The terror of law

The draconian counter-terror laws are often misused by law enforcement agencies to frame innocent people at will. Even if acquitted, it means little because of what they have lost out on

Shalini Sharma Delhi

Irshad Ali began working as an informer for the Delhi Police Special Cell at the age of 19 or 20. Although, with a gun pointed to his head there was no way he could have said no, he started enjoying it after a while. “It was an important job and I was being paid Rs 7,000 a month. I drove an auto at the same time. All was good,” he says. A few years later, in 2005, the Intelligence Bureau (IB) told Ali that the government had been taking good care of him by giving him an important job and it was time for him to do something for the country. They said that they wanted him to go to Pakistan as a spy, for he would be able to blend in without any trouble since he could speak Urdu and read Farsi. The idea was grand and for a moment made Ali feel like he was the flagbearer of patriotism. Had it not been for his ailing father and the many responsibilities waiting to be fulfilled at home, he would have agreed. Ali’s refusal, however, did not go down well with his IB bosses and a few months later he was booked under Section 121 of the Indian Penal Code (IPC) for being associated with a terrorist organisation called Al Badr. Ali, alongwith his cousin, Maurif Qamar, who was also arrested on terror charges, was acquitted by a sessions court in Delhi on December 22 last year after 11 years behind bars.

Ali says being abducted by the police had been a routine affair since he was 19. He would be caught by cops in plainclothes, kept in custody, beaten up and asked to confess to crimes he hadn’t committed. They would drop him home later because they could not get anything out of him—no evidence or confession. His elder brother, Naushad, was already serving a life sentence on terror charges in Tihar Jail. So, when he was abducted by the cops on December 22, 2005, when he went to collect his salary from his IB boss, Majid Din, Ali had thought that it was another routine abduction and they would let him go after a while. But what followed changed the course of his life.

He was taken to an unknown location, which he thinks was probably near the Red Fort, and lodged in a dark room with no window or source of light. There were several other detainees like him, kept in similar conditions. With no light around, one ceases to differentiate between the darkness that exists inside the mind and outside. Sometimes, Ali spoke to the detainee in the next room. He was a Pakistani national and almost every time said, “Maar denge (They’ll kill me).” Losing sense of time and sanity, Ali used to count meals to ascertain the number of days that had passed. “If I was stripped and beaten up, I used to count the day as a lucky one because they did things that were more terrifying, like putting petrol on your sensitive parts or hanging you upside down under a water jet,” he says. Sitting in a cafe with me, recounting the pain he endured, he says that the interrogation techniques used by the cops turn people into a circus animal, you will do anything and everything to escape it—you will jump whenever the whip cracks.

In 2015, the Jamia Teachers Solidarity Association released the second edition of Framed, Damned and Acquitted in which it listed 24 cases in which the accused were arrested by the Special Cell on terror charges but acquitted by a court for lack of evidence. The most recent acquittal came last month when Mohammad Rafiq Shah and Mohammad Hussain Fazili were exonerated in the 2005 Delhi serial blasts case, with the court noting that the police had “miserably failed” to prove the charges.

Draconian terror laws

Manisha Sethy, a scholar and author of Kafkaland: Prejudice, Law and Counterterrorism in India, says that the laws are so vague that it enables the government to designate anything it doesn’t like as ‘terror’. While comparing the Unlawful Activities (Prevention) Act (UAPA) to its predecessors—Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA)—Sethy notes that but for the fact that confessions are not admissible as evidence under UAPA, the Act in many ways resembles POTA (which was repealed within two years by the United Progressive Alliance government in 2004 because it was being misused). However, although confessions are not admissible under UAPA, the police can use the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) to use confession as evidence in court. The Gujarat Assembly has already passed the stringent Gujarat Control of Terrorism and Organised Crime (GUJTOC) Bill, which is modelled after MCOCA and allows law enforcement agencies to tap telephones, make confessions made before the police admissible in court and detain suspects in cases for longer.

Rebecca John, who represented Rafiq Shah in the 2005 Delhi serial blasts case, says that the counter-terror laws compromise on the rights of the accused and make it easier for the State to conduct tardy investigations and fabricate evidence. “Everything is in their (law enforcement agencies) favour and against the accused. So, it is the accused who has to prove his case beyond reasonable doubt and not the other way round. When criminal jurisprudence is put upside down and you reverse it on its head, you will have tragedies like these,” John notes.

(Mohammad Aamir Khan in a TV interview )

Shoddy and wilful investigations

Mohammad Aamir Khan has become the face of botched terror investigations in India and for good reasons. He was merely 18 when he was charged with involvement in 19 terror cases. “Itni to meri umar bhi nahin thi jitne case lagadiye the (My age at the time was less than the number of cases against me),” Aamir says. He has a pleasant face and smiles a lot. The 37-year-old says that he had seen a Webley& Scott revolver, which the police claimed had been recovered from him during the raid, for the first time in his life when it was presented before the court. That day he had gone back to the prison and asked his fellow inmates what a Webley& Scott revolver was.

Irshad Ali says that before the Special Cell presented him before the media and court, the cops had a conversation on how many men they should “pick up” so that the arrest looked a big deal before the media. They settled at two because they thought the operation must look genuine too. Ali’s mobile phone had been seized by the cops and they decided to arrest his cousin, Maurif Qamar, for two reasons: first, they were pissed by the number of calls he made to Ali whose whereabouts were not known to his family, and, second, he was a relative so it would be easy to prove that they were associates. “Isi ko uttha lo (Pick him up),” they had said.

In Shah’s case, when the cops were interrogating him while in detention, they had said to him, “Kashmir me bahut tang kar rakha hai (He has created a nuisance in Kashmir).” It was a reference to Shah’s involvement in college politics where he spoke ardently on issues concerning Kashmir.

If one compares these cases, the investigations reveal a pattern. Almost all these ‘dangerous’ terror suspects are held in public places like a bus depot or the railway station, yet there aren’t any independent witnesses to confirm that the arrest and recovery of arms took place. The vehicles used in these operations are private vehicles whose logs can never be verified. The cases drag on for years in courts and fall apart for lack of evidence. The most alarming part of these investigations is that while the person framed is acquitted eventually, the actual perpetrators continue to be at large with no attempts being made to trace them.

Rounding up innocent Muslim youths and presenting them before the media and courts is also a foolproof way of getting promotions and medals from the government. ACP Sanjeev Kumar Yadav, who allegedly laid a trap at Mukarba Chowk and arrested Ali and Qamar, has received eight President’s Police Medal for Gallantry awards and is currently the Deputy Commissioner of Police in the Special Cell. 

Role of the judiciary

When it comes to the role played by the judiciary in aggravating the suffering of the accused in terror cases, John does not hold back: “I think the system stinks. And I think the people of this country need an answer as to why it takes so long.” She says that while the prosecution took eight or nine years to complete its evidence, the defence completed it in a day. Shah also had a strong alibi as his university had confirmed twice that on the day of the blasts, he was in college—key evidence which was withheld by the police earlier. And yet the case dragged on for 12 years.

In Ali’s case, the CBI had filed a closure report in 2008 (two years after he had been arrested), stating that the Special Cell had falsely implicated him. However, the final decision acquitting Ali and Qamar in the terror cases came in December 2016.

“It’s impossible to seek bail in these cases because hysteria is created around the arrests. In such situations, which judge would say that the case is not true prima facie,” says Sethy. John too agrees that the narrative created by the prosecution before the court is based on how serious the offence is and how dangerous the man in the dock is. She also recounts how when Shah was arrested, a report in Hindustan Times had used a large photo splashed across the upper half of the page, with the headline “This is the 29/10 bomber”. Such coverage in the media builds public sentiment against the accused and it becomes difficult for judges to give a verdict that will only incite the masses, especially after a certain number of lives have been lost in a terror attack.

(Rafiq Shah (c) outside his home in Srinagar)

Is justice delayed justice denied?

For Ali, the acquittal may have come after 11 years but it means nothing because he lost his father, mother and daughter while in jail. Rafiq Shah has, on the other hand, lost precious time which he could have used to pursue his dreams of being a scholar. By the time Aamir walked out of prison in 2012 after 14 years in jail, he had lost his father and his mother had become paralysed.

Ali says that there is nothing in the world that can make up for what he has lost out on and there can be no justice. He still steps out of his house thinking that one of the IB sleuths may shoot him in the head in the middle of nowhere. However, he wants to live to see the day when some action is taken against the people responsible for taking away 11 of the best years of his life. “When a butcher holds a bird before slaughtering, the bird knows it is going to be killed. I want to be the bird that flaps its wings so hard that its blood is spilt on the butcher’s shirt when it dies. That is the reason I talk to the media. They (cops involved in the case) must be reading my interviews in newspapers, I hope I am causing some discomfort to them,” Ali says.

Aamir, on the other hand, does not want to have anything to do with the people who were responsible for putting him behind bars. He wants a decent job which will allow him to send his daughter to a good private school and he wants the police who still keep checking on him to leave him alone. Compensation, he says, can go a long way in helping people build a new life. “Those who have been wronged by the law must be able to seek recourse from it. In the absence of a livelihood and the stigmatisation that a terror suspect faces after release, they may end up turning to criminal activities for a living,” he says. Acquittal means nothing if it cannot provide one a chance to start afresh.