The Kafka Project

In a crucial investigation over three months, Editor-at-Large AJIT SAHI tracked the SIMI fictions across 11 cities —Trivandrum, Bangalore, Hyderabad, Chennai, Udaipur, Bhopal, Mumbai, Delhi, Aurangabad, Ahmedabad and Gorakhpur. His findings are alarming and distressing. They demand urgent introspection and corrective action

“Naturally the common people don’t want war… That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.”
HERMANN WILHELM GOERING, Nazi Party leader

Stone and shield: Indian security personnel stand guard outside the Charminar in Hyderabad as tension spirals in the city in March, 2006 Photo:AP

ON THE morning of September 27, 2001, Shahid Badr Falahi, a doctor of the alternative medicine system of Unani and the president of the Students’ Islamic Movement of India (SIMI), sat with a few colleagues in the SIMI office in a Muslim neighbourhood of South Delhi, wondering what’s next. Fatigued from two weeks of public meetings across Uttar Pradesh from where he had returned only the previous night, Falahi had just finished speaking with SIMI’s office-bearers across India. Using the local STD booth as his office phone had been dead for hours, call after call fetched an echo: anxious SIMI activists in Mumbai, Lucknow, Indore, Kolkata, Chennai, Kozhikode, Patna and other cities said the police had sealed their offices the previous night without explanation. At 4 pm, Falahi got to know why. The television news announced that the Union Home Ministry had invoked a 1967 law against “unlawful activities” and banned SIMI for two years with immediate effect.

“The nature of this organisation had become apparent and preliminary information sent by various state governments only confirmed its tendencies,” LK Advani, then Union Home Minister, told reporters that evening. The notification his ministry issued that day banning SIMI qualified Advani’s assertion. “SIMI has been indulging in activities which are prejudicial to the security of the country and have the potential of disturbing peace and communal harmony and disrupting the secular fabric of the country,” the terse, six-paragraph notification said, strongly suggesting that the government had a watertight case against SIMI with unchallengeable proof.

Other grave charges levelled said SIMI:
• Was in “close touch” with militant outfits and supported “extremism/militancy in Punjab, Jammu and Kashmir and elsewhere”
• Supported claims for seceding parts of India’s territory and groups fighting for it, and thus questioned India’s territorial integrity
• Was working to establish an “international Islamic order”
• Published objectionable posters and literature “calculated to incite” communal feelings and question India’s territorial integrity

Most damning was the government’s claim that SIMI was “involved in engineering communal riots” across India. The notification said SIMI’s anti-national and militant “postures” were “clearly manifest” at its various conferences. “The speeches of the leaders [at the conferences]… glorified Pan Islamic Fundamentalism,” the notification read, claiming to expose SIMI’s nefarious designs. “[The leaders] used derogatory language for the deities of other religions and exhorted Muslims for Jehad.”

Falahi and SIMI knew they had this coming. In fact, for more than a month, and especially since the September 11, 2001 terror

Defused lives A bomb squad neutralising a suspicious object in Lucknow Photo:SB Pandey

attacks in the United States, Advani had stepped up a war of words against SIMI, and Falahi had aggressively duelled with the Home Minister. A month earlier, on August 20, Falahi had issued an angry press release — those were the days when the media provided space to SIMI’s views. Warning that Muslims wouldn’t “tolerate injustice and atrocities” anymore and would “fight a decisive battle for their rights,” Falahi said: “The increasing Islamic awakening has disturbed the Sangh Parivar as it considers SIMI the biggest obstacle in building the Ram temple at Ayodhya and making India a Hindu rashtra.”

Taking on the Home Minister, Falahi said Advani and the RSS were responsible for the demolition of the Babri Masjid at Ayodhya in 1992, and reminded Advani that his cross-country Rath Yatra in 1990 had triggered riots across India. “The government hasn’t been able to make out a case against SIMI and, therefore, false grounds are being prepared,” Falahi further said. He added: “Till date, not a single allegation against SIMI has been proved while the planned attacks of the Sangh Parivar against Christians, Dalits and Muslims have been exposed by various inquiry commissions.” Falahi’s reckless challenge to India’s Home Minister was not atypical. But that was perhaps the last media space Falahi got to exercise his Right to Speech.

On September 27, after the ban was announced, Falahi and three others stayed at the office awaiting the inevitable arrival of the police. Sure enough, a dozen policemen stormed the building shortly after midnight and arrested them. “They broke the door before we could open it,” Falahi told TEHELKA from his village in Azamgarh district of Uttar Pradesh where he lives and practices medicine. “They kicked us and abused us all the way to the police station.” The government said no fewer than 240 SIMI members, including Falahi, had been arrested in a nationwide crackdown.

THE NEXT day, the Union Home Secretary called a press conference and grandly claimed that SIMI had links with Osama bin Laden/Al Qaeda, and that Palestine’s guerrilla militia, Hamas, was its close ideological partner. “Anti-national” video and audio cassettes and other “propaganda material” were reportedly seized. SIMI activists had been allegedly found distributing pro-Taliban leaflets in Delhi and other cities. No details were given, then or later. In seven years, recovery of such material has become the standard in criminal cases against SIMI, without explaining how their content — like videos of Osama bin Laden and the US terror attacks, which are easily available on the Internet — links SIMI with terrorism.

Hate’s debris Forensic personnel inspect the site of a bomb blast in Ahmedabad on July 27, 2008 Photo:Shailendra Pandey

Indeed, just a day into the ban, the government had launched the tactic of making unsubstantiated, vague and generic allegations against SIMI — a tactic that the police and the intelligence agencies have perfected against SIMI since 2001. In quite the manner prescribed by Nazi propaganda minister Joseph Goebbels, the government also took to repeating mere allegations so often that they began to be accepted as the truth without needing to pass the litmus test of evidence and proof. Typically, top ministers and police level allegations against SIMI, especially when there is a terrorist attack, and the news media play them up incessantly. Yet, no proof or evidence is ever offered from a public forum. What is offered as evidence in the judicial forum is a mockery of the principles of criminal investigation.

On that day, many such allegations against SIMI tumbled out. The Home Secretary said SIMI had printed “provocative” posters and issued press releases that “caused communal tensions”. No details were given of the communal tensions or the provocation in the posters. He said SIMI distributed posters and pamphlets across the country — again, no mention of what they contained and how that broke the law.

Even legitimate acts were dubbed unlawful and seditious. In March 2001, SIMI had called public protests across India against the burning of a copy of the Quran in Delhi. This was now cited as an unlawful act to justify the ban. “SIMI’s units gave wide publicity to the [Quran burning] issue through the Internet,” the Home Secretary said. Believe it or not, police across India have over the years repeatedly told courts that the use of the Internet by SIMI’s activists proved their anti-national and unlawful goals. (Some allegations are so absurd it is incredible that they launched criminal cases. They include: “the accused trained SIMI members in swimming and horse-riding” and “the accused stood at the door of his house and shouted anti- India slogans”. Maharashtra police says the SIMI accused want that state to secede from India.)

When the first two-year ban lapsed, LK Advani, who was by then Deputy Prime Minister, slapped another two-year ban on SIMI without a day’s break on September 27, 2003. A fresh notification — virtually identical to the first — was issued, replete with the same grave charges but once again offering no evidence. Midway through the ban, the NDA lost the 2004 Lok Sabha elections and the UPA came into power. The new Home Minister, Shivraj Patil, allowed the ban to lapse in September 2005. But inexplicably, four months later, on February 7, 2006, his ministry suddenly banned SIMI a third time. When that ran out, SIMI was banned a fourth time without a day’s break on February 7 this year. Once again, the notification was identical to that of 2006.

During the course of the four bans, hundreds of criminal cases were slapped on alleged SIMI activists across the country. Hundreds of Muslim men were arrested. A few were lucky to quickly get bail. A majority has spent a year, sometimes two, in jail on the flimsiest of evidence. Those who secured bail after repeated efforts often succeeded only because the police failed to file chargesheets within the legal deadline of 90 days from arrest (the deadline is 60 days in minor cases). Hundreds out on bail are still embroiled in cases dragging on for years; in many, trials haven’t even begun. Scores are still in jail, charged with crimes ranging from the absurd to the heinous. New cases are launched every now and then, and fresh arrests land more and more Muslims in jail. Many accused are repeatedly implicated in cases over the years, even as earlier cases are thrown out by the courts.

WHAT IS most amazing is that till date, police across India have failed to establish a single charge of sedition and terrorism against SIMI. In not one court have the police offered evidence or proof of links between SIMI and Pakistani and Bangladeshi terrorist organisations. Never has any link been established between SIMI and Osama bin Laden/Al Qaeda or Hamas or even with the armed separatism of Jammu and Kashmir or of Punjab, where such insurrection supposedly ended around 1991 — a decade before the government made the allegation against SIMI. No cases have ever been proved against SIMI on “engineering communal riots”, a categorical assertion in the first notification repeated with successive notifications. As for “seditious literature”, SIMI had published many magazines, posters, pamphlets over the nearly quarter century (1977-2001), when it had existed legitimately. No case was brought for two decades, until 1998, against any of its publications.

Before any trial, the judge examines the case for the prosecution and determines whether the material against the accused merits a

Hit and stun A damaged mosque hit by a blast in Malegaon, near Mumbai, on Septemebr 9, 2006. Photo:Reuters

trial, and if there isn’t, the accused is discharged. In many SIMI cases, this is exactly what happened: the judges found the charges so bogus they could not even sustain the framing of charges. In fact, many cases cited against SIMI are so sloppily crafted that the accused aren’t even accused of being SIMI members. In a majority of the few cases that have been decided, judges across India have either summarily dismissed the charges and discharged the accused, or acquitted them after the trial. The reason lies in the quality of evidence on offer. One would expect that with police claims of a watertight case against an outlawed “terror group”, the police would tender clinching documentary and/or circumstantial evidence. Surely, the sealed SIMI offices across the country offered a veritable telltale treasure to establish its links with terror networks. Surely, the police would find a paper trail such as bank accounts, handwritten letters, secret plans detailing contacts, false passports — the usual incriminating documents. Surely, the police would offer recordings of phone conversations and testimonies of neighbourhood witnesses.

It is astounding, however, that not once in their evidence do the police rely upon the contents found in the sealed SIMI offices. It is the ex-SIMI activists that have regularly asked the government and the police to give them a list of items seized from their offices, but without success. In hundreds of cases police have found no neighbours as witnesses, no bank documents, nothing. In case after case, the pattern is similar: The police receive “secret information” from an unnamed informer about a meeting or a suspicious character at a certain location. They reach the spot, search the premises, find “unlawful material” such as pamphlets and CDs on the person or persons present there, and arrest him/them.

No, they failed to record in their station diary (the all-important noting register that is the first record of every police action) the fact of having received the secret information. No, there wasn’t any time to get the mandatory search warrant from a magistrate before the raid. No, they didn’t record in the station diary before leaving their station why there wasn’t time to obtain the search warrant, or the grounds of their information or the article or thing they were going to search for. No, they didn’t make any attempt to get respectable local inhabitants to witness the search as the law demands. No, they didn’t record in their documentation that they tried to get local witnesses but couldn’t. Yes, they brought along their “own” witnesses to attest to the arrests and the seizures. (Often the same witnesses have attested searches, repeatedly, sometimes on successive days and on others, weeks later.) In many cases, the seal used to secure the seized material was not handed to a third person as prudence would require but was simply carried back to the police station by the investigating officer, which straightaway raises the possibility of tampering with the alleged seized articles. There are a few cases in which bomb-making material such as RDX and gelatine sticks, and chemicals like ammonium nitrate — such as in the July 2006 Mumbai train blasts case was allegdly seized. If searches had been conducted as required by law, they would have left a paper trail of supporting evidence. But because the searches were conducted in violation of the law, the only evidence of such a search having been conducted is the word of the police officer.

Once the arrested person is in police custody, he is miraculously struck by remorse a few days later and volunteers “confessions”. The section on confessions is clear-cut in the Indian Evidence Act the British wrote 136 years ago. It says: “No confession made to a police officer shall be proved as against a person accused of any offence.” As recent as 2005, the Supreme Court, while deciding on appeals in the Parliament terrorist attack case of 2001, spoke of serious doubts about conceding the power of recording confessions to police officers. In any case, a confession cannot be forced but has to be made voluntarily. That the confessions by the SIMI accused are fabricated is evident from the fact that in several cases, the police claims that numerous accused are struck by remorse all at the same time and confess to their crimes on the same day and, most surprisingly, in near identical words. To be sure, the minute the accused are brought before a magistrate, they deny having made confessions or say that the police tortured them to sign on the dotted line.

Police and lawyers gather around a bomb explosion site in a civil court in Varanasi on November 23, 2007Photo:AP

SO THAT’S the comprehensive bank of evidence backing the governments’ claims about SIMI’s involvement in the most monstrous terrorist crimes: confessions and “unlawful material” seized in the most dubious and illegal manner.

Though the Centre has already appealed against it, SIMI leaders were ecstatic that a tribunal headed by the Delhi High Court judge, Geeta Mittal, rejected the Centre’s ban on the organisation on August 5, 2008. This is the culmination of a long, dry journey for them, who have contested three previous bans and lost every time. As required by the 1967 law under which SIMI was banned, the first tribunal was constituted to hear both sides and decide if there was sufficient ground to ban SIMI. SIMI’s leaders were convinced that the tribunal would see through the weakness of the case and blast the ban out the window. But the first tribunal upheld the Centre’s ban, as did the second and the third.

The reasoning offered by the tribunals in upholding the bans defies both law and common sense. Stunningly, the first tribunal said that while it was true that confessions cannot be accepted as evidence against the accused in their criminal trial, the tribunal could accept such confessions since it wasn’t a criminal trial. The succeeding tribunals stuck to this convoluted reasoning. No less astounding was the remark by the second tribunal that the fact that SIMI could mobilise funds to pay its legal fees itself proved that it existed and hadn’t disbanded as its leaders claimed. Tribunal after tribunal said that the fact that so many fresh cases had been registered against SIMI activists was proof that the group’s activities hadn’t ceased.

The most shocking of all has been the tribunals’ acceptance of “secret material” brought by the Centre, read alone by the presiding judge, and returned to the government, with no one else knowing what it contained. The 1967 law allows the government to claim privilege if divulging such information would imperil public interest. But it also says that the Centre must share the secret material with the party contesting the ban, in this case, SIMI. In a 1995 judgement, however, Supreme Court Chief Justice JS Verma said the government need share it only with the presiding judge and not with the contesting party. So in essence, while a judge rules that the secret information from the Centre is good enough to uphold a ban, the banned orga - nisation cannot know what that secret information is and, therefore, is severely compro mised in its right to defend itself against the charges.

Not one to give up on his faith in the Indian judiciary, Shahid Badr Falahi has challenged the findings of each of the first three tribunals in the Supreme Court. When SIMI’s counsel appeared before the Supreme Court judge at the time of admitting the appeal against the third tribunal’s report, the judge said: “Same activity, same result.” The lawyer for SIMI pointed out that the government itself said that during 2003-06 there had been no fresh activity from SIMI, the honourable judge shot back: “Is this a joke? Every time we confirm a ban you come back?” The counsel gently said the judge was wrongly informed, that every appeal was still pending at the Supreme Court and hadn’t yet been heard. Realising his mistake, the judge said the matter should be heard by a larger bench. In the six years since the first tribunal returned a finding, the apex court hasn’t yet found time to take up Falahi’s appeals.

On the other hand, in stark contrast, the elation of tribunal judge Geeta Mittal’s order has already abated. Though the Supreme Court has still not heard Falahi’s earlier appeals against the previous three tribunals’ orders upholding the bans, it has already reacted to the Centre’s appeal and stayed Judge Mittal’s order. “We will not give up,” Falahi says with conviction. “Justice must finally be ours as truth is with us.” •