After three years and three months in prison, Bhima-Koregaon accused and undertrial Sudha Bharadwaj was granted bail in December 2021 by the Bombay High Court on a technical ground. The human rights lawyer and law professor talked to us about her time in prison, the state of legal aid for forgotten undertrials, the need for courts to address congested prisons, particularly in the pandemic, and her plans to rebuild her life as a lawyer and a mother, as she grappled with bail conditions which prevent her from leaving Mumbai and Thane.
New Delhi: “I love this country, I love the people of Chhattisgarh, and I have no regrets,” 60-year-old advocate Sudha Bharadwaj told Article 14, weeks after she was granted bail by the Bombay High Court in the Bhima Koregaon conspiracy case.
Arrested on 28 August 2018, Bharadwaj is among 16 ‘Bhima-Koregaon accused’—lawyers, human rights activists, writers and academics—charged under 10 sections of the Indian Penal Code, 1860, and the Unlawful Activities Prevention Act, 1967, whose legal processes, as a July 2020 Article 14 analysis showed, ensure that proof of innocence or guilt is essentially rendered irrelevant and bail very difficult.
A human-rights lawyer, teacher and IIT graduate who gave up US citizenship and turned down an offer to be a high court judge, Bharadwaj was arrested from her house in Faridabad, where she had moved in 2017 to teach law at the National Law University Delhi.
The arrest came after she spent nearly three decades working in Chhattisgarh as a trade unionist, providing legal aid to blue-collar workers and marginalised rural, often tribal, communities and villagers (see Article 14’s report on Bharadwaj’s work and the National Investigative Agency or NIA’’s charges against her here).
When the first nine arrests took place, the police accused Bharadwaj and others of plotting to assassinate Prime Minister Narendra Modi and delivering speeches, sending emails and circulating pamphlets that sparked violence in January 2018 against Dalits in the town of Bhima-Koregaon, 28 km northeast of Pune city.
Despite the serious nature of the allegations made by the NIA, which unilaterally took over the case from the Maharashtra Police in January 2020, the trial has not yet started.
Besides the 83-year-old poet, teacher and Maoist ideologue Varavara Rao, who was granted medical bail in February 2021 in view of his failing health in prison, Bharadwaj is the only accused to be granted bail. Most of the accused have spent more than three years in prison; 84-year-old Jesuit priest and sociologist Father Stan Swamy contracted Covid-19 and passed away as an undertrial in July 2021.
The NIA special court, which set bail conditions, has barred Bharadwaj from speaking to the media about the case. It also rejected her request to be allowed to return to Chhattisgarh to her law practice, and has restricted her from moving out of Mumbai and Thane.
As she considered a fresh start to her legal practice in an “expensive city”, Bharadwaj told Article 14 she still looked over her shoulder to confirm she was indeed out of police custody.
Bharadwaj said she survived prison by providing legal help to her new friends: impoverished, often illiterate women abandoned by society and the criminal justice system.
“It is hard to feel self-pity,” she said, “when one is more fortunate than most others.”
Edited excerpts from the interview:
What has been it like to get bail after 3 years? Anything from that day or that time that you would like to share with readers?
Well, on 1 December, the High Court passed the order. And that was after it had reserved the order for a long period. So that day, in fact, we went to the court and I was surprised when people were congratulating me, I had no idea. I felt extremely sad though about the others (co-accused) not getting bail. And then after that, on 8 December I was presented before the (NIA) court and that was the day the conditions had to be decided. And fortunately for us, the judge permitted cash bail. The surety process would have taken longer otherwise. And he gave us three months to complete the surety.
So, in fact, that day, when I came back from the court, everybody came to know that I had got bail and I was going to be released the next day, 9 December. I had made a lot of friends in this period (inside Byculla Jail), particularly as the in-house lawyer during two years of lockdown. So there were a lot of people (fellow prisoners) coming and congratulating me, and they made me sing and dance, and they sang and danced for me also.
And I had a lot of requests, “Aunty mera yeh vakil ko bol dena” (Aunty, tell my lawyer this.) “Aunty please find out what has happened to my chargesheet.” And “just find out what is happening in my case” and “please phone up my so and so” and so on…all that happened the night before I was released. It was a very loving farewell.
And in the morning, when all my things had been searched and I had been searched and I was sitting, waiting to be released, suddenly the jail officer turned around to me and said, “Are you a very important person?”. And I said, “No, not that I know of.”(laughs). He said, “There are a lot of media outside, so we are thinking of sending you through the back door.” I said, “Nonsense. I came through the front door and I will leave from the front door.”
So, yes, it felt like a very long time when I went out. My friends were there, my daughter was there. Two recently released prisoners who had heard that I am being released had also come to see me.
It was a celebration in itself to see my daughter, see my friends, meet my lawyers. And it was just very nice to have South Indian curd-rice for dinner (laughs).
In these 3 years of incarceration, what sustained you?
Going to prison, I found myself to be one of the fortunate ones. I had my friends outside, my daughter outside, I had good lawyers. I knew there were people outside who cared for me and were making their best efforts for me even if they were not being successful. In prison, you saw so many miserable people, people with no family, people with no lawyer, people with no money. People who don’t know how their children are, people who have lost touch completely with their family. I mean, it was a sea of misery around you. So in those circumstances, you just concentrate on helping whoever you can. And I think that kept me very busy, and made me pity myself much less, and made me think, “I am so much more fortunate than most of these prisoners.”
What has life been like in the past month?
Well, it is a question of making a life in a new city, which is not easy, you know. That is something I am still grappling with. I still have a daughter to bring up and support. The stigma of the case continues. Not being allowed to go back to Chhattisgarh.. for me, that is almost like being in exile in your own country. That is where my work is, my friends are, where my daughter is studying, where the union I worked with is. And my lawyer colleagues there are still being questioned whether they are in contact with me. It is unfortunate, this surveillance.
In jail one experiences a loss of dignity, a loss of privacy, which is something that takes time to overcome. When I am walking now, I keep looking over my shoulder thinking are there some uniformed people on either side or am I walking by myself. (laughs). Now you can wake up when you want to, and you can go to the bathroom without someone saying, “Aunty jaldi karo (hurry up).” And you get your food without having to stand in a line for it. All these are things to be cherished.
I have gone to the court thrice and been reporting to the police station every fortnight. I am also doing a fair bit of running around to get surety, which is a complicated process in Mumbai. Because the person giving surety needs to have a property and a ration card. And that is a bit of a joke in Mumbai, persons having ration cards don’t have property here usually, and vice versa. I have also been attending a lot of phone calls from friends, well wishers, students. The kind of support and solidarity that I have received in this time, I am overwhelmed by it.
What are your plans now?
I have just got a new identity card as a lawyer. I have got my black coat and I am ready to put it on. I have been contacting some unions here. For a full fledged practice, I need a lot more infrastructure, but I would at least like to do a few cases for unions, and also for my prisoner friends, who are too poor to afford lawyers because the legal aid is in shambles. I know I cannot make a living out of the latter but I would definitely like to help whom I can. I met many people in prison who are there for a long time because they have no access to proper representation, so yes, I would like to help them in some way.
Could you take up teaching again?
I very much doubt it. If there is a broad-minded and courageous enough vice chancellor who would permit me to teach at the university, I would be most happy to do it. But I would not also like to get them into any kind of difficulty, because after all, I am still being viewed as a person who has yet to prove their innocence, I am just out on bail. I am very confident that I will be acquitted, but all that is going to take time. And at the moment, I very much doubt that I will be able to get a teaching position or the opportunity to teach like that again. I am very happy that I did. It was a great pleasure. And I had some wonderful students. I hope some of them take some unconventional routes like I did.
What were conditions like for your fellow prisoners and you?
In Yerwada, I was lodged in a separate cell in the (high security) Faasi Yard with (co-accused) Shoma Sen and two life convicts. The whole thing was like a cage, set in the middle of the campus. So we could look out of the bars, but we could not talk to anybody else. There, I gave an application to the jail authorities, asking that I be allowed to give legal aid to prisoners, but it was rejected. In Byculla, which is basically a prison for undertrials, we were put in the barracks. So though there was overcrowding and all its related problems, there was much more interaction with others and we made many more friends.
And, there was no question of giving an application. I was besieged by prisoners (for legal help). I was literally writing applications morning until night for prisoners. Particularly in the lockdown period. That was a really terrible situation, being locked in during lockdown–because it was like pressing a pause button on people’s trials for two years.
There is no mulakaat, there is no court. People just don’t know what is happening with their case. A surprisingly large number of people in prison are illiterate, or even if they are literate they do not know the legalese.
I must have written at least a 100 applications (for a prison population of about 350), and all of them needed to be in duplicate or triplicate. A lot of the applications were simply for a copy of their chargesheets. Many people actually should have got bail because they had not been given their chargesheets in 90 days and so were eligible for default bail. There were many many applications that I wrote for interim bail during the period of corona, for women prisoners over 75 years of age, prisoners with HIV, TB, asthma, comorbidities, who are ill. But they were never granted.
The other thing I saw was that a lot of the women prisoners are just abandoned by their families. At least in the men’s case, their wives remain loyal to them, or their mothers remain loyal to them, but many women prisoners were just left to their own devices.
Courts must take the issue of overcrowding and decongestion seriously. Being more liberal with bail is very very important, and understanding what it means to send someone to prison for a long time. And in this pandemic especially because social distancing in jails is impossible. I remember when I was unwell for a month and a half, there were many of us stuffed into a quarantine barrack, which was a bigger mess. So it is important that courts give bail more liberally based on the medical conditions and age and comorbidities of the person concerned. Judges should really be asking themselves, ‘Do I need to keep this person in jail?’
As far as jail authorities go, they have to see prisoners as human beings. And go beyond just counting, herding and keeping people out of circulation to having ways to keep them active and occupied. You have to give them an opportunity to begin again. This I saw when (co-accused) Jyoti Jagtap, when she started literacy classes, people were so enthusiastic, and they jumped at it. They wanted to learn English, Marathi, Hindi, Math. Prisoners also need access to therapy, particularly those who have been abandoned or who have small children, or have been trafficked, or are suffering from addiction.
You have been a frontline lawyer for many years in Chhattisgarh, and seen the failures of our criminal justice system intimately–from the force of money and privilege in influencing legal outcomes, to the long periods of undertrial detention and the struggle of common people to access justice. Having been behind bars, has your understanding shifted in any manner?
When I was on this side (a lawyer), I was seeing the misery. But I always knew what I had to do. I could think of something that could be done. When you go to that side (behind bars), you realise that if the other side is not proactive, then you are lost. If your lawyer is just not taking enough interest, or if your court is just not taking enough interest, or if you write application after application and they don’t get sent, you are lost. This feeling of the gap between the prisoner and her lawyer, or the prisoner and her court came up very starkly. I remember writing applications for a woman who wanted her one-year-old child to be brought into the jail. The child was left alone with some neighbour or something, and it took nearly eight to nine months to do it. And the condition of the mother, the condition of the child while all that was going on–the child had virtually got orphaned in a second. Lawyers have to be more proactive, courts have to be more proactive, more efficient and more humane in some way.
Another big takeaway for me after these years in jail is that our legal aid is in an absolutely miserable condition. For a lot of these prisoners it was like going into a black hole. There are people who do not know the name of their legal aid lawyer, or even their number or address. The lawyer has not bothered to take even one mulakaat with them, not bothered to inform them what is there in the chargesheet, what is going on in court, what is the evidence so that the undertrial can have a chance to tell the lawyer what evidence has been distorted or suppressed. The concept of the lawyer being accountable to the client and not the legal aid system is completely missing.
And I have been involved in legal aid, so I also understand the problems for such lawyers. The remuneration is very poor. For example, for a sessions court trial, the lawyer might be getting paid as low as Rs 3,000. During the lockdown lawyers could not even take a local train, and would have to take a cab to come to Byculla to meet the prisoner (because public transport was suspended). So I understand why this happens. But we really have to fix this institution or else legal aid is a farce. You go to any high court–you see an enormous building called the AG’s office (Attorney General) office and within it, there is the Attorney General and the Deputy Attorney General, and ‘n’ number of well-paid people tasked to defend the state. Now tell me, where is the legal aid office? Why can we not have a similar system to defend citizens who need legal aid? Why not? Why can we not have well-paid legal aid lawyers? If we have a well-equipped institution of legal aid, that will attract good public-minded lawyers too.
Many of your clients–contract workers, villagers in Chhattisgarh–have testified to how you have stood by them over the years. What drove your commitment to them?
I think one of the greatest influences for me was (the visionary union leader) Shankar Guha Niyogi ji. Basically I became interested in doing labour work during the (1982) Asiad Games, when there were lots of migrants pouring into Delhi and they were basically building those flyovers, and the stadia and the five star hotels for the Asiad Games. And this was the underbelly of that. So they were very poor people from Orissa, from Chhattisgarh, from Bihar. There were these huge camps of workers, sometimes with barbed wire, and the workers would come with their thekedaars (labour contractors) . Something I will never forget is that we were a group of students who used to go to teach at the camps, and there was another group of doctors who came from AIIMS, who would treat the workers and we would teach the children. And I remember that there was an Oriya friend with us, and that this was a group of Oriya workers. And he talked to one of them in the language. And that worker said, ‘We are desperate to go home. But our thekedaar is not letting us, and he has not paid us anything, and we are in a miserable condition.’ And I remember the next time we went, the worker wasn’t there. And I think that was, for me, shocking: that we just made a normal inquiry but it was irresponsible because there was a sense that this person might have lost his life. Was he beaten up by the contractor? Where is he now? What has happened? And realising the fact that this battle is a very long and difficult one and we have to stay in that battle with the workers.
That was the beginning and after going to Chhattisgarh (in the 1980s), meeting Niyogiji, I got totally involved with the union. And I was made into a lawyer at the ripe old age of 40 by my union, because the workers needed a lawyer of their own, whom they could trust and they could speak with, and who would understand their struggles. Because nobody knows the facts better than the clients. The law and the movement have to move together, and I saw my clients as equally important agents in the fight for justice. We are two sides of the same coin.
In the past three years, many commentators have referred to you giving up your US citizenship in your youth as a sacrifice. Is that how you see it?
Not at all! Not at all! I love this country dearly. I love Chhattisgarh. I love the people of Chhattisgarh. Under no circumstances is this a sacrifice. In fact, when I gave up my American citizenship, I remember I was told, “Are you very sure? Please remember, you will not be able to join the US Army.” (laughs.) I said, “I have no intention to join the US army ever myself.” So no, I do not regret that at all.
I have no regrets in fact. If I was given my life, I would do the same things again.
The only regret which I do have is that I feel that I was not really able to give time and attention to my child, you know. I came to know much, much later of how neglected she used to feel or how much she missed me and how much she needed me. And in fact, my whole effort to go to Delhi (to teach at the National Law University in 2017) and to start living life together was a big recognition of that, and I wanted us to have more time together, and to help her get into her career. And that is when I got arrested.
Are there any lessons that the last 3 years have taught you?
Yes, many lessons. One thing, which I had to do when I was in prison these three years was to look after myself. (laughs) Which I had not done for a long, long time. I had always been too busy and that’s also probably one of the reasons why I neglected my child who is also a part of me, and I neglected myself. So, I think in prison you learn to take care of yourself. And that is something I learned because I actually started doing exercise in the small limited space and time one could get. I would go to a corner of the jail and sing, and uplift my spirits and do various things like that.
The other thing that I learned was that I saw around me a variety of survival mechanisms. I mean I was amazed to see how people survive this misery, how people cope with it, deal with it. And everybody has their own ways: some people sort of laugh themselves through it. Some people spend all the time in prayer. Everybody has their own coping mechanisms, and there’s something that you can learn about how they are surviving this difficult thing.
Finally, I also learnt the value of good food. Women had very interesting ways of making that prison food edible. They would buy peanuts and crush them and make them into a chutney, and they would do this and that to make things better.
I remember on my birthday, the women made a cake for me in which they had crushed Marie biscuits and made it into a dough and spread it out. And on top of that, they had this Britannia toast, which they had soaked in a sugar syrup kind of thing. And on top of that they had got Bournvita to make a chocolate thing. And then they used jam to write my name. It was the most wonderful cake I have eaten in my life.
So you know, in those very difficult circumstances and cramped conditions, people are so creative, yaar. You see what human beings can do. There is a lot of creative potential in each one. And it certainly should not be lost in jail.