Travesty of Justice

On March 6, a Surat court acquits 127 people who were arrested in December 2001 under the sections of the UAPA on a charge of participating in a meeting as members of the banned SIMI

Print edition : April 09, 2021

Praveen Togadia at a function in Ahmedabad on November 17, 2002, when he was general secretary of the VHP. Arun Mehta, former State secretary of the CPI(M), said of the political climate in Gujarat at the time: “The atmosphere was not good at that time. The Vishwa Hindu Parishad’s Praveen Togadia was all over the place spreading hate and in particular spoke about the dangers of SIMI.” Photo: Amit Dave/REUTERS

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.

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. However, 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.

Also read: UAPA tribunal upholds ban: The case of SIMI

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.

Also read: SIMI: Ban without basis

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 terror law, 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.

Also read: UAPA: India's anti-India Act

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.”

Also read: Government's game of prosecution

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 Movement 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 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.

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