A Reminder of UAPA Rule in J&K: Man Wrongfully Jailed for 11 Years
Bashir Ahmad Baba was accused of being in touch with a Hizbul Mujahideen leader in PoK, and was charged under UAPA.
Bashir Ahmad Baba, 43, clasps the hands of departing visitors, mostly relatives, and bows to kiss them as he bids goodbye.
He hails from Rainawari, a bustling commercial area in Srinagar city. He stands at the exit door of his house, to which he has just returned after 11 long years, watching the guests come and go.
In 2010, Baba, then in his early thirties, had been working with Maaya Foundation, that treats children born with facial deformities, such as cleft lip and palate, across India.
As assistant project manager for the NGO, Baba would visit schools and colleges across Kashmir and help raise awareness about the condition and tell students about the ways in which treatment can be availed, should anyone in their families suffer from it.
Wrongful Arrest of 'Pepsi Bomber'
The foundation then decided to enroll Baba for a 'camp management training' program at Gujarat Cleft and Craniofacial Research Institute in Ahmedabad.
But within a week of his stay, Baba was arrested. The police came knocking at the door of his flat in the middle of the night, then pulled a blanket over his head and took him away.
His colleagues were arrested, too, but later released. But Baba was in for a dire fate. His crime wasn’t immediately known and the colleagues were just as perturbed as Baba himself.
Then, the chyrons on television screens started flashing the news about the arrest of a "Pepsi bomber." Newspapers printed reports of police foiling a "terror plot."
The New Indian Express quoted Ajay Tomar, then chief of Gujarat Anti-Terrorism Squad, claiming that Baba would "identify vulnerable youth, brainwash them and sent them to Pakistan for terror training."
Police termed him "Pepsi bomber" because of his alleged knack for rigging Pepsi cans with improvised explosive devices that he would allegedly hurl at police in Kashmir, during the 2008 agitation against the transfer of land to Amarnath Shrine Board.
The then Union government, headed by the UPA, also described the arrest as a "major success."
Baba was accused of being in touch with a Hizbul Mujahideen leader in Pakistan-occupied Kashmir through emails and phone. He was booked under Section 120B (criminal conspiracy) of the IPC and under various sections of UAPA, or Unlawful Activities (Prevention) Act.
Cleared of UAPA Charges, 11 Years Later
However, earlier this month, a sessions court in Gujarat cleared Baba of charges filed under the controversial law, whose application has come under the criticism of rights groups.
Shakeelahmed Abdulkareem Nakum, additional sessions judge at Anand District Court, rejected the ATS’s contention that Baba was associated with the militants, adding that no evidence was found in this regard and that "the prosecution relied on emotional argument and a person cannot be held guilty merely on its fear of anarchy."
When Baba was brought back to Srinagar, he found the city to be unrecognisable. He does not have a mobile phone yet so every media visit is coordinated by his brother Nazir Ahmad, who worked as a salesman all these years to make the ends meet for his family.
Baba’s father, a private contractor with Srinagar Municipality Corporation, died in 2017 on account of colon cancer. Baba cuts a contemplative look when one broaches the subject of his father’s death.
"He came to see me only twice. I was aware he had gone into depression after my arrest."Bashir Ahmad Baba
Baba says it was and still is easier for police in India to frame Kashmiri Muslims. "It’s a believable lie in India that we could be terrorists," he said.
Inside the jail, Baba, however, did not merely languish as a broken individual resigned to the depredations of fate. Instead, he resumed his study and finished a master’s degree in political science.
Now, he hopes to start a business in Srinagar to help his family with finances.
Though Baba was arrested well before Prime Minister Narendra Modi came to power, in 2014, his case has rekindled apprehensions over the excesses of UAPA, whose application in J&K has seen a sharp escalation particularly in the aftermath of abrogation of article 370.
Arrests Under UAPA, J&K Leading the Numbers
Around 59 individuals were charged under UAPA in J&K in 2015. In 2019, the number rose to 255. Of 5,922 persons charged under this law across the country, between 2016 and 2019, individuals from J&K account for around 15 percent (876) even as the conviction rate remains little over 2 percent, prompting rights groups to conclude that the law has been engineered to facilitate the abuse of power.
"It’s very common for law enforcement agencies to bypass the provisions of the law of the land and take recourse to UAPA."Urfi Mir, Senior Criminal Lawyer, Srinagar
This year, the J&K Police has liberally invoked UAPA including in the cases that prima facie did not imply material support for militancy and later fell apart in the courts.
Earlier, in February, police booked eight people under UAPA including father of Ather Mushtaq Wani, a minor who was killed during a gunfight on the outskirts of Srinagar in December last year. The parents had organised protests, demanding Wani’s mortal remains.
The same month, the police arrested Hilal Akbar Lone, a Kashmiri politician from Bandipora in north Kashmir, under several provisions of UAPA. Police accused Lone of delivering "hate speech" while campaigning for the DDC polls.
In March, the court, however, granted him bail and observed that Lone did not incite people to commit violence.
About the video that police had adduced as evidence, the court said: "What is alleged therein is regarding the policies of the government of the day, which according to the petitioner is 'branding Muslims as terrorists, whereas its own people are terrorising others and preventing them from discharging their religious beliefs'. Such spoken words wouldn’t prima facie lead to the commission of offences of unlawful activity [under]…the Act."
In March, police also arrested Abdul Bari Naik, 40, a college professor from Chidder village in south Kashmir’s Kulgam district. Naik was charged under UAPA provisions for "radicalising the youth" in Kashmir.
First, his parents furnished government orders requisitioning Naik to attend official COVID-19 duties (which he did), complicating the police’s accusation that he had been an "absconder."
Second, Naik’s profile revealed he was an aspiring political upstart who deftly mobilised the RTI Act to uncover official corruption. He had even taken part in protests resisting the proposed takeover of a playground by the army in Redwani village of Kulgam in 2018.
A pervasive sentiment exists on the ground that UAPA has become a new tool in the hands of the government with which to criminalise all kinds of dissenting expression, however peaceful.
An amendment allowing government to categorise individuals as terrorists without being tried or convicted under this law was steamrolled through the Parliament by Home Minister Amit Shah in 2019.
In 2021, Kashmir police has also invoked UAPA against users for spreading rumors about a strike call, for resisting the cordon and search operations, for leading funeral prayers of slain militant men, for throwing stones and for raising 'anti-national slogans' during protests.
Last year, police detained people under the controversial legislation for accessing Internet through proxy servers, delivering "provocative sermons" inside mosques, for "playing cricket in memory of a dead militant", "for organising protest in a university allegedly against bad quality of food" and for "shouting Azadi slogans during Ashura procession."
UAPA Charge Sheet Filed Against Journalists
Police has also charged journalists under this law for their utterances on social media.
In the case of journalist Aasif Sultan, police filed charges just hours before the mandatory period of 180 days for filing the report from the date of remand approached expiry, indicating how the law allows the state to manipulate its provisions to maximise detention period if it so desires.
In April this year, police booked Saima Akhtar, a lady Special Police Officer (SPO) for 'glorifying militancy.' Akhtar had filmed herself resisting a search operation at her house.
In the video, that went viral, she could be heard yelling at forces, accusing them of troubling her family and soiling her house. She also shouted, “Kashmir humara hain (Kashmir is ours)."
“Increasingly resorting to UAPA also ensures that you keep judiciary out of the business,” said Habeel Iqbal, a US State Department Fellow and a Kashmiri legal practitioner.
“Previously, when police accused people of wrongdoing, they would approach court for relief. But UAPA makes this difficult. If one is booked under this law, they will not get bail for 3 months. In 99 percent of cases, courts in Kashmir invariably grant police the permission to extend the detention period.”Habeel Iqbal, US State Department Fellow and Kashmiri Legal Practitioner
If police do produce the charge sheet within the mandated 180 day period – which is quite rare – then the case drags on. If not, then the person is by default eligible for bail. That means even when the person is freed on bail, courts seldom play a role.
According to Iqbal, UAPA allows police to exercise complete discretion, stonewalling the scope of any judicial intervention which is perhaps why police stations across Kashmir are awash with UAPA cases even against the offences where normal provisions of IPC and CrPC apply.
UAPA Cases in J&K Criticised
Last year, in December, seven UN Special Rapporteurs expressed “deep concerns” over arbitrary use of UAPA in Kashmir. They criticised the law for its “broad scope" and how it "makes it easily amenable to abuse.”
Recently, police also booked a minor under UAPA in Kupwara in north Kashmir because he took part in processions where “anti-national” slogans were raised.
However, police came under severe criticism in this case. Last month, the minor boy was released on bail. “My son spent 22 days at a juvenile home at Harwan Srinagar,” his father, who did not wish to be named, said over the phone. "He does not talk and appears to be very disturbed. He has only taken part in a procession. That’s not a crime.”
Others, however, are not so lucky. Police often invokes UAPA as a concomitant of Public Safety Act (PSA), J&K’s dreaded preventive detention law.
Individuals whose PSA is quashed by courts often continue to face detention because it’s not easy to get through the UAPA.
“The motive is to keep people out of circulation for as long as the police want, whether they are guilty of any unlawful activity or not,” Mir, the lawyer, said.
“43D (5) of UAPA subordinates the bail of the accused to the court’s perusal of court dairy. The person will not get bail if the court believes there are reasonable grounds that the accusation against such person is prima facie true. How can courts do this when the investigation is still ongoing? Although UAPA confers a legal veneer for detentions to be carried out, when the entire legal framework behind the arrest is examined, we realise the whole essence of law has been defeated,” he added.
(Shakir Mir is a freelance journalist who has reported for the TOI and The Wire, among other publications. He tweets at @shakirmir.)
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