A Closer Look at "State of Maharashtra v. Mahesh Tirki & Ors." - Part II

The previous post laid out the allegations against the defendants in State of Maharashtra v. Mahesh Tirki & Ors., and explained the nature of the offences that the defendants were charged with. In this post, I discuss how the prosecution proved its case, and flag certain issues with how the Court treated the evidence. The analysis is divided into examining the case against Accused Nos. 1 and 2, Mahesh Tirki and Pandu Parote, separately from the case against Accused Nos. 3, 4, and 6, i.e. Hem Mishra, Prashant Rahi, and Dr. G.N. Saibaba. I don't discuss the case against Accused No. 5 distinctly, as his case overlaps with both sets. I conclude suggesting that. beyond differences that reasonable persons might have over how the Court appreciated the evidence, the judgment offers a stark reminder of the inherent problems in the UAPA since its amendments in the last decade.

The Case Against The Couriers

The prosecution alleged that Accused Nos. 1 and 2 were in contact with naxals in Gadchiroli forest area, and had helped them on 3-4 times before the incident in August 2013. The evidence to prove all of this largely consisted of the recoveries made from their personal searches and their confessions under Section 164 Cr.P.C. The searches produced platform tickets for May 2013 from both persons, one of the earlier occasions when they had acted as couriers. Accused No. 2 had a newspaper and an umbrella, which were items used as part of an underground code amongst naxals. Accused No. 1 had pamphlets of Maoist literature, proving he was involved. All of this was backed up in narrative form by their confessions. The defence argued that the search memo had been overwritten, that the witness to search had acted as a witness for P.S. Aheri on multiple occasions, that the arrest was tainted as despite the Bus Stand having many people around, the police chose not to involve any independent witness. The arrest was assailed as suspicious for other reasons too. First, the newspapers were dated 19th & 20th August, rather than the 22nd. While the police found platform tickets from three months ago, it did not find bus tickets for a journey that would've been made that day. Lastly, the defence urged that the Court draw an adverse inference against the prosecution, for despite having called for the Call Detail Records of these Accused persons they had not been filed in Court, probably because those documents confirmed that the story was not as per the prosecution case. Lastly, the confessions were challenged as being made under duress and police torture [Paras 23-106, 141-45].

The Court admitted the evidence over all of the defence objections. The central justification offered was that such procedural lapses could not be fatal to the case if the evidence was otherwise reliable, while the torture allegations were rejected [Paras 107-130, 161-183]. In this, the Court did nothing remarkable, as several decisions have held so, and an appellate court may yet conclude that the Court was not right in this approach. But more problematic for me was how the Court drew its conclusions from the evidence that it so accepted. I'll only raise two points. 

First, the Court was convinced about the newspaper and umbrella being a secret code argument (something that implicates Accused Nos. 3, 4 and 5 as well). But what's the basis for that? The Court said this is "confirmed" by a document that the police recovered three weeks later during the search of Accused No. 6's house [Para 100, Pg. 90 of Ex. 267]. Surely the Court must base this on something that the police had before the arrest itself? What's more, a look at the document shows that it is an investigative journalism piece, freely available online, dating back to 2006, i.e. more than seven years before the arrests. The journalist suggests that for her, this code had been suggested. How does that lead to the conclusion that anyone holding an umbrella and a newspaper is communicating with members of banned organisations? Would a covert, banned terrorist organisation still follow the same methods? Is this proving the fact "beyond reasonable doubt"? Second, the Court was convinced that the Accused rendered help to the naxals on 3-4 occasions and this was a factor towards finding their guilt. But, while accepting their confessions (allegedly made under duress), the Court all too quickly excludes the part where they said the naxals beat them and forced them to help. Why does the Court exclude this? Because it thinks they are lying as they have helped naxals before, and if they were really beaten they would have gone to the police. Really? It strikes me as naive to expect that, when dealing with "terrorists" who have killed many police officers, as the Court itself reminds us.

The Paraplegic "Think Tank" and His Associates 

The conspiracy with which the defendants were charged was not imagined as a co-equal one. Instead, at its hub was Accused No. 6 - the paraplegic "think tank" running the show from Delhi. It was alleged that that both Accused Nos. 3 and 4 had travelled to Gadchiroli / Chichgad at his instance. He had given both of them documents to deliver to underground naxals in the forest area. The allegations were proved almost entirely from the materials seized from the house search of Accused No. 6 and upon arrest of Accused Nos. 3 and 4.

Accused no. 6 was placed at the heart of the conspiracy through several letters, photographs, and video-clips. He was shown to be a ranking member of the Revolutionary Democratic Front [RDF], a "front organisation" of the CPI (Maoist). Further, he was alleged to be a member of the CPI (Maoist) as well, conducting its international operations and writing letters under the pseudonym of "Prakash". The prosecution led many papers / clips to show that the RDF and CPI (Maoist) were both committed to an agenda of violent revolution, and that Accused No. 6 was actively involved in these efforts. The links with the other accused were drawn mainly through photographs of them attending events where government policy was criticised, some of these under the RDF banner, as well as their Call Detail Records [CDR]. These showed that the co-accused had been in contact with each other during the months before September 2013, and that on 18.08.2013 all of them were in the Delhi University area [Paras 397-502]. For the Court, the value of CDR evidence was enhanced by the defendants choosing to deny that they had ever known each other or had been in contact, when given a chance to explain these incriminating circumstances under Section 313 Cr.P.C. [Para 563].

Again, I will not dwell on the admissibility objections that were raised, suffice to note that they were several [Paras 191-198, 297-300, 315-317, among others], and almost all of them were rejected [the Court accepted that the screenshots of Hem Mishra's Facebook account were inadmissible, Paras 581-91]. Instead, the focus is on the conclusions that the Court drew from the evidence.

First, take the pseudonyms. For the Court, the claim of Accused No. 6 being "Prakash" seemed to shine through a couple of the letters referring to his "handicapness"[Paras 497, 500]. But that's not all. The Court was equally convinced that Accused No. 6 was "Prakash" because one document said Prakash said the latter hadn't finished some work because his computer hard-disk crashed. And, since one of the external hard-disks seized from Accused No. 6 was also not working, this proved he was Prakash [Paras 339, 345]. Is this proof, or is the judgment not fully reflecting what was argued? The Court later agrees that "Chetan" is another pseudonym for the same Accused, a name in the documents seized from Accused No. 3, and thus crucial in linking the two accused. What's the basis? This 2013 document of the CPI (Maoist) said that "Chetan" had responsibilities for West Bengal, Kerala and Delhi, which were areas that Accused No. 6 was handling with other persons as per a May 2007 letter of the RDF [Paras 770-771]. What about the interregnum? Are RDF and CPI (Maoist) not separate at all? What about questioning the other RDF members whose names are present to find out more? Lastly, there is an alias issue for Accused No. 4 as well, as the Court accepted that he was also one "Mahesh" as found in CPI (Maoist) letters. The basis? A charge-sheet that was filed against him in another Court that listed Mahesh as an alias [Para 784]. The Court didn't rely on the judgment, and nowhere are we told about what happened in that case. Instead, the Court relied on the charge-sheet, a document only constituting police allegations, which by definition is not evidence. Surely there must be some stricter test for identifying aliases and pseudonyms, to prevent a case where any alias can be foisted on persons as per the convenience of the police case based on paltry evidence.     

Second, consider the kinds of material being used to prove membership. Take the case of Accused No. 6. Besides the letters under pseudonyms, and the RDF material, the prosecution relied upon a lot of other evidence, which the Court unquestionably accepted as incriminatory. This included: (i) some interviews by Accused No. 6 to news agencies detailing the history of the communist movement in India [Paras 453, 456, 480], (ii) attending public meetings critical of government policy and seeking release of political prisoners, involving hundreds of people [Paras 452, 457], (iii) being part of a team of persons - including Justice BD Sachar and Prashant Bhushan - seeking to mediate between the government and the CPI (Maoist) [Para 463], (iv) letters about teachers organisations in Delhi University, and (v) having electronic copies of any pamphlets, statements, videos, that might be found freely circulating online [E.g., Paras 471, 479, 488, 541]. Nowhere does the Court specify if it considered all of this to be incriminatory because it already found Accused No. 6 to be a member. Rather, it seems that the Court considered all of this as proof of membership and, perhaps, proof that a person is associated / professing association / supporting a banned terrorist organisation such as the CPI (Maoist). If attending public meetings critical of government policy constitutes association or membership, in a meeting not held by the banned organisation, then these are dark times indeed. Such an uncritical acceptance of the allegations casts a chilling effect that resonates much beyond the walls of the Gadchiroli Sessions Court.   

Conclusions - The Unconstitutional Lightness in Proving Terrorism?

There is no doubt that the constitutional courts of India have held that procedural lapses shouldn't come in the way substantial matters. There is also no doubt that the same courts have held, that the more serious the allegations, more sternly must the prosecution case be tested. The trial and judgment in State of Maharashtra v. Mahesh Tirki & Ors. show that only one of these precepts was followed by the Court, as almost all the procedural lapses were explained away together with a benign scrutiny of the prosecution case. The consequences of such a position, as I mentioned above, are drastic. 

But a large part of the court's approach stems from the problems in the UAPA itself. I only highlight three issues from the verdict here. First, is the issue with the RDF being a "front organisation". The convictions under Sections 20, 38 and 39 are partially based on this conclusion. But nowhere does the UAPA define a "front", and nor was it explained in the Gazette Notification by which the relevant entry concerning the CPI (Maiost) was made in the First Schedule. Is this a reasonable restriction on Article 19(1)(c)? Or is this undefined phrase an unconstitutional delegation of powers on low level executive officers? Second, is the overlap between Sections 20, and Sections 38 and 39 of UAPA. What different levels of proof are needed for these three offences? Can a person be convicted for being a "member" of a banned organisation and being a person who supports, associates, or professes association with that same organisation? Third, and finally, should there not be a clearer line between an "unlawful activity" and a "terrorist act"? Here, the defendants were convicted under both, for committing / advocating unlawful activity (Section 13) and conspiring to commit terrorist acts (Section 18), for the same underlying conduct. Would that not be barred under Section 71 of the Indian Penal Code 1860? Or, if a Court has doubts about the specific offence, wouldn't Section 72 of the Penal Code apply to only attract the offence with the least punishment?

Vague legislation is bad. Vagueness in criminal legislation is unconstitutional. Vagueness in criminal legislation imposing sentences of life and death is reflective of utter disregard for the constitutional protection of life and personal liberty secured for all persons in India. That is where the UAPA stands. The inherent vagueness and over-broad nature of the statute was worsened by clunky amendments in the 2000s, and has been further aggravated by the recent entries into the First Schedule listing banned organisations. At a time when the Supreme Court is lapping adulation for having reaffirmed the constitutional commitment to protection of minorities, the judgment in Mahesh Tirki serves as a reminder that a lot still needs to be done to protect the most vulnerable minority of them all: persons accused offences against the state.