Anatomy of Terror Trials

    By Dr. Manisha Sethi,

    Three months after the serial blasts in Jaipur in 2008, the Muslim neighbourhood of Kota saw a spate of police raids. Several men were picked up and many others were threatened into surrendering. They were only wanted for routine pooch teach (questioning) in connection with the blasts; no charges were to be pressed, the police repeatedly assured the frightened men and their families. Days of illegal detention and torture later, these men were accused of spreading communal venom against Hindu gods and goddesses, talking against national unity, integrity and secularism, of involving Muslim youth in anti-national activities, and of carrying on activities of SIMI despite it being outlawed. All of these charges remained vague, with neither the FIR not the chargsheet making any precise link made to any specific terror activity. Nonetheless, elliptical allusions to Jaipur and Ahmedabad serial blasts were made by the police, and the newspapers didn’t take long to present them as key suspects in these blasts.

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    Four and a half years later, the court acquitted the accused. Of the 43 witnesses lined up by the prosecution, 38 turned hostile, swearing in court that they had been made to sign blank papers by the police. The allegedly proscribed literature seized by the police turned out to be perfectly legal, as it dated to before the ban. And finally, the prosecution had failed to secure the sanction of the central government – as is required when certain sections of Unlawful Activities Prevention Act are invoked.

    Dr. Manisha Sethi

    This case is fairly representative of the manner in which UAPA cases are framed and prosecuted. Elusiveness of charges is matched only by infirmity of evidences. Media trials, which link the accused to acts of terror they are not even formally charged with, are conducted; and bail applications rejected repeatedly. The prosecution hopes till the last moment that no one will miss the required sanction. Only, not all are as lucky as these men from Kota. An Ujjain court ruled that lack of credible independent witnesses would not come in the way of its war against terror because. The desire to uphold national security can sometimes outweigh the commitment to rule of law and justice.

    Some would argue that framing of innocents in false charges is a result of the law’s gross misuse by police. That law, any law, by itself is simply an instrument that is abused by biased, ignorant, ill intentioned policemen—implying that there are possible good uses to which UAPA could be employed. But look a little more closely: at the heart of UAPA are the twin arteries of membership (of unlawful organizations) and conspiracy (of furthering the activities of the unlawful organization). Both, membership to an organization that no longer exists legally, and nebulous charges of conspiracy are notoriously difficult to pin down. Any surprise then that Khandwa police in its most high profile operation yet ‘seized’ membership forms of SIMI – duly filled in by the accused – conveniently lying around their homes? That seized literature constitutes the bulk of evidence of conspiracy? The courts found Maoist literature apparently seized from Seema Azad and Vishwavijay sufficient basis to hand out life sentences to the couple. Binayak Sen’s conviction by the Chhattisgarh sessions court also hinged on the recovery of magazines and pamphlets from his house, all of which were freely available.

    Each amendment has brought into the ambit of ‘unlawful’ an ever-growing circle of acts and actors, strengthening the subjective basis of its application, virtually creating a suspicion state. Opposing POTA introduced by the NDA government, S. Jaipal Reddy had laid out four grounds of objection to the legislation: “First, it is destructive of the basic democratic liberties; second, it has been demonstrated empirically in our own country that this a remedy worse than the malady; third, it has been prompted, by malignant political motives; and fourth, it jettisons the basic established principles of criminal jurisprudence without a necessary protective shield.” However, the Parliament attack weathered away the resistance to this draconian law – and almost as a replay, the Mumbai attack in November 2008 drummed up support for a tough law against terror in the form of amended UAPA.

    Short of admitting confession as evidence – much to the chagrin of Advani – the new, improved UAPA 2008 looked remarkably similar to TADA (which incidentally P. Chiadambaram had inaugurated in 1987 as Minister of State for Home). It extended the period of remand to 180 days while rendering the bail provisions extremely stringent. Appealing to his colleagues to pass the amended bill without insisting on a referral to the Standing Committee, PC assured them that Parliament could “revisit the Bills and make the improvements in course of time”. Indeed, he promised, “If any improvements have to be done, we can always come back and look at the Bill when we meet again in February.”The Parliament has only returned to the law to add more muscle to it.

    Having already included terror funding and holding of terror camps as offences in UAPA 2008 (and voila you will suddenly find these charges surfacing in the FIRs—but again with the sketchiest possible details), the Parliament in its last session explicitly incorporated economic offences under the definition of terrorist acts. Amendment of section 15 now declares the production, distribution of “high quality counterfeit currency” as a terrorist offence, and not simply a financial one that was up till now dealt with under sections 489B, 489C, 489D of the IPC. Punjab Police’s partiality towards TADA’s powerful provisions, or Maharashtra police’s quick recourse to MCOCA over ordinary criminal law, has been too well documented to not know that police favour draconian laws when they are available.

    But what firmly entrenches UAPA into the slippery territory of conspiracy, intentions and ‘knowledge’ and away from specific, tangible and verifiable acts is the introduction of the new section, which criminalizes the raising of funds “from a legitimate or illegitimate source… knowing that such funds are likely to be used …by a terrorist organization”… “notwithstanding whether such funds were actually used or not used” for the commission of a terrorist act. (emphasis added). Knowledge that monies could be used for terrorist acts will be difficult to prove in a court of law but it will effectively render suspect all legal transactions: a movement raising funds to carry on its campaigns, a madrasa seeking contributions to rebuild its walls or replenish its library; or ageing parents receiving remittances from a child working overseas. Our police have only to suspect people of receiving monies for them to be put away in jails.

    The new amendments also bring offences by companies, societies and trusts into the ambit of terrorist acts, calling for punishment no less than seven years and up to life term if found guilty, in addition to fines running into crores. It is not as if income tax raids are unknown as weapons to deal with political opponents but the charge of terrorism will now scale persecution to another level. Recall the raids on Rahejas after Outlook published unflattering stories about PM Vajpayee’s foster family; or the decimation of the Tehelka portal after its expose on corruption in military deals. We must be blind or incredibly stupid to think that a law which grants such sweeping powers to the police and prosecution will not multiply this tyranny manifold.

    The fact that an amendment, moved by a Left MP, to exclude trade unions from the purview of the UAPA, was defeated in the Rajya Sabha, is a clear signal that the law would be an instrument to crush political dissent.

    The most Orwellian character of the amended UAPA is the expansive definition of Person as “an association of persons or a body of individuals, whether incorporated or not”. Going much beyond entities recognized in law, the new Act basically grants police the right to first, identify an association, and then to attribute terrorist criminality to it. Imagine, an informal group of students, which meets to discuss a film every weekend, could be deemed an unlawful association! (Don’t be surprised if the agencies claim the cracking of a home-grown filmi mujahideen.)

    Responding to the charge that these amendments would provide sweeping powers to the police, the Home Ministry’s response was this: an innocent person “can produce evidence to show that he is not associated” and a bland reassurance in the Parliament that the law was neutral and would not target particular communities, ignoring the history of its targetted use.

    There is no study to prove that tough law acts as deterrence against terrorism—howsoever one may choose to define the term. What we do have is ample evidence of such laws leading to gross violations of citizens’ rights: illegal detentions, torture, false cases, long periods of incarceration—a wholesale recipe for ‘disaffection’, in fact. In the decade of its existence 76,036 individuals were arrested for crimes under TADA. Of these, only 1.5 per cent ended in a conviction. Similarly, at the time of its repeal, in 2004, 1031 persons were arrested under POTA. Trial was finally completed with regard to 18 of which 13 were convicted. A national audit of UAPA trials and convictions is yet to be undertaken, but we do know that the investigating agencies dress up their conviction rates by including convictions under arms act or explosive substances act under their terror conviction records (as they did in response to JTSA’s report, Framed, Damned, Acquitted).

    Abuse is wired into the very DNA of UAPA. We can only repeal it, not humanize it.

    This is the transcript of the speech delivered by Manisha Sethi, President of Jamia Teachers’ Solidarity Association and a faculty at Jamia Millia Islamia in a programme organised by The Indian American Muslim Council (IAMC) on “Terrorism, Democracy and the Rule of Law,” on August 25, 2013 at the Islamic Center of San Diego, USA.