Thanks to the excesses following 9/11 (racial profiling, waterboarding, rendition to other countries, etc.), counterterrorism has been a subject of much public scrutiny in the US. The recent disclosure of the Senate Intelligence Committee’s reports on the CIA torture programme is a case in point. The elaborate documentation sharply divided the country on the so-called ‘enhanced interrogation techniques’ and their effectiveness in thwarting terror plots or tracing masterminds like Osama Bin Laden. Such commotion in the US is all the more remarkable given that most of the victims of those human rights violations were nationals of other countries. Yet, it triggered off a campaign for a law to ensure that the US never again tortures.
No less than the New York Times called for the prosecution of senior members of the erstwhile George Bush administration for their alleged complicity in torture.
All this is a far cry from the muted response in India to the first-ever official acknowledgement around the same time to an even more egregious custodial crime affecting its own citizens: namely, cold-blooded murders of innocents passed off by the state apparatus as counterterrorism. The Army convicted and awarded life sentence to five of its personnel, including two officers, for staging the killing of three Kashmiri residents in Machhil and branding them as foreign militants for rewards. Since Machhil was part of a long series of extra judicial killings, especially in States covered by the Armed Forces Special Powers Act, civil liberties groups renewed their demand for the scrapping of this draconian law, a corrective that had also been recommended years ago by an official committee headed by former Supreme Court judge Jeevan Reddy. Yet, in the Kashmir election that closely followed the Machhil breakthrough, it was business as usual as none of the serious contenders dared to go the whole distance on AFSPA. The mainstream media too showed little interest in following up on the convictions for the 2010 fake encounter, although this unprecedented development came on the heels of the cavalier killing by soldiers of two youths driving back in a car from a Muharram procession in Budgam.
It is against the backdrop of such indifference in India to the widespread practice of state crimes camouflaged as counterterrorism comes this eye opener called Kafkaland: Prejudice, Law and Counterterrorism in India. The book, as suggested by its title, uncovers layers of deception perpetrated by various state actors—spies, investigators, forensic doctors and scientists, prosecutors, judges—in collusion with journalists and security experts, and the impunity enjoyed by those found to have caused incalculable suffering to innocent people, all in the name of combating terror. A chapter on technology being harnessed to evolve more insidious forms of torture (narco analysis, brain mapping, etc) would have been funny had it also not been scary.
Kafkaland is a collection of essays critiquing the wide range of counterterrorism measures claimed to have been adopted, in keeping with heightened security consciousness post 9/11. The essays expose a range of fundamental and troubling flaws in the responses of the Indian criminal justice system to high-profile terror cases related to the attacks on Akshardham temple and Mumbai, the ban on Students Islamic Movement of India (SIMI), the blasts at Malegaon and Mecca Masjid and the encounters that took place at Batla House and Sonia Vihar and led to the liquidation of Ishrat Jahan. The big picture brought out by these meticulously researched case studies of counterterrorism is that India, for all its claims to being wedded to the rule of law, has often sacrificed human rights at the altar of security expediency.
It took an academic from Jamia Millia Islamia, Manisha Sethi, to reconstruct these stories that had fallen through the cracks. The genesis of the book may in fact be traced to her engagement with the Batla House encounter in 2008 in Jamia’s neighbourhood. The gaps and contradictions in the police version of this encounter, which had taken place on the heels of serial blasts in Delhi, as also the arrests of several Muslims from Batla House, including university students, prompted Sethi and some of her colleagues to form Jamia Teachers’ Solidarity Association (JTSA). The impetus for JTSA’s birth was the general tendency on the part of the media to lap up the police version even when some of the key claims—about the manner in which an encounter specialist leading the police action had been killed and one of the militants holed up inside a flat with only one exit route had escaped despite heavy police presence—did not add up. Having come up with a series of probing reports beginning with Batla House, JTSA has emerged under Sethi’s leadership as one of the most vigilant civil liberties groups in the country. This book is admittedly an extension of her sustained activism interrogating counterterrorism.
Some of the more interesting parts of the book are where Sethi becomes the watchdog of a watchdog body, namely, the media. Take the manner in which she takes on a journalist specializing in security matters, Praveen Swami, particularly for his article titled, ‘Liberals are compromising the war against jihadi terror’. Sethi responds with a chapter sarcastically titled, ‘Sinful Liberals and the Investigative Bias’. In another provocative chapter titled, ‘Why the Ishrat Jahan case frightens our commentators’, Swami is quoted as saying, ‘Law, order and justice, aren’t the same things. In war, sometimes one can have the one or the others.’ To which Sethi’s riposte is: ‘The guarantee of Constitutional safeguards has been sacrificed to the reigning fashion of war on terror.’ Shekhar Gupta, the former editor-in-chief of the Indian Express is faulted for condoning extrajudicial violence as ‘controlled killing’, which he described as a process ‘where you use moles and plants to lure your targets into a trap and then put them away’. According to Sethi, this expression is actually used to describe more humane ways of slaughtering animals. ‘By placing controlled killing in a grey zone between due process and fake encounter, Gupta attempted to give it a veneer of respectability, even a faux legality.’
The irreverence displayed by Sethi to a range of holy cows, within and outside the state structure, is vindicated by the corrective applied by appellate courts in some of the terror cases. The Gujarat High Court reversed all the convictions by the trial court in the Haren Pandya murder case. The Supreme Court passed strictures on the Gujarat police and the Narendra Modi Government in the State while acquitting all the accused in the Akshardham attack case. The latter verdict came on May 16, 2014, just the day Modi-led BJP won a majority in the Lok Sabha election. Both verdicts raise serious questions about the integrity of the much-vaunted Modi regime in Gujarat. But just now, the nation seems to be too much in the thrall of the security and development narratives to care for issues of probity, however much they are interconnected. Such vagaries underscore the value of this book, especially since India does not have institutional safeguards as robust as the Senate Intelligence Committee.
Manoj Mitta, is Senior Editor with the Times of India.