Gujarat’s shame Frontline

24, Mar 2021 | Anupama Katakam

Some 19 years after the Surat Police arrested 127 people under sections of the draconian UAPA, a court in the city acquits all the accused, saying that the prosecution had failed to prove the case against them. But many people see the arrests as part of a plan that set the stage for an intense agenda of polarisation and communal violence.

 

BY ANUPAMA KATAKAM

 

IF  THERE  IS  A  STATE  THAT  HAS  WITNESSED cases that exemplify a travesty of justice, it is Gujarat. A Surat  court’s  recent  acquittal  of  127  people  who  were arrested in December 2001 under the Unlawful Activities (Prevention) Act (UAPA), 1967, on a charge of participating   in   a   meeting   as   members   of   the   banned Students’ Islamic Movement of India (SIMI) is a tragic instance of the adage “justice delayed is justice denied”. After a shocking 19 years, on March 6, 2021, Chief Judicial Magistrate A.N. Dave gave the accused the benefit of the  doubt  and  said  that  the  prosecution  had  failed  to produce  “cogent,  reliable  and  satisfactory”  evidence  to establish that the accused belonged to SIMI. Five of the 127 died during the pendency of the trial.

Injustice is central to this case, with the victims suffering irreparable financial and personal damage. How-ever,  the  incident  is  also  significant  because  it  was  a turning point in Gujarat’s communal history. Frontline asked politicians in Gujarat and rights activists and lawyers who deal with communal issues in the State to revisit 2001  and  comment  on  the  case  and  its  relevance,  the political climate at the time, SIMI’s significance, and the sheer destruction of people’s lives caused by their arrest under a draconian law such as the UAPA. The commentators collectively and plainly stated that the arrests were part of a plan that set the stage for an intense agenda of polarisation and communal violence.

‘ THE PROCESS  IS THE PUNISHMENT’

“The  process  is  the  punishment,”  said  Teesta  Setalvad, civil  rights  activist  and  secretary  of  Citizens  for  Justice and  Peace.  “Who  pays  for  this  false  accusation?  The damage  is  irreparable.  Where  is  the  reparation?  There are two aspects to this case: the legal side and the human rights side. We see this over and over again. There is no time-bound trial and no one is accountable. We saw these kinds of arrests from 2001 to 2014, and it was by both the UPA [United Progressive Alliance] and the NDA [National Democratic Alliance] governments. Whatever be the  case,  can  you  arraign  people  like  this,  without  any checks and balances?”

On December 28, 2001, acting on a facsimile that the Anti-Terrorist Squad (ATS) sent from New Delhi warning that members of SIMI would be at a seminar organised by the All India Minority Education Board, the Surat Police  conducted  a  sweep  at  the  Rajshree  guest  house, where  the  seminar  was  being  held,  and  arrested  127 participants  claiming  they  belonged  to  the  banned  organisation. At that time, the UAPA allowed for bail, and many  of  the  arrested  were  able  to  secure  it.  Official records  state  that  of  the  127  people  who  were  initially arraigned, 122 spent 11 months in jail while five remained in jail for possibly the entire 19 years. Five of the 122 died before the end of the trial.

Lawyers involved in the case said that because of the prolonged trial and the stigma attached to being labelled an extremist, many of the acquitted, who were doctors, professors  and  journalists,  faced  immense  difficulties professionally  and  financially.  Speaking  to  Frontline a few days after the acquittal, Mohammed Abdul Hai, one of the victims, said: “My 30-year professional career was
ruined after the arrest. Every promotion due to me was cancelled.  I  retired  in  2015  from  J.N.V.  University  [in Jodhpur, Rajasthan], but I am yet to get my due gratuity. My finances are completely drained because of the case. It has been very difficult.” Currently living in Jaipur, he said that academics from all over the country had been invited  to  participate  in  the  seminar  on  education  for minorities, which was not a secret gathering of any sort. In fact, three vice chancellors were part of the gathering. Mohammed  Abdul  Hai  taught  business  and  finance, authored books and was a consultant on several industry bodies. He said he was reduced to a non-entity after the arrest.

Asif Sheikh, a resident of Ahmedabad, is another of the victims. An aspiring journalist at the time, he had just graduated  from  Gujarat  University  and  was  attending the seminar as a delegate. His lawyer told  Frontline that Asif Sheikh was stripped, beaten and kept in custody for 14 days for a crime he did not commit. His life took a turn for the worse post the arrest as he could not get employment and even people who knew him well shunned him. When he did get a few contractual jobs, he would be asked to leave as soon as the employer found out about the case. Eventually, he started a small business selling spices. Police harassment was a constant part of his life. Each time there was a communal incident, policemen would arrive at his home and begin a harassing interrogation.

The police allege they found Urdu literature linking the men  to  SIMI.  According  to  the  lawyer,  all  the  men  faced charges under the following sections of the UAPA: Section 3:  Declaration  of  an  association  as  unlawful;  Section  10: Penalty  for  being  a  member  of  an  unlawful  association, etc.;  Section  13:  Punishment  for  unlawful  activities;  Section  15:  Terrorist  act;  and  Section  17:  Punishment  for raising funds for terrorist act. The Act defines a terrorist act as follows: “Whoever does any act with intent to threaten or likely  to  threaten  the  unity,  integrity,  security  or  sovereignty  of  India  or  with  intent  to  strike  terror  or  likely  to strike terror in the people or any section of the people in India or in any foreign country.”

117-PAGE ORDER

Chief Judicial Magistrate A.N. Dave’s 117-page order striking down all the charges and acquitting the victims, written in  Gujarati  and  translated  by  a  news  agency,  says:  “The investigators failed to prove the accused were members of the banned outfit or that they had gathered there to give a push  to  the  movement.  The  court  has  found  that  the  accused had gathered to attend an educational programme and had not carried any weapons. Additionally, the prosecution has not proved that the accused had gathered for any activity  related  to  SIMI  and  neither  do  the  seized  documents  have  any  relevance  with  SIMI.  Even  during  the raids, not a single person attempted to flee the arrest [sic ].”

According  to  sources,  the  link  between  SIMI  and  the Surat  seminar  was  that  by  a  strange  coincidence  the brother of SIMI leader Sajid Mansuri was one of the organisers of event. At the time, SIMI was seen as a terror outfit that  recruited  young  Muslims  to  implement  an  Islamist agenda.  From  time  to  time,  there  would  be  news  reports about SIMI circulating literature on its ideology.

SIMI began as the student wing of the Jamaat-e-Islami but  later  split  away  from  it.  From  the  time  SIMI  was created in 1977 in Aligarh up until 2001, when the Home Ministry,  believing  it  to  be  a  serious  threat  to  national security,  imposed  a  ban,  it  was  a  legitimate  organisation that worked for the upliftment of Muslim youth and it was not unnatural to see SIMI offices in Mumbai and in neighbouring  districts. Frontline ’s  archives  and  the  literature available on SIMI say that in the 1980s, it started becoming radical and by the late 1990s had turned extremist, which meant its members believed in the caliphate and jehad.

Speaking at length about the acquittal, Teesta Setalvad, who has relentlessly fought for justice for the victims of the 2002 Gujarat pogrom, said that the injustice never failed to shock.  As  someone  who  has  closely  witnessed  Gujarat’s  regression into a rabid communal State, she said the arrests
were a huge incident at the time. “It took place a few weeks after  the  Indian  Parliament  was  attacked;  a  few  months prior the U.S. 9/11 strikes had happened. India was seeing a lot  of  hysteria  from  the  right  wing.  In  the  midst  of  this, Gujarat was a major playing field. There is no question the agenda had started.”

According to Section 3, when an organisation is banned, the public needs to be notified. In this case, the judge felt the notification in Surat was not properly done. And the prosecutor had failed to establish that there was a link between the notification and the arrests.

With regard to the legal aspect of this case, she said the judge struck down all the charges. On the charge relating to Section 3 of the UAPA, which deals with the notification of a ban, the judge found no linkage between the notification of the ban and the arrests and said the manner in which the notification was publicised in the local press was wanting.

According  to  Section  17,  a  court  trying  a  case  under  the UAPA needed to assure itself that the Central government sanction for the prosecution was valid. In this case, it was found that it was a State government officer who had given sanction.  The  judge  said  nowhere  did  the  prosecution  establish  beyond  reasonable  doubt  that  these  127  had  any connection with SIMI. There was a claim that incriminating  material  had  been  collected.  If  you  place  this  in  the context of that time, one of the things that kept coming up was  that  these  people  had  literature  praising  Osama  Bin Laden.  The  judge  said  the  mudamal (material  collected) did not establish links to SIMI, Teesta Setalvad said.

“This brings us back to the original question: what is the process  these  agencies  follow  when  picking  up  people? There  needs  to  be  processes  such  as  scrutiny  by  judicial officers.  Without  processes,  an  immense  amount  of  malfunctioning and malevolence and manipulation takes place. That is why we are seeing a host of [such] prosecutions,” she said.

BAD IN LAW, BAD IN PRACTICE

Discussing the UAPA, Teesta Setalvad, an expert on terrorlaw, said that any counterterrorism legislation such as the Prevention of Terrorism Act (POTA), 2002, and the Terrorist  and  Disruptive  Activities  (Prevention)  Act  (TADA), 1987, had a review board and a sunset clause. She said it was because the review board took cognisance of people’s views that POTA was repealed. The UAPA has the worst elements of POTA and TADA and has become a permanent part of Indian  criminal  law,  which  means  that  it  is  a  permanent weapon in the hands of the state, with no sunset clause and no  review  board.  It  is  bad  in  law,  bad  in  practice  and  is leading to malicious prosecutions.

“We  also  need  to  raise  the  issue  of  who  pays  for  the staggering personal tragedy faced by the victims. Should we not have a provision for this by now? When Dr Mohammed Haneef,  an  Australian,  was  arrested  on  suspected  terror charges  and  later  released,  the  Australian  government provided an undisclosed compensation and did everything in their capacity to restore his dignity,” said Teesta Setalvad.

By the early 2000s, consistent and methodical targeting and  maligning  of  Muslims  had  begun  to  change  the narrative  in  the  State.  By  2002,  the  polarisation  had gained momentum and helped flame the Gujarat pogrom in which thousands of Muslims were brutally killed. The Surat  case  is  widely  believed  to  be  part  of  the  plan  to demonise, persecute and, eventually, annihilate Muslims as was witnessed in the riots.

Arun Mehta, former State secretary of the Communist Party of India (Marxist), said: “The atmosphere was not  good  at  that  time.  The  Vishwa  Hindu  Parishad’s [VHP] Praveen Togadia was all over the place spreading hate and in particular spoke about the dangers of SIMI. People  began  to  get  even  more  suspicious  of  Muslims. Therefore,  a  gathering  such  as  the  All  India  Minority Education Board was a perfect target….”

‘SYSTEMATIC BUILD-UP OF COMMUNAL HATRED’

Rohit Prajapati, a human rights activist based in Gujarat, said:  “That  year  we  saw  a  systematic  build-up  of  communal hatred. If you were Muslim, you were branded a militant,  and  if  you  were  a  tribal,  you  were  a  naxal.” Father  Cedric  Prakash,  a  minority  rights  activist  in Ahmedabad who has worked closely with victims of the 2002 riots, said: “I think the Surat case was significant as blatant  arrests…  of  so  many  Muslims  had  never  been seen before. If we look back, either civil society did not see, did not want to see or was fearful of what they were seeing. We did not get our act together and today we are dealing with the consequences.”

Commentators point out that the politics in Gujarat at  the  time  was  an  important  factor  in  the  rise  of  communalism,  which  led  to  incidents  such  as  the  Surat  arrests.  Divided  between  the  Congress  and  the  Bharatiya Janata Party (BJP), the State was witnessing a recalibration  of  its  political  leadership.  Although  the  BJP  had been  in  power  from  1998,  the  party  had  experienced severe losses in various local body elections in 2001. In fact, it lost its most prestigious municipal corporations, Ahmedabad and Rajkot, to the Congress. “When it lost two  major  byelections  that  year,  the  party  must  have decided something had to be done,” said Arun Mehta.

TRIBUNAL’S REPORT

The  Concerned  Citizens  Tribunal,  a  group  of  eminent jurists  led  by  the  respected  judges  V.R.  Krishna  Iyer, Hosbet Suresh and P.B. Sawant, brought out a report in October 2002 in response to the Gujarat carnage. It says: “Given the continuous downslide of the BJP in the State since  ’98,  the  question  has  been  raised  by  many  as  to whether  there  were  any  electoral-political  calculations and machinations behind what subsequently happened in  the  State  from  February  28  onwards.  While  this  remains  in  the  realm  of  speculation,  the  fact  is  that  the Modi  government  prematurely  dissolved  the  State  assembly  and  pushed  very  hard  for  early  elections  even though the situation in the State was far from normal….The  impression  certainly  gained  ground  that  with  the BJP consistently losing at the grass-root level and with assembly elections in the offing, Modi cynically tried to use  the  politics  of  division  and  violence  to  gain  a  fresh mandate from the people.”

The  tribunal  collected  over  2,000  testimonies.  As  a witness  in  the  tribunal,  Teesta  Setalvad’s  testimony reads: “The bringing in of Narendra Modi, in September 2001, signalled a return to hard-line politics by the State BJP said the witness. BJP had been losing local elections all  over  the  State  and  therefore,  bringing  in  Modi,  the architect of deputy prime minister-led rath yatra in 1990 to  the  helm  of  political  affairs  was  significant….  The pre-planning of the violence in terms of the hate speech, hate propaganda and actual training by the Bajrang Dal and VHP has been tracked by this witness for the journal since 1998.”

She said that a concerted effort at polarisation gained momentum  in  2001.  In  her  testimony,  she  says:  “For instance, in January 2001, the BJP government’s circular directing schools to subscribe to Sadhana , a weekly published  by  the  RSS  [Rashtriya  Swayamsewak  Sangh]….The  mindset  of  prejudice  is  even  reflected  in  Gujarat social   studies   textbooks   that   contain   phrases   like ‘Muslims,  Christians  and  Parsis  are  foreigners’,  ‘Caste system  is  the  best  gift  to  mankind’  and  glorification  of Mussolini  and  Hitler  have  been  generated  to  create  a whole  generation  of  Indians  who  are  fed  on  distorted visions of the past…. Deep schisms have been caused in some areas of Gujarat by this systematic politics of division perpetrated by the RSS/VHP/Bajrang Dal combine and this has been legitimised by BJP rule in the State.”

AKSHARDHAM TEMPLE ATTACK CASE

The  Akshardham  temple  attack  case  is  another  glaring instance of injustice in Gujarat where six men spent eight years in jail, three of them with the death penalty hanging over their heads before they were eventually acquitted for lack  of  evidence.  On  September  24,  2002,  in  what  the police say was a retaliatory move against the communal riots earlier that year, armed men stormed the temple in Gandhinagar and killed 30 people.

After  initial  investigations,  the  Gujarat  Police  said that an organisation called the Tehrik-E-Kasas, or Moveent for Revenge, was behind the attack. The State ATS took over the case and came up with several conspiracy theories  that  had  Pakistan,  Saudi  Arabia  or  radical  organisations from Hyderabad (India) responsible for the attack.  The  investigation  never  made  much  headway, and to date it is not clear who carried out the attack. The police  arrested  at  least  a  dozen  suspects  and  charged them under POTA. Six people were released during the investigation stage.

In July 2006, the POTA court sentenced three men to death, one to life imprisonment, one to ten years in prison and another to five years in prison. In 2014, the Supreme Court acquitted all the accused and pulled up the Gujarat  Police for their incompetence and weak investigation of the case. “We are convinced that the accused persons are innocent  with  respect  to  the  charges  levelled  against them,” the court said.

*The article appears in the print version of the magazine’s April 9, 2021 edition.

 

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