“If the element of genuineness of evidence is under serious clouds then the courts must ensure liberty of the accused," former Allahabad High Court Chief Justice Govind Mathur told The Quint.
Justice Mathur's comment comes in response to a question about the concerns arising from an investigative report published by WIRED, pointing towards the Pune Police's purported involvement in the fabrication of evidence in the Bhima Koregaon case.
This report by the American magazine comes amid a spate of independent investigations that seem to suggest that the purported evidence used to keep the accused in the case behind bars, may have been corrupt.
The report’s findings come after a cybersecurity firm, SentinelOne reportedly learned that the email accounts of Bhima Koregaon accused Rona Wilson, Varavara Rao, and Hany Babu were compromised by hackers in 2018 and 2019. As per WIRED, the recovery email and phone number that was added to Wilson’s account purportedly via a phishing mechanism, belonged to that of an official with the Pune City Police.
Wilson's email account is thereby said to have been used to further send phishing emails to other Bhima Koregaon accused, before his arrest in June 2018.
Find more details about how the security analysts, contacted by WIRED, are said to have arrived at these discoveries here.
Right to Fair Trial & Importance of Liberty: Justice Govind Mathur Weighs in
Pointing out that the amplitude of Article 21 of the Indian Constitution is wide enough to include a “fair trial” for an accused at a judicial forum as a fundamental right to life, Justice Govind Mathur told The Quint:
“The foundation for such trial essentially contains fair, transparent, and judicious investigation. As such objectivity on the part of investigating agency is an essential pre-requisite.”
Justice Mathur added that the Supreme Court had held it as part of fundamental rights under Articles 20 and 21, in Babu Bhai vs State of Gujarat.
“Fairness in investigation is supposed to be looked into by every court at every stage of trial and even post trial. This should also be looked into during other proceedings including at the time of considering bail applications, or applications seeking suspension of sentence,” Justice Mathur added.
Meanwhile, Anushka Jain, Associate Policy Counsel at Internet Freedom Foundation, observed that “the issue here is that most of the Bhima Koregaon accused aren’t even getting bail, and one of the grounds of denial of bail is that the authorities have said there can be tampering of evidence.”
“But the investigation agency is in possession of the devices. So how will the evidence tampering even take place? And when the integrity of the evidence, in itself is in question, how can you say that the accused will do anything?” Jain asked.
Justice Govind Mathur, on his part, noted:
“The concept of bail is also a necessary implication of Article 21 enshrined in the Constitution of India.”
Adding that liberty is not an absolute, abstract concept and that it has to be governed by law, he further said:
“In light of this as well as in view of settled principles of criminal jurisprudence, bail is a right and denial of that is an exception. In common parlance, it is "Bail not Jail". This concept must be kept in mind by the courts while dealing with issues relating to grant of bail.”
While it is true, Justice Mathur observed, that other important factors warranting consideration are the severity of punishment to be prescribed in the event of conviction, and the nature of evidence in accusations, he also stated:
“In the Bheema Koregaon case, in light of the WIRED report, the evidence appears to have been compromised by the investigating agency. In such circumstances, the court must consider fairness and objectivity of investigation.”
“The accused in such circumstances can't be made to languish till completion of trial,” Justice Mathur added.
“No message should be sent that under our system, liberty of individual may be jeopardised on accusation even on availability of weak and biased evidence. To ensure presence of accused for trail, court can certainly impose reasonable conditions. In a democratic state like ours the political belief of accused must not be a reason to deny the right to liberty.”Former Allahabad High Court Chief Justice Govind Mathur
What Experts Say About Police's Role
Meanwhile, in a conversation with The Quint, Delhi-based lawyer Abhinav Sekhri pointed out:
“Police in India are supposed to be equal agents in a search for truth, not adversaries out to secure a conviction by hook or by crook. This is why a fair investigation is recognised as part of the fundamental right under Article 21.”
But Sekhri observed that “such news reports raise serious doubts over the integrity of a police investigation and consequentially the trial itself.”
The problem, according to Sekhri, is that there is “immediate” benefit that may lie to the victims of a possibly unfair investigation, which makes accountability and any pursuit of justice even harder.
Referring to the 'fruit of the poisoned tree' doctrine, Anushka Jain told The Quint:
“In America, if any evidence is obtained by an illegal method, then that evidence cannot be used in court.”
The reasoning behind the doctrine of the fruit of the poisoned tree essentially is that evidence extracted from a tainted source cannot not be tainted.
“But in India the issue is we don’t have any strict enforceability of that doctrine,” Jain pointed out.
“However, yes, in terms of what is the integrity of the evidence, and how much can you depend on the evidence,” Jain added, “if these investigations reveal that the device itself was targetted or breached – it is something that the courts should now decide.”
This is because, according to Jain, “essentially what you’re trying to prove is that the person who owns the device is the person who owns the contentious documents and has been involved in the creation of them. But the moment you establish that the device has been breached, it means that the owner of the device is not the only person who has access to the device and not the only person who might have created or worked on the documents.”
“So in that situation how can you be certain that the incriminating evidence, in fact incriminates the owner of the device?” she said.
But, what can be done about it?
“Since so many investigations are being carried out by international organisations of repute – Arsenal Consultancy, SentinelOne, Amnesty International, and Citizen Lab – these reports should be taken into account and their veracity should be checked at least during investigation in India.”Anushka Jain, Internet Freedom Foundation
The need of the hour, according to Jain, is that there should be laws in India that regulate surveillance.
“Especially,” she added, “the surveillance which people are now capable of because of the technology that has been developed to such an extent, wherein the entire device can be hacked.”
Meanwhile, Supreme Court Advocate Prashant Bhushan took to Twitter to say:
“Though the Bhima Koregaon investigation was taken over by the NIA from Pune police, immediately after the alliance govt came to office there; the Maharashtra government can and should investigate and prosecute the Maharashtra police officers responsible for the hacking of computers and planting of evidence.”