Kafkaland: Prejudice, Law and Counterterrorism in India
Rs 260

Let’s start with the obvious. India has had more than its due share of the terrorists’ targeting of civilians in recent decades. As concerned citizens, we have the right to know what state institutions have or have not been doing to ensure our safety and security.

Let’s take the example of the September 2002 terror attack on Akshardham temple in Gujarat. We did it, read the “confessional statements” of the six Muslims arrested under POTA (Prevention of Terrorism Act, 2002). In July 2006, a special POTA court convicted all six accused. Four years later (June 2010), the Gujarat high court upheld the verdict, holding the convicted men guilty of a numerous crimes, including “criminal conspiracy of mass killing of Hindus in Gujarat” and “terrorist act”.
But on May 16 this year, a division bench of the Supreme Court acquitted all six, three of whom had been awarded the death sentence. Using terms like “perverse”, “injustice”, “manifestly unreasonable”, “a gross violation of basic human rights”, the apex court slammed the investigating agency for shoddy investigation and the Gujarat government for not applying its mind before slapping the now extinct POTA.
Sounds strange! How could the Supreme Court acquit those who had “confessed”? Think of torture.
Though free at last, what about the long years of social damnation, economic deprivation, the trauma of the accused and their families? Should the Indian state not publicly apologise to the wrongfully framed, pay decent compensation as the Australian government did in 2010 in the case of the Indian doctor, Mohammed Haneef? Should it not take adequate steps to rehabilitate them, restore their dignity? What about the accountability of the investigation agency and the lower judiciary?
All this is too much to ask of our government(s). As is obvious from Manisha Sethi’s damning exposes in her book, Kafkaland: Prejudice, Law and Counterterrorism in India, it would need to apologise to far too many persons for illegal detentions, torture and imprisonment, shell out crores and crores in compensation.
Besides, wouldn’t admission of wrongdoing raise uncomfortable questions? If those framed and damned for Akshardham and the numerous other examples cited in Kafkaland are innocent, who and where are the real perpetrators of terror? If the actual culprits are roaming free, should citizens be feeling more secure or less?
Should those wronged “move on”, be thankful that they are “luckier” than others? Luckier, for example, than Ishrat Jahan and three others who were killed in a fake encounter by the Gujarat police near Ahmedabad in June 2004 while they were allegedly on a mission to assassinate the then Gujarat chief minister (now Prime Minister) Narendra Modi. A Gujarat high court directed investigation has since established that all four were killed in cold blood.
However, Kafkaland is not only about Gujarat. After a close examination of several of the most prominent terror cases across the country (Mumbai, Delhi, Hyderabad, Bengaluru) Sethi concludes that “the hallmark of terror investigations is not simply a casual subversion of norms but cynical prejudice and brutal violence inflicted in the knowledge of absolute impunity”.
Impunity? It’s a word we should by now be familiar with. Communal pogroms like Delhi (1984), Mumbai (1992-93) or Gujarat (2002) are possible only because its perpetrators are sure of partisan police conduct, the latter in turn are certain that in the prevailing culture of state-ensured impunity neither will be punished.
Let’s return to the beginning. Everyone agrees that terrorism is a threat to national security, wants our security agencies to go after the terrorists. But who are the terrorists? Where to start? Your own prejudices, Mr Investigator. Fear not, learn from Kafkaland how you have the full backing and blessings of any number of security experts, senior cops, political parties, the mass media and its pundits, even the National Human Rights Commission and many in the lower judiciary.
Here’s Sethi narrating the telling instance of a panel discussion on a TV news channel, where a much-in-demand “security expert” offers his valuable insights on the roots of terror. “You see, jihad is a religious obligation in Islam,” he pontificates, pointing fingers at Muslims, adding that “Hindus can never be violent.” But, “what about Mecca Masjid, Ajmer Sharif, Assemanand, Sadhvi Pragya?” the anchor asks. These are stray incidents of “retaliatory attacks” opines the expert, insisting that “Hindu terrorism is an oxymoron. It cannot exist.” (Sethi does not name the expert).
She also recalls M.N. Singh, former DGP of Maharashtra arguing on national television: “There is nothing like saffron terrorism. It just doesn’t exist in the Hindu pantheon”.
Sethi also cites several examples of the “disquieting trend of judicial abdication, wherein the courts indulgently ignore signs of torture, lack of evidence and absence of procedural norms while trying terror cases”.
In short, Mr Investigator, when investigating terror acts, start with Muslim suspects. Here’s some support you can count on as and when needed:

Question: Why falsely implicate innocent Muslims who the courts might acquit?
Answer: Acquittal does not necessarily mean not guilty. Anyway, some “collateral damage” can’t be helped.

Question: What about due process, evidence-based conviction?
Answer: Sometimes, the “collective conscience” of the nation is reason enough for the hanging of an Afzal Guru.

Question: How can fake encounters ever be justified?
Answer: “Controlled killing” of real bad guys “in good faith” and “in the national interest” is different from fake encounters.

For those concerned about human rights, Kafkaland will make for a scary read. Especially so is the last chapter, “The Security Metaphysic”, on how “corporate greed masquerading as national interest” is now part of the counterterrorism narrative, an ominous sign of India’s emerging “security-industrial complex”.
Hope you are wrong, Manisha Sethi, about our likely “progress” from a Kafkaesque to an Orwellian state.

Javed Anand is co-editor of Communalism Combat and
general secretary, Muslims
for Secular Democracy