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Clean Chits, Deaths, Acquittals: The Unending 'Tricksof Fate' in Saffron Terror CasesSHARIB A ALI

Sharib A Ali (sharibkmc@gmail.com) is a human rights practitioner based in Delhi. Hisresearch focus is on terror prosecution in India.Vol. 53, Issue No. 17, 28 Apr, 2018The author would like to thank Monica Sakhrani for her comments on the first draft of thisarticle and for help in thinking through the subject.

The article looks at the "experiment of saffron terror," its link with the ruling dispensation,and how the cases of saffron terror have unfolded since the National Democratic Alliancecame to power in 2014. Looking at the character of Swami Aseemanand as a product of thecontradictions of the experiment, it makes a case for the arrival of dual law in the country.

From a criminal justice point of view, the Mecca Masjid blast case against the AbhinavBharat members was a strong one. A confession under Section 164 in the Code of CriminalProcedure, 1973 with all its checks and balances, corroborating evidence, witnesses and aseries of documents, files, and minutes of meetings, put together strong documentaryevidence of a larger conspiracy. However, on 16 April 2018, the special NationalInvestigation Agency (NIA) court acquitted all the five accused in the Mecca Masjid blastcase (Indian Express 2018). As the judgement remains unavailable, it is difficult to ascertainthe judicial reasoning that went into the acquittals.

As many as 66 witnesses (of the 226 deposed) turned hostile in the case (Ahuja 2018). Incases of such political magnitude, witnesses turning hostile is not an unusual phenomenon.However, immediately after the verdict, Justice K Ravinder Reddy resigned. Once his

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resignation was refused, he applied for voluntary retirement, making it clear that he wantednothing to do with the judicial profession any more (Muthai 2018).

The events around Reddy’s resignation are yet to unfold. This is a crucial issue because itraises a pertinent question: what made such a step necessary? The resignation is the latestin a long series of “tricks of fate” that have characterised the legal discourse of “saffronterror.” Such tricks of fate are like meteors—residual energies that sometimes shine verybrightly in divinely managed legal–political constellations. And it is possible, as it is in theuniverse, that such an anomaly might provide an extraordinary glimpse into the brilliantforces and hidden laws that go into the making of such episodes.

Families of the Mecca Masjid blast victims are planning to appeal to the high court toreopen the case, while the NIA is under pressure to appeal against the acquittal (B Nitin2018). However, this pressure is unlikely to yield due diligence from the NIA. It hasdisplayed an active reluctance in prosecuting the Abhinav Bharat accused ever since it tookover cases of saffron terror. As some have pointed out, it is possible that NIA was handedover the cases precisely because of this (Hindustan Times 2016).

The importance of the Mecca Masjid blast case derives itself from its location—at theepistemic node of a discourse of Hindutva terror that came into the public domain almostsurprisingly. Hence, the judgement as well as the performance of the NIA need to be seenwithin this larger context.

Saffron TerrorThe saffron terror discourse includes seven blast cases between 2004 and 2008 at differentsites—Jalna in 2004; Malegaon in 2006 and 2008; the Samjhauta Express, Ajmer Dargah,and Mecca Masjid in 2007; and Modasa in 2008. Christophe Jaffrelot's (2010) perusal of theevidence (internal conversations and minutes of meeting of Abhinav Bharat in some of thesecases) pointed towards a conspiracy being hatched in several parts of the country, withMadhya Pradesh at its centre. Some of the key leaders of Abhinav Bharat, all in close touchwith the present ruling party, were Major Ramesh Upadhyaya, Lt Colonel Srikant PrasadPurohit, Sudhakar Chaturvedi, Sadhvi Pragya Thakur, Indresh Kumar, Swami Aseemanand,and Sunil Joshi (Jaffrelot 2010; Reghunath 2014). In that, Joshi was the most importantperson in the conspiracy as the main link between the Rashtriya Swayamsevak Sangh (RSS)and the Bharatiya Janata Party (BJP), part of the larger Sangh Parivar. However, he wasmurdered in 2007 just when the first arrests in the saffron terror cases were being made.

Since then, Swami Aseemanand has been at the centre of the discourse. It was withAseemanand's confession (which his lawyer later retracted) and statements in Reghunath(2014) that the scattered pieces of the puzzle came together to suggest how terror attackswere planned and executed across the country with active support from the RSS, and otherHindutva organisations.

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The problem with the discourse of saffron terror is that it is greatly disruptive of what isoften claimed to be a peaceful project—Hindu unity and nationalism. While organised anti-Muslim violence has been intrinsic to the rise of the Hindu right in India, the rulingdispensation has worked hard to dissociate itself from Abhinav Bharat. This disassociation isalmost impossible considering that the top brass of both BJP and the RSS have been publiclyseen with members of Abhinav Bharat and records of the same exist (Jaffrelot 2010;Reghunath 2014). Swami Aseemanand was even honoured by the RSS with an awardmarking the birth centenary of M S Golwalkar (Reghunath 2014). It is due to this complexrelationship that witnesses keep turning hostile or are killed. The acquittals are veryimportant because this is an existential crisis for the ruling dispensation.

Post 2014, since the National Democratic Alliance (NDA) government came to power with ahuge majority, all the saffron terror cases have taken unexpected, though not surprisingturns. A quick look at the legal status of the cases and the status of the five key people,gives an overview.

Samjhauta Express trial: Three months after the NDA government came to power at thecentre, Aseemanand was granted bail by the Punjab and Haryana High Court in August2014. The bail was not opposed by the prosecuting agency, the NIA. The NIA also gave aclean chit to Colonel Purohit who was earlier chargesheeted by the Anti-Terrorism Squad(ATS) in the case.

2007 Ajmer blast trial: In 2017, Aseemanand was acquitted by a local court in the case.Sunil Joshi, who was murdered in 2007, was convicted in the case along with two footsoldiers who were accused of planting the bomb. The court, while giving life sentences tothe two, questioned the NIA’s clean chit to Sadhvi Pragya and Indresh Kumar, amongothers, thereby pointing out that the NIA’s actions are bad in law (Khan 2017).

Malegaon case: In 2016, the NIA again dropped Sadhvi Pragya’s name from its chargesheet, giving her a clean chit. In 2017, the Bombay High Court granted her bail. In the sameyear, Colonel Purohit, prime accused in the case, also got bail from the Supreme Court andrejoined the army.

Modasa blast case: The case was closed by the NIA in 2015, citing lack of evidence.

The Mecca Masjid blast case was the last and the most important part of the series of trials,and it has resulted in acquittals too. A decade after the first arrests were made, all the keypeople, many of whom would have otherwise received death penalties for the role theyplayed in the violence, are free.

The ExperimentIn retrospect, the seven blasts taken together constitute a sociopolitical experiment thatwas carried out in the last decade in the country. This experiment had a triple edged

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strategy.

First, as part of a larger radicalisation movement, it gave birth to a terrorist wing of theHindu nationalist movement, separate from the militant wings constituted by the BajrangDal and the various senas/vahinis across the country. This wing was potent because of itsconstituents. It had access to weapons and explosives through Colonel Purohit and it was indirect contact with parallel power centres (top brass of the RSS and the BJP) that had littleor no accountability (Jaffrelot 2010; Reghunath 2014).

Second, blasts within the country would fit neatly within the discourse that lay at the core ofthe RSS–BJP project—national security, Muslims as terrorists and outsiders, and theCongress’ Muslim appeasement. The powerful international discourse of the war on terrorthat came into being in and after 2001 provided the perfect cover for such an experiment tounfold. It also allowed for calculations about the sheer power of the discourse of terrorism;it would allow the successful prosecution of Muslims for bombing their own mosques andkilling fellow Muslims, without any questions being asked. An overwhelming majority ofthose killed and maimed in the blasts, and those initially accused of orchestrating them,were all Muslims.

Third, the legal cases would allow the BJP and RSS to carry out their campaign of brandingMuslims as terrorists, while the sheer rage of being wrongfully prosecuted, tortured, andimprisoned would further alienate Muslims, and even possibly radicalise them.

All of this together, however, neatly constituted a two-decade long project of religiouspolarisation. It is important to remember here that this was just one of the projects beingexecuted parallelly. The others, for example, included violent campaigns around cowslaughter and consumption of meat, targeted violence against minorities, and the slowHinduisation of neighbourhoods.

Tricks of Fate and the BJP LinkThe complex constellations of such a tightly organised experiment produced its anomalies.The saffron terror experiment saw several of these, of which three are the most notable: (i) Hemant Karkare, whose death while the investigation was ongoing, remains a mystery. (ii) Rohini Salian, the prosecutor who went public about the pressure being exerted by theNIA to “go soft” on the Abhinav Bharat accused.(iii) Swami Aseemanand, a product of the many contradictions of the experiment.

Aseemanand’s confessions and detailed interviews reveal a man who is straightforwardabout his project of hate. He was raised within the RSS and worked all his life convertingtribals of the Andaman islands and the Dangs in Gujarat to Hinduism (Reghunath 2014).Aseemanand’s belief in violent Hindutva remained unwavering throughout his life. Itincluded the period of his incarceration where he showed great courage in standing up andarticulating his beliefs.

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Aseemanand never once denied his role as an architect of the blasts. In fact, he not onlyconfessed and spoke to reporters about it, he even drafted a letter to the President ofIndia accepting his role in the Samjhauta blasts and another to the president of Pakistanexpressing a desire to transform/reform Hafiz Saeed (Reghunath 2014). His time in prison,when through his confessions he was able to communicate in legally approved anduntampered ways, reveals him as an ascetic Hindu missionary who was convinced thatHindus are under attack by Muslims. He wanted to respond in kind and did so. The actswere a matter of pride for him and he saw no reason to hide them.

The confessions and interviews also revealed him to be a zealous, yet simple missionary ofhate who could not really understand or chose to stay far away from the politicalmachinations which he was at the centre of. A product of the rabidly anti-MuslimHinduisation that was being carried out much before him, Aseemanand is profoundly humanin the way he combines austere devotion to a cause with such political naivety. Willing toput himself on the line for his cause, he never could understand why he should hide his roleor how, a confession like his could be damaging to the Hindutva cause in a country with ademocratic framework.

In the Mecca Masjid case, the conspiracy was organised in a way that all the differentaspects of the work—planning, procurement of SIM cards and weapons, execution andplanting of bombs—was handed to different teams who did not know each other. Eachsection had only one person who was in touch with the others (Ali 2013). When Sunil Joshi,the main connection between different parts of the conspiracy, was killed in 2007, theevidentiary link disappeared. However, Aseemanand’s confession and the taped interviewswith the Caravan speak explicitly of the link. In Aseemanand’s words:

Then they (Mohan Bhagwat and Indresh Kumar) told me, “Swamiji, if you dothis we will be at ease with it. Nothing wrong will happen then. Criminalisationnahin hoga (It will not be criminalised). If you do it, then people won’t say thatwe did a crime for the sake of committing a crime. It will be connected to theideology. This is very important for Hindus. Please do this. You have ourblessings.” (Reghunath 2014)

Dual LawIn India, if the accused names a person, it is enough to not just prosecute the person, butalso convict, and if possible, hang him. From 1993 to the present day, in several terror caseswhere Muslims are the accused, it has been standard operating procedure to use guilt byassociation as a prosecuting technique (JTSA 2013). Investigative agencies and courts whichhave displayed great reluctance in prosecuting saffron terror accused and have stood by thealtars of the criminal justice system (such as proof beyond reasonable doubt or innocentuntil proven guilty), have behaved in quite the opposite way when the names on the case

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files are of Muslims or Dalits. The last decade speaks very clearly of how the investigativeand judicial stamp has been used to perpetuate the discourse of Muslim terror, whilesimultaneously delegitimising the discourse of Hindu terror.

While much can be said about this differential treatment, the Mecca Masjid blast casejudgment at this time, in many ways, marks the slow but definitive arrival of a dual lawsystem in the country. Different sets of rules apply for different sections of citizenry. Thestructures are not encoded in law, but operate socially through preventive policinggrounded in suspicion, differential application of law, unequal structures of access to lawand justice, and various administrative and social practices that lead to the constitution orformalisation of differential standards. Most academic studies on the change in the criminaljustice system due to some extraordinary threat, focus on Agamben's theory of state of

exception.[1] However, there are limits to this structural approach. The state of exception, infact, has elaborate rules and these change shape/reorder themselves when they takecognisance of different identities/citizen collectives. So much so, that the exception is not anabsence of constitutional law, but an active presence of a different set of rules that getactivated in different ways with different people. Hence, any analysis of political violence,undertaken legally, needs a more substantive approach. Violence against oppressedcommunities, through the use of law, displays a complexity in its consciousness of identitiesor citizenship groups—something that analysis of the state of exception or the normalisationof the extraordinary, overlooks.

End Notes:

[1] State of exception essentially refers to the legal withdrawal of rule of law from certainsites in the name of public good, emergency, or crises (Agamben 2005). For example, theConstitution stands withdrawn in certain places like the North East and Kashmir.

References:

Agamben, Giorgio (2005): State of Exception, Trans Kevin Attell, Chicago and London:University of Chicago Press.

Ahuja, Rajesh (2018): "Hostile Witnesses Hurt Prosecution in Mecca Masjid Blast Case,"Hindustan Times, 17April, https://www.hindustantimes.com/india-news/hostile-witnesses-hurt-prosecu....

Ali, Sharib (2013): "Politics of Terror: The Mecca Masjid Blast Case," Economic & PoliticalWeekly, Vol 48, No 34, pp36–46, http://www.epw.in/or/journal/2013/34/special-articles/politics-terror-me....

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B Nitin (2018): "Mecca Masjid Blast Victims Likely to Move Hyderabad HC against NIAVerdict," News Minute, 22April, https://www.thenewsminute.com/article/mecca-masjid-blast-victims-likely-....

Hindustan Times (2016): “BJP, Congress Lock Horns over ‘Saffron Terror’ Cases,” 23 April,https://www.hindustantimes.com/india/bjp-congress-lock-horns-over-saffro...

Indian Express (2018): "All acquitted in 2007 Mecca Masjid blast case: NIA loses anotherright-wing terror case," 16April, http://indianexpress.com/article/india/list-of-cases-the-nia-has-lost-in....

Jaffrelot, Christophe (2010): "Abhinav Bharat, the Malegaon Blast and Hindu Nationalism:Resisting and Emulating Islamist Terrorism," Economic & Political Weekly, Vol 45, No 36,pp 51–58, http://www.epw.in/journal/2010/36/special-articles/abhinav-bharat-malega...

JTSA (2013): "Guilt by Association: UAPA Cases from Madhya Pradesh," Jamia Teachers'Solidarity Association,November, https://www.scribd.com/document/201645404/JTSA-Guilt-by-Association-UAPA...

Khan, Mohammad Hamza (2017): “Ajmer Blasts Case: Life Term for Two ‘Ex-RSSPracharaks’,” Indian Express, 24 March,http://indianexpress.com/article/india/ajmer-blast-case-two-rss-prachara...

Muthai, Sagar Kumar (2018): "Judge Who Quit after Mecca Masjid Verdict Joins Duty, SeeksVRS," Times of India, 20April, https://timesofindia.indiatimes.com/city/hyderabad/judge-who-quit-after-....

Reghunath, Leena Gita (2014): “The Believer: Swami Aseemanand’s Radical Service to theSangh,” Caravan, http://www.caravanmagazine.in/reportage/believer.

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