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War against Terror and the New Lawlessness

Investigations into the recent terrorist attacks in India, with all the media spectacle they afford, have done little else other than fuel public hysteria. The process of the law has been wilfully shredded and yet 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.

COMMENTARYoctober 4, 2008 EPW Economic & Political Weekly8War against Terror and the New LawlessnessSukumar MuralidharanInvestigations into the recent terrorist attacks in India, with all the media spectacle they afford, have done little else other than fuel public hysteria. The process of the law has been wilfully shredded and yet 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 Septem-ber 13 bombings that struck busy commercial areas in Delhi, an edi-torial 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 in-jured 90 is the fourth attack by terrorists on a major Indian city in the span of four months”. The people of India, the news-paper advised, should get used to the idea of surrendering some of the liberties they had got accustomed to. This was a neces-sary, 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 theJamia Millia Islamia University. The “encounter” resulted in the killing of two youths, Bashir alias Atif, in his mid-20s and Sajid, in his late-teens. Another person of 20 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 Special Cell, numberingabout 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 am, the door to (flat number) L-18 opened and Sharma was shot thrice”.1 A gun battle ensued in which the Delhi police fired 22rounds 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”.2 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, “fol-lowing credible inputs” about the presence there of a person “whose physical appear-ance 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.3The Delhi police, despite losing an officer in the operation, were exultant. As report-ed in the local press, Atiq, killed in the en-counter, was “a key Indian Mujahideen functionary who played a major role in the Jaipur, Ahmedabad, Hyderabad (and) Delhi serial blasts”.4Troubling InconsistenciesIt did not take long for troubling inconsist-encies to emerge in the official narration. Two fact-finding teams visited the Jamia Nagar area within two days of the en-counter – one involving the Delhi-based voluntary group, Anhad, and members of Sukumar Muralidharan ( is a freelance journalist based in New Delhi.
COMMENTARYEconomic & Political Weekly EPW october 4, 20089the academic community of the Jamia Millia Islamia University; the other involv-ing the advocacy groups, Janahastakshep and the Peoples’ Union for Democratic Rights (PUDR). Residents of the neighbour-hood, in testimony to these teams, re-counted 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 chan-nels. The caretaker of the flat where the dreaded terrorists were holed up, testified that they had in accordance with proce-dures introduced in Delhi, registered themselves with the local police station on August 21, well after the Ahmedabad bombings. This suggested either great au-dacity or extreme insouciance, or the trou-bling third possibility, of innocence. And finally, the tenement in which the shoot-ing 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 sur-render 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 ghettoi-sation, these questions were first raised solely in the Urdu press.5 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 inde-pendent judicial inquiry.6 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 under-lining 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 assess-ment, they insisted that the tenancy verifi-cation 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 inno-cence: that it would be unfair to query the police too closely on a matter placed on public record only as a gesture of good faith and accountability. And finally, there was the expected questioning of the patri-otism of those 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”.7If the Batla House encounter remains a mystery, the links connecting the supposed protagonists of the serial blasts in Jaipur on May 13, Ahmedabad on July 26 and Delhi on September 13, have been por-trayed variously over time and with dis-turbing 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 or-ganisation ever since. As a fine investiga-tive article has recently documented, eve-ry 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 sup-port the ban, other than whatever was in the original notification of 2001.8SIMI Everywhere?When Safdar Nagori, the SIMI general secretary, was arrested in March 2008, a security analyst well-known for his fever-ishly speculative commentary, observed that “SIMI cadre have been involved in almost every Islamist terror strike since 2000, ranging from the Mumbai serial blasts of 2003 and 2006 to attacks inUttar Pradesh, Karnataka, Andhra Pradesh, and Delhi”.9Despite 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 connectingSIMI with terrorism. The central government on that occasion secured a face-saving stay on the applica-tion of this ruling by the Supreme Court. Media comment was muted and the pub-lic, 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 dis-trict 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 an-nounced 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 im-pounding 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.10With Shahbaz’s firm implication in ter-rorism, 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 explo-sives training in camps as far afield as Kerala and the jungles of Gujarat and Madhya Pradesh. Brooding over the whole
COMMENTARYoctober 4, 2008 EPW Economic & Political Weekly10conspiracy was the presence of Moham-mad Altaf Subhan – later identified as Ab-dul Subhan Quereshi, and variously de-scribed by the alternative names, Taufeeq and Tauqeer, by which he was allegedly known in jihadi circles – a computer hard-ware specialist who had been missing from his home in Mumbai’s distant suburb of Mira Road, since 2006.11 Subhan is supposed to have been the technical brain behind the ingeniously designed bombs and the email 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.Script RewrittenIn 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 up 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 at-tacks. 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 commis-sioner claiming exclusive ownership over the Batla House raid and denying that Qasmi’s presence in the city – which was 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 aliasAtif and his accomplices in the Delhi bombings were identified after a major Intelligence Bureau operation targeting the communi-cations system of the Indian Mujahideen (IM); that Jamia Nagar (the broader neigh-bourhood in which Batla House is a part) was identified as the most likely refuge he had been provided bySIMI; 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”.12Mumbai ArrestsThe 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.13A few days afterwards, a number ofretired 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 khaki 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 em-ployed. The discordant voices that were emerging from the police, they feared, would only lend strength to clever defence attorneys in securing the judicial exculpa-tion of terrorism suspects. Marwah’s com-ment in conclusion was that the key issue was of building “political consensus” and avoiding “political one-upmanship”.14In part, the reason why public scrutiny over the investigations into terrorism has been loose is because political reactions have been sharply polarised, and in large measure, opportunistic. The principal op-position party, the Bharatiya Janata Party, has along with its allies, responded with a predictable, almost conditioned, reflex, to the recent wave of bombings: denouncing the incumbent government for its inepti-tude and demanding a special law appro-priate to the magnitude of the threat.The debate on the legal underpinnings of what is now called a “war” against ter-rorism will presumably rage on for long, with all its partisan resonances. But the reality of the “war” as waged in India, has Indian Institute of Dalit StudiesQ-3, Green Park Extension, New Delhi-110 016.Advertisement for Deputy DirectorThe Indian Institute of Dalit Studies (IIDS), a social sciences research center with a focus on the development concerns of marginalized groups and socially excluded communities, is looking for a Deputy Director. The candidate should have a Ph.D degree in social sciences (Economics/Sociology/Political Science) with some research experience and published work. The candidate should have the motivation for research on contemporary issues and leadership qualities.Interested candidates may send in their CV to the Administrative Co-ordinator, Indian Institute of Dalit Studies, Q-3 Green Park Extension, New Delhi-110 016, Ph-011-41643981/82, or E-mail to within 10 days of the publication of this advertisement.
COMMENTARYEconomic & Political Weekly EPW october 4, 200811been that the law is immaterial. Public criticisms of the enforcement agencies have been muted even on the rare occa-sions 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 aggres-sive 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. Ghettoisation in JusticeIf 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 court-room 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 con-fession from him, the police admitted rather lamely, that it was an innocuous case of mistaken identity.In April, Mohammad Shoaib, undoubt-edly 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 “People’s Tribunal”15 on the application of the anti-terrorism laws, he faced a persistent pattern of ob-struction at all levels of the police hierar-chy. The case papers were not furnished as required by the law and the jail super-intendent 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 Bara-banki court to argue his clients’ case for bail, he was warned by the president of the local bar association that he was putting life and limb at risk. Shoaib with-drew but took up the brief again when he found that the families of the accused had no other recourse. He had meanwhile, ap-proached the Allahabad High Court for a writ holding that the delinquency of the bar associations of Faizabad, Varanasi, Lucknow and Barabanki, poses 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 “People’s Tribunal” on August 22, to provide a har-rowing 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 con-strued 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 doc-trine recently implemented by the United States in Iraq. The purpose is to create a real life montage of simultaneous destruc-tion, that would be so enveloping in its scope, as to defeat popular loyalty to a re-gime. 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 perpetra-tors with all the determination and fair-ness that the law mandates. And this is where the police force in India has repeat-edly 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 Indiannation.Speaking at the Hyderabad tribunal, the well-known civil rights defender, Suresh Khairnar, described the public inquiry he had conducted, alongside a retiredjudge 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 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 reluctanceofthe Nagpurpolicecommissioner 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

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