Ensuring justice:

The challenge before India

by Dilnaz Boga

While India mooted the idea of regular direct contact among police chiefs of South Asian Association for Regional Co-operation (SAARC) nations to fight terrorism and other trans-national crime in Thimpu, two studies on extremism in India have shown loopholes in the way the systems function and a lacunae between accountability, human rights and justice delivering mechanisms.

An evaluation of two in-depth studies, one carried out by the Indian Government and the other, by an international human rights organization, sheds light on the reasons why justice has sometimes evaded victims of terror attacks in India and why extremism has managed to flourish in many parts of the country.

A February 2011 report titled 'The "Anti-Nationals": Arbitrary Detention and Torture of Terrorism Suspects in India' by the Human Rights Watch (HRW) shows that cases of illegal detentions have plagued India after every terror attack, since 2001.

Since 2001, there had been 18 terror attacks in India, with Mumbai's 11 July 2006 attacks leading the death toll with 209 dead and over 700 injured. Since 2001, the numbers of people killed in these attacks amount to 715 while 1,940 have sustained injuries.

In all these attacks, hundreds were picked up and interrogated, 108 were charged, dozens of arrest warrants issued, but inexplicably, there were a dismal number of convictions in these cases.

Miscarriage of justice

The HRW has found credible evidence that police units investigating the attacks engaged in widespread and serious abuses of suspects' rights, such as arbitrary arrest and detention, torture and other ill-treatment, including threats against suspects and their relatives.

Indian authorities have long blamed attacks within the country on extremist organizations based in neighbouring Pakistan and Bangladesh, the report stated. The report focuses on torture and other abuses committed by the police against alleged Muslim militants. But the Indian security forces have long applied similar, unlawful methods against members of other groups deemed a security threat, according to this report. These include Maoist rebels known as Naxalites in much of the central and eastern areas of the country, parties to the conflict in Jammu and Kashmir, and Hindu militants accused by the home minister of 'saffron terror.'

The HRW interviewed more than 160 people in India, including the relatives and lawyers of more than 35 suspects in the 2008 bombings, as well as five individuals who were subsequently released.

The researchers discovered that mistreatment of suspects detained in connection with the 2008 bombings occurred at every stage of custody, from police lockups where many were tortured, to jails where they were beaten, to courthouses where magistrates often ignored their complaints. In a few cases, the relatives of suspects were even taken hostage by law enforcement agencies. Specialised police units were the worst offenders, particularly the Crime Branch of the Gujarat Police; the Maharashtra Anti-Terrorist Squad (ATS); the Uttar Pradesh ATS; the Rajasthan Police and the ATS it formed after the bombings; and the Special Cell police in Delhi, the report stated.

Attacks on civilians

In the past three years, authorities have arrested a number of alleged Hindu militants for attacks on civilians, focusing public attention on what has been controversially termed "saffron terror," at times, several years after blaming Islamic fundamentalist organisations and detaining individuals from the same community.

The authorities laid the responsibility of the attacks on the Indian Mujahadeen (IM) 10 times, on Students Islamic Movement of India (SIMI) seven times, on the Lashkar-e-Tayyaba (LeT) five times, on Abhinav Bharat (AB) in four cases, Harkat-ul-Jihad-al-Islami (HuJI) in three cases, Jaish-e-Mohammad (JeM) in two cases and ISI in one case.

In three instances, initially SIMI, LeT and JeM were booked but years later, members of AB were charged.

The report revealed that several Hindu suspects were charged or questioned only in late 2010 in connection with bombings at mosques in Hyderabad and Ajmer in 2007, of a passenger train linking Pakistan to India in 2007, and of a Muslim cemetery in Malegaon in 2006. Those three attacks, initially blamed on Muslim militants, together killed at least 115 people and injured nearly 350 others.

The Hindu suspects include members of groups such as Abhinav Bharat, which authorities have also linked to a second bombing in Malegaon in 2008 that killed six people. AB is allegedly affiliated with Rashtriya Swayamsevak Sangh (RSS), which is widely considered the ideological fountainhead of Hindu nationalist movements. As of this writing, a ranking member of RSS was being questioned in the 2007 bombings, HRW researchers found.

Investigators suspect that some members of the RSS may have been involved in these attacks. According to the charges filed by the Rajasthan Police in the Ajmer case, several RSS leaders also allegedly attended a secret meeting where the conspiracy was planned. A front-organisation called Jai Vande Mataram was started by one of the accused, Sunil Joshi, who was later killed.

The abuse

Later, the Central Bureau of Investigation arrested Naba Kumar Sircar, a religious leader who uses the name Swami Aseemanand, in connection with the bombings at the Mecca Masjid in Hyderabad and the Khwaja Moinuddin Chisti shrine in Ajmer. Other charges on him include the Samjhuata Express train attack, in 2007, as well as blasts in Malegaon and Modasa in 2008, and possibly the mosque blast in Malegaon in 2006. Aseemanand, who is also linked to Abhinav Bharat, was apparently a member of the Vanvasi Kalyan Ashram, another organisation inspired by the RSS, the report stated.

Some of the worst abuses documented by HRW occurred in a lockup of the Ahmedabad Crime Branch of the Gujarat Police, where many detainees allege they were blindfolded and shackled with their arms crossed over their knees from morning to night, investigators discovered.

Illegal detentions

In some states, police held suspects for days, or even weeks, with the police failing to register their arrest. Many suspects also allege that they were denied proper food and water.

In cases where suspects have filed complaints of such abuse, the police units in question denied any ill-treatment, saying in court papers that, for example, they 'meticulously followed' laws regarding custody and that suspects fabricated wrongdoing to dodge prosecution, discovered the members of HRW.

In several cases, plainclothes police picked up suspects and yet, even with eyewitnesses present, did not register them as having been arrested for days or even weeks, putting them at particular risk of mistreatment.

Former suspects, relatives of suspects, and lawyers told HRW that police held and tortured some detainees in secret interrogation centres. They alleged that detainees were blindfolded and held in stress positions during all their waking hours, beaten, subjected to electric shock, or denied food and water. Many said police forced detainees to make false confessions, at times making them repeat a fabricated version of events until they had memorised it.

In Rajasthan, the state police, suspecting that the Pakistan-based militant Islamist group HuJI was behind the blasts there in May 2008, rounded up hundreds of Bengali-speaking Muslims for questioning. After police released them, state officials nevertheless razed their homes, claiming that their settlement was illegal. Many were forcibly put on trains or buses and expelled to West Bengal state, which borders Bangladesh.

The police insisted that they were illegal Bangladeshi immigrants, although many of them said they had documents that proved their Indian citizenship. "Whenever there is trouble, the needle of suspicion points toward the minority," Mohamed Shafi Qureshi, Chairman of India's National Commission for Minorities, told HRW.

Lawyers under attack

Lawyers defending Muslim terrorism suspects also came under attack for being unpatriotic. After the 2008 bombings, several such lawyers were physically attacked or threatened by Hindu extremists, many of them fellow lawyers.

In the high-profile case of Ajmal Kasab, the lone surviving gunman from the 2008 Mumbai attack, one lawyer was threatened by mobs, another was removed from the board of a prestigious Muslim foundation, and a third received a death threat for representing the defendant. Two lawyers had to defy the local bar association to defend suspects in the 2010 Pune attack.

In February 2010, Shahid Azmi, who was representing a number of IM suspects as well as an Indian co-defendant in the Mumbai attack, was shot dead by gunmen. Police have charged three alleged members of a Hindu criminal gang for the slaying.

Police counter-terrorism investigators, particularly in Ahmedabad and Delhi, routinely manipulated Indian law in order to detain 2008 bombing suspects well beyond the 15-day legal limit for police custody provided under Indian law - in some cases for three to four months. This practice not only violated the right to liberty, it also vastly increased the risk of custodial torture and coerced confessions. "The most worrisome, the most vulnerable period is when suspects are in police custody," said Mukul Sinha, a Gujarat High Court attorney who handles high-profile human rights cases. "When the law tells you 15 days you can't artificially prolong it to 150 days."

The loopholes

The report elaborated that counterterrorism units cannot cross state boundaries. According to Ajit Doval, a former director of India's Intelligence Bureau, they "tend to focus their investigations on where the attack occurred and they stop their investigations where their jurisdiction ends."

The central government security apparatus is also outmoded. India still lacks a nationwide crime database, leaving state police stations as "virtually unconnected islands," the country's Home Minister, P. Chidambaram, has conceded.

In a country of more than 1.1 billion people, fewer than 500 officials from the National Intelligence Bureau specialise in terrorism, and fewer than 150 Coast Guard boats and aircraft guard 5,000 miles of shoreline. More than one year after the Mumbai attack, India's foreign intelligence agency, called the Research and Analysis Wing (RAW), reportedly had little more than a dozen officer-grade employees with Pakistani language and area expertise.

"Unless you have good intelligence you have nothing. You are just groping in the dark," said Vikram Sood, former secretary of the RAW to HRW. "You are going to catch the wrong chaps, you are going to alienate the public, and you will create more Indian Mujahideen."

Government study

Meanwhil,e. poor conviction rates are not just a problem pertaining to the bomb blast cases all over India but also in the Northeastern region and the Naxal-affected states, a government study revealed.

In 'Social, Economic and Political Dynamics in Extremist Affected Areas', a study commissioned by the Ministry of Home Affairs and undertaken by the Centre for Development and Peace studies discovered that many states in the Northeast scores poorly as far as conviction rates of arrested extremists are concerned.

The report acknowledges that extremists are released as a result of poor investigation processes, poor mechanisms for prosecution, as well as the tardiness and formalities of the judicial process.

The report elaborated that the military formation of the CPI-Maoist includes estimated 10,000 armed cadres, apart from a huge mass of 100,000 people's militia.

Extremist influence was visible over 50 odd districts in 2001, over the next decade such influence had been expanded to over 223 districts, the document revealed. At the root of such expansion lies the familiar tale of underdevelopment, misgovernance, lack of land reforms and a poorly trained police force.

Barring Andhra Pradesh, where a police-led response was instrumental in the marginalisation of the military capacity of the extremists, leading to a noticeable reduction in extremism related fatalities, most of the other Naxal-hit states continue to hopelessly meander through the challenges posed by the extremists, the report stated.

Apart from Chhattisgarh, which is the epicentre of the conflict, Naxalite presence and activities were reported from 20 Indian states. Regular violence, however, has plagued seven states.

States affected by Left wing extremism are among the poorest and underdeveloped in the country, and also among the poorly governed, the government document stated.

The tribal population, particularly Chhattisgarh, Andhra Pradesh, Orissa and Jharkhand, inhabits areas affected by the extremists. Parts of West Bengal and Maharashtra where extremists are present too conform to this narrative. Paradoxically, the areas are mineral rich.

Chhattisgarh, Andhra Pradesh, Orissa and Jharkhand account for approximately 85 per cent of India's coal resources.

Exploitation of the natural resources remains crucial for the economic progress of the country. However, entry of the state and the private/public sector companies has also been source of tribal dissent, which has been exploited by the Naxals, the study revealed.

The report concedes that the state of land reforms through the Naxal dominated states has remained unsatisfactory. States are either not inclined to bring in land reforms or have delayed the process by not implementing recommendations of land reforms commissions set up by themselves. Andhra Pradesh is an example.

In the Northeast, the problem differs. The study, encompassing five Northeastern states and three states affected by Left Wing Extremism, is an attempt to fill the void. Leakage of developmental funds and extortion continues to be the major source of terror funding in the region, according to professionals and security officials.

Opposition to the draconian Armed Forces Special Powers Act (AFSPA) continues to remain the major rallying point in states like Manipur. Agitations demanding its repeal have broken out every now and then which have its repercussions on law and order, economy as well as educational sectors. It has also been a source of alienation among the people.

(Dilnaz Boga is an Indian journalist and the recipient of Agence France-Presse Kate Webb Prize for her work)