Wednesday, October 01, 2008

“War” on terror: losing sight of strategic fundamentals

If “war” is the appropriate description for the struggle against terror that the country is now engaged in, then it is a war that differs very significantly from the conventional understanding.

Four attacks in major cities in as many months – the latest being the Delhi serial blasts of September 13 -- may represent an escalation, but the war really began from well before. The precise date is a matter of almost arbitrary choice: by one mode of reckoning, the attacks on Srinagar’s legislative assembly building on October 13, 2001, and on India’s parliament on December 11, 2001, could be deemed the formal start of hostilities. On another scale, the war began on October 29, 2005, when middle-class markets in Delhi were gutted on the eve of a rare conjunction when Diwali and Eid-ul-fitr were celebrated on the same day.

Lethal explosions, striking random and indiscriminate terror in teeming urban milieus, have since been recurrent events. On July 11, 2006, the suburban train system of Mumbai – the lifeline of the country’s greatest metropolis -- was torn up as evening rush hour began, in the kind of meticulously deadly serial bombing the city had seen before in March 1993. Over 200 people with no concern other than getting on with their lives in the best tradition of Mumbai, were killed in those attacks.

There have since, been bombings with serious loss of life in Malegaon, Hyderabad (at three distinct venues on two separate dates), Jaipur, Bangalore, Ahmedabad and Delhi. Three bombs went off in court-room compounds in different cities of Uttar Pradesh on November 23, 2007, killing ten. And punctuating this litany of atrocities has been the occasional, narrowly averted tragedy, as in Surat, where a number of bombs were discovered on July 28, that just failed to detonate.

Each of these are resilient cities that for all their signs of urban blight, still manage to accommodate the vastness, the complexity and generosity of India. And the people in these cities, responding with immense fortitude to adversity, have shown that their spirit is not easily subdued.

The victims of terrorism deserve justice and they deserve considerably more than the political vaudeville that is being served up by the BJP, as the principal opposition party, and the Congress, as the principal constituent of the ruling coalition at the centre. Expectedly, the BJP has responded to the recent sequence of attacks with shrill invective, demanding summary justice for terrorists and damning the Congress for its vacillation. And unlike in earlier conjunctures, when the Congress proved firm enough in its convictions to withstand the pressure, this time around it has buckled. Clearly, it has suffered a failure of will and has sought preemptive protection against the propaganda device that the BJP is almost certain to deploy – that Congress-led governments have been negligent of the security of the common citizen, having repealed two anti-terrorism statutes in under a decade.

The government’s intent was conveyed in the report of an ambiguously empowered body called the Administrative Reforms Committee, headed by Veerappa Moily, an active duty politician who has served as chief minister of Karnataka. This is a committee that has in several earlier conjunctures come up with formulae to bail the government out of thorny dilemmas. This time around, it has proposed a range of legal measures – not as a distinct enactment, but as amendments to an existing law on the prevention of “unlawful activities”.

The official view now seems to tilt strongly towards creating a specially empowered agency under the central government’s jurisdiction, to investigate and prosecute terrorism cases. This agency would be vested with powers under a special statute, allowing for preventive detention for a defined period of time.

The BJP needless to say, remains unconvinced, and has fielded some of its most voluble spokesmen to argue that punitive, rather than preventive, clauses should really be the essence of the new law. These provisions would enable the handing out of swift justice in cases of terrorism. And in this respect, the admissibility of confessions made before the police as legal evidence, is really where the focus should be.

Using its current anti-terrorism icon – Gujarat chief minister Narendra Modi -- as principal propagandist, the BJP also argued the case that states should be allowed the freedom to enact anti-terrorism laws of their own, on the lines of the Maharashtra Control of Organised Crime Act (MCOCA). The BJP has a grievance that a closely analogous law it has enacted in Gujarat, called the GUJCOCA, is yet to receive central government assent.

These are partisan battles that go back a long way and involve much political opportunism. The substantive point though, is that the two anti-terrorism statutes that the BJP today makes much of – the Terrorism and Disruptive Activities (Prevention) Act of 1987 (TADA) and the Prevention of Terrorism Act of 2002 (POTA) – have been instruments of State terror and victimisation of the vulnerable, rather than credible instruments of justice. Convictions secured under TADA were a dismally low proportion of the total number of cases lodged. And the only significant case prosecuted under POTA – the 2001 attack on India’s Parliament compound – ended in fiasco, with some of the country’s most senior lawyers arguing the case for the accused in the Supreme Court and denouncing the Delhi Police for flagrantly concocting evidence.

To allow confessions made to the police as evidence in terrorism trials would do little else than arbitrarily empower an already lawless and unaccountable police force. It would deepen institutional prejudices against the religious minorities and enlarge the scope for criminal collusion between police forces all over the country and the agents of majoritarian mayhem and disorder, such as the Bajrang Dal. What the country needs clearly, is not a more powerful police force or a judiciary that has the authority to dispense summary justice. Without a firm reiteration and institutionalisation of the long-forgotten verity of equality before the law, the war against terrorism may well be lost even before it is joined.

Tuesday, September 30, 2008

War against terror and the new lawlessness

“Made for media” investigations are creating a public hysteria and betraying the cause of justice

Investigations into the recent terrorist attacks in India, with all the media spectacle they afford, have done little else than fuel public hysteria. The process of the law has been wilfully shredded while a case is made for broader powers of detention and investigation for the police. As contradictions in the official narrative on terrorism and its protagonists become manifest, public confidence will inevitably be eroded. And if a united and well-informed people are the only guarantee of public security, then the heavy-handed approach in evidence today seems designed to open the door towards greater terror.

Two days after the deadly September 13 bombings that struck busy commercial areas in Delhi, an editorial in the country’s largest circulated English daily pronounced a rather sombre assessment, while also sounding a call to action: “We are at war. The string of blasts (in Delhi) .. which killed 30 people and injured 90 is the fourth attack by terrorists on a major Indian city in the span of four months”. The people of India, the newspaper advised, should get used to the idea of surrendering some of the liberties they had got accustomed to. This was a necessary, short-term sacrifice, since the enemy they faced was an even greater threat to human freedom.

On September 19, the Special Cell of the Delhi Police, with the electronic media providing real-time coverage, raided a fourth-floor flat in a tenement in Batla House, a crowded south-eastern suburb of the city, neighbouring the campus of the Jamia Millia Islamia university. The “encounter” resulted in the killing of two youths, Bashir alias Atif, aged in his mid-twenties and Sajid, aged in his mid-teens. Another person of twenty and odd years, Mohammad Saif, was taken captive. And to square the account, since the supposed intelligence report that led to the police raid had identified five known terrorists hiding out, the Delhi Police admitted with great regret, that two of their quarries had escaped their cordon.

Beyond this summation of results from the dramatic swoop on terrorism, a tale emerged of the Batla House operation that verged on unimaginative fantasy. As reported in one of Delhi’s newspapers, the team of the Delhi Police “Special Cell”, numbering about 60 – all draped in bullet proof vests – entered the “fifth-floor flat” at 10:15 that morning, accompanied by commandos of the National Security Guard. In the vanguard of this expedition into the unknown was Inspector Mohan Chand Sharma of the Special Cell, who went knocking on all the doors in the tenement. As the report puts it: “Around 10:30 a.m., the door to (flat number) L-18 opened and Sharma was shot thrice”. A gun-battle ensued in which the Delhi Police fired 22 rounds to register two kills and one capture. Eight rounds in all were fired by the opposing side.

Inspector Sharma was carried away to a nearby hospital where he died hours later, reportedly of a cardiac arrest occasioned by severe bleeding. As the day’s events were reported in another of city’s newspapers, Delhi’s police commissioner pronounced in his press briefing that evening, that Inspector Sharma and his team had “cordoned off” the area that morning. Armed policemen “took positions” around the building at 10:30 that morning and a half-hour later, “another team went up to the flat on the fourth floor”. This team was fired upon, following which the gun-battle ensued.

Yet another newspaper had it that the Special Cell squad under Inspector Sharma “barged into” the fourth-floor flat, “following credible inputs” about the presence there of a person “whose physical appearance tallied” with descriptions of a senior operative involved in the July 26 serial bombings in Ahmedabad. The Special Cell had in this version, been helped by the Intelligence Bureau and by the police departments in Gujarat and Maharashtra in “developing” vital information leading to the raid.

The Delhi police, despite losing an officer in the operation, were exultant. As reported in the local press, Atiq, killed in the encounter, was “a key Indian Mujahideen functionary who played a major role in the Jaipur, Ahmedabad, Hyderabad (and) Delhi serial blasts”.

It did not take long for troubling inconsistencies to emerge in the official narration. Two fact-finding teams visited the Jamia Nagar area within two days of the encounter – one involving the Delhi-based voluntary group, Anhad, and members of the academic community of the Jamia Millia Islamia university; the other involving the advocacy groups, Janahastakshep and the Peoples’ Union for Democratic Rights (PUDR). Residents of the neighbourhood, in testimony to these teams, recounted that as soon as the police action began, the area was cordoned off for all locals, though it was soon saturated with broadcast vans of Delhi’s many news channels. The caretaker of the flat where the dreaded terrorists were holed out, testified that they had in accordance with procedures introduced in Delhi, registered with the local police station on August 21, well after the Ahmedabad bombings. This suggested either great audacity or extreme insouciance, or the troubling third possibility, of innocence.

Finally, the tenement in which the shooting took place, was a four storey structure, abutted on both sides by much smaller structures. The fourth-floor flat where the killing took place had only one door, which opened onto the only staircase in the building. The police could have easily cut off all escape routes and secured the surrender of the flat’s occupants. And once the shooting began, there was no way that two persons holed up in the flat could have effected an escape.

Suggesting that information, like much else in the country, is in danger of ghettoisation, these questions were first raised solely in the Urdu press. On September 22, the Coordination Committee of Indian Muslims, described as a “coalition of 11 organisations formed to take up the perceived harassment of Muslims in the country” called into question the entire police narrative and demanded an independent judicial inquiry. Three days later, the academic community of Jamia, led by Vice Chancellor Mushirul Hasan took out a massive peace march through the campus, resolving with complete unanimity to set up a fund for the legal defence of students swept up in the terrorism dragnet. On September 26, the Janahastakshep-PUDR team formally released its findings, underlining the demand for a judicial probe.

The Delhi Police, to their credit, did make an effort to answer these questions. In flat contradiction to the general assessment, they insisted that the tenancy verification obtained by Atif and Sajid was forged, since the counterpart document did not exist in the concerned police station. As for the escape of two suspects in Batla House on the day of the encounter, the Delhi Police put out a plea of injured innocence: that it would be unfair to query them too closely on a matter placed on public record only as a gesture of good faith and accountability.

Finally, of course, there was the expected questioning of the patriotism of all who dared to challenge an operation that had resulted in the death of a heroic police officer: “It is the irony of this country that they (sic) continue to sympathise with the terrorists despite the death of a policeman in this operation”.

If the Batla House encounter remains a mystery, the links connecting the supposed protagonists of the serial bombing in Jaipur on May 13, Ahmedabad on July 26 and Delhi on September 13, have been portrayed variously over time and with disturbing inconsistencies. At the centre of the narrative is the Students’ Islamic Movement of India (SIMI), a once obscure body of uncertain provenance, vaguely believed to be affiliated to the Jamaat-e-Islami-e-Hind, banned in 2001 and except for a brief interlude following the change of government at the Centre, an outlaw organisation ever since. As a fine investigative article has recently documented, every notification renewing the ban on the organisation for the maximum period allowed under the Unlawful Activities (Prevention) Act, has been a virtual copy of the earlier one. No additional evidence, in other words, has been produced to support the ban, other than whatever was in the original notification of 2001.

When Safdar Nagori, the SIMI general secretary, was arrested in March 2008, a security analyst well-known for his feverishly speculative commentary, observed that “SIMI cadre have been involved in almost every Islamist terror strike since (2000), ranging from the Mumbai serial bombings of 2003 and 2006 to attacks in Uttar Pradesh, Karnataka, Andhra Pradesh, and Delhi”.

Despite the seeming certainty behind this pronouncement, obviously inspired by driblets of information leaked by the intelligence agencies, a tribunal constituted to review the extension of the ban, held on August 5, that there simply was no evidence connecting SIMI with terrorism. The Central Government on that occasion, secured a face-saving stay from the Supreme Court on the application of this ruling. Media comment was muted and the public, still under the pall of fear spread by the Jaipur, Bangalore and Ahmedabad bombings, remained indifferent to finer points of legality and fairness.

The pursuit of the terrorists picked up momentum with the mid-August arrest of Abu Bashar Qasmi, a 25-year old cleric, snatched from his home in Azamgarh district of Uttar Pradesh by four men who came visiting on the pretext of exploring a matrimonial alliance. Taken immediately to Gujarat, he was identified by the state police as the man behind July’s Ahmedabad attacks. He also reportedly, confessed to an undefined role in the Jaipur bombing.

On August 24, the Rajasthan police announced the arrest of Shahbaz Husain, a computer software expert who ran a small business in Lucknow. As the Lucknow-based civil rights campaigner Sandeep Pandey recalls, the house that Shahbaz shares with his parents, was raided by about 50 personnel of the Anti-Terrorism Squad of Rajasthan Police. Apart from impounding a computer, the raiding party took away all the literature they could find, as also some currency and a cheque made out in favour of Shahbaz’s business. The next day, the same team revisited and compelled Shahbaz’s father, Abdul Moid, to sign two blank sheets of paper.

Pandey visited the local police station the following day to ask what possible use the blank sheets of paper would be put to, only to be unceremoniously turned out. Press reports that he later saw, blazoned the claim of the Rajasthan Police that sophisticated electronic chips and circuits of bombs resembling those used in Surat had been found in Shahbaz’s premises.

With Shahbaz’s firm implication in terrorism, an elaborate chain of linkages began to be drawn between the Jaipur and Ahmedabad blasts. Nagori, Shahbaz and Qasmi were all reportedly, members of a secretive cell that underwent explosives training in camps as far afield as Kerala and the jungles of Gujarat and Madhya Pradesh. Brooding over the whole conspiracy was the presence of Mohammad Altaf Subhan -- later identified as Abdul Subhan Quereshi, and variously described by the alternative names, Taufeeq and Tauqeer, by which he was allegedly known in jihadi circles -- a computer hardware specialist missing from his home in Mumbai’s distant suburb of Mira Road, since 2006.

Subhan is supposed to have been the technical brain behind the ingeniously designed bombs and the e-mail messages -- replete with graphics and intense Islamic religious symbolism -- that had been sent out celebrating each terrorist strike in the heart of urban India. When Delhi was gutted by three simultaneous bombings in September, Subhan was the name on every investigating agency’s lips. Working its way through the chain that connected Subhan with Qasmi and Shahbaz, the Delhi police quickly identified the other links in the terrorism plot, all from Uttar Pradesh: Abdul Rajib, Mujib, Alamjed Afridi and Qayamuddin. Acting in concert with their Gujarat counterparts, the Delhi police secured access to Abu Bashar Qasmi for a round of interrogation.

In just over a day, the script was radically rewritten. As the encounter at Batla House began, concurrent media commentary had it that the interrogation of Qasmi had led to the identification of the tenement and that the prize catch, Subhan, was holed out there. When the dust settled, Subhan remained as elusive as ever, though the Delhi Police still claimed it had cracked not merely the Delhi bombings, but also the Jaipur and Ahmedabad attacks. Atif became, in the new narrative, the master terrorist.

Symptomatic of the shoddiness of their media briefings, as also the casualness (if not contempt) with which the police treats the public information function, one of Delhi’s leading newspapers carried stories cheek by jowl on its front page, which flat out, contradicted each other. The top story that day quoted the Delhi Police Commissioner claiming exclusive ownership over the Batla House raid and denying that Qasmi’s presence in the city – courtesy the Gujarat Police -- had anything to do with it. Right below this news-report, was a commentary which provided the following narration: that Bashir alias Atif and his accomplices in the Delhi bombings were identified after a major Intelligence Bureau operation targeting the communications system of the Indian Mujahideen (IM); that Jamia Nagar (the broader neighbourhood in which Batla House is a part) was identified as the most likely refuge he had been afforded by SIMI; and that his safe-house, “could only be located when Qasmi was brought to New Delhi and driven around the Jamia Nagar area on Thursday night”.

The final twist in the story came on September 24, with the arrest of five in Mumbai. In just a matter of days, the Nagori-Qasmi-Shahbaz chain of culpability, was history. The Mumbai Police now definitively identified 31-year old Sadiq Sheikh, a resident of the Cheetah Camp slum sprawl near the city’s north-eastern suburb of Chembur, as the inspiration and the mentor for all the terrorist actions of the preceding months. Four others were arrested alongside, including a computer software expert, an alleged car thief, and supposed specialists in bomb making and in rigging the circuitry for explosive devices.

A few days afterwards, a number of retired police officials with high name-recognition – Kiran Bedi, Prakash Singh, Ved Marwah – reacted in alarm to the contrary and competitive narratives from various police agencies. Loyalty to the khakhi they had worn, determined that they would not question any of the actions taken by the police, though they found ample reason to question the words employed. The discordant voices that were emerging from the police, they feared, would only lend strength to clever defence attorneys in securing the judicial exculpation of terrorism suspects. Marwah’s comment, in conclusion, was that the key issue was of building “political consensus” and avoiding “political one-upmanship”.

Public scrutiny over the investigations into terrorism has been loose, in part, because political reactions have been sharply polarised, and in large measure, opportunistic. The principal opposition party, the BJP, has along with its allies, responded with a predictable, almost conditioned, reflex, to the recent wave of bombings: denouncing the incumbent government for its ineptitude and demanding a special law appropriate to the magnitude of the threat.

The debate on the legal underpinnings of what is now called a “war” against terrorism will presumably rage on for long, with all its partisan resonances. But the reality of the “war” as waged in India, has been that the law is immaterial. Public criticisms of the enforcement agencies have been muted even on the rare occasions that they are voiced. This has created the climate in which a new culture of lawlessness has flourished.

Since the 2005 attack on the makeshift temple built over the ruins of the Babri Masjid in Ayodhya, lawyers in the state of Uttar Pradesh have been taking an aggressive stance against terrorism suspects. Faizabad began the practice in 2005, when its bar association resolved that none among its members would ever defend a terrorism suspect. This shredding of the fundamentals of natural justice was eagerly emulated by bar associations in Varanasi in 2006, and Lucknow and Barabanki in 2007. A new dimension was added to this mode of ostracism, when three suspects behind an alleged plot to kidnap Congress leader Rahul Gandhi were assaulted by a group of lawyers, as they were produced before a Lucknow court in November 2007.

If ghettoisation is not already the reality in India’s justice system, these events will ensure that it is an accomplished fact. When Aftab Ansari, an electricity board employee from Kolkata, was picked up from his home by Uttar Pradesh police and accused of being a key player in the courtroom blasts of November 2007, Mohammad Shoaib of Lucknow was the only lawyer who stepped up to defend him. Ansari was discharged in February this year after three weeks of detention and torture. Seemingly having failed to extract a confession from him, the police admitted rather lamely, that it was an innocuous case of mistaken identity.

In April, Mohammad Shoaib, undoubtedly in recognition of the commitment and courage he had shown in taking up an unpopular case, was retained as defence lawyer for Mohammad Tariq Kazmi and Mohammad Khalid Mujahid, arrested in Barabanki, and accused of complicity in the courtroom bombings. According to a narration he presented at Hyderabad on August 22, before a “Peoples’ Tribunal” on the application of the anti-terrorism laws, he faced a persistent pattern of obstruction at all levels of the police hierarchy. The case papers were not furnished as required by the law and the jail superintendent in Barabanki defied repeated judicial summons to produce the accused. Finally, the magistrate went to the jail to read out the charges to the two accused.

In April, when Shoaib went to the Barabanki court to argue his clients’ case for bail, he was threatened by the president of the local bar association and told very clearly that he was putting life and limb at risk. Shoaib withdrew but took up the brief again when he found that the families of the accused had no other recourse. He had meanwhile, approached the Allahabad High Court for a writ holding that the delinquency of the bar associations of Faizabad, Varanasi, Lucknow and Barabanki, posed a clear and present danger to the administration of justice. He is yet to secure a hearing from the High Court.

Meanwhile, Shoaib suffered a full-blown physical assault in court-room premises in Lucknow on August 12, when appearing for Naushad, a casual labourer from Bijnore district who faces charges of being a soldier in the armies of the jihad. The following day, Shoaib sent a formal complaint to the local police chief and went in person to the district judge to hand over his report of the assault he had suffered from legal luminaries in Lucknow. He suffered an even more grievous physical attack that day.

A similar lesson in the new principles of the rule of law was imparted to the lawyer Noor Mohammad in April, when he went to the Dhar district court in Madhya Pradesh to defend a group of Muslim youths who had been accused of running a terrorism training camp in the district. Noor Mohammad was at the “Peoples’ Tribunal” on August 22, to provide a harrowing account of the humiliation he had suffered. And the only remonstrance he heard from the bench as he was being roughed up in full view of the presiding judge, was that the disputants needed to take their dispute settlement process elsewhere, lest the violent assault against a lawyer within the courtroom be construed as a case of contempt.

Serial bombs that target vital nodes of a city’s civic life, are intended to produce the kind of effect on an average citizen’s psyche as “shock and awe”, the war doctrine recently implemented by the U.S. in Iraq. The purpose is to create a real life montage of simultaneous destruction, that would be so enveloping in its scope, as to defeat popular loyalty to a regime. The wider lesson it seeks to impart is that the average citizen cannot count on duly constituted political authorities for protection, and would need to assume the right to self-defence. Applied across a wide social expanse, this would become the recipe for a descent into the law of the jungle, a “war of all against all”.

That the people of India have defied this calculus despite repeated provocation, is tribute to the resilience of their faith in a democratic order. But nothing can be taken for granted. Those who have directly suffered from terrorist atrocities need recognition for their fortitude and this can only come through pursuing the perpetrators with all the determination and fairness that the law mandates. And this is where the police force in India has repeatedly let down the people it is mandated to protect: it has picked up innocent people and subjected them to endless torture merely for the sin of possessing names that suggest allegiance to a particular faith; and it has failed to proceed against threats to public order and blatant acts of terror, merely because the perpetrators happen to belong to the faith that is supposedly, the unique cultural identity of the Indian nation.

Speaking at the Hyderabad tribunal, the well-known civil rights defender, Suresh Khairnar, described the public inquiry he had conducted, alongside a retired judge of the Bombay High court, B.G. Kolse-Patil and ten others, into the “encounter” in Nagpur in June 2006, in which a potential terrorist strike against the Rashtriya Swayamsewak Sangh (RSS) headquarters in Nagpur was thwarted and its intending authors killed. He described the mass of fishy circumstances that the inquiry came across and the suspicious reluctance of the Nagpur police commissioner to meet with the team. The inquiry concluded in the light of all the information available, that the encounter was “fake” and required a “fair probe” in the national interest.

Similar ambiguities, Khairnar recalled, surrounded a bomb blast in the district town of Nanded in Maharashtra, in April 2006, in which the fabricators of the explosive device – both known members of a Hindu extremist organisation – were killed. Unsurprisingly, this incident did not receive any of the nation-wide coverage that the Nagpur incident did. Interest soon died out and the police, for reasons yet unclear, sought to dissuade any further media coverage on the grounds that it would damage the investigative process.

On August 24 this year, just as major breakthroughs were being claimed in the investigations into the Jaipur and Ahmedabad bombings, an explosion in Kanpur in a private residential premise, killed two identified cadre of the Bajrang Dal – charter members of the Hindutva brigade with a history of involvement in lethally riotous behaviour – while they were fabricating a bomb. The police registered their suspicions over the incident, but chose evidently not to follow up. And the media simply lost interest, since it did not fit into a master narrative on jihadi terrorism.

Obviously though, the hamhanded and cynically biased investigations into incidents of terrorist violence are succeeding where all the bomb blasts have failed. They are actually fostering the widespread belief, at least among the country’s largest religious minority, that the institutional discrimination they suffer is being ever more deeply imbedded in the context of the “war on terror”. If a united and well-informed citizenry is the prime requirement for a successful defence of civil society, the official investigations may well be creating the optimal conditions for the reverse outcome.