bhima koregaon NIA

Elgar Parishad Case: NIA Summons Three Lawyers for Questioning

Among those summoned are Nihalsing Rathod, the defence lawyer for some of the accused in the case, and Viplav Teltumbde.

Mumbai: After questioning several academics and activists, the National Investigation Agency (NIA) has now issued summons to three lawyers in the Elgar Parishad case. Among the three lawyers summoned to appear before the agency’s Mumbai office on August 28 are Nihalsing Rathod, Viplav Teltumbde and a Nagpur-based lawyer who doesn’t want his identity to be revealed.

Rathod, a 33-year old Nagpur-based lawyer who is engaged as a defence lawyer for several accused arrested in the case, says he received a call from the NIA followed by a notice sent through an email. Until 2018, Rathod had worked as a junior lawyer to Surendra Gadling, an expert in anti-terror laws and a prominent lawyer in Nagpur. After Gadling was arrested on June 6, 2018, in the Elgar Parishad case, Rathod represented him and other arrested accused.

Defence lawyers, by virtue of their relationship with their clients, are privy to information and strategies that are crucial for the case. In this situation, summoning Rathod for questioning not only makes him vulnerable but also his clients, he says. Rathod told The Wire that he has sought time to appear before the NIA since one of his relatives is seriously ill and he needs to be available in his hometown in case of an emergency. He has been asked to appear before the NIA’s office in Mumbai at 11 am on Friday.

Rathod is known for his work in the field of human rights. Rathod identifies as an “Ambedkarite activist” and belongs to a denotified tribe. His work has largely focussed on the issues of nomadic and denotified tribes in Maharashtra. Along with being associated with many civil rights organisations, Rathod also co-founded ‘Sangharsh Wahini Bhatke Vimukt Sangharsh Parishad’, an organisation working for socio-political rights of nomadic and denotified tribes.

Advocate Nihalsing Rathod. Photo: The Wire

This is not the first time that investigating agencies have trained their focus on Rathod. His name first emerged in a letter that the case’s previous investigating agency, Pune police, had claimed to have found from another accused in the case Sudha Bharadwaj, also an advocate. The letter, according to the state police was written by “comrade Sudha” to “comrade Prakash” elaborating the readiness of several lawyers to take “responsibility and risk” and fight cases of those implicated in cases of Naxalism. In the letter, Bharadwaj purportedly wrote that the lawyers, including Rathod, were ready to act as “couriers”, gathering information from “comrades attending court cases”.

The letter also mentions Viplav Teltumbde, who has also been summoned for questioning.

Defence lawyers in the case, however, had denied the police’s allegations and had in fact identified inconsistencies in the letter. Several words in those letters, allegedly found from Bharadwaj and another accused and prisoners’ rights activist Rona Wilson, were in Marathi. Neither Bharadwaj nor Wilson speak or write Marathi.

Alleged letter written by Sudha Bhardwaj by The Wire on Scribd

In the past year, it was revealed that Rathod was one of more than 100 journalists and human rights activists in India who were targeted for surveillance by operators using Israeli firm NSO’s spyware Pegasus. Rathod’s email account was also attacked by a malware and a detailed joint investigation conducted by Amnesty International’s digital team based in Berlin and The Citizen Lab, a research organisation which works out of the University of Toronto, found that the email was part of a larger surveillance conspiracy “specially crafted to bait journalists or activists”.

Also Read: Bhima Koregaon: Amid Demands For Fresh Probe, A Hard Look at the Case’s Discrepancies

Why is advocate Viplav Teltumbde summoned?

Viplav says the only reason why he is frequently a target of the investigative agencies is his family name. “Earlier, it would be because of my uncle Milind Teltumbde and now, in this case, it is because of another uncle, Anand Teltumbde,” he says. Milind Teltumbde is believed to be a top-rung leader of the banned CPI (Maoist) organisation and has allegedly been involved in several underground movements since 1996. Anand Teltumbde is a senior academic and civil rights activist who was recently arrested in connection with the Elgar Parishad case.

“The last time I was in touch with Milind kaaka was in 1996. That’s the year he left everything behind and went away from the family. Since then, I haven’t been in touch with him,” Viplav says. He continues to live in his family house in Wani. Milind and Anand Teltumbde’s mother also lives with him.

Viplav Teltumbde. Photo: By arrangement

Viplav, a practising lawyer since 2006, was arrested in 2004 while he was a final-year law student in Yavatmal district of northeastern Maharashtra. Viplav was accused of involvement in the “Naxal movement” and booked in five separate cases—one in Wani, Yavatmal district, another in Chandrapur and two cases in Bhandara district. It took him three years to get his name cleared in all the cases.

“Those were sedition charges levelled against me and several other students in the region. I was arrested and kept in Nagpur central prisons for three months while I was still a student,” he recalls. His cases were handled by advocate Gadling.

While no new cases were registered against him since 2007, Viplav claims harassment by the state police has not stopped. “In the past two years, particularly after the Elgar Parishad investigation began, the police have targeted my clients and forced them to give information about me. Some of them were also tortured,” he alleges.

Viplav had defended civil rights activist and lawyer Arun Ferreira in 2011. Ferreira, a member of the Deshbhakti Yuva Manch (Forum for Patriotic Youth), was accused of being involved in Naxal activities and arrested in 2006. He was, later, acquitted of all charges. Viplav says he was in the team of defence lawyers who had taken up Ferreira’s case. After being acquitted of all charges, Ferreira went on to study law and was practising in Mumbai when he was once again arrested in 2018 in the Elgar Parishad case.

The recent summons sent by NIA is puzzling, Viplav says, as he has not been involved either in the Elgar Parishad event or in the defence team following the arrests of activists and lawyers. “I hadn’t even visited Bhima Koregaon until recently. In 2019, out of curiosity, I decided to visit Bhima Koregaon to just find out what is this place all about,” he says.

Also Read: Elgar Parishad Case: NIA Raids Miranda House Teacher Jenny Rowena’s Residence

Elgar Parishad case

The first round of arrests in the Elgar Parishad case had begun in June 2018, with the arrests of Sudhir Dhawale, a writer and Mumbai-based Dalit rights activist, Surendra Gadling, a UAPA expert and lawyer from Nagpur, Mahesh Raut, a young activist on displacement issues from Gadchiroli, Shoma Sen, a university professor and head of the English literature department at Nagpur University, Rona Wilson, a Delhi-based prisoners’ rights activist.

In the second round of arrests in August 2018, advocate Arun Ferreira, advocate Sudha Bharadwaj, writer Varavara Rao and Vernon Gonsalves were taken into custody.

Top row (from left): Sudhir Dhawale, Surendra Gadling, Mahesh Raut; Middle row: Shoma Sen, Vernon Gonsalves, Varavara Row; Bottom row: Sudha Bharadwaj, Arun Ferreira and Rona Wilson

In November that year, the Pune police filed its first chargesheet in the case, which ran over 5,000 pages. The police had claimed that those arrested had “active links” with the banned Communist Party of India (Maoist) and had helped organise the ‘Elgar Parishad’ of December 31, 2017, under the banner of the ‘Bhima Koregaon Shaurya Din Prerana Abhiyan’ in Pune.

The police’s case is that this cultural gathering in Pune’s Shaniwarwada area, known to be a predominantly Brahmin hub, had incited Dalit youth across Maharashtra against the Bharatiya Janata Party and ‘Brahmin-oriented Rashtriya Swayamsevak Sangh’, leading to violent retaliation across the state. The speeches given at the Elgar Parishad were allegedly inflammatory, and carried the intention of “harming the democratic fabric of the country”.

A supplementary chargesheet was filed later in February 2019 and the state police had claimed that fugitive Maoist leader Ganapathy is the mastermind of the Elgar Parishad.

Also Read: Elgar Parishad Case Accused Take Devendra Fadnavis, Two Hindutva Leaders to Court

While the initial investigation was handled by the Pune police, as soon as the BJP government fell, the Ministry of Home Affairs suddenly transferred the case to the NIA in January. After taking the case over, the NIA has arrested academics Anand Teltumbde and Hany Babu and activist Gautam Navlakha.

So far, 12 people – all activists, lawyers and academics – have been arrested in the case so far. The accused insist that they are being implicated in the case, while rights organisations have criticised the government’s actions as stifling dissent.

Explainer: Here’s How Handing Over UAPA Cases to NIA Affects the Federal System

The framers of the constitution had ensured that state governments have the first rights to investigate an offence within a state’s limits.

The controversy over the decision of the Central government to hand over the Bhima Koregaon case to the National Investigation Agency (NIA) is the newest of its kind.

The issue is whether our constitution provides unbridled power to the Central government to form a central police and thus reroute the investigation of offences occurring within the territory of a state government to said central police.

The NIA was constituted by the NIA Act, 2008 for the investigation and prosecution of offences affecting the national security, sovereignty and integrity of the nation.

The Agency became well-known for investigation of offences under the Unlawful Activities (Prevention) Act, 1967, known countrywide as the law to tackle terrorism.

UAPA is one of the Acts that were added to the schedule of the NIA Act. The Agency is given pan India jurisdiction to investigate offences covered in the Acts.

Opinions differ among the jurists and politicians over whether it is permissible to pass a legislation authorising the Central government the decision of entrusting the investigation of offences to any agency without the consent of the state government.

This is because, constitutionally, it is considered that public order and policing are matters of the state government. In the case of criminal law and criminal procedure, both the governments enjoy simultaneous powers.

Investigations rerouted through NIA

Section 6 of the NIA Act empowers the Central government to usurp an investigation.

It stipulates that whenever a case of scheduled offences is registered at any police station in India, the officer-in-charge of the police station shall forward the report to the state government. That state, in turn, will forward it expeditiously to the Central government and within 15 days from the date of receipt of it, the latter shall determine, on the basis of information made available by the former or received from other sources, whether the offence is a scheduled offence or not. It also has to determine whether it is a case fit to be investigated by the Agency.

If the Central government is of the opinion that it is to be investigated by the Agency, it shall direct the Agency to conduct the investigation. This apart, in any case, if the Central government is of the opinion that a scheduled offence has been committed which is required to be investigated under the NIA Act, it may suo motu direct the Agency to investigate it.

Representative image. Photo: PTI

Once the Central government has taken the decision, the state government and its police officers investigating the offence shall then transmit relevant documents and records to the Agency without proceeding further.

Till the Agency takes up the investigation, it shall be the duty of the officer-in-charge of the police station to continue the investigation. Of offences to which the NIA Act extends and which are committed outside India, the Central government may direct the Agency to register the case and take up investigation in a manner as if such offence has been committed in India.

From this, it is apparent that the state governments have no say if the Central government decides to get the cases investigated by the NIA.

How legal is this?

Federal system and the separation of powers

The federal system of governance has been evolved to bind the country into one political union of several autonomous, distinct, separate and disparate political entities or administrative units.

The distribution of legislative powers between the Centre and the states is the most important characteristic, rather the core, of any federal system. This essential feature of the federal system is discernible from the three lists: the Union List, State List and the Concurrent List that come under Seventh Schedule of the Constitution. It is needless to say that encroaching into the dominion allotted to one by the other would affect the smooth functioning of the federal system.

Also read: Between the NIA Amendment and Now UAPA, the Squeeze on Human Rights is On

When it came to investigation of offences committed in a state, it was held by the Supreme Court that keeping in view the various entries contained in List I of the Seventh Schedule of the Constitution, there cannot be any doubt whatsoever that in such cases, the jurisdiction of the Central government is excluded.

NIA Act’s constitutional validity

The constitutional validity of the NIA Act has been challenged before the Bombay high court in Pragyasingh Thakur vs. State of Maharashtra, ATS, Mumbai, UoI and NIA. The case contended that the parliament lacks competency to constitute an agency for the investigation of offences as policing stands in the State List of the Seventh Schedule to the constitution.

The court rejected the contention by noting the entries in List-I and in List-III and by reading them together. It came to the conclusion that the parliament is competent to enact the NIA Act.

The court also said it is equally competent to create an agency for the investigation of the offences specified in it. Another aspect considered by the court was the Entry 8 of List I (Union List) entitled as “Central Bureau of Intelligence and Investigation”.

It was observed that if such a Central Bureau of Intelligence and Investigation could be set up by the parliament, then, the powers could not be restricted when it decides to enact a legislation so as to constitute an investigating agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of states, friendly relations with foreign states, etc.

In addition to this, the court said that even if it is assumed that the state has power to make a law in relation to police, still going by the wide wording of Entry-1 and Entry-2 of List-III, the Concurrent List, it is clear that the parliament is competent to enact the NIA Act, 2008.

Allegations of political affability

To its shame, the NIA, though it is in its springtime still, has already invited allegations of political partiality.

The first shocking revelation was made by its own Special Public Prosecutor Rohini Salian. She had appeared in the 2008 Malegaon blast case involving Hindu extremists. On June 25, 2016, she said that the Agency told her to go soft in the case after the new government took over at the Centre.

Nine persons including Sadhvi Pargya Lt Col Purohit are still facing charges under the IPC and unlawful activities Act. Credit: PTI

Nine persons including Sadhvi Pargya Lt Col Purohit are still facing charges under the IPC and unlawful activities Act. Photo: PTI

In another case, in which persons having strong connection with RSS were the accused (Ajmir Dargah bomb blast case), when most of the key accused were acquitted, Scroll.in had reported that its public prosecutor in this case too had expressed disappointment with the lack of interest shown by the NIA during the trial.

In other cases like Samjhauta Express bomb blast case and Hyderabad Mecca Masjid blast Case also the conduct of NIA has been doubtful.

It is not out of place to note that several state investigating agencies and the CBI have investigated terror related cases in an intelligent manner. Though it was before the formation of NIA, the investigation of Bombay attack (Ajmal Kasab’s case) and the parliament attack cases were done by state investigating agencies.

National security

All the offences coming under the schedule to the NIA Act are offences pertaining to national security.

The argument is perhaps that unless there is a centrally constituted agency for the investigation of such offences the real goal cannot be accomplished. The investigation of offences and prosecution of the accused in such cases serves to punish the guilty no matter who the agency investigating the case is.

It cannot be assumed that the police officers of the state are not adept in investigation. The primary presumption must be that the state governments will not have any interest against the larger interest of the nation.

Scope to question NIA’s constitutional validity

Even though the Bombay High Court held the NIA Act constitutionally valid, the court did not say in clear terms that the parliament alone has the power to constitute an agency for the investigation of the offences covered in the schedule to the NIA Act.

The court was of the opinion that both the state legislature and the parliament has the power to legislate, as this concerns criminal procedure.

As per the Code of Criminal Procedure, 1973, the power to investigate into an offence is vested with the station house officer to whom the information regarding the commission of a cognisable offence is reported. And, in either case, whether it is a cognisable or non-cognisable case, if the information is given to such officer, it is his duty to enter it into a register prescribed by the state government (Section 154 and 155 of the Code).

Thus it is clear that the power to investigate the offence stands in the realm of the state government, though the power to enact the law relating to criminal procedure comes under the Concurrent List. If at all the parliament enacts a procedural law, it can only vest the power to investigate crimes with the state government.

The constituent assembly, in one of its meetings. Photo: Journal of Indian Law and Society/The Wire

The Bombay high court has emphasised on Entry 8 of Union List, titled “Central Bureau of Intelligence and Investigation”. The Constituent Assembly Debates would show that by making such an entry the framers of the constitution did not intend to give powers to the Central government for investigating crimes. On August 29, 1949, there was a heated discussion on this particular entry in the assembly. The original Entry was “Central Intelligence Bureau”. When it was proposed to make it as it stands now, there were objections. Dr. B.R. Ambedkar said on this proposal:

“The idea is this that at the Union office there should be a sort of Bureau which will collect all information with regard to any kind of crime that is being committed by people throughout the territory of India and also make an investigation as to whether the information that has been supplied to them is correct or not and thereby be able to inform the Provincial Government as to what is going on in the different parts of’ India so that they might themselves be in a position to exercise their Police powers in a much better manner than they might be able to do otherwise and in the absence of such information.”

There were discussions. One of the members, inter alia, pointed out that the members have already conceded to the idea that the investigation of crime is a provincial subject and therefore, if the assembly now allow the Central government also to investigate, the result would be that for a single crime there must be two parallel investigations. The members demanded to delete the word ‘and investigation’ from the Entry. Then, summing up the discussion, Dr. B. R. Ambedkar said:

The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that’ matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word “investigation” therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the, Criminal Procedure Code can do.

From the above, two aspects are clear. The mandate of the constitution is not to give power of investigation of offence to the Centre. The framers might have considered that in a federal system, giving power of investigation into offences to the Centre may affect adversely the relation between the Central and the state governments. In this regard, it is worth noting that the investigations conducted by the CBI within the state territories are only with the consent of those governments as provided in section 6 of the Delhi Police Establishment Act, barring exceptions by the orders of the constitutional courts.

Notably, the officers of the NIA are given power to investigate offences, and hence carry out police functions. In view of Entry No. 2 in List II, there is no scope for the establishment of police by the Centre, except as provided in Entry No. 2A of List I.

NIA Act in states

The state governments should be at liberty to amend the NIA Act to water it down so that the Centre’s consent is taken before switching the investigation of offences over to the NIA.

Naturally, if such an amendment creates any conundrum that goes against the original enactment made by the parliament, it may necessitate the assent of the President, as envisaged in Article 254 (2).

State legislatures enjoy such a power, I believe. Unless the state governments get a right of audience over the issue, in the long run, the federal system of governance of our nation will be badly affected.

Abdul Khader Kunju S is assistant public prosecutor, Alappuzha, and former public prosecutor to the NIA.