S.M. Mushrif: ‘Secularists should challenge UAPA in Supreme Court’

Interview with S.M. Mushrif, former Inspector General of Police, Maharashtra.

S.M. Mushrif.

IN December 2001, the Surat Police arrested 127 people who were participating in a seminar organised by the All India Minority Education Board under various provisions of the Unlawful Activities (Prevention) Act (UAPA). They were accused of organising the meeting to “promote and expand” the activities of the banned Students Islamic Movement of India (SIMI). In early March, after a little over 19 years, the court of the Chief Judicial Magistrate in Surat acquitted all of them . In the Akshardham temple terror attack case (2002) and the Dhaula Kuan case (2005), too, the accused were declared innocent after many years of incarceration. This brings into focus the provisions of a law under which the conviction rate is as low as 2 per cent.

S.M. Mushrif, former Inspector General of Police, Maharashtra, termed the UAPA “unconstitutional”. In an interview to Frontline , he said there were enough provisions in the existing laws to tackle the menace of terrorism. Mushrif, who has authored Who Killed Karkare and Brahminists Bombed, Muslims Hanged , said the system should be changed. Excerpts:

According to the latest data released by the Home Ministry, 65 per cent of the nearly 2,000 sedition cases have been filed since 2014. Are Indians becoming more seditious or is the government becoming more punitive?

The government is becoming more punitive in using the UAPA. They have not defined sedition correctly. All the voices of dissent against the government are treated as sedition. Criticism of the government is a right in a democracy. Social media and public discourse are tools of expression for the common man.

You would have read the recent report on downgrading of democracy in India. [Refers to the report on worldwide democracy since 2017 published by the V-Dem Institute, a Sweden-based independent research body. The report observes that India is on the brink of losing its status as a democracy.] But it has had no effect on the government. We are marching from democracy to autocracy.

We have had instances of noted activists such as Sudha Bharadwaj, Varavara Rao and youths like Sharjeel Imam and Umar Khalid being accused of sedition and terrorism merely because they questioned the actions of the government. Do you think the UAPA is becoming a weapon in the hands of the government?

Not becoming, it has become. Let me tell you, it has not happened only during this regime. It has happened earlier too. Now it has become a regular way to curb dissent. We must remember that the UAPA was passed during the UPA regime. Most of the men who were wrongly accused of bomb blasts, say in Hyderabad, Malegaon and Jaipur, were picked up during the UPA rule. Most of the cases that I have mentioned in my book [ Brahminists Bombed, Muslims Hanged ] belong to that period. I am not saying this government is different. This government has taken advantage of that situation. So, we cannot blame this government alone. We have to blame the system. Governments come and go, but the system remains.

But today anybody, irrespective of religion or caste, is accused of sedition and booked under the UAPA for merely refusing to toe the government line. We have had activists like Sudha Bhardwaj and Varavara Rao, who are both Brahmins, so it is not about Muslims alone.

I am not saying Brahmins. There are many Brahmins who are against the government, against the system. I use the term Brahminist. Rao, Bharadwaj are Brahmins, [Hemant] Karkare [chief of the Mumbai Anti-Terrorism Squad] was a Brahmin, too. We have to target the system. We are not against Brahmins but against the discriminatory Brahmanical system. We must understand who controls the two critical institutions, the Intelligence Bureau and the media. Think about it and you will get the answer. With that they are poisoning the minds of the general public. We should try to gauge the repercussions of this, and find ways to get out of this.

In the light of Bhima Koregaon and the anti-Citizenship [Amendment] Act protests in Delhi and elsewhere, arbitrary arrests have been made under the UAPA. Many professors, students, poets have been incarcerated for long. Is the law supposed to safeguard the common man or frighten him?

It is to frighten the common man, the minorities and mainly Muslims. Any arrest is meant to send a message to the larger society. However, the law cannot stand the scrutiny of the Constitution. It has not been seriously challenged in a court of law. An important body of secularists should challenge it in Supreme Court.

What is wrong with the UAPA?

There is no provision for bail. Whenever the activist is produced before a magistrate for remand, what does the magistrate see? He sees what is put before him by way of evidence. And what is the evidence? It is a statement by some stray witnesses, the confessional statements of the accused when they are in police custody. And under the UAPA, even admission or confession before the police is admissible. Also, seizures made by the police. What is the evidence of seizure? A panchanama , i.e., in the presence of some pancha [witness], the police show some seizures, of say, RDX [research department explosive] or even Urdu literature in many cases. They have construed possession of Urdu literature as objectionable. They consider it to be jehadi material. They present it before the court. The magistrate, without verifying it, gives police custody. When the case goes to High Court, it cannot give bail either as there is no provision in law for it.

The UAPA has to be challenged in court. We should request the court that the magistrate be directed to make some preliminary inquiry before granting police custody. Like, if the accused has given a confessional statement before a police officer. Then instead of accepting it as the gospel truth, the magistrate can call him into his chamber, question him, take him into confidence, make sure whether he has given the statement under duress or not. Similarly, witnesses also should be questioned. There has to be a way of preliminary inquiry. Otherwise, for years, the accused remain in custody.

In my book I have talked of 21 such cases where the court found after many years that there was no evidence against the accused. If preliminary inquiry had been done, such a fate could have been avoided. For instance, in the 2002 Akshardham temple terror attack case, the Supreme Court in May 2014 acquitted all the six accused convicted by the lower court and pulled up the Gujarat Police for framing the innocent.

In the 1993 Surat blast case, the Supreme Court’s division bench headed by Justice T.S. Thakur acquitted all 11 accused of involvement in the case, rejecting the TADA [Terrorist and Disruptive Activities (Prevention) Act] court’s 2008 verdict under which Mohammed Surti, who was a Congress Minister, and four others were sentenced to 20 years imprisonment. This was in July 2014.

There was also the famous Dhaula Kuan encounter of 2005 where the Delhi Police boasted that they had foiled a plan by Kashmiri terrorists to plant bombs at Palam airport and arrested six Kashmiri youth after a fierce encounter. The sessions court acquitted all the six in 2011. It was clearly stated in the judgment that “the encounter that the police are talking about, in fact, never took place; but they had fabricated it by sitting in the office”.

Under this light, if a man is arrested today under the UAPA and later found to be innocent, do you think it will deter the police if he is given some compensation while the policeman concerned is made accountable?

There must be accountability. The policeman should not only be departmentally punished but a penal offence should be registered against him. That has to be done. But is it right to wait for 10-15 years to provide justice? I blame the advocates also. In most cases, the accused cannot afford a good lawyer. Many are not competent to fight such cases. These are not like routine murder or dacoity or riot cases. But our lawyers tend to treat them as normal cases, whereas in such cases the investigation itself is a conspiracy. Evidence is concocted. Even after knowing the real culprits in some cases, the police instead of following those clues implicate, on the basis of some seizures or confessions, the innocent, mostly Muslims.

Has there been a response from the larger public or even the police, contradicting your assertions in the book?

No, not at all. When the book was published there were agitations in Pune, they [proponents of right-wing organisations] threatened me, wanted to drag me to court. But one and a half years have passed, and nobody has been able to contradict my findings.

We had TADA earlier. We have the UAPA now. Under both Acts, we have had false cases, long incarcerations. Do you think, we need such an Act? According to the Home Ministry statistics, convictions under the UAPA are just 2 per cent.

No, not at all, we do not need the UAPA. It is not necessary as there are provisions in the Indian Penal Code [IPC] to act. If they want to have a stringent law, they cannot exclude bail from that. Bail is a right, and jail is an exception. Strictly speaking, this Act is not necessary. If a riot takes place, there are provisions under the IPC. If they want, they can make it more stringent. If there is an explosion, there is the Explosive Substances Act. Why do you need a special Act for that? Even if they want a new Act, it should not be against the Constitution.

So, the UAPA is against the Constitution?

Definitely. Nobody has seriously challenged it. A public interest petition has to be filed, and the Act’s unconstitutionality proved in court.