For 14 months between December 2011 and March 2013, Mayur Suresh followed 18 cases of men arrested on charges of terrorism, attending trial every day, almost all in New Delhi’s Tis Hazari courts.
His experiences and their lives are laid bare in his new book, Terror Trials: Life and Law in Delhi's Courts, published by Fordham University Press and OrientBlackswan.
Mayur Suresh, PhD, a senior lecturer in law at the School for Oriental and African Studies (SOAS), London, narrates how trials of those accused of terrorism under India’s draconian anti-terrorism law, the Unlawful Activities Prevention Act (UAPA) 1967 grind on with little chance for bail and, often, years before cases come to trial.
Suresh’s book is replete with stories of torture, illegal detention and fabricated charges, accused of terrorism in India schooled themselves in legal procedures, became adept petition writers, had friendships with police officials, cultivated cautious faith in the courts and expressed a deep sense of betrayal when this trust was belied.
Suresh said he started the research project to understand two things: how the terrorism 'emergency' manifests itself through everyday aspects of trial; and how Hindu majoritarianism has segued with national security legislation and rhetoric.
“As I engaged with the field, I came to see how terror-accused used the law in different ways: they learned the various procedures that the police had to comply with during the investigation, and used this knowledge to intervene in their own cases,” said Suresh.
“As they were housed together in the same premises, there was a great deal of sharing of legal knowledge, gossip and rumours,” he said. “They came to a tentative understanding of what legal strategies were good, which lawyers could be trusted and which police officers were less violent.”
Suresh also became interested in the social life of terrorism trials, in courtrooms and jails. How did terror-accused use the law? What understanding of law and legality did they produce?
“In the end,” he said, “it was about understanding terror-accused, not as silent victims of state oppression, but as actors in the trial process.”
The book shows that though seemingly mundane, legal processes are fraught and highly contested and acquire urgent ethical qualities in the life of a trial: legal language becomes a question of a form of life, the file becomes a space in which the world can be made or unmade, the petition a way of imagining a future and investigative and courtroom procedures enable the unexpected formation of close relationships between police and terror-accused.
Suresh’s book argues that in attending to the ways in which legal processes are made to work, we are offered a way of understanding how human expressiveness, creativity and vulnerability emerge through the law.
Edited excerpts from Suresh’s book:
During the course of my fieldwork I followed the case of a Kashmiri man I call Shamsher. He was very tall and he cut an imposing, yet gentle and reserved, figure. As he was on bail pending trial, he came to each hearing from Srinagar. He was evidently better off than the other terror-accused whom I met, as he was well-dressed and spoke to me mostly in English, with a smattering of Hindi. At his court hearings every two weeks, he wore an expressionless exterior and did not seem to like the small talk that occupied most people at the back of the courtrooms. When I met him at each of his hearings, he smiled, made very polite conversation, and engaged with my questions about his case in a very factual, restrained manner.
From these short conversations and from the arguments made during the hearings, I managed to piece together an initial picture of the case against Shamsher. Shamsher, originally from Kashmir, lived in the Middle East in the early 2000s. The Special Cell accused Shamsher of sending satellite phones and other electronic communications equipment from the Middle East to India. This shipment was destined, according to the Special Cell, to a banned terrorist organisation in Kashmir. Special Cell officers allegedly intercepted the shipment at the Delhi Airport after a tip-off from a “secret informer” and then filed a case against Shamsher and two others for various offences, including members of a banned terrorist organisation.
The fact that the police alleged that Shamsher was supporting a terrorist organisation barely came up in the trial. Instead, as I stated in the introduction to this book, technicalities were at the heart of the proceedings. As we have seen in other trials, Shamsher’s was marked by police ineptitude in the paperwork and other technicalities they were required to follow during the investigation and the trial. For instance, while the police are expected to file first information reports (FIRs) immediately after learning about an offence, in this case, the Special Cell filed the FIR seven days after they purportedly intercepted the shipment at the Delhi airport. As we saw in Bharucha’s and Kumar’s case and in Keshav’s and Sonia’s case (in Chapter 3), here too the prosecution had not followed the two-step process required to file terrorism charges. In filing the charge sheet against him, the police had not followed the certificatory processes to bring the world into the court file—a process that I detailed in Chapter 5—as they had not filed the consignment bill (which they say was attached to the consignment that allegedly contained the electronic equipment) or the seizure memo through which they seized the consignment. The main evidence against Shamsher was an alleged telephone conversation that took place in Kashmiri between Shamsher and the head of the terrorist group. This conversation had been allegedly intercepted by the Special Cell and translated by a native Kashmiri speaker. The Special Cell had not obtained the necessary permissions to intercept the telephone call, and the person who purportedly translated the conversation was never even called to testify.
Confusions reigned all around, not just with the police. As we saw with cases discussed in this book, uncertainty lies at the heart of any engagement with legal technicalities. Thus, in January 2013, during the final day of arguments in Shamsher’s case, a question arose about a significant technical detail. The judge, prosecutor, and defence lawyer were momentarily confused as to whether Shamsher ought to have been prosecuted under the Unlawful Activities Prevention Act (UAPA), or the Prevention of Terrorism Act (POTA), which was in the process of being repealed when the case was first registered. For about half an hour, the judge, defense lawyer, and prosecutor floundered around looking for the exact date of registration of the case and the exact date of the repeal of POTA and the enactment of the UAPA Amendment Act of 2004. If the case was improperly registered under the UAPA, this would mean the entire trial was invalid. Years after the case was first filed, on the last date of hearing, they all came to the conclusion that the case was properly registered under the UAPA.
Shamsher’s case was listed for judgement in February, some weeks before I was to return to London from my fieldwork. I went to the courtroom where his case was being heard, but could not find Shamsher. I checked the cause list outside the court and noticed that his case was listed for arguments, not for judgement. I stayed there till Shamsher showed up. He was evidently worried and asked me if I knew why his case was listed under arguments and not for judgement. Since I was not sure either, we asked the naib court. The naib court also said he was not sure why it was listed for arguments. He telephoned his lawyer, who told him to stay there and that in the event the case was called, Shamsher was to tell the judge that his lawyer was on his way. Confused and nervous, Shamsher began pacing up and down the short corridor outside the courtroom.
He was obviously and understandably very uneasy. While he was previously reticent about discussing his case, his nervousness seemed to have broken any hesitancy. At times in our conversation that day, it seemed as if he was so nervous that he had to continuously speak. At other times, his anxiety seemed to force him into a deep silence.
He said that after the last date of hearing, he did not dare to go back to Srinagar. He feared that heavy snowfall might have blocked off transport links between Srinagar and Delhi, and he didn’t want to take the risk of not being in Delhi. He told me that he suffered from such anxiety that his family took him to the doctor to check his blood pressure. His parents wanted to come for the “day of judgement,” but he stopped them as travel from Srinagar was too difficult. More importantly, he did not want them to be present in court if he was convicted. He did not want the last memory they had of him to be of him being led away by the police.
He told me that he was originally from Srinagar, Kashmir, and that he had moved to the Middle East in his early twenties. At first he worked as a waiter in a restaurant, but by the mid- 2000s Shamsher had become the manager of an industrial food production company that catered meals for thousands of construction workers every day.
He became aware of the Special Cell’s case against him only when he went to the local Indian consulate to renew his passport. There, he was told that the consulate was unable to renew his passport as there was a “notice” against his name. The consulate also told him that his then current passport was also invalid because of this notice. He was told that if he wanted to renew his passport, he would have to go back to India to figure out what had gone wrong. But he could not return, as he no longer had any valid travel documents. He asked friends and relatives in India to conduct some inquiries, to figure out what exactly this “notice” was about, but to no avail. He said he was trapped: He could not renew his passport, and he could not travel back to India. Because he no longer had a valid passport, he could no longer work and was fired from his well-paid job. Ultimately he was sent back to India and was arrested upon his arrival in Delhi. Because he had been deported from the Middle Eastern country, he would not be let back into that country. “The Special Cell,” he told me, “ruined my career, my life, my family—everything.”
After his arrest at the airport, he was taken to a magistrate. He said, “Okay I said to myself, now that I am here, I need to fight it.” He was in police custody for nine days. He said that the police could not do “their illegal custody business [because] there was paper, the ticket, saying that [he] had arrived in India on that date.” He said that was also the reason why they could not torture him. He said, “If I’d been in India, they would have tortured me for ten, fifteen, days, one month, and then waited for the wounds to heal and then produced me in court.”
He believed that if the court looked at the documents in his case, then he would be acquitted. Like other terror-accused individuals whom I met, he seemed comfortable in using legal language. He told me that the Special Cell had only told some kahaaniyan, or stories, about him in their charge sheet. As we saw in Chapters 4 and 5, he knew that the narrative of a case crucially depended on the file. “They cannot prove anything against me,” he told me.
They said I have sent this phone and other electronics—but where is the receipt? They did not even seize it and did not submit a seizure memo [to the court]. Under Section 45, of the Unlawful [Activities Prevention] Act, they did not even have permission to file this case against me, but still they went on gair kanoon [outside the law]. They said I spoke on the telephone with some man and that they have a recording of it. But they do not have any translator for it. They said that my voice matched the voice on the recording, but my lawyers destroyed the expert they had brought. It is an absolutely fake case against me.
Echoing the idea of the vulnerability of the state to its words (Chapter 3), he said that “the law that they themselves have written says do things this way. Then why did they do things another way? It is only because they have made this false case against me.”
While he was convinced the case against him was weak, he conceded that this did not mean he would be acquitted. He knew that uncertainty was at the heart of an intimate encounter with the law. “You never know what kind of pressures they put on a judge,” he said. I asked him what he meant by this. As we saw in Chapter 1, he, too, had heard rumours about the powers of the police. He said that he had heard that the Home Ministry would send word, through the Special Cell, to a “judge to keencho [stretch] the case for as long as possible” and could even tell a judge to convict a person. The Special Cell, according to Shamsher, followed the orders of the Home Ministry. He said that a “judge who doesn’t want to convict will sometimes stretch the case for as long as possible” so as to “not piss off the Home Ministry by giving an acquittal.”
I asked him what he thought about the judge in his case. He claimed an intimate familiarity with him and said that he was very good. (This was the same judge who presided over Kumar and Barucha’s case.) “He’s done work on every date, and he doesn’t waste time. The only time this judge has taken leave was when his father passed away, but apart from that he’s done work on every date.” Shamsher said that it was this judge who had granted him bail. Shamsher told me that after the hearing, when he was sitting outside the court, the judge walked past, smiled, and said, “Abhi khush ho?” (Are you happy now?) The reason he was granted bail was that, as in Bharucha’s case (discussed in Chapter 3), the prosecution had not followed the two-step process to file UAPA charges. Shamsher was told about this vital technical detail by Kumar, with whom he shared a cell. Shamsher then told his lawyer to ask the judge to dismiss the terrorism charges (as he had done in Kumar’s and Bharucha’s case). Instead of dismissing the case because of a faulty sanction to prosecute, the judge let Shamsher out on bail (as was done in Keshav’s case).
At that time he had been out on bail for about six months. “I thought I could restart my life,” he said. But with the fortnightly hearings and monthly trips to “mark attendance” at the Special Cell, he was not able to plan anything. “I try to think about the future, but I cannot do anything because of this case.” As we saw with Mohsin in Chapter 6, Shamsher seemed stuck in time as he worried about the afterlife of his trial. He worried aloud about the repercussions of the case on his future: “Even if I am acquitted, once people hear that there was this accusation against me, they will not speak with me. I can’t go back to the [Middle East] for work. Who will give me a passport now? I have to start everything from the beginning here.”
While we waited on a bench outside the courtroom, he asked what I would do next since my fieldwork was almost at an end. I told him that I had volumes of material that I needed to go through and make sense of. Shamsher began to rattle off the cases that he knew of that had ended in acquittals. It turned out that he had been imprisoned with several people we have encountered in this book. In addition to Kumar, he knew Shahid (whom he seemed to like), Bharucha (whom he seemed to respect for his wide reading), and Irfan (who he thought was pagal, or mentally ill). He said that only a handful of people charged under anti-terror laws were actually involved in terrorist activities. “Most people,” he said, “are completely innocent. The police have created false cases against so many people, including me.”
I told him about a human rights association, the Jamia Teachers’ Solidarity Association and its recently released report about how the Special Cell fabricates terrorism cases (JTSA 2012). He said that he would want to read the report, to see the cases of people whom he knew in jail. I asked for his email address to send him a copy, but he immediately said no. Lika many of my interlocutors, he believed that the Special Cell was monitoring his activities, including his email. As I took down his postal details, I asked if he thought the Special Cell was monitoring his cell phone. He said yes, though he added that “the Special Cell isn’t concerned about minor things. They don’t care if you are crossing a red light or if you are fucking a girl. They are only interested in the major things that they can give a different meaning to. Like if you say that you have a lot of currency or anything like that.”
As the morning wore on, his nervousness mounted. The case had not yet been called, and there was no sign of his lawyer. Several times, he held his head in his hands as he rocked back and forth on the bench. He said that he had not been able to do anything in Srinagar with this case still looming. He had not been able to think about the future. He wanted to start a tour company to arrange trips to a ski resort in Kashmir. But “I can’t do anything,” he said. “I can’t do any job or get married because this case has stopped my life.”
Shamsher’s anxiety was stretched out further as the court broke for lunch without calling his case. We waited outside the courtroom for his lawyer. While we waited, the judge presiding over his case walked by. Shamsher stood, bowed slightly, smiled and said, “Hello sir” as the judge passed by wordlessly. “He’s a very good man,” Shamsher said hopefully.
After we were finally joined by Shamsher’s lawyer, the three of us went to the court canteen for lunch. I ordered food for the three of us. Shamsher’s lawyer told him that he would definitely be acquitted and that he had nothing to worry about. The lawyer spoke brashly, not mindful of Shamsher’s nervousness. He said that unlike other lawyers who “only shout in court to impress their clients, but do little work,” he worked hard for his cases. Shamsher quietly said that many terror-accused he knew were represented by the lawyer named Sheikh (whom we met in Chapter 1). The lawyer responded that unlike Sheikh, he was not corrupt and did not cut deals with the Special Cell.
After lunch, we went back to court. Shamsher’s lawyer was inside the courtroom, and Shamsher and I waited outside for his case to be called. A man walked by whom I recognized him as a Special Cell officer. I asked Shamsher if this was the police officer in his case. He said no, and that “this judge has many Special Cell cases with him, so he must have come for some other case.” Giving voice to forms of custodial intimacy I wrote about in Chapter 1, he said that he knew several Special Cell officers. He seemed to excuse the officers for prosecuting him. While it was wrong for them to file this case against him, “They also had very little choice since pressure on them was coming from above.” Nonetheless, he seemed to abhor one of the officers in his case. The officer he named was involved in fabricating the case against Qayoom (discussed in Chapter 2). This officer was recently involved in a car accident, which left him with a permanent facial disfigurement. While the courts might excuse the Special Cell’s fabrication of cases, Shamsher believed that this police officer had been found guilty by a different order of justice. Shamsher said:
Allah is so big, and he has given his judgement. He was going on the highway and he had an accident. He’s got an inch-deep scar on his forehead. His eyes have become like this [he pointed his fingers in opposite directions]. Judgement has come against him.
After about half an hour, the naib court came outside and told Shamsher that his case was about to be called. Shamsher looked extremely distressed, and he began sweating even in the cold. As we entered the courtroom, he could not bring himself to sit in back. He stood close to the front and nervously shifted weight from one leg to the other. I stood right behind him.
Finally, the reader called Shamsher’s case, and his lawyer approached the judge’s desk. Shamsher took his place behind the lawyer, and I stood behind Shamsher. The judge began to read the conclusion of the judgement very softly. From where we were standing, I could hear only the words “guilt,” “failed,” “reasonable doubt.” Suddenly, I saw Shamsher’s knees buckle, and he fell backward onto me. I tried to hold him up, and the naib rushed in to help me. Shamsher steadied himself and asked, “Bari kiya hai na?” (It is an acquittal, right?) A smiling judge said, “Haan haan, bari kiya hai” (Yes, yes, it is an acquittal). I suddenly realised that Shamsher was sobbing, and I began tearing up as well. There were hugs and smiles all around, as the lawyer embraced Shamsher and the naib court first hugged me and then Shamsher. The naib held Shamsher in an embrace and said, “Pata tha ki tumko bari kardenge” (I knew you would be acquitted). The Special Cell officer who was still in court came and patted Shamsher on the back.
As we left the courtroom, tears continued to roll down Shamsher’s face. He gave his lawyer and me a hug each, and said he needed to call his family. He said that he would call me later. The naib and the Special Cell officer came into the corridor, and we discussed what had just happened. The naib court told us he thought Shamsher was a very decent and honest person, as if to say that he thought the case should never have been filed in the first place. The lawyer teased the Special Cell officer: “If you are going to file false cases, at least do so in the proper way.” The Special Cell officer smiled and, not wanting to engage, responded, “It is good you did your job so well.”
I telephoned Shamsher the next day and asked him how he was feeling. He said for the first time in years, he was able to sleep. He was very relieved and could not wait to get back to Srinagar to be with his family. However, an anxiety crept back into his voice as he wondered aloud whether this case would continue to haunt him. He did not know if he could get his old job back. If he could not, he did not know what he would do in Kashmir. “Even [though] I am acquitted, they will find some way to get me,” he said. I could never clarify what he meant, as he pushed away any uncertainty about the future: “At least for now, I am out of jail.” I asked him if there was any chance to meet before he left Delhi and whether he would come to Tis Hazari so that I could give him a copy of the Jamia Teachers’ Solidarity Association’s report that I had promised him. “Post mein bhejo” (Send it in the post), he said. “I never want to set foot in Tis Hazari again.”
(Excerpted with permission from Terror Trials: Life and Law in Delhi's Courts, published by Fordham University Press and OrientBlackswan.)