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Shoma Sen | One Day, India Will Regret the State's Ruthlessness in the BK16 Case

On 5 April 2024, after over six years in custody, Shoma Sen was granted bail by the Supreme Court.

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Born in the plush suburbs of Bombay, she grew up far away from the sweat, toil, and sufferings of the forest dwellers, farmers, Dalits, and other struggling sections of India's populace. Educated at St Joseph’s Convent, she went on to study English at the renowned Elphinstone College of Bombay, as the city then was. Higher studies took her to Nagpur and, years later, she ended up as an Associate Professor and the head of the English Literature Department of Nagpur University.

Shoma Kanti Sen was not content with simply teaching Hamlet and King Lear to her students. Over time, she got involved with many an organisation working for the upliftment of women, Dalits and other marginalised groups of people. One such organisation was Stree Chetna which focused on violence against women and dowry deaths. Sen was also associated with the Committee for the Protection of Democratic Rights (CPDR).

In Satyajit Ray’s masterful satire Hirak Rajar Deshe, the autocratic Hirak Raja felt most threatened by teachers, because he felt that they fed subversive and rebellious ideas into young minds. As he shut down schools, the King made the pupils learn by rote janar kono shesh nai, janar chesta britha tai (there is no limit to knowledge, hence it is futile trying to learn). No Bengali, even a probashi worth her salt, would be a stranger to Ray’s Hirak. It can be reasonably assumed that Sen was aware of Hirak Raja and the dangers of influencing young minds.

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A Brief Background

On 8 June 2018, over six years ago, Sen's world came crashing down when she, along with several others, many of whom were fellow academics, stood arrested by the Pune Police. It was said that she was part of a larger criminal conspiracy to wage war against the Indian state. So, she was labelled an “urban Naxalite”, a phrase which also makes it to the world of jurisprudence through Justice Aniruddha Bose’s judgement. Suspension from her teaching post followed swiftly on 15 June 2018.

For over six years, Sen and her co-accused remained incarcerated (some of them continue to be incarcerated) without trial in what is now infamously known as the Bhima Koregaon Case.

This takes us to New Year’s Day of 1818. A battle was fought between the troops of the Company Bahadur and the Maratha Peshwa Baji Rao II. The rag-tag forces totalling 800 of the East India Company defeated the 28,000-strong Maratha force at Bhima Koregaon. So why celebrate the victory of the English you may ask. Here is the twist.

From the side of the Company Bahadur fought ‘low bred’ Mahars who vanquished the Marathas. In 1928, Babasaheb Ambedkar led the commemorative celebrations, a rally of pride. Ever since, 1 January has witnessed celebrations at Bhima, with cries of “Jai Bhim” renting the air.

For the 2018 celebrations, the Dalit and human rights groups had come under the banner of the “Elgar Parishad” to organise the event. Sadly, things got out of hand and there was violence.

66 Years Old and 6 Years in Jail Without Framing of Charges

While violence has no place in civil society and no person or group can be permitted to advocate it, the response of the state in the Bhima Koregaon case has been jaw-dropping. It used this incident to round up several intellectuals and academics who were known to be sympathisers of ultra-leftist causes. To name a few of the notable detainees — Varavara Rao, Sudha Bharadwaj, Gautam Navlakha, and the elderly Jesuit octogenarian priest Stan Swamy who has since passed away.

The case had been registered when the BJP government led by Devendra Fadnavis was in power in Maharashtra. On 28 November 2019, an opposition coalition led by Uddhav Thackeray took over the state. The new chief minister assured that the prosecution against the Dalit activists would be withdrawn.

The central government swiftly transferred the case to the National Investigation Agency (NIA) on 24 January 2020, albeit with Uddhav’s consent.

Subsequently, many of these Bhima Koregaon accused have been released on bail. On 28 July 2023, accused Vernon Gonsalves and Arun Ferreira obtained bail from a bench presided by Aniruddha Bose, which opined that five years of incarceration and little progress with the trial were sufficient to warrant that they be set at liberty.

On 5 April 2024, after over six years in custody, Shoma Sen was granted bail by the Supreme Court. The 54-page verdict on behalf of the bench of Justices Aniruddha Bose and Augustine Masih was authored by the former.

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Since a second supplementary chargesheet had been filed, Additional Solicitor General  Nataraj, on behalf of the prosecution, took the technical plea that the bail court had no occasion to examine the “fresh set of accusations” and hence the apex court should not release Sen on bail.

The Court noted that Sen had been in detention for over six years and was 66 years old. It also noted that charges were yet to be framed, and that she had moved an application placing on record the ailments that she was suffering from.

On this basis, the Court rejected the plea that, given the NIA had taken over the investigation and had filed a second supplementary chargesheet, Sen should have been asked to go back to the Special Court. The Court held that the High Court fell in error in doing so as it could itself have examined the second chargesheet.

Proceeding to the merits of her bail plea, the Court noted the prosecution’s submission that it would not require her for further investigation. The Court noted that, while Sen was present in the Elgar Parishad event, no specific role had been ascribed to her. The prosecution sought to rely on statements of witnesses to the effect that Sen had given speeches and had received donations.

The Court held that a ‘terrorist act’ would have to be done with an intent to "threaten the unity, integrity, security, economic security or sovereignty of India and be accompanied with an intent to strike terror." It concluded that the prosecution had failed to make a prima facie case against Sen. On the issue of her being a member of organisations which were allegedly frontal organisations of the CPI (Maoist), the Court did not find a shred of corroborative evidence.

Giving bail, the Court has confined Sen to Maharashtra. Remember how Sudha Bharadwaj was confined to the city of Mumbai on release? Gautam Navlakha, another Elgar accused now out of prison but under house arrest, has been asked to pay Rs 1.6 crores for the expenses. So, for the Elgar accused, freedom from prison has not brought about the end of their woes. At least they are free from the shackles, something Father Stan Swamy could not secure and had to breathe his last within prison walls.

Maoists have created havoc in many parts of the country, especially in the poor and backward areas. Their violent means have to be met with the strongest of responses. Our government should not brook any challenge to Bharat’s sovereignty be it from within or without. That being said, I do not think anyone seriously believes that ageing academics or geriatric priests or ailing poets were seriously in some deep-rooted terrorist conspiracy to overthrow the mighty state.

One day when India finds its way back to total freedom and democracy, she will surely look back and introspect on the “Elgar Case” and the ruthless manner in which the state went about it and the judiciary, to an extent, facilitated it.

(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)

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