Document on Terrorism and Justice
Terrorism is a curse. Therefore, its condemnation and action against it is inevitable. Keeping this in view, a number of legislations were made at the central and state levels. However, it is a general feeling that the anti-terror legislations are proving to be more harmful to the innocent people, belonging to different religions, than curbing terrorism. In the wake of this feeling, two anti-terror legislations have been allowed by the government to lapse in the past.
Presently, an atmosphere of fear and terror due to abuse and misuse of laws exists again. There come to light time and again a number of police cases of custodial death, torture and encounters.
Many term it the 'politics of fear' due to the vested interests of political parties. How much the politics of fear is influencing the society can be gauged from the reports coming from Uttar Pradesh that different Bar Associations, including those in Faizabad, Varanasi, Lucknow and Allahabad, have passed resolutions banning lawyers from appearing for the accused said to be related to the banned Students Islamic Movement of India (SIMI) and some other bodies. Earlier, this situation was more or less in Gujarat due to which a number of cases had been transferred to Maharashtra. In such a situation when lawyers play the role of judges, the innocent victims find themselves helpless.
As is well known, the first anti-terror legislation came into force to deal with the militancy in Punjab in 1984. It began affecting those belonging to the Muslim community too after the unlocking of Babri Masjid on February 1, 1986. And, now its victims are all those who are marginalized, weak and poor.
So far as the situation from the Muslim point of view is concerned it can be described in no better way than Seema Chishti's third part of the "Missing Muslim" in Indian Express, October 29, 2006, scooping the contents of the Sachar Report under the heading "Prison is the only Place Where Muslims are Over-Represented". It is to pint out that the data, though collected by the Sachar Committee but not included in the final report, showed Muslims in much higher numbers as prison inmates in proportion to their population in several states. Experts have offered poverty and discrimination as some of the reasons for higher Muslim arrests and convictions. While Sachar Report has generated a lot of interest, not much has been done to correct the wrong on the innocent Muslims who find themselves behind bars.
Around 72,000 out of 77,000 detained under TADA were released without having been charged or tried. Most of them were tortured with a view to extracting confessions from them. Thirteen years after the TADA lapsed, 147 persons are still under detention for offences under that Act. Similarly, around 3,500 persons in 18 states of India were held under POTA in three years of its existence. Gujarat is the state with the highest number of detentions and all but one of the 287 people initially held under the act were Muslims. As many as 234 Muslim militants belonging to various groups are currently lodged in different jails in Assam. So far 181 former members of the banned Students Islamic Movement of India (SIMI), including 128 in Madhya Pradesh, have been arrested in various states of India since 2006.
As mentioned earlier, the anti-terror measures began around mid-1980s in the wake of the militancy in Punjab with the Terrorist Affected Areas (Special Courts) Act 1984, followed by the Terrorist and Disruptive Activities (Prevention) Act, 1987; Religious Institution Ordinances, 1988; SAARC Convention (Suppression of Terrorism) Act, 1993, Maharashtra Control of Organised Crime Act, 1999; Prevention of Terrorism Ordinance, 2001; Prevention of Terrorism Act, 2002; and Unlawful Activities (Prevention) Amendment Ordinance, 2004. Besides, there were already other laws like the National Security Act, Armed Forces Special Powers Act, Armed Forces (Jammu and Kashmir) Special Powers Act and the Jammu & Kashmir Public Safety Act to deal with the terrorism.
However, it is a fact, bitter fact, that the steps taken in the name of terrorism too created big problems and became a matter of great concern not only for the human rights activists and other people but the Government of India itself. That's why a number of counter-measures, like the Protection of Human Rights Act, 1993; and Prevention of Terrorism (Repeal) Ordinance, 2004, were too adopted. Besides, it is also a fact that this concern prompted, rather forced the Government to allow the Terrorist and Disruptive Activities (Prevention) Act, 1987, commonly known as TADA, to lapse in 1995 though cases initiated while it was in force still continues to hold legal validity.
The present environment of fear and terror is due to the abuse and misuse of anti-terror measures. Time and again one comes across the news items in the media wherein the needle of the doubt of police and intelligence in different incidents related to terrorism seems to be pointed to minority communities and other weaker sections and afterwards persons belonging to these sections are taken into custody. They are reported even to be forced to confess to own allegations in the custody and interrogation cells. There also come such examples wherein persons are found innocent and acquitted after spending several years in jails.
It is wondering that a substantial number of them belonging to the Muslim minority community are termed as "top leaders or commanders" of Al Qaeda or any other terrorist organizations and it is publicized through media. However, when the case is over, it seems as if nothing had happened.
It is to point out that the reports appearing in the media of unsubstantiated claims by police and intelligence about the involvement of Muslim organizations or persons in each and every act of terror even before an enquiry begins, further enhance the fear and perturb the minds of all the thinking people, irrespective of religion, caste, colour and race in the country. This has been going on for years even though such claims turn out to be false in most of the cases.
Reports also give the impression that political parties are too responsible in creating such atmosphere for their vested interests. So far as the present atmosphere following the arrest of innocent persons in the name of SIMI in Madhya Pradesh is concerned, the Congress has itself recently condemned the BJP government there. This atmosphere is badly affecting the spirit of our democracy and Constitution.
It is irony that this all is happening at a time when Prime Minister Dr Manmohan Singh and UPA Chairperson Sonia Gandhi have already made it clear that Islam has nothing to do with terrorism, therefore, it should not be seen linked with a particular community. Besides, there has also come a clean chit from the government with regard to the religious seminaries.
It is to point out that TADA was the first legislative effort in 1987 by the Union Government to define and counter terrorist activities. It was renewed in 1989, 1991 and 1993 before being allowed to lapse in 1995 in the wake of the criticism from different sections of the society due to widespread allegations of abuse and misuse of legislations.
The credit goes to the AIMC that it through its historic Anti-TADA Convention held in New Delhi on August 2, 1994, helped the then Congress Government headed by late P V Narasimha Rao with the evidences of abuse and misuse of TADA, resulting in the harassment of innocent citizens of the country and prompted it not to allow further extension.
The drawback in TADA was that it didn't provide a definition of the term 'terrorist'. It merely presumed that the accused was guilty. It had a conviction rate of less than one per cent despite the fact that, under criminal law, a confession before a police officer, even though being given under torture, was admissible as evidence in court.
It is to point out that a special court under its provisions, better known as TADA Court, was set up to hear the cases and deliver judgments pertaining to 1993 Mumbai bombings claiming the lives of 257 persons and injuring 713. It has already delivered on July 31, 2007 its final judgment, awarding capital punishment to 12 persons, life imprisonment to 20, and varying punishment to 67, mostly convicted for conspiracy, preparing the bombs or planting explosive laden cars or scooters.
TADA was formulated in the backdrop of growing terrorist violence in Punjab which had its violent effects in other parts of the country too, including the national capital New Delhi. However, later on, other incidents too were tackled under it. It was then the detention of Muslims in different cases began. A substantial number of Muslims charged under it are still behind the bars 13 years after its lapse.
So far as the exact number of those arrested, convicted and acquitted under TADA is concerned, there could not be available exact official figure. It is on record that in response to a question, the then Minister of State for Home Affairs, Vidyasagar Rao on March 15, 2001 said in Rajya Sabha the Centre do not maintain information on the number of persons detained under TADA and other Acts in connection with the Punjab problem.
However, according to late Qazi Mujahidul Islam, Secretary General, All India Milli Council (AIMC) in his key-note address, delivered at the Anti-TADA Convention held in New Delhi, in February 1993, 52,268 persons, including 15,000 in Punjab and 14,000-15,000 in Gujarat were in jails.
According to a public statement released on September 20, 2006, by the Amnesty International (AI), "around 77,000 persons had been arbitrarily arrested under TADA and thousands were tortured with a view to extracting confessions from them. Of those arrested, around 72,000 were later released without having been charged or tried. A decade after the TADA lapsed, 147 persons are under detention for offences under that Act, including some held in connection with high profile cases for which trials are still ongoing."
The provisions of POTA, known as 'TADA's Successor' originally came into force six years after TADA in the form of a Presidential decree, known as the Prevention of Terrorism Ordinance (POTO) in October 2001, soon after the September 11 attacks on the United States and the adoption of United Nations Security Council Resolution 1373 instructing States to take steps against terrorism. In March 2002, the Indian Parliament passed POTA. The Act was in force till September 2004, a month before it was to have lapsed.
According to a public statement issued on September 20, 2006, by the Amnesty International (AI), in the three years of its existence, a total of 217 cases were reportedly investigated under POTA; trials in 116 of these cases were either completed or are ongoing. Around 3,500 persons in 18 Indian states (including a few children in Jharkhand and Tamil Nadu) were held under POTA for varying periods of time. Gujarat is the state with the highest number of detentions and all but one of the 287 people initially held under the act were Muslims, the AI statement says.
There are conflicting figures about the number of persons still detained under POTA.According to the official reports, 135 such persons are still in jail, but human right activists insist that at least 400 persons remain under detention.
POTA was in force for almost three years, from 2001 to 2004. Under this law, people could be arrested on mere suspicion and detained without charge or trial for six months. The law also allowed for special investigation, as well as special courts and trial procedures.
POTA is gone but Unlawful Activities (Prevention) Amendment Ordinance, 2004 came as its successor. Besides, there exist already some other legislations.
It is to point out that 234 Muslims are now in jails in Assam. Rockybul Hussain, Assam Minister for Forests and Environment, told the Assam state assembly in Guwahati on April 1, 2008 that as many as 234 Muslim militants belonging to various groups are currently lodged in different jails in the state.
Similarly, according to the Gujarat Government data, presently the official numbers of post-2002 violence Muslim prisoners in different prisons of Gujarat are 923: 369 in Ahmedabad; 162 in Surat; 63 in Rajkot; 83 in Vadodara; 78 in Jamnagar, 59 in Mawali; 40 in Bhavnagar; 39 in Nadiad and 30 in Bharuch.
Replying to questions in the Lok Sabha, Minister of State or Home Affairs Sriprakash Jaiswal on April 22, 2008 said 181 activists of SIMI were arrested in various states since 2006 and arms, ammunition, incriminating literature and other items were recovered from them. Of them, 128 were arrested in Madhya Pradesh only, Jaiswal said.
The same day home ministry informed the House that SIMI had a vast network in Gujarat, Madhya Pradesh, Kerala, Karnataka and Andhra Pradesh. According to it, the maximum arrests of SIMI activists have been made from MP.
Indian Express Scoop on Muslims' Over-Representation in Prisons
It is to point out that Sunday Express (October 29, 2006) through its report of Seema Chishti had scooped before the submission of the Report on November 17, 2006 by the seven-member High Level Committee (HLC) headed by Justice Rajinder Sachar that the "prison is the only place where Muslims are over-represented". However, it was most surprising when the Sachar Report came out, this startling and revealing portion was missing.
Sunday Express report revealed: "In sharp contrast to education and employment, where their share is way, way below their share of the population, Muslims have a disproportionately high representation when it comes to being in prison. In fact, in many states, Muslims even make up a higher percentage of the population in jail than they do outside. This statistic, a key finding of the Prime Minister-appointed Justice Rajinder Sachar committee - which is looking into the status of Muslims nationwide - has major social and political implications. Such a high figure of incarceration, experts say, means further marginalisation of the community, deepening prejudice and distrust. While there is no break-up of the nature of the crime for which these inmates have been imprisoned, sources said the total number of inmates surveyed is 102,652 and a majority of them are not in for terrorism. A dozen states with significant Muslim population shares were asked to furnish statistics on the number of Muslims in prison, convicted and under-trials. West Bengal, Uttar Pradesh, Bihar and Andhra Pradesh have not reported back to the committee on this so the data available is only for eight states that did…
"Data accessed by Sunday Express shows that when it comes to Muslims in the prison population, Maharashtra, Gujarat and Kerala are the most disproportionate.
- In Maharashtra, the percentage of Muslim jail inmates in all categories (see chart) is way above their share in the population (Muslim share in population is 10.6%, share in the total prison inmates is 32.4%.
- When it comes to those in prison for less than a year, Muslims contribute 40.6% of all prisoners in Maharashtra.
- In Gujarat, the percentage of Muslims in the state is just 9.06% but they make up over a quarter of all jail inmates.
- Assam, the second highest Muslim populated state in the country, after J&K, has 30.9% Muslims, and here, the percentage of Muslim jail inmates is 28.1.
- Even Karnataka, which did relatively better than other states in providing jobs to Muslims, shows the same trend: 17.5% of its jail inmates are Muslim as compared with 12.23% of its population…"
Seema Chishti quotes the views of former bureaucrat and now Chief Information Commissioner Wajahat Habibullah and former diplomat and renowned Muslim leader Syed Shahabuddin.
Wajahat Habibullah: "The higher numbers of Muslims in jails is also a reflection of the fact that Muslims are poorer generally and are more likely to get picked on by the police because they are easy prey due to fewer entitlements.
Prejudice against them also exists but gets compounded because of their poverty."
Syed Shahabuddin: "The belief that Muslims are terrorists is only a product of the anti-Muslim bias the police have. If Muslims are involved, they pick up ten in place of one. Invariably, they make arrests when not necessary, and eventually, they cannot prove the cases."
Cases of Police and Intelligence High-Handedness
There is no dearth of reports appearing in the media of unsubstantiated claims by police, intelligence and ATS about the involvement of Muslims, Sikhs, Christians, Budhists and other organizations or persons in each and every act of terror even before an enquiry begins. This has been going on for years even though such claims turn out to be false in most of the cases. Gay McDougall's World Report on Minorities 2006 as well as Amnesty Report's Foreword 2007 by Irene Khan, both point out how fear of terrorism by States has increased suspicion and discrimination against minorities and their ill-treatment. Moreover, the acquittal after 14 years of many innocent people now by TADA court proves that a large number of innocent persons had to undeservedly bear the consequences of the sins of a few.
Delhi-based writer and social activist Subhash Gatade in an article "How to 'Carve Out a Terrorist' from an Innocent Person and Say It Works", appearing in different newspapers and periodicals, portrays the case of Aftab Alam Ansari, an electrician with a power campany in Kolkata (West Bengal) with the following intro:
"Judge: The papers on my table show he is not Mukhtar. So what is his real name?
Officer: He is actually Aftab Alam Ansari.
Judge: That means you have arrested a wrong person. How can this horrible blunder take place?
The officer stayed silent.
Judge: If he is neither Mukhtar nor Raju, why did not you write that in the petition clearly? Have you written that? Please underline that and show it to me.As the officer began scanning the petition, he looked puzzled.
Judge: I'm not going to accept this petition. Please go and make a fresh one.
Aftab Alam Ansari…is finally free. And the ordeal which he had to go through as a 'terrorist' is finally over.
It is now history how he was arrested from Baranagar in Kolkata on 27th November (2006) with Bengal police's help supposedly for 'ferrying the entire cache of explosives for the November blasts in UP'…
Though Aftab is now free, Ayesha Begum, Aftab's mother has other worries staring in her eyes. Whether they would be able to live a normal life and would ever be able to get out of the 'stigma' attached to the whole operation and Aftab's brief sojourn in jail."
The case of Aftab Alam Ansari is not the only one. Like him, several persons have to go through such ordeals. The question is: Is the government ready to take up this all seriously?
In the same article, Subhash Gatade gives another example of late Khwaja Yunus, a Gulf returned software engineer, of Maharashtra.
"It is now history how Khwaja Yunus…was arrested by the police on December 27, 2002 and booked under POTA,in connection with the Ghatkopar blast. On January 7, 2003 Yunus was found dead amidst police claims that he had escaped after the vehicle in which he was being escorted to Aurangabad had met an accident. Later, it was revealed that Yunus was tortured to death by some police officers. After persistent protests by human rights activists about this custodial death and struggle for justice launched by Yunus' mother Aasiya Begum, FIR was lodged against the guilty policemen. Of course, the dillydallying on part of the Maharashtra government continued unabated. The High Court's query was simple "Why were ten top police officers initially named by CID for their alleged involvement in the custodial death of Yunus let off?"
There are countless such cases of high-handedness by the law and order machinery. However, it is strange that these machineries don't come into action so seriously when associated with organizations like Bajrang Dal are caught red-handed. The following report appearing in The Hindu on September 9, 2006 reveals:
"In April (2006), Bajrang Dal activists Naresh Raj Kondwar and Himanshu Phanse were killed while attempting to fabricate an improvised explosive device along with their fellow extremists Maruti Wagh, Rahul Pande and Ramraj Guptewar. Investigators later recovered a second bomb from the Nanded home where the bomb-making exercise was under way, and evidence that the extremist had struck before. Maharashtra police found that Kondwar and Phanse were the key figures in the April 2006 bombing of a mosque at Parbhani, in which 25 persons were injured. Bajrang Dal operatives linked to the Nanded terror cell, investigators believe, also carried out the bombing of mosques at Purna and Jalna in April 2003.
Eighteen persons sustained injuries in these twin attacks."
The cases of 'fake encounters' are also a matter of great concern. The following excerpts from a letter written on the basis of the report by a fact-finding mission to the Chairman of the National Human Rights Commission, New Delhi by Kirity Roy, President of the Howrah-based NGO, Banglar Manabadhikar Suraksha Mancha (MASUM), are enough to show how innocent people are becoming victims.
"This encounter occurred at 7.30 AM on March 8, 2008 at 72 / 105 I.B. Pillar Araji-Shibnagar, Police Station: Jalangi, District: Murshidabad (West Bengal). The victim was a mentally imbalanced person of about 50 years with matted hair and beard face wearing torn clothes. He was often seen loitering in the area by local villagers. The villagers also confirmed that the victim was shot dead by BSF and in order to conceal their crime allegedly kept one hasua (an instrument used for cutting grass) wrapped in a clean white towel beside the body of the victim and not only that the perpetrators also procured two buffalos from nearby BSF Camp in order to colour the incident as an encounter and the victim as smuggler. It is unprecedented that the perpetrators fired four bullets on the back of an insane person on suspicion of smuggling by him. The BSF coloured the incident as an encounter death and launched a police case against the deceased victim by influencing the police."
This is just an example. One comes across time and again such reports from other parts of the country, including Jammu and Kashmir. The problem is that the guidelines issued by the National Human Rights Commission on December 2, 2003 in the encounter killings are shown scant respect and regard by the law enforcing agencies at the border areas or elsewhere.
There also often come reports in the media about the pathetic conditions in the prisons. There is a dire need to pay more attention towards this important aspect too. According to the Hyderabad-based NGO, Civil Liberties Monitoring Committee, there are 3,50,000 prisoners in the 1300 jails of the country out of which 70 per cent are under trial. Conditions in these prisons for under-trials or inmates don't meet bare human rights standards.
The above facts at a glance are sufficient to show that there exists an environment of fear, insecurity and uncertainty. The AIMC recalls that on September 21, 2004, the new Government of Prime Minister Dr Manmohan Singh fulfilled one of its key election pledges to repeal POTA and to amend existing laws in recognition that POTA had been used to target political opponents, minorities and marginalised sections of the Indian society. At that time, the government gave a commitment to complete, within a year, its review of cases pending under POTA. Nevertheless, a large number of POTA detainees continue to languish across different jails in the country. A majority of cases have been reviewed by committees set up for the purpose, but the review process itself has come under question, with a number of state governments including Gujarat, contending that state prosecutors had the powers to reject the committees' recommendations to drop POTA charges in key cases.
AIMC expresses concern that four years after the government decision to repeal the controversial Prevention of Terrorism Act (POTA) in response to widespread abuse, hundreds of persons detained under POTA continue to languish in jails without trial and several are undergoing trials for breaching a flawed and now defunct law.
It is a matter of concern that the authorities continue to remain wary of arming themselves again with a POTA-like legislation despite repeated demands to do so after the blasts at Mumbai and Malegaon in Maharashtra. AIMC deplores any attack deliberately targeting civilians and any other indiscriminate attack, but maintains that ordinary criminal laws sufficiently enable the authorities to deal with these crimes.
AIMC, therefore, urges the government to drop all cases under POTA and immediately release all individuals held without charge under POTA, unless in those cases where it decides, expeditiously, to transfer them to ordinary courts to face ordinary criminal charges. Even in such cases, continued detention should be the exception rather than the rule, and trials must meet international standards of fairness. Time spent in detention should be counted towards time served. The trial, conviction and sentences imposed in cases already completed must be reviewed in light of the provisions and requirements of ordinary criminal laws and of international standards of fairness. The same principles should apply to those still detained or imprisoned under the earlier Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), 13 years after it lapsed.
It is to point out that this is not the first effort by the All India Milli Council to rise for patriotism and against terrorism and injustices. It was the only organization to launch "Kaarvaane-Azaadi" (Caravan of Independence) passing through 100 towns and cities of the country in 1997 to mark the golden jubilee of India's Independence, arousing patriotism among countrymen. It strengthened the democracy by raising voices along with the thinking countrymen against injustices caused by TADA and POTA in 1994 and 2001, respectively. This time it is again rising up along with people belonging to different religions and communities in the wake of an environment of fear, insecurity and uncertainty found among countrymen, particularly those belonging to the minority communities and other weaker sections.
Justice A M Ahmadi's Inaugural Address
Dr M Manzoor Alam's Keynote Address
Document on Terrorism and Justice