Bias At The Heart Of Counter-Terrorism In India?

Kafkaland argues that lawlessness is the norm with which terror cases are dealt by investigating agencies.

ByManisha Pande
Bias At The Heart Of Counter-Terrorism In India?
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Photo credit to: Ajmal Aramam

No other issue perhaps has occupied centre stage the way terrorism has in global discourse. Even so, there is very little discussion on how flawed counter-terrorism strategies of governments across the world have been. In a scathing commentary on the way India is dealing with terrorism, author Manisha Sethi examines some of the prominent terror cases in her new book Kafkaland.

In over 200 pages, she interrogates the way in which “national security” overwhelms and erodes the Constitutional values of due process – where “terrorism” itself serves as an alibi for evidence; and the manner in which impunity has become the norm.

Sethi, apart from being a rights activist, teaches at the Centre for Comparative Religions and Civilizations in Delhi’s Jamia Millia Islamia. Her book has been published by independent publishing house, Three Essays Collective, which focuses on works of scholarship that touch on issues of contemporary concern.

We interview the author and present an extract from the book.

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Can you elaborate on some key ways in which the Indian State is getting it wrong in countering terrorism?

One can start with the investigating agencies: the rank prejudice with which they operate, the horrific torture they inflict on suspects, the fabrication and planting of evidence, including RDX, for example, in the Malegaon blast case. There are those who will argue that these are mistakes that agencies make because of the pressure they are under from the media and political establishment. This is a spurious argument as any.

This book shows how a large number of terror investigations do not derive from any incident of violence, but are so-called conspiracy cases (be it the numerous POTA [Prevention of Terrorism Act, 2002] cases from Gujarat alleging conspiracies to assassinate the then chief minister; or the scores of cases across Madhya Pradesh where Muslim men were arrested for “furthering the activities of SIMI [Students Islamic Movement of India].” All this is done in knowledge of absolute impunity.

But what is truly startling is how the courts extend police remand even when the accused alleges torture in police custody; how they are willing to settle for a lower threshold of proof in terror cases. Judicial abdication is a troubling trend that Kafkaland documents.

And then, of course, we have the Parliament legislating laws like Unlawful Activities Prevention Act and continually expanding its scope to virtually bring a large number of activities and actors into the ambit of potentially terrorist.

How nuanced is the mainstream discourse on terror? What role does the media play in shaping it?

The mainstream discourse on terrorism is largely a Home Ministry view (of course, within it there can be the ATS [Anti-Terrorist Squad] view, the Special Cell view, the Crime Branch view and so on, even the NIA [National Investigation Agency] view, given the loyalties of various crime reporters to different agencies). Barring a few honourable exceptions who justify the prefix “investigative” before journalist, reportage on terrorism is exceedingly devoid of critical enquiry into the claims of the investigative agencies.

Television news channels – with their special effects, military music and frenzied cacophony passing off as “reporting” – in the aftermath of any incident of blasts or violence, especially tend to forget that their job is to report, investigate and ask questions. The media played a stellar role in manufacturing the “collective conscience” that sent Afzal Guru to the gallows, despite lack of proof.

The reputations of many security experts have been built on the dossiers of the Intelligence Bureau. The claims are repeated ad nauseum till they become articles of faith. This reportage then feeds into the “scholarly” studies, briefs and policy papers produced by the numerous think tanks on security.

So what might appear to be a large body of knowledge about this or that terrorist group, is actually based on very flimsy evidence, emanating mostly from some corner of the Home Ministry.

Do you us see the discourse moving beyond “Hindu” and “Muslim” terror anytime soon?

I think the furore that the “saffron terror” remarks of the former Home Minister Sushil Kumar Shinde created, revealed something fundamental. Regardless of the routine platitudes that terror has no religion, that one shouldn’t politicise it, the swift and strong reaction from all quarters showed us that our image of the terrorist is not an empty one, but one marked by signifiers of community.

It is the image of a “Jihadi” that we summon when someone as much as whispers terrorism. Even the country’s pre-eminent retired police officers said publicly that the attacks allegedly planned by Aseemanand & co., were retaliatory attacks, suggesting that Hindus could not bomb their country except in retaliation. This not only renders these attacks somehow benign, but reiterates the old formula of Hindus as the only true and natural citizens of India.

The right thing to do is not to continue to offer these feel good but meaningless slogans but to recognise the bias and prejudice that rests at the heart of our narrative on terrorism.

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Book Extract

“On the day of shab-e-baraat, Riyaz told me to finish my work early and reach the Bada Kabristan by noon. Riyaz, Rais and two others were already present when I reached … They handed me one cycle… Then I saw the bomb that we had prepared the previous night, wrapped in a black bag tied to the carrier of the cycle.  I parked the cycle in the parking lot of the madrasa opposite the masjid. Then I saw Riyaz hand Rais a black bag carrying a bomb. Rais hung the bag on the gate of the Kabristan. Riyaz and the two strangers who were with him then hung the bomb bag on the wall of the powerhouse opposite the wazukhana.”

Thus was recorded Noorul Hooda’s confession by the S.P. of Thane Rural on 22nd November 2006. His confessional statement under section 18 of MCOCA became one of the crucial pieces of ‘evidence’ in the ATS’ investigation in the Malegaon bombings of September 2006.

The ATS chargesheet carried all the hallmarks of a classic terror investigation in our country: a set of accused with a SIMI past – seizures of ‘jihadi’ literature pretending to attest to that; secret meetings to discuss and carry out jihad. Training in arms and bomb making. A Pakistani connection turning it into an international conspiracy. And finally a voluminous chargesheet whose sheer size has the ability to crush and destroy the spirit of the accused.

Hefty chargesheets are often a key part of the psy-ops in the war on terror. The Malegaon chargesheet ran into over 2200 pages. But in brief, the prosecution case was as follows: a group of men – among them unani doctors, owners of battery shops, labourers, unemployed youth – had conspired to engineer communal riots by blasting bombs in the masjid on the holy day of shabe-e-baraat. Some of them had earlier received training in arms and bombs in Karachi, which they had reached via Dubai. When the blasts – 4 in all, which killed 32 and injured 312 –failed to bring out Muslims in riotous mobs onto the streets of Malegaon, this module decided to plant another bomb, a fake one, comprising sand and RDX, in a mixed locality, hoping that it would produce the desired results.

Now that the NIA’s supplementary chargesheet has destroyed the ATS case piece by piece, one can only imagine the torture that must have driven an innocent man to incriminate himself and others accused in the blasts.  ATS is known to house an apparatus of indescribable cruelty – not the random, routine violence that our police thanas are known for – but hardcore nuts and bolts, clinical kind of torture involving noxious gases, stinging burning oils, even cockroaches – supplemented often by narco tests. Few can emerge from their chambers without signing a voluntary confessional.

The investigation was handed over to ATS on 23 October, and as if by magic, the conspiracy unspooled itself, leading to a flurry of arrests, all accused gripped by a strong urge to confess to their culpability in the blasts. Though the ATS chargesheet ran into an overwhelming two thousand plus pages, listing 445 witnesses – the ATS proved to be singularly unlucky, incompetent, or plain callous, take your pick, in its list of witnesses. The witness to the preparation of bombs, the ace in the ATS’s arsenal, fled to Allahabad to file an affidavit in the Diwani adalat that the agency had forced him to sign on a false statement before a magistrate. Another witness was found making an appearance repeatedly in the ATS panchnamas – being witness to both, the recovery of clothes of the deceased and the recovery of the fake bomb. The problem, however, being that both recoveries were made at the same time.  There was little by way of evidence to substantiate the claims of arms training in Pakistan. Absolutely nothing to corroborate the comings and goings of Pakistani terrorists.

On the contrary, the NIA found numerous witnesses testifying that one of the alleged bombers was leading Friday prayers in Yavatamal, 400 hundred kilometres away, on the day of the blasts.

Even though bombs were planted on cycles, a test identification parade to ascertain who had procured those bicycles was never conducted by the ATS. In fact, the investigation tended to ignore the four bombs that had exploded within minutes of each other – three in the masjid and the fourth in the busy Mashawrat Chowk – to focus on the one that did not, an imitation, a mixture of sand and RDX, dangling from a wall four days later. This fake bomb, goes the ATS lore, led them to the godown of battery seller Shabbir, where the soil samples showed up RDX traces. The ‘witnesses’ to the seizure of soil samples later recanted.  Shabbir became Accused Number 2 in the Malegaon blast case.

It did not strike the ATS chief, the bosses in the Maharashtra police hierarchy, or the authorities that sanctioned the invocation of the dreaded MCOCA, that Shabbir Masiullah had in fact been arrested at least a month prior to the blasts by the CB CID in connection with an alleged conspiracy to bomb the Ganesh Visarjan festival. Or that two other accused, Noorul Hooda and Riyaz, had been called into questioning by the Azad Nagar Police station precisely three days prior to the blasts. Another accused Mohd. Zahid had earlier been booked in two other cases of conspiracy. How could this circle of men, under watch, even detention in Shabbir’s case, manage to conspire and execute an attack of this scale involving the use of RDX?

It was no more than slight inconvenience that Shabbir was in judicial custody at the time of blasts. But neither this, nor the lack of evidence proved to be deterrence for obtaining sanction for the draconian MCOCA legislation.

Two thousand pages of lies and subterfuge. Who built it up, falsehood by falsehood?

ACP Kisan Shengal, in charge of investigating the Malegaon blasts also served on the team investigating the Mumbai train bombings earlier in July that year. Shengal in fact sewed the two cases together, charging two of the Mumbai accused to have supplied RDX left over from the train bombings for the Malegaon blast. He sniffed out RDX traces from Shabbir’s godown, just as he recovered RDX from the home of an accused in the train blast case. The momentous crashing of Shengal’s case has the potential to wreck the prosecution in Mumbai train blasts too.

But the fallout of the Malegaon frame-ups goes beyond simply one or two cases. It’s significance lies in throwing up, yet again, the pattern of terror investigations. The marking out of Muslim population as suspect and the breeding of informers, who themselves can be sacrificed without compunction – which Abrar Ahmed, accused no. 9 was to discover – as the sine qua non of the relationship between police agencies and Muslims. Malegaon must also be held up as an example of how the constructed idea of Muslim rage and revenge has congealed our national narrative of terrorism.  Every single confession – dictated now we know by the ATS – alluded to the 2002 Gujarat pogrom, the Malegaon riots that preceded it, and the thirty felled mosques that were calling out to be avenged.

Across the, country, the prosecution habitually submits videos of Gujarat violence, allegedly recovered from the accused, as proof that they had been ‘radicalized’ and prepared for jihad.  Malegaon shows us how facile and constructed this narrative is.

Abrar Ahmed, the 33-year-old electrician from Malegaon ostensibly dictated his confessional statement to deputy commissioner of police, zone I, Mumbai, soon after he was arrested by the Mumbai ATS. ‘Revealing’ details of the meeting of SIMI activists where the conspiracy of Malegaon blasts was hatched, he said:

“In this meeting, Dr. Salman, Dr. Farog, Munnawar and Shabbir told us how in 2001 our mosques had been razed and our Muslim brethren killed. We should avenge these at any cost… we were already burning with the desire for revenge – we only needed someone to show us the way. The police, administration and the Hindus had inflicted brutal repression on us.  Dr. Salman and Dr. Farog lectured to us about that. Mohammad Zahid filled us with enthusiasm and energy by encouraging us to avenge this repression by exploding bombs in Malegaon, and if need be, to use arms as well.”

Were the officers who recorded these false statements willing partners of ATS, or had the threat of more violence turned the accused into reluctant participants in the charade of voluntary confessions? It demonstrates how inherently dangerous it is to rely on laws like MCOCA which have at their core confessions recorded by policemen. But this is also precisely the usefulness of laws that admit confessions as evidence: lack of evidence substituted by torture confessions.

But most troublingly, it shows how easy it is to put away people for years. To charge them with crimes so heinous that they could possibly be sentenced to death. With no fear of consequences. Shameless prejudice is matched only by gross impunity. Whether Kisan Shengal will be tried for fabricating evidence and implicating innocents, or will he be saved in the name of the ever-depleting morale of the investigators, we shall only know in some time.

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