Human Rights

Some observations about Islamophobia in the Indian legal system

BobbyKunhu_Islamophobia_terrorinvestigationsandtrials.jpgDuring the course of his research into Islamophobia in the Indian legal system, Bobby Kunhu has interviewed people accused of terror, investigating officers, prosecutors, and defense lawyers.

To understand Islamophobia he said, we need to first understand the history of the creation of India and Pakistan, the movement of upper caste Hindus to India during Partition, the transformation and growth of the Jan Sangh into the BJP, and three important decisions made by the Rajiv Gandhi government — unlocking the Babri Masjid, the Shah Bano case, and the ban on Satanic Verses. We also need to understand that Kerala and Kashmir are the only places in India where Muslims have political negotiating power.

Framing investigations as investigations into Islamic terror

Investigations into the blasts that followed the Bombay riots in 1992 were framed only as an investigation into the underworld and not into Islamic fundamentalism. After “9/11”, there is a global discourse of terror and Islamic fundamentalism and that provided the material for the rising Islamophobia in India.

Mr. Kunhu spoke about People’s Democratic Party (“PDP”) leader Abdul Nasser Mahdani, among the accused in the Coimbatore blasts case. He was acquitted after a decade in jail. During that period, several PILs and human rights organisations sought his release.

After that, he was arrested in relation to the bomb blasts in Bangalore in 2013, supposedly on the basis of evidence provided by Thadiyantavide Nazeer, a PDP member whom the Intelligence Bureau called one of the kingpins of the Indian Mujahideen. There are three main witnesses against Mr. Mahdani. His landlord at the house he rented after he was released from Coimbatore jail said that he saw Thadiyantavide Nazeer at the house when he went to collect rent. Later, he filed a complaint with a Magistrate in Ernakulam saying that he did not know what the paper in Kannada he had been made to sign by the Karnataka police was about. A plantation worker in Coorg says that he saw Mr. Mahdani visiting the plantation in Coorg for a meeting with Mr. Nazeer and others. The third witness is an RSS activist.

Judicial discomfort with the special cells of the police and the provisions used in terror charges

Usually, in terror-related cases, charges would be filed under Section 144A of the Indian Penal Code, 1860 (Sedition), Section 3(o) of the Unlawful Activities Prevention Act, 1967 (“UAPA”), and sometimes the Arms Act, 1959. The problem is that most of the lower judiciary is very scared of Section 124A and the UAPA. When it deals with special cells of the police like the Anti-Terror Squad, the Special Investigation Team, or the Crime Branch Criminal Investigation Department, the judiciary is very scared to grant any relief, or even follow procedure.

Unlawful arrests

Azamgarh, a town in Uttar Pradesh was named as the hub of terror recruitment across India after the Batla House encounters. Police picked up people, including many non-Muslim activists of the People’s Union for Civil Liberties. In most cases, they would not file an FIR and the people would not be produced before a Magistrate till civil society organisations raised a hue and cry about the missing boys.

In Hyderabad, immediately after the Mecca Masjid blasts happened, the police went on a rampage, picked up more than eighty Muslim boys from old Hyderabad, saying that there was a Lashkar-e-Toiba link. Nobody knew whether these boys had been arrested at all. The late K. Balagopal, a human rights coordinator, and others tried tracing them. A habeas corpus petition was filed in the Andhra Pradesh High Court and only then was an FIR lodged and the detained people produced before a Magistrate. All this happened at the pre-trial stage and the evidence was already being published in the newspapers.

SIMI was banned under the UAPA in 2002 after the Gujarat pogrom. Under the UAPA, a special tribunal has to be set up, every time a ban is notified. The tribunal has to be headed by a sitting judge of the High Court and examine all the evidence. The life of a ban is two years. Each time SIMI has been banned, by the time the tribunal comes to an end, the ban would be renewed and there would be a new tribunal. The third tribunal found that there was no evidence against SIMI. Soon after, the Union government notified SIMI as an unlawful agency. After the Batla House encounter, the government found it difficult to corroborate their claims about SIMI. The Indian Mujahideen was born at that point, and even though several books and articles have been written about it, no one has found anything outside of what the government has released through the Intelligence Bureau.

Strategic use of the media

Investigating authorities have strategically used the media to plant stories on terrorism. Praveen Swami detailed the Ishrat Jahan encounter on the front page of The Hindu — about how Ishrat Jahan met Pranesh Pillai and how they orchestrated a plan to assassinate Gujarat Chief Minister Narendra Modi. He kept carrying these stories till questions were raised about the legitimacy of the encounter.

(Hemangini Kalra prepared the transcript of Mr. Kunhu’s talk.)