases. Incidentally, Gadling represented Dhawale in the 2011 case, where he argued that the prosecution’s case against Dhawale “appears to be a concoction.” Noting the nature of work of the arrested individuals, the court stated, “How can the highlighting the wrongs prevalent in the society, and insisting that there is a need to change the situation, be considered as evidence of they being members of a terrorist organization?”

The Maharashtra police arrested Dhawale in January 2011, allegedly acting on information provided by one of the other accused persons. The judgment noted, however, that two police witnesses had provided conflicting testimonies about the individuals who named Dhawale. Throughout the judgment, Asmar demonstrated that the police had failed to comply with legal procedure at every step of the investigation. This included the failure to seek prior approval in writing from the inspector general of police before seizing properties “believed to be proceeds of terrorism,” the failure to produce Dhawale before the nearest police station after his arrest and the failure to produce any incriminating evidence against him.

A vital aspect of the 2014 judgment, which may be relevant for the ongoing case against Dhawale, is the judge’s unequivocal denouncement of guilt by association. In the 2011 case, Dhawale was charged under sections 20 and 39 of the UAPA—respectively, the punishment for being a member of a terrorist group and for providing support to a terrorist group. The prosecution’s basis for these serious allegations, as submitted before the court, was a digital collection of Naxal literature that the police had seized from Dhawale’s house. The prosecution argued that this “not only shows there association with the Banned organization but it is also nothing but a ‘Terrorist Act.’” It further stated that the special public prosecutor argued that “mere association with such type of people, and sharing their ideology would make a person a member of their organization.”

Asmar was vocal and explicit in his dismissal of the prosecution’s arguments. After observing that “the literature allegedly recovered from the accused persons is neither banned ... nor does the UAP Act make the possession or purveying of such literature as an offence,” the judge discussed, at length, the burden of proof required to establish membership of a banned organisation. He referred to the Bombay High Court’s 2013 judgment on the bail applications of Dhawala Dengale and Siddharth Bhosale. Both were members of the Kabir Kala Manch, a group founded in 2002 by Dalit students from Pune, whose revolutionary songs rapidly gained popularity. They were arrested in May 2011 on similar charges under the UAPA. Asmar quoted the following section from the 2013 verdict:

It is therefore, clear that criminality would enter in the matter only at a certain point or stage, where the expression of a certain view and propagating of certain ideas would amount to an ‘active membership’ of a terrorist organization, and would attract criminal liability for the offences punishable under the UAP Act. Where that point arises, would need careful consideration, and simply because a certain thought or a philosophy is advocated, criminality attached to the membership of a terrorist organization cannot be attributed.

Asmar’s reference to the Kabir Kala Manch case is particularly interesting because the FIR under which Dhawale and the others were recently arrested was initially registered against Dhawale and members of the student group who attended the Elgar Parishad. In the 2014 judgment, Asmar observed, “From the evidence on record there appears not single piece of evidence that the accused persons had organized any terrorist camp, or having recruited any person for terrorist acts.” Noting the “conflict” between security and personal liberties, the judge added: “The curtailment of civil liberties and freedoms guaranteed by the Constitution is held permissible only where the acts in question would involve a tendency to create an imminent danger of disturbance of law, or where the acts would amount to a clear and imminent incitement to violence.”

In the present case against Dhawale, the police are yet to provide any evidence of an act allegedly committed by him that would establish “active membership” of any terrorist organisation or demonstrate how he incited violence, as has been claimed. Indeed, the only allegation against Dhawale at present is his speech at Elgar Parishad, in which he called upon the gathering to end what he referred to as modern-day Peshwa rule. According to the standard of evidence described by the Gondia court, it would be difficult to argue that this speech amounts to a “clear and imminent incitement to violence.”

According to Susan Abraham, one of the lawyers representing the accused persons, the FIR contained “no mention of alleged membership of, support to, or funds for Naxal groups.” Despite the court’s express rejection of books as proof of membership of a terrorist group, Abraham informed me that the police officials once again, on the day of Dhawale’s arrest, seized literature from his house. The only allegations against Dhawale, Abraham wrote to me in an email, are that “he gave a provocative speech about ending modern day Peshwa rule.” She added, “This according to the police incited the Hindu groups to attack the Dalits marching to Bhima Koregaon on 1st January 2018.”

In the current case, in addition to sections 20 and 39 of the UAPA, Dhawale was booked for several other offences, including committing a terrorist act, raising funds for a terrorist act, and recruiting persons for a terrorist act. Another section of Asmar’s judgment made an argument that is revealing given the present context:

Therefore to constitute a ‘Terrorist act’ there needs to be an ‘act’, ‘intention’, and use of Specific weapons like bombs, dynamite, other explosive substances, inflammable substances, firearms or other lethal weapon , poisons or noxious gases or other chemicals or any other substances whether biological or otherwise of hazardous nature. In absence of these three ingredients no terrorist act can be attributed against the accused.

According to Abraham, the Pune Police has not provided any evidence to suggest that Dhawale committed an act that contained any of the three “ingredients” that the judgement specified as constituting a terrorist act. She also added that no additional FIR has been filed yet. Abraham also wrote that after the arrests on 6 June, “the police started leaking documents to the Press”—for instance, the letter allegedly describing the assassination plot against Modi. “None of these letters were submitted in court. Nor were they shown to the defence lawyers of those arrested who were present in court on 7th June,” she added, referring to the day when the arrested individuals were produced before a Pune special court.

The 2014 judgment stated that though the state police had revealed that Dhawale was “on the radar of Police machinery,” and that they had been “keeping updates of his activities,” the investigating agency had “not brought anything on record showing any criminal antecedents.” It is curious, then, that despite allegedly keeping tabs on his activities, and having insufficient evidence against him, the police chose to register the case against Dhawale.

Asmar concluded the judgment with a word of caution to investigating agencies: “All Special Acts”—such as the UAPA—“provides a very stringent punishments to the accused persons.” He continued, “As such it is expected from the investigation agencies that they must not act beyond the provisions of law.” The Pune Police’s decision to register the current case against Dhawale makes it unclear, however, whether there is any incriminating evidence against Dhawale—or whether the silver bullet is the “Red Salutes.”