In Kashmir, The Random—And Rampant—Use of India’s Anti-Terrorism Law

AUQIB JAVEED
 
17 Dec 2021 18 min read  Share

Crackers after cricket games. Sloganeering during funerals. Owning homes in which militants are killed. These are some reasons that led police in Jammu and Kashmir to file 36% of all national cases using India’s broadly worded and draconian anti-terrorism law in 2020. Courts have often dismissed charges, police often do not file chargesheets, but for the accused and their families, the process is the punishment. We tracked three cases.

Retired bank employee Abdul Majeed Ganie, whose three sons were arrested by the police for allegedly sheltering militants in their Srinagar home. All three face charges under India's anti-terrorism law and have been in jail without trial for 450 days/AUQIB JAVEED

Srinagar: On 18 July 2019, eight days after India lost to New Zealand in a cricket World Cup semi-final, cosmetics-shop owner Liyaqat Ahmad*, 38,  was summoned to Srinagar’s downtown Nowhatta police station. 


“Why did you burst fire crackers after India lost to New Zealand?” Ahmad quoted police officials as saying. Two days after being questioned, he faced, along with at least four others, a criminal case that inclued accusations of terrorism.


The police repeated these actions in 2021, filing cases under the Unlawful Activities (Prevention) Act (UAPA) 1967, amended in 2019 to expand the law’s application to include individuals, against an unspecified number of medical students—for celebrating India’s loss to Pakistan in a T-20 cricket match on 25 October 2021.


A first information report (FIR) filed in the Soura police station in Srinagar said medical students of the  “un-married” hostel at the Sher-i-Kashmir Institute of Medical Sciences (SKIMS) “raised slogans and burst firecrackers”.  


The FIR quoted section 13 (advocates, abets, advises or incites the commission of, any unlawful activity) of the UAPA and sections 105 and 505 (public mischief) of the Indian Penal Code (IPC) 1860. 


Another FIR using the UAPA was filed on 26 October 2021 in Srinagar’s Karan Nagar against SKIMS medical students, hostel wardens and management who were, according to a police statement, “crying and dancing last night evening (sic) after Pakistan won the World Cup T20 match against India”.


Jammu and Kashmir (J&K) registered the highest number of cases filed under the UAPA, according to 2020 data, the latest available, released by the National Crime Records Bureau (NCRB) in 2021. 


On 2 August 2019, the Rajya Sabha passed amendments to the UAPA. The amendments allowed agencies to designate individuals as terrorists and seize their property. Earlier, only organizations could be designated as ‘terrorist organisations’.


The UAPA allows detention without trial for six months and turns the burden of proof on the accused. The surging use of the UAPA pointed, said lawyers, to its misuse, with the data revealing that of 796 UAPA cases registered nationwide, 287 or ​​36% were registered in J&K alone. (Table 1A.5)


After 180 days, the accused is entitled to “default bail” if investigators fail to submit a chargesheet. If the police do not seek an extension after 90 days, then, too, the accused must be released.


The NCRB report also revealed that 95% of UAPA trials and 85% of investigations were pending, an indication of the long judicial process UAPA detenus and accused must endure. According to a government admission, of 10,552 Indians arrested under UAPA between 2015 and 2019, only 253 or 2.4% were convicted.


This reporter spent almost three months tracking 10 Kashmiris who faced UAPA cases; Three agreed to speak, the rest were fearful of state retribution. The reasons for using the UAPA included, as we said, a celebration after a cricket game that India lost; for alleged threats to a government officer; and for allegedly sheltering militants. 


‘I Was Not In Their Good Books, Easy To Frame Me’ 

The FIR in 2019 against Ahmad filed in the Nowhatta police station, for setting off crackers after India lost a cricket match to New Zealand, quoted section 13 (advocates, abets, advises or incites the commission of, any unlawful activity) of the UAPA and sections 188 (disobedience to order duly promulgated by public servant) and 341 (wrongful restraint) of the former state’s Ranbir Penal Code (RPC). FIRs were filed against eight others too.  


“I denied the allegations,” said Ahmad, a father to a six and 11-year-old, with a record of run-ins with law-enforcement agencies. “Since I was not in their good books, it was easy for them to frame me in the case.”


Ahmad has had many cases registered against him and has done jail time, often on accusations of stone-throwing and being a member of separatist organisations, charges he denied.


Advocate Mir Urfi, counsel in several UAPA cases in Srinagar’s lower court, represents Ahmad. She said the police had not yet filed a chargesheet. Ahmad got bail on 17 December 2019 after 90 days in jail. If convicted he could face up to five years in prison. 


The FIR, a copy of which is with Article 14, said Srinagar police received information that a group had chanted “anti-national and pro-Pakistan slogans (Hindustan Murdabad, Pakistan Zindabad ) soon after the New Zealand cricket team beat India in the World Cup cricket match.” 


The group also “burst firecrackers and celebrated India’s loss in the cricket match,” the FIR read and accused them of blocking roads in Nowhatta Chowk. 


According to Mahira Bhat, the advocate who represented two others accused in the same case but whose FIR was filed in a different police station, said the charges were “weak”.  Her clients were released on bail after three months in jail. The police are yet to submit a chargesheet.


Ahmad said he was initially detained illegally at the Nowhatta police station before the FIR was filed under the UAPA and the RPC. The officer, now transferred, who registered the FIR and arrested Ahmad claimed the process was “lawful”. 


“There is no case of illegal detention,” said the officer, speaking on condition that his name not be used. “We also got a PSA [Public Safety Act, 1978] order against the person [Ahmad] in the month of December but since he wasn't medically fit, we didn't execute it." 


The PSA is a controversial preventive-detention law that allows detention for up to two years without bail and has been misused by the J&K government, as Article 14 reported in August 2020.


Ahmad says he was moved to Central Jail Srinagar until a National Investigation Agency (NIA) designated court ordered bail, three months after his arrest in December 2019. 


“When I was taken to court, I told the judge I won’t burst fire crackers because it is forbidden in Islam, and there is no question that I would have done it for just a cricket match,” said Ahmad. “I don’t even allow my kids to do it on Eid, how could I do it then?” 


‘Process Is The Punishment’

The UAPA has been applied increasingly over the last two years since its amendment. Though the UAPA was in force since  1967, the NCRB did not record cases separately under the law till 2014. 


In the Valley, the widespread use of the UAPA resulted in many young Kashmiris accused of crimes never committed (here, here and here) or crimes that never ended in conviction. Declared innocent by courts eventually, acquittals came after suspects spent years behind bars.


“The process is the punishment in itself,” said Habeel Iqbal, a lawyer based in the southern district of Shopian in  Kashmir.

 

Delhi lawyer Abhinav Sekhri told Article 14 the UAPA was a harsh law on many counts: “Lesser procedural rights, bail regime and crime definitions are super broad that allow probe agencies to see overtly innocent conduct as terror acts by merely alleging the conduct was accompanied by some criminal intent.” 


This also lends itself to misuse,” said Sekhri. The UAPA consists of two parts—one punishes “unlawful activities”, which includes speeches calling for separation from India, and a second part that punishes “terrorist acts”, said Sekhri.


“Politically sensitive border areas such as Kashmir/northeast India see more UAPA cases also since more cases for unlawful activities are registered there—it may not always be for terrorist acts,” said Sekhri.


Former J&K director general of police Shesh Paul Vaid, who during his tenure of two years to 2018 witnessed the deadliest protest in the Valley following the killing of militant leader Burhan Wani,  agreed the UAPA was stringent.

 

“UAPA should be used for terror-related matters,” Vaid told Article 14. “In my tenure as DGP, we used the law in serious cases only. Otherwise, a normal law should be applied.” 


Vaid said “if a stone pelter or a person has just chanted a slogan and has no other subversive background, a normal law like CrPC and IPC is enough to deal with such elements”.  


On 14 December 2021, to a question in the Lok Sabha on “whether Government plans to amend the existing Act [UAPA] in the light of recent evidence about the large number of acquittals and for preventing the harassment of innocent people in wake of misuse of this law”, the government said it had no such plans. 


The government said 366 of the 750 arrests under UAPA in J&K between 2018 and 2020 were people under 30. 


On 5 December, 2021, Article 14 sought comment from inspector general of police (Kashmir) Vijay Kumar and DGP Dilbag Singh about allegations of “misuse” of the UAPA. We will update the copy if either responds. 


‘Can’t Stop A Gun-Wielding Man From Entering Your House’ 

At around 1:30 am on 17 September 2020, Abdul Majeed Ganie, 65, a retired employee of the J&K Grameen Bank, heard a loud bang in his Batamaloo neighbourhood in southwest Srinagar. He woke up but couldn’t muster the courage to look out the window.


Half an hour later, he rushed to answer repeated knocks at his door only to find security forces swinging assault rifles. “Sab bahir niklo (Come out, everyone),” a security official told Ganie. 


Ganie said he saw the area was cordoned off, search operations were on. His three sons—Izhar-ul-Islam, 30, Idrees-ul-Islam, 28, and Shoaib-ul-Islam, 26, joined him at the door. 


“As soon as the forces saw them, they were taken away,” Ganie told Article 14. The security men, who police later announced were from a joint team of the  J&K Police and CRPF, confiscated the mobile phones of the family. 


“They started beating my sons on the road,” said Ganie. “We were still trying to figure out what was wrong.” 


The family, Ganie said, asked why they were beating the three young men. “But there was no answer,” said Ganie. “They kept beating them mercilessly. We were taken to the other side of the road.”  


Security officials demanded to know about the militants the Ganies had allegedly sheltered in the house. “We told them the house is open, you can go and search,” said Ganie. “We haven’t sheltered any militant.”


Security forces took away his three of Ganie’s sons. He, with the rest of the family, went to a brother-in-law’s house nearby. 


At around 5 am, the family said they heard heavy firing and were told a firefight was underway at his house. 


“I was shocked when I was told that police had claimed to kill three militants in my house,” said Ganie. “I don't know how they were in my house.”


The family still lives at a relative’s place while their badly damaged house is rebuilt. 


On 17 September, police said, the encounter at Ganie’s house started when militants fired at the security forces. According to J&K police, security forces had launched a “cordon-and-search” operation in the Firdousabad locality of Batamaloo around 2.30 am following information about the presence of militants. 


An FIR  was filed against the three brothers under UAPA sections 16  (punishment for terrorist act), 19 (punishment for harbouring terrorists) and 20 (being member of terrorist gang or organisation) in police station Batamaloo. A civilian, Kaunsar Riyaz, was killed in the exchange of fire and two CRPF men were injured, officials said.


Since that night, the Ganie family has not seen the three young men who were taken to a district jail in Rajouri, about 175 km south of Srinagar.  


Urfi, representing the three brothers, said the law had been “misused” in the case and the charges were “flimsy”. 


“The police claim the three brothers provided shelter to the militants but the question is whether ‘sheltering’ the militants was voluntary or without the consent of the family,” said Urfi. “The police have no proof that they have voluntarily given shelter to the militants.” 


A gunman can enter anyone's house in Kashmir and threaten residents, said Urfi. 


“You can’t stop them. Even if we presume they have provided ‘shelter’ to the militants, it can also be that the shelter was provided at gunpoint,” she said. “Police fail to justify the sheltering of militants involuntarily.”  


Ganie was steadfast in his contention that his sons were falsely accused. 


“You can’t stop a gun-wielding  man from entering your house,” he said. “Just like the security forces came, a militant can also forcefully enter the house at gunpoint. But that doesn’t mean you have any links with them, and you sheltered out of your own will.” 


UAPA Against Home-Owners ‘New Trend’

The charge sheet against the Ganie brothers was filed in February 2021. Of 45 witnesses, 41 are from the police department. So far, only three have appeared before the court, said Ganie. 


“They want to buy time,” said Ganie. “We have to beg witnesses to appear. In 10 months, only three showed up at hearings, that too after court issued warrants for their appearance.” 


Ganie’s family of seven—three sons, two daughters and wife—are well educated. Idress had a dental practice in Srinagar, Izhar was a final year student pursuing a bachelor’s degree in Unani medicine and surgery while Shoaib has post-graduate qualifications in tourism. 


Ganie’s daughter Saima Akhtar is a doctor from Srinagar’s Government Medical College, while another daughter, Zahida Majeed, hopes to be a teacher after completing her Bachelor of Education course. 


The police accused Shoaib, Ganie’s youngest son, of being a “conduit” for Ansar Gazwatul Hind—a militant outfit in Kashmir in 2017. He was also involved in a criminal case—still under investigation, according to police—under sections 307 (attempt to murder), 147 (rioting), 148 (rioting, armed with deadly weapon) of the Ranbir Penal Code (RPC) and 13 of the UAPA.  


“They (sons) are highly qualified, living a good life,” said Ganie. “They had no links with militants, how come they suddenly became supporters of militants?”


The official term for supporters of militants is “overground worker” (OGW). Security forces define OGWs as those who help militants with “logistical support, cash, shelter and other infrastructure to carry out terror activities.” 


On 6 October 2021 the J&K police said they would seize 74 vehicles, five houses, six shops, land and cash under the UAPA’s section 25: the vehicles and properties were used by OGWs for terror activities, according to police.


Urfi said that it was “a new trend” to use the UAPA against owners of houses where alleged gunfights occurred. “This is punishment,” she said.


Take the case of Bashir Ahmad Khan. On 28 June 2019, a militant was killed in a gunfight with security forces in Kanipora area of Nowgam in central Kashmir's Budgam district.


The next day, J&K police detained Khan and his two sons Mudasir, 26, and Muzaffar, 28. Cases were filed under the UAPA for allegedly providing shelter to a militant involved in a firefight in an orchard near their house. Bashir was released on bail recently, lawyer Urfi said, but his sons are still in prison. 


Sometimes, even gunfights are not required. Sayeema Akhter, 30, a former special police officer, was charged under UAPA for obstructing an army patrol that tried to search her house. 


UAPA For ‘Threats on Phone’

The J&K police detained Sajad Ahmad Dar, 36, resident of Methan Chanapora in south Srinagar in May 2020 on a complaint from Mohammad Ayoub Dar, a government official called a naib tehsildar, from Humhama. 


Sajad was detained and booked under the UAPA section 13, IPC section 506 (criminal intimidation) and the Information Technology Act 2000, section 66A (sending offensive messages through communication service), even though the Supreme Court had struck down 66A in 2015, calling it unconstitutional. 


“I don’t know what issue he (naib tehsildar) had with me,” said Sajad, a former taxi driver who is now a vegetable vendor. “Even if, say, we argued on phone, how does it invite terror charges?”  


Complainant Ayoub said a “masked man” had demanded money from him five times in May 2019, so he informed the police. “I received Whatsapp calls (over video) where a masked man appeared with an assault rifle and demanded money,” said Ayoub.


Humhama police traced the number to Sajad, according to Ayoub. 


“The police alleged the phone number from which the threats were made was Pakistani,” said Sajad. “ Tell me, can a Pakistani SIM card work in India?” 


Sajad was in jail for a month till a local court granted bail. The order, a copy of which is with Article 14, criticised the J&K police for invoking the anti-terror law in Dar’s case for no more than “threats on phone”.


The bail order said the only allegation against “the accused” was that “he has tendered a threat (sic)”. It added: “The allegations levelled in the police report as well as the material collected by the investigating officer... prima facie section 13 [UAPA] … are not even remotely made out against the accused.”  


The relief was brief. On release, Sajad was booked under the PSA and was imprisoned till April 2020, when, he said, he was released by the police.


UAPA Against A Father Demanding Son’s Body  

Since the 2019 UAPA amendment, allowing the law to be applied to individuals, journalists, activists and family of dead separatist leaders have been accused of terrorism. 


Advocate Habeel Iqbal  said the UAPA was being used “left, right and centre”. Many have alleged it has been used to crush dissent and have demanded its repeal


On 7 February 2021, the J&K police booked over seven people under the UAPA, including the father of a youth killed in a “fake encounter” in Srinagar, for organising a protest demanding the return of the youth’s body.


On 6 May 2021, two sons of Geelani’s deputy Muhammad Ashraf Sehrai were booked under UAPA for “raising anti-national slogans” against the “sovereignty and integrity of the nation” during the last rites of Sehrai at a  village in north Kashmir. 


Sehrai, 77, died on 4 May 2021 at a hospital in Jammu. He was detained under the PSA and was in Kot Balwal Jail in Jammu . 


On 4 September 2021, the J&K police used the UAPA against the  family and relatives of late separatist leader Syed Ali Shah Geelani, accusing them of  “raising anti-national slogans” and “resort[ing] to other anti-national activities like placing a Pakistani flag on his body”. 


An FIR under section 353 (assault or criminal force to deter public servant from discharge of his duty) of the IPC and section 13 of the UAPA was registered against the immediate family, relatives and other “miscreants” who engaged in “unlawful activities” on the night of 1-2 September after Geelani’s death.


‘UAPA Used On Kashmiri Protesters’ 

The misuse and abuse of the PSA met with a series of habeas corpus petitions, after which many were set free and the government criticised by the J&K High Court in December 2019. 


According to a 5 August 2021 analysis of cases by the Indian Express, the J&K police booked over 954 people under the PSA from 2019 till 5 August 2021. Over 2,300 people were booked under the UAPA since 2019. From August 2019, the UAPA became the administration’s “most favoured instrument”, said lawyers. 


“UAPA is an addition to PSA but more people are being booked under UAPA since the bail process is difficult,” said Urfi.


The NIA court’s bail order for Ahmad on 17 December 2019, of which Article 14 has a copy, read: “It is settled position of law that after the expiry of… 90 days,… under section 43(D)(2)(b) of the ULA(P) Act [UAPA] an indefeasible and statutory right accrues to the accused for seeking his admission on bail even if the offences under which the accused is involved is/are… heinous in nature.”


The court said it was “under statutory obligations” to allow bail “as a matter of right”, if the investigation was not completed within 90 days.


On 3 September 2020, the J&K police filed a case under the UAPA against nine youth in Shopian for allegedly participating in a cricket tournament “in memory” of a slain militant commander. On 2 March 2021, after six months in jail,  all the accused were given bail as police failed to submit a chargesheet. 


Author and former head of Amnesty International India, Aakar Patel said authorities abused the UAPA using it against peaceful protestors and journalists, such as Gowhar Geelani and Masrat Zahra


“The UAPA is frequently misused, along with the PSA, as it allows for preventive detention,” said Patel. “Ostensibly a counter-terrorism law, it is used on Kashmiri protestors.” 


UAPA Law Taken To Court

On 6 November 2021, the Tripura police booked 102 social media account holders, including journalists and activists, under the UAPA for posts against communal violence in that state, barely two months after the UN high commissioner for human rights, Michelle Bachelet, described India’s use of the UAPA as “worrying.” 


Meenakshi Ganguly, South Asia Director for Human Rights Watch told Article 14 that the UAPA was amended in 2019 in light of “terrible indiscriminate attacks” upon civilians. “...But we were always concerned the law may be misused by conflating those serious crimes with criticism or protest, which is what appears to be occurring now.” 


Ganguly accused the State of using the UAPA to arbitrarily arrest those who might threaten public safety during “violent” protests.


“The State has the responsibility to act against those people but these should not be prosecuted under the UAPA,” said Ganguly.


On 18 November 2021, the Supreme Court issued notice to the Centre on a petition challenging the constitutional validity of certain provisions of the UAPA. The plea sought to declare the proviso to section 43D(5) (restrictions on grant of bail), as arbitrary and ultra vires of Article 21 (right to liberty) of the Constitution.


The plea was made by former and retired Indian Administrative Service officers Harsh Mander, Wajahat Habibullah, Amitabha Pande, Kamal Kant Jaiswal, Hindal Hyder Tyabji, M G Devasahayam, Pradeep Kumar Deb, Baldev Bhushan Mahajan; former Indian Police Service officers Julio Francis Ribeiro and Ish Kumar and former Indian Foreign Service officer Ashok Kumar Sharma.


Meanwhile, over two and a half years to December 2021, the police had filed no charge sheet in the UAPA case against Ahmad, the store-owner accused of celebrating an Indian cricket loss. 


Ahmad said his life was in limbo, and he had little understanding of how matters would proceed. He appeared in court on 16 December in another case. “I had to keep my shop shut today for the court appearance, so no earnings,” he said. “What can we do, these are problems we face, we have to face them.” 


A name in this story has been changed to protect identity. It is marked with an asterix.


(Auqib Javeed is an independent journalist based in Kashmir.)