Both sides of a ban

A PUDR report rejects the official argument that bans are necessary in order to curb ideologies which promote violent actions

October 17, 2015 04:15 pm | Updated 07:06 pm IST

A file picture of a treasurer of SIMI, after being produced at a court in Bhopal. Photo: A.M. Faruqui

A file picture of a treasurer of SIMI, after being produced at a court in Bhopal. Photo: A.M. Faruqui

An idea firmly embedded in the popular, majoritarian imagination is the one that the Students Islamic Movement of India (SIMI) is a dangerous, anti-national organisation that foments terror and disaffection among Muslim youth in India. This idea, assiduously fostered by intelligence and police officials and many sections of the media, has contributed to the repeated ban of SIMI since 2001, upheld by a succession of judicial tribunals and court rulings.

An important report by the People’s Union for Democratic Rights (PUDR), however, interrogates the justice of these bans, from the prisms of both natural justice and politics, and concludes that the bans are a grave subversion of the basic guarantees of democracy. It holds that among the freedoms critical for our pursuit of democratic rights conferred by the Constitution, are those which are on our right to form associations; to promote and propagate collectively held perspectives in the public domain, and that the orders under the Unlawful Activities (Prevention) Act (UAPA) 1967, by which SIMI is banned, do not measure up against the yardsticks of reasonableness and fairness.

Harsh Mander

The PUDR report further documents many instances of the arbitrary functioning of tribunals which successively upheld the bans. Apart from relying on criminal charges that courts routinely drop later, they depend substantially on “confessions” made to police officers as the sole or predominant ground, as well as on literature deemed “seditious” but which in fact maybe in the possession of any average human rights activist or scholar. Confessions extracted by the police during interrogation of a suspect are considered unreliable since there is a high probability that these are associated with torture or other forms of coercion. The Evidence Act, therefore, rules out the use of confessions made to the police. This established norm was overturned by the Terrorist and Disruptive Activities (Prevention) Act (TADA) in 1985, making it impossible to justly differentiate between innocence and guilt. TADA lapsed in 1995, but the same unjust provision survives in UAPA.

PUDR chronicles many instances. One of these is of Shane Karim, a dental student of Vijapura or Bijapur in Karnataka, who, in 2008, was arrested with five others for distributing provocative pamphlets. Recoveries showed that he possessed pictures of the Gujarat and Malegaon communal riots. Karim allegedly confessed to being an active member of SIMI since 2000 and “master-minding” the poster campaign. However, during cross-examination, the deputy superintendent of police, Bijapur, admitted that Karim’s statement was taken in custody. Notwithstanding the prosecution’s story, the High Court of Karnataka, in March 2010, granted bail to Karim, noting that the investigation had failed to show any incriminating evidence which attract the provisions of the UAPA.

A major problem with this grossly unjust law is that it is applied by official agencies in a partisan fashion specifically against minority groups. The report rightly concludes that the law is actually a “sectarian tool and a repressive measure against a vast body of Muslim youth on whom it casts a ‘shadow of criminality’”.

“The sectarian outcome of UAPA,” it observes, “is wider than that of SIMI…” Tribunals are expected to act as a check on the arbitrary actions of the Executive and act as a safeguard for the aggrieved. However, if without even the commission of a crime, the government can declare an organisation to be “unlawful” or “terrorist”, then a grave threat faces us as an entire ideology can be silenced on a whim and large sections of a community criminalised.

PUDR rejects the official argument that bans are necessary in order to curb ideologies which promote violent actions. Bans target one such group while letting others professing similar ideologies go scot-free. “Are we going to say that the Hashimpura-Maliana massacre by the Provincial Armed Constabulary in 1987, the Kunan-Poshpora gang rape in 1991, mass crimes in anti-Sikh, anti-Muslim carnages, rape and plunder in Mumbai 1992-93, in Gujarat in 2002, in Muzaffarnagar, to name a few, are not heinous or heinous enough crimes to attract the provisions of the UAPA because these have been carried out either by security forces or by Hindu fanatic groups?…”

A bomb planted in a cinema hall by the champions of Hindutva ideologies is not a terror crime but even the possession of a leaflet containing ideas or opinions close to SIMI becomes a terror crime!

Bans on organisations must be recognised to be decisions not taken with fairness and due process to preserve security and peace, but as political decisions meant to target certain dissenting organisations in the name of national security. The PUDR report makes evident the selective imposition of bans in the name of national security, which violate Article 14, the fundamental right of equality before the law. While SIMI continues to be banned, other organisations which have carried out similar acts of terror and have engendered sectarian politics have not shared SIMI’s fate. For instance, the RSS has been banned thrice but only on a temporary basis —in 1948, during the Emergency and, shortly after the demolition of the Babri Masjid in December 1992. In the first instance, the ban was lifted unconditionally in less than 20 months’ time and, in the last instance it was lifted in less than six months’ time. In 1992, the Narasimha Rao government banned the RSS, the Vishwa Hindu Parishad, the Bajrang Dal after the demolition of the Babri Masjid, and, in a show of balance, also banned the Jamaat-e-Islami Hind and the ISS, though they had nothing to do with the demolition.

For defending democracy, it is imperative to recognise with the PUDR report that freedoms enable people, especially for those fighting for equality and justice, an opportunity to mobilise and organise, to collectively express, promote, pursue and defend common political interests and concerns. They afford common people the right to peacefully dissent, to express public disagreements through demonstrations and protests. But to “place a very large section of society under the ambit of a horrendous law in the name of ‘unlawful’ and ‘terrorist’ must be resisted at all costs. Free speech and right to form unions/associations is intrinsic to a democratic polity. To fight against the continuance of bans is to fight for the democratic freedoms of equality, association, thought and expression for all.”

Real democracy, PUDR rightly concludes, thrives on justice and equality and freedom of speech and expression, individually or collectively. It affirms its democratic conviction that in the final analysis it is better to err, if at all, on the side of freedoms than to get trapped by the “discrete charm” of security phobia which thrives on fear and falsification.

The views expressed here are personal.

Harsh Mander is a human rights worker, writer and teacher.

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