NEW DELHI — A comparison of the affidavit filed by the Pune police in the Supreme Court on Wednesday, and the transit remand application filed in a local Haryana court, also filed by the Pune police on 28 August, reveals discrepancies in the nature and basis of the allegations levelled against lawyer Sudha Bharadwaj.
Bharadwaj was arrested last month along with activists Gautam Navlakha, Arun Ferreira, Vernon Gonsalves and Varavara Rao as part of multi-city raids to disrupt, the Pune police claim, an urban network of the banned Communist Party of India (Maoist).
Lawyers for the accused have disputed these charges, and claimed the manner of arrest violated several provisions of the Code of Criminal Procedure.
The documents presented by the Pune police correspond to a pattern — going back to the June arrests of five other lawyers and activists as part of the same investigation — in which the police have repeatedly told reporters they have found letters incriminating the accused in everything from attempts to procure rocket launchers to plots to assassinate Prime Minister Narendra Modi.
But these letters are yet to be presented in court, lawyers close to both sets of accused have confirmed, and the transit remand application submitted by the police on 28 August also makes no mention of either Maoist involvement, or any letters.
"Till date, the police has never produced a single letter," confirmed Nihal Singh Rathore, a Nagpur-based lawyer monitoring the trial of Surendra Gadling, a prominent human rights lawyer who was picked up as part of the June arrests.
HuffPost India is yet to access the police's remand applications for the other four people arrested on 28 August, and hence cannot verify if the discrepancies noted in Bharadwaj's case hold true for the rest.
The Pune police's Supreme Court affidavit was filed in response to a petition filed by five prominent professors seeking the immediate release of those arrested; Bharadwaj's transit remand application was filed before a local court in Haryana to allow the police to move Bharadwaj from Faridabad — where she lives — to Pune.
In the transit remand application filed before the Chief Judicial Magistrate (CJM) of Faridabad, the Pune police claimed they had arrested Bharadwaj in connection with the the violence that broke out at a Dalit pride rally in Bhima Koregaon, Maharashtra, in January this year.
The remand application said Bharadwaj's name had been disclosed to the police in the course of interrogating lawyer Gadling, professor Shoma Sen, publisher Sudhir Dhawale, community activist Mahesh Raut and activist Rona Wilson — who were arrested in June in the first around of arrests in connection with the Bhima Koregaon violence.
Lawyers close to the defence have noted that, under Indian law, a confession made to the police is not admissible as evidence in court.
The police relied on these inadmissible confessions to arrest Bharadwaj and request her remand to Pune, despite leaking a series of "letters" —purportedly written by Bharadwaj— to television channels as early as 4 July.
If authentic, these letters would have formed a far stronger ground for arrest and remand (Bharadwaj has described these letters as a "fabrication").
The CJM in Faridabad stayed the remand application on 29 August, and directed the police to place Bharadwaj under house arrest.
Three days later, on 1 September, the Maharashtra police once again produced the same letter in a press conference — prompting a rebuke from the Bombay High Court.
Supreme Court Affidavit
In the affidavit submitted in the Supreme Court on Wednesday, the Pune police appear to have altered the allegations against the accused.
Now, the affidavit explicitly links Bharadwaj and her co-accused with the Communist Party of India (Maoist) — which found no mention in the remand application — claiming that the accused "were mobilizing and distributing money, facilitating selection and purchase of arms, deciding the rates of such arms and suggesting the routes and ways of smuggling such arms into India for its onward distribution amongst the cadres".
The affidavit also changes the basis of the allegations from the confessions made to policemen (as mentioned in the remand application) to the discovery of "shocking" and "incriminating" materials recovered from computers and pen-drives of those arrested in June.
Yet the 21-page affidavit, which includes two annexures, steers clear of stating exactly what these materials are.
State police and prosecution have a rich history of describing innocuous correspondence as "incriminating" in cases involved so-called Maoist sympathisers. In the 2010 Dr. Binayak Sen case — the most high profile of such cases thus far — public prosecutor T.C. Pandiya read out a series of emails from Sen's computer including one that described former U.S. President George Bush as a chimpanzee.
"We have a chimpanzee in the White House," Pandiya read out, to a packed courtroom. "This email has been written in code. It is significant because terrorists oppose the U.S. President."
Pandiya also claimed anyone who used the word "Comrade" was a Maoist, and falsely claimed that Sen and his wife Ilina were in touch with the Inter-Services Intelligence, Pakistan's intelligence agency.
It turned out the email was from someone in the Indian Statistical Institute in Delhi, but Sen was sentenced to life imprisonment anyway. He is currently out on bail.