Guest Post by SHARIB ALI
REPEAL UAPA: JTSA REPORT IN PERSPECTIVE, AND BEYOND
The state fabricates terror. There is enough evidence to take it to court on that count. Yet, how does one construe ‘fabrication’- what is implied by it? First, that the state has orchestrated elaborate attacks- violence to terrorize its people for certain legal, electoral and political ends. Second, that it has, through the use of laws like Unlawful Activities Prevention Act (UAPA) against specific segments of its population has consciously manufactured a state of terror- a collectively imagined perception of threat that the nation faces from a particular people. The ends, always remain the same.
Though there is evidence of the agencies of the state, or actors within them, expressly participating in orchestrating large scale terror attacks (think col. Purohit), it is the latter- where terror within specific communities is manufactured in the eyes of the law and the people- that I deal with here, today. ‘Guilt by Association’ – The JTSA (Jamia Teachers Solidarity Association) report on UAPA cases in Madhya Pradesh, is a crucial case in point.
In the history of the Indian state, this argument is neither novel, nor surprising. That our state has always used extraordinary laws like the AFSPA, UAPA, POTA etc to exercise coercive control over marked segments of its population- all those who articulate a politics of difference, or who cannot be easily integrated into the singular-religious-caste-economic idiocy of the ‘mainstream’(think Kashmir, Northeast, Adivasis, Muslim etc)- is a fact that only needs re-iterating.
K. Balagopal, writing in the context of the naxalite movement in the 1980, has effectively demonstrated how the state, using a number of laws under the preventive detention system, used legal measures to keep uncomfortable political opponents in prisons interminably. A process which was used as a strategy to control the Naxalite movement. Similarly, the UAPA, which is not a preventive detention law, even though it allows extended durations of detention, and is even more draconian in the way the extraordinary law co-exists within the ordinary criminal justice system, has been used for similar ends. To explain it in a better way, unlike the preventive detention system which applies to entire territories, the UAPA is like a shadow in the forever glittering cities as well as the idea of the nation- Invisible in the glitter, and yet infinitely real for all that is beyond it- suburbs, forests, and fertile imaginations. ‘Coexisting with the ordinary’- delivering, amidst the massive barricades and cordoned policing, the immense pretense that everything is just fine.
Time and time again, a law like this (after it has been surreptitiously passed by the government and the opposition together) needs to be brought out on the streets, its political entrails displayed in cold statistics, its blood on the people waved at the helm of a movement, marched across, and finally repealed. Against the UAPA the campaign has begun.
Probably the first significant attempt in this direction was made by Coordination of Democratic Rights Organizations (CDRO) in 2012, when they released a report titled ‘The terror of law: UAPA’ after a 2 day convention in Delhi in 2012. The CDRO report, though carrying the first critical introduction on UAPA, and a discussion of the few prominent cases under it, lacked exactly what the JTSA report provides- extensive documentation of cases: hard evidence which would make it incumbent to call for a review of the law.
I do not seek to re-produce the facts of the report (for a good analysis read Sadiq Naqvi’s piece http://www.hardnewsmedia.com/2013/11/6099). But only to take its argument forward in-order to demolish the central arguments forwarded by the state in the defense of extra-ordinary laws- especially the UAPA.
1) That a ‘strong’ law is needed to deal with an extraordinary challenge like terrorism.
MP was the center of all conspiracies. And the UAPA was able to ‘arrest’ none of it. They all developed into full fledged attacks. The police’s filing of more than 75 cases again 181 muslims reveals a different process altogether; a different understanding of the nature of UAPA.
2) Unlike what the state and its agencies would have us believe, the report provides strong evidence, for the first time, of the way the fight against terror is shrewdly organized by electoral and political calculations.
THE CHOICE OF MADHYA PRADESH
For anyone following the issue of terror, the choice of MP is not a random, but, in fact, a crucial one. Between 2000 and 2012, the report points out, that more than 75 cases were registered under UAPA against 181 accused. All these cases revolved around SIMI- abetting or furthering the activities of an unlawful association. The role of the UAPA, as the report points out, is central and explicit. It first bans an organization under Sec. 3, and later, under Sec. 10 and 13 criminalizes, in necessarily ambiguous terms, absolutely anything that come close to ‘association with it’, or any other unlawful activity- with the interpretation left to the benevolent judgement of investigative agencies, and prejudices of individual police officers.
Not surprisingly, and as have been put on record with similar laws before, the report’s meticulous documentation reveals that all the 75 cases- a result of the police’s liberal and extensive application of UAPA- border on the ludicrous.
Most cases rest on young men’s inexplicable death wish- standing on streets and defying the ban loudly, meanwhile waiting for the police to arrest them. Some are cases based on speeches given by the accused, publicly, in favour of SIMI, all of it much after the ban and countrywide arrests. Strangely, nobody was listening while they went ahead with their public speech. (One wonders if it was a theatrical monologue in which the only audience were late-entry police officers.)
Apart from cases where the recovered literature was proved to be seized by the police of a different state 6 years earlier, there is one case where
‘Younus khan was standing in front of a cinema hall in a ‘’doubtful position’’.
He was apprehended and material pertaining to SIMI was allegedly seized. And another case where the accused was arrested from outside a mosque where he, according to the FIR, was shouting:
“I am a member of SIMI and would remain a member of SIMI and with me are certain books concerned with SIMI”.
And just to add to the variety and to dispel any doubt about the competence of the concerned police officers, there is FIR no 101/08, against Aman registered under POTA, 4 years after the act ceased to exist.
It is irreverent of the very idea of people to reduce the painful predicaments of the report to the official mockery visible in the case papers. And yet, it is the only thing that one is left with, after an extensive evaluation of cases under UAPA. The gist of the report is this: that the UAPA was (and is) the organizing principle which holds together the phenomenon of witch-hunting, by making available the Catch 22 predicament- the cases justify the ban on SIMI, and the ban justifies the cases; both the ban and the cases having little ground whatsoever, and yet supporting each other in a curious existential bind.
However, there are certain questions that will be asked and need to be answered. For example the glaring fact that MP has not had a single terror attack, and yet the number of UAPA cases are so high- strong evidence of the fact that the existence of UAPA has little to do with terror but more with political exigency, like POTA. However, this can be turned on its head and argued:
That the very existence of so many cases is a result of the investigative agencies adept handling and successful fouling of attempts at terrorist activities like bomb blasts etc?
Though even a cursory glance at the cases belie the contention, it needs to be put on record that the UAPA has completely failed in ‘arresting’ terrorist activities in MP- a lot of which was taking place in the period with which the report is concerned. In fact, MP has been the center of conspiracy meetings, where bomb blasts and attacks were discussed, planned and executed, especially in its flourishing centers like Bhopal and Indore. However, there is one crucial difference between the conspiracies that were actually executed, and the one that the police allegedly ‘arrested’- that of color: Hindutva terror.
Let’s look at what was happening at the same time where cases were being registered against the Muslim youth in MP.
In the period between 2005-08 when the many bomb blasts were planned and executed, Abhinav Bharat operated primarily out of MP. The majority of the most prominent members who have been charged by the police- Sunil Joshi. Sandeep Dange, Sadhvi Pragya, Ram Chandra Kalsangra etc- are from MP.
In terms of geography, almost the entire conspiracy- meetings, distribution of roles in organizing blasts, and all decision making regarding the funds, the layers of immunity, and the operation on the ground, was done in MP over meetings in Ujjain, Bhopal, and Indore, among others. The military training of the members in the preparation and execution of bombs took place in Bhonsle military school, Nagpur. Lets look at some excerpts:
The crucial first meeting in 2006, Bhopal:
“ …In 2006, a big meeting of Abhinav Bharat took place in Bhopal. In this meeting Pragya Singh, Bharath Bhai, Col Purohit, Dayanand Pandey, Sudhakar Chaturvedi, Sameer Kulkarni, Himani Savarkar, Tapan Ghosh, Dr R P Singh, Rajeshwar Singh, etc, were present. In this meeting I laid the proposal to answer bombs with bombs. Then, a body of Abhinav Bharat was made in which the president, etc, were elected.
…In the meeting between the four of us (Sunil Joshi, Pragya Singh, Bharath Bhai, and Swami Aseemanand) I suggested that there are a lot of Muslims in Malegaon in Maharashtra, hence our work should begin from close by and the first bomb should be kept there. Then I suggested that during the time of Independence, the Nizam of Hyderabad had decided to be with Pakistan. That is why Hyderabad should be taught a lesson and a bomb should be kept there. Then I said that a lot of Hindus go to Ajmer Dargah. There should be a blast there so that the Hindus are afraid to go. I also said that there should be a bomb in Aligarh Muslim University as a lot of young Muslims study there. They all accepted my proposal, and decided that we will bomb these four places. Sunil Joshi took the responsibility of doing recce of these four places. Sunil Joshi also suggested that the Samjhauta Express running between India and Pakistan has only Pakistani travellers. Hence it should also be bombed. This responsibility was taken by Sunil Joshi. He also told us that the SIM cards and Pistols have been bought from Jharkhand…”(translation mine)
Himani Savarkar, the daughter of Gopal Godse (the brother of Nathuram who killed Gandhi), pointed out in an interview ‘that she was elected president of Abhinav Bharat in April 2008 during a meeting in Bhopal. She also said that Madhya Pradesh was the place were Kulkarni was developing the organisation’.
On 11-12 april 2008, the same people met with Pragya Singh Thakur in 2008 in Bhopal:
“Accused purohit took the responsibility of providing explosives. Accused Pragya Singh Thakur took the responsibility of providing men for the explosion…”
Distribution of roles, UJJAIN, 2008:
Again, on 3rd August 2008, during a meeting held at Dharamshala of Mahakaleshwar temple at Ujjain, Purohit was given the responsibility to procure RDX for Kalsangra and Dange. Purohit then asked Rakesh Dharwade, a trained expert in commiting explosions and assembling improvised explosive devices, to provide explosives to Kalasangra and Dange at Pune, where they met on 9th and 10th August.
Arms training in Panchmarhi, MP, 2008:
“…Purohit forged documents during his stint in Jammu and Kashmir- where he was posted in 2004-05- to obtain arms license for others. After shifting to Panchmarhi (Madhya Pradesh) in July 2008, he organized training camps to handle arms and explosives. He had also organized training camps in Pune. However, most of the training camps took place in BMS…”
It is crucial to note, that while these conspiracies were underway, the MP police went on registering cases under SIMI. This, almost cruel correspondence, is sometimes hard to believe. For example, while the 11th to 12th April meeting was going on in Bhopal, the police registered at least 9 cases against SIMI in Bhopal and Indore (including Aman who was standing in a ‘doubtful position’), in the first 20 days of the April.
It is presently not possible to go into the details of the transcripts of the meeting that were recovered from Aseemanand’s laptop, or his confession- under sec164 with no procedural lapses- both incontrovertible evidence in court, and from where the above excerpts have been taken. It is these two pieces of evidence, along with the meticulous investigation done by Hemant Karkare, in which all of it falls into place, down to the last detail- the killing of Sunil Joshi. Sunil Joshi, here needs a special mention as he was the only link and carrier of the political support that made and sustained the violence of Abhinav Bharat.
In keeping with the distribution of roles, Sunil Joshi was mysteriously murdered in December 2007, in Dhar, a district of MP, as soon as the Rajathan ATS detected the Hindutva trail that led to MP. This finishing off of the crucial link between the ones higher up and the ones below, is neither new, nor the first time in the history of Hindutva terror in India. Similar to the murder of Sunil Joshi, Nagaraj Jambagi, the leader of the faction which organized bomb blasts in Karnataka, including the Hubli Court blast, and who was in touch with other Sri Ram Sene leaders as well as those higher up, was murdered by his own associates in jail- circumcising the investigation to the few who operated on the ground.
Thus, what comes through, after a detailed reading of the recovered documents, is that in the crucial period between 2005 and 2008, when all the conspiracies, as well as the attacks were being planned and carried out by the Hindutva brigade, and when the investigative agencies of 3 surrounding states- Maharashtra, Rajasthan, and Karnataka- had sniffed the trail which led to MP, the MP police went on registering cases against SIMI. In just 2008, there are 17 cases against 54 accused- all of them Muslims.
However, the Hindu/ Muslim divide apparent in the previous argument, though a reality which needs to be explored, it runs the risk of falling into political traps that many seek to benefit from. What is intended here is that the central argument in favour of UAPA- a strong law to deal with an extraordinary situation like ‘terror’- completely breaks apart.
It is evident from the MP report- in the sheer absence of cases against those who conspired, and in light of the many bomb blasts that took place- that the UAPA has completely failed in ‘arresting’ the unfolding conspiracy of Hindutva terror. On the other hand, as the report closely documents, it has been used to violate people, especially of a particular community.
It is in this light that there can be little challenge to the assertion of many rights groups and civil society members that the very inception of UAPA has little to do with controlling unlawful activity, but more to do with the political exigency of a law which could be used communally. In other words, terror is not a law and order issue, as arguments in favour of UAPA assume, but a political one. The MP experience once and for all proves the case.
ELECTORAL DISTRIBUTION OF TERROR CASES
A close look at the timeline of the UAPA cases against SIMI in MP, present a strange demography. Out of the 75 cases over more than a decade, 40 are of the period immediately after the NDA government banned SIMI in 2001. A majority of these cases were registered in the first week after the ban. However, strangely, there are barely any cases over the next few years. There is just one case in 2002, and another one in 2003. And there are no cases in 2004 and 2005. Just following the trajectory of SIMI in MP, it would appear that the SIMI chapter post the ban, was over.
However, suddenly in 2008, there are 24 cases. And then again, between 2008-2012, there are just 2 cases. How does one explain the sudden spurt in cases in 2008, when there were almost no cases in the 5 years preceding and following it? And this is not a one-off case. It’s a pattern, replicating itself across states- especially in the one that the BJP has been ruling (MP, Karanataka, Guajarat etc.)
There is a certain correspondence. The 2008 Assembly elections in MP took place on November 27th across 354 constituencies. Can the phenomenal rise in cases be seen as an issue that can be seen within an organized tablature of numbers: 24 cases against SIMI, 7 years after it was banned, all of it in the election year?
A look at the newspaper archives of the run up to the election present a phenomena- where arrests kept taking place, case after case was filed, across districts, across months, where the entire issue was whipped, and the threat of SIMI was re-enacted from end of March, when Safdar Nagori was arrested, to November till the people went to the polling booths.
Let’s look at another state where the ‘phenomenon’ replicates, case by case, days by days. Among the few states that can be quoted, Karnataka (also a BJP ruled state) needs a special mention as the cases in both MP and Karnataka are directly connected. Why the BJP has been especially mentioned here is that the way the police it those particular states responded to political pressure.
My study on the terror cases in Karnataka over the last few months reveals that more than 6 cases were filed against SIMI in the 2007-2008 period. Though the numbers of cases appear to be much lesser in Karnataka, it has to be noted that the total number of accused in the 6 cases is much higher- 52 young men. All these 6 cases against SIMI are a result of the many sporadic arrests that were made across Karnataka in the run up to the assembly elections of 2008 which took place in three batches on 10, 13th and 23rd May. Most of these arrests took place in the 6 months that led to the election when there was an arrest almost every 15 days- all of which brought the issue of SIMI to the center stage.
Let’s look at another angle. Almost all these arrests, as well as the majority of the conspiracy cases, have taken place during election time primarily in the ‘sensitive’ areas- the mainstream term for areas with a good concentration of Muslims, as well as a history of communal incidents. Let’s look at the 4 areas where the cases in 2008 are almost limited to:
|Place||% of Muslims||No. of Cases||Nature|
|Hubli-Dharwad||26%||4 (38 accused)||SIMI, blast and conspiracy|
|Belgaum||14%||2 (15 accused)||SIMI conspiracy|
The electoral rolls of these 4 places, the timing of the cases, the communal histories of the particular places, as well and the polarizing potential that the cases possessed, together form the contours of an electoral theory of terror that not only lays itself bare, but needs further clarity and research.
Politically, this theory was first given voice after the 2013 Malleshwaram blast case in Bangalore, when a member of the opposition in Karnataka tweeted “if the blast near BJP’s office in Bangalore is a terror attack, it will certainly help the BJP politically on the eve of the election”.
Though the tweet has its own political motivations, especially when the Congress was trying to woo the ‘Muslim vote bank’, it comes within a history of similar attacks. On May 10th 2008, exactly 5 years before, the Hubli court blast also took place- 3 days before the first phase of the elections scheduled on 13th May. The blast took place on a Saturday. On Monday the trial of Safdar Nagori & Co was scheduled. Three alleged SIMI members were caught later for the blast which were widely reported to have been caused to intimidate the judges before the trial. Much later, the complete opposite turned out to be the case- that the blast was engineered by Nagaraj jambagi and gang, with close links to the Sri Ram Sene (pub attacks in Karnataka). The deep political maneuvering available in this blast, and the rabid assumptions on which it plays- to bomb an empty courtroom where the SIMI trial is supposed to take place- is for anyone to guess.
Though the evidence is enough to make a case for the close association of elections and ‘terror’- down to question on its very existence-, lets come to a crucial point in the foisting of false terror cases, where the legal, the official, and the political environs within which it functions, comes together in a deliberate communal and electoral vision. And there is evidence of that.
In the attempt to understand the episteme, the origin, of the terror cases in Karnataka and MP in 2008- what led the police to make the arrests- which then unfold in a confusing spiral of overlapping accused, places, and attempts at waging war against the state-, there an essential link that was missing. While poring over the legal documents of the many cases, as well as meeting lawyers and accused, what was not apparent was how the police went about arresting the accused- so quickly, beyond the boundaries of the state, in a reflex action barely seen. Almost as if the arrest of Nagori sent a chill down the spine of the Karnataka police. Which then responded with many arrest and the sudden foiling of conspiracies, which went on extending outwards in larger concentric circles- all around election time. For example, after the arrest of the 13 including Safdar Nagori, there is the Hubli conspiracy case against 18 accused, where 11 of them are out of the 13, while the rest are others. Similarly, there is the Belgaum conspiracy case against 11, in which one accused is from the 13, and another one from the Hubli conspiracy case, three of those who were wrongly arrested for the Hubli court blast, while the rest are new. And it goes on.
It is this crucial missing link of the way it actually worked on the ground that the JTSA report provides. The report calls it the ‘domino effect’:
“Arrests of 13 leading SIMI activists were allegedly made on 27th March, 2008. Immediately after the arrest, on 29th March 2008, the Senior Superintendent of Police, Dhar, shot off letters to various districts of Madhya Pradesh asking for registration of similar cases. These letters immediately set off a chain reaction, resulting in 18 cases within one month and another 4 over the next 6 months…not only do some of the cases so registered make an explicit reference to this letter, the investigating officer of the case, B.P.S Parihar produced 18 of these letters in the SIMI UAPA tribunal.”
What could possibly be the intent of writing such a letter, especially at such a crucial time- 6 months before MP went to polls. And then the corresponding cases in Karanataka? One is not even pointing out the obvious- that how could those arrested in March be accused of conspiring with others in multiple conspiracies across states, much later when they were in custody? And if they have been accused, in a phenomenon that repeats itself- the Malleswaram blasts, 2013- then there is something else at work?
Selective and political application of UAPA
The same examples can be found with another law which is as draconian as UAPA, and which also has been used to tackle ‘terrorism’ in Maharastra- MCOCA. Over the last decade, more than a 100 young muslim men have been charged under MCOCA in cases relating to bomb blast and attacks- a number of them falsely. However, the bomb blasts in panvel and Vashi, in which the Sanatan Sanstha was implicated, was not charged under MCOCA. Very few members of the right-wing organization were charged, and all of them got off with light sentences. The organization itself was left untouched. For the judge, those attacks did not constitute waging war against the state.
Similarly, in the murder case of the lawyer Shahid Azmi, who spent his law fighting the draconian law as well for the rights of the people charged under it, and who was eventually assassinated, MCOCA was removed. The most glaring example is the invocation of POTA against those who were accused of the Godhra train burning, as against its non-application in the cases of riots that immediately followed it.
In this, like in all other ways, the UAPA follows exactly the same path as all other draconian laws, including the ones which have been repealed. SIMI, against which not a single case has ever been proved, continues to be banned under UAPA, while Abhinav Bharat flourishes unhindered- its offices thriving, its members untouched, and its people given special treatment in jails.
It is clear that UAPA, with its ambiguous and framing and nature, is a tool in political hands, to be used as desired by the powers that be. That UAPA and MCOCA shall be used only against those who are threat to the powers that be. But they will be charged- through the most brilliant legal-sleight-of-hand that a law like UAPA makes available-for the most heinous crime: waging war against the state. It is not so difficult to locate in this sleight of hand, why, a law which is so anti-people, is so dear to the state.
TIT FOR TAT, TERROR?
There is an entire brand of journalism and political production (think Ashish Khetan, http://www.outlookindia.com/article.aspx?288465) that still insists that terror is essentially tit-for-tat. That some Hindu extremists on one side, and some Muslim extremists on the other, are trying to respond and out-do each other in a historical spiral.
The absurdity of such a proposition is simply and easily available- the sweep with which it obfuscates all the processes pointed out above: the political processes within which terror exists, the blatant violation of rights by a draconian law, and the abject complicity, or rather, agency of the state in the violation of those rights- all of it used politically in a blatant communal project. Taken at its face value, the proposition, that terror is primarily tit for tat, would betray the lack of even a mediocre understanding of issues. And yet, it is not. It is a political position to which an understanding of the law as well as violation of rights, and the political nuances to it, has remained irrelevant, and beyond even the merest conception.
Whatever be the case, and irrespective of who says what, there is now enough evidence to call a countrywide review of the UAPA.
Sharib Ali is research scholar with TISS. He is doing a study of terror cases across India. He is presently looking at the cases in Gujarat and UP. Sharib Ali would like to acknowledge Monica Sakhrani for her guidance and clarity over a long process of developing a legal and political understanding of the law-of which this article is a part.