Indian Prime Minister Narendra Modi in Haldia, India, on Feb. 7. (Dibyangshu Sarkar/AFP/Getty Images)
The future of the world’s largest democracy is looking increasingly less democratic. Prime Minister Narendra Modi is the most dominant Indian leader in five decades, while the country’s independent institutions have rarely appeared weaker.
Much of the local mainstream media shies away from criticizing the government. The judiciary seems reluctant to examine the constitutionality of major pieces of legislation. Government critics have faced intimidation, harassment and arrest. Academics who study democracy around the world recently put India in the category of nations moving toward autocracy.
One case in particular has become a litmus test for the rule of law and freedom of expression in India. Three years ago, police in a state controlled by Modi’s party began arresting activists under a stringent anti-terrorism law. They accused them of being part of a plot by a banned Maoist militant group to overthrow the government, allegations based largely on incriminating letters recovered from laptops.
More than a dozen activists have been jailed for years or months without trial in what is known as the Bhima Koregaon case. They include a labor lawyer, a prominent academic, a poet and a priest. All are advocates for the rights of India’s most underprivileged communities, including tribal peoples and Dalits, formerly known as “untouchables.” They’re also outspoken opponents of Modi’s government.
The activists have denied the charges and some of them said that evidence against them had been fabricated. Now a new forensic analysis, first reported by The Washington Post, concludes that key electronic evidence in the case was planted by an unidentified attacker using malicious software.
The attacker used malware to infiltrate a laptop belonging to one of the activists, Rona Wilson, before his arrest and deposited at least 10 incriminating letters on the computer, according to a report from Arsenal Consulting, a Massachusetts-based digital forensics firm that examined an electronic copy of the laptop at the request of Wilson’s lawyers.
The most explosive allegation against the activists came from a letter that police said Wilson had written to a Maoist militant discussing the need for guns and ammunition and urging the banned group to assassinate Modi. Arsenal found that the letter — along with at least nine others — had been planted in a hidden folder on Wilson’s computer by an attacker who used malware to control and spy on the laptop.
“This is one of the most serious cases involving evidence tampering that Arsenal has ever encountered,” the report said, citing the “vast timespan” — nearly two years — between the time the laptop was first compromised and the moment the attacker delivered the last incriminating document.
Arsenal has conducted its work on the report on a pro bono basis, said Mark Spencer, the firm’s president. The company was founded in 2009 and has performed digital forensic analysis in other high-profile cases, including the Boston Marathon bombing. Three outside experts who reviewed the document at The Post’s request said the report’s conclusions were valid.
While Arsenal does not identify the person or institution behind the cyberattack, it notes that Wilson was not the perpetrator’s only victim. The same attacker deployed some of the same servers and IP addresses to target Wilson’s co-defendants, it said, as well as people seeking to help the accused in the case.
Even before the revelations in the Arsenal report, the case against the Indian activists had drawn criticism from rights groups and experts. A spokeswoman for the U.N. high commissioner for human rights recently urged the Indian authorities to release the detained activists. The American Bar Association has also expressed concern about the case, and its human rights initiative helped Wilson’s lawyers facilitate the review of the digital evidence.
“Prosecutions like these have a chilling effect on civil society, human rights defenders and the rule of law in India,” said Patricia Lee Refo, president of the American Bar Association.
What happens next will be a harbinger for where India is heading. Lawyers for Wilson included the report in a court petition this week urging judges to dismiss the case against their client. Meanwhile, the National Investigation Agency, the anti-terrorism authority overseeing the cases against the activists, is sticking to its charges. The forensic analysis conducted by law enforcement did not show any evidence of malware on the device, a spokeswoman for the agency said, adding that there was also “substantial documentary and oral evidence” against the individuals charged in the case.
Lawyers for the activists say they should be released on bail immediately. Nearly all of the 16 accused have remained imprisoned throughout the pandemic, even as India temporarily released thousands of other prisoners because of worries about rising coronavirus infections. Several of the activists are senior citizens with serious health ailments, their friends and family say; one, a Jesuit priest named Stan Swamy, 83, suffers from Parkinson’s disease.
Dushyant, a lawyer and columnist who goes by one name, called for the creation of a special probe into who was behind the malware attack detailed in the Arsenal report. He also urged courts to reevaluate the use of electronic evidence. “What is at stake is the liberty of over a billion citizens and the edifice of India’s democracy,” he wrote. “We do not have even a moment to lose.”