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POTA fails Delhi in its perpetual laboratory – Kashmir

Efficacy of POTO-like laws and ordinances is being questioned in Kashmir context, says Sara Wani

Srinagar: As the debate on Prevention of Terrorism Act (POTA) rages on, skeletons have started tumbling down in Kashmir – the Muslim majority strife-ridden state that literally was its first testing pitch. Of over 110 cases registered so far in Jammu & Kashmir, two of the accused have already been bailed out and in one case public pressure has forced the police to re-investigate a case that army had recommended under the draconian act. All the three cases, however, are glaring instances of misuse of power by the concerned agencies. 

Mohammad Ahsan Awantoo, Chairman of Human Rights Front, a local NGO said that over 106 cases (of a total of 147 across India) were registered under POTA across the state by the end of March. Detained under these cases include three women and some children. Also confiscated are two houses and a shop, he says. 

Even though the President signed the anti-terrorism ordinance (then POTO) on November 29 2001, it is interesting to mention here, Jammu & Kashmir had implemented it on November 22 when they swooped on the old city Safakadal house of carpet weaver Gulam Mohammed Dar and sealed it. This was the first case of the use of the new ordinance across India. 

Claiming that Dar was harboring militants, police said they had killed an al-Badr militant Hafiz alias Dr. Naeem at Zakoora, in the city outskirts from whose possession some documents were recovered indicating Dar’s involvement. The family, however, insists that the slain was a tenant for three months as he claimed he was a photographer from Delhi. Though the massive public pressure forced the government to order the restoration of the house to the family, Dar was booked under POTO. 

With the sole bread-earner behind the bars, the family comprising his aged mother Jana, his wife Hasina and their two kids – Fayaz and Shahbaz of six and four years respectively – was forced to learn the tools of survival. Her serious eyesight problems notwithstanding, Jana has returned to wheel. Hasina, who knows certain basics of stitching, has oiled her sewing machine. "But this does not fetch us an amount which can sustain us for a month", admits Hasina. Her sister has been sending them some cash and grains for the last two months, she adds.

Till recently, said Jana Begum, who would spare some time to go to the Central Jail to see him (Dar) but last month they (government) shifted him to the Kotbalwal jail. Located over 330 KMs from Srinagar in Jammu, the family has no money to visit Dar. "We would need Rs. 1000 to see him there and that is a big amount", adds Jana. The financial problem is telling upon the education of the two kids as well. 

However, the most debated cases these days is that of 90-year old Gulam Qadir Shah of Chak-e-Drugmulla in border district of Kupwara. He was arrested alongwith his son Farooq and daughter Mehmooda in a specific raid on his house on March 31 (Sunday) by the soldiers of 24 Rashtriya Rifles (RR) – a specially trained counter-insurgency force of the Army. Claiming they have recovered a grenade from the family house, it apparently seemed a fit case for POTA. Police had no option but to register a case FIR 58 of 2002 against the trio. 

The family, according to Shah’s eldest son Gulam Rasool was being frequently raided by the troops. Of late, however, they had got convinced that the family is innocent. "It was Major Sharma who had said the family has no involvement but when he proceeded on leave, his unit raided our house and claimed they recovered a grenade from the attic", says Gulam Rasool. He believes that the explosive was planted to implicate the family.

However, the subsequent developments especially the background of the case and visible mass unrest forced the police to investigate the charges on its own. This led to the freedom of the young teenaged girl – a schoolteacher - against whom police found nothing. Now, reports suggest, the police is convinced of Farooq’s innocence. Even though the police is yet to complete its investigation and the father-son are behind the bars, indications suggest that the charges may turn out to be a damp squib. According to senior police officers, initially the case was registered under POTA but after the investigations it was changed. Now the senior ailing Shah is booked under section 7 (5) of Indian Arms Act and his son Farooq is being freed soon.

Gulam Rasool knows why his family is being implicated. He says it is mere vendetta because Shah is contesting a case against the armed forces. On May 21, 1990, army men arrested Gulam Rasool’s younger brother – a revenue official (patwari) Rauf Ahmad Shah. He disappeared in custody. After failing to trace him anywhere, his father approached the High Court with the routine habeas corpus petition seeking the whereabouts of his son. After the routine judicial enquiry, the high court finally in 1994 directed the concerned SP to register a case against the particular army unit found responsible for the arrest and the subsequent disappearance. Though there has been no follow up to the case by the police, the case lies registered with the concerned police station. The family is of the firm belief that the security forces have been asking them to withdraw the case against the family. So far they remained hard on their stand that they must get justice. 

The highest of torture and harassment could be gauged by the fact that their teacher daughter Ms Mehmooda was summoned to the army camp a few times. Once, she was even photographed. Why? Perhaps that is why after getting freed, this time, she has migrated from the area.

That is about Kupwara, the border district that is the gateway to over 13-years old militancy. It has the highest number of people killed and so far the highest number of cases registered under POTA. POTA made headlines in the capital city of Srinagar also where the Presiding Officer of the designated court under TADA (now POTA) bailed out two POTA accused, last week. 

The first bailed out was a taxi driver Zahoor Ahmad Shah of Wagub village in north Kashmir Sopore township. He was arrested by police from Srinagar periphery when he was carrying Abdur Rashid Lone to Srinagar. Police said they recovered four millions rupees (80 packets of Rs. 500 notes) from Lone. The vehicle was seized and both the persons were booked under POTA. In the court of law the counsel of the taxi driver Tanwir Ahmad Bhat said he was a bonafide taxi driver, having his own taxi JKT-1531. He was carrying Lone to Srinagar and had no knowledge about Lone or his money. Police also had nothing against him. The Presiding officer directed the taxi driver to furnish a surety bond of Rs. 25,000 and he was granted bail. Arrested early this year, his family had turned a pauper’s unit. He has resumed his activities. 

The second case was that of Abdul Ahad Bhat of Ahmad Nagar locality in the city periphery. He was arrested by BSF on January 28 following an encounter in which three Pakistani militant’s – Saifullah, Usman and Abu-Hijra - were killed. One BSF man got also killed in the encounter. On BSF recommendations, he was put behind bars in the central jail. During the arguments, his counsels proved that police had nothing against him and he was far away from the spot of the clash in which one house was destroyed. On April 1, 2002 the Presiding Officer of the designated court granted him bail against furnishing a surety bond of Rs. 25,000 and two persons as security. Interestingly, however, police re-arrested him the next morning and booked him under Public Safety Act.

Sections among the masses do feel that the arrest of JKLF Chief and one of the seven executive members of the 23-party separatist alliance APHC Mohammed Yasin Malik under POTA might be another instance of the political vendetta and misuse of the law that offers sweeping powers to the state and the security agencies.

Malik was arrested on March 25. The allegation goes that police, apparently chasing a young couple - Shamima Khan and Mushtaq Ahmad Dar - from a hotel in Kathmandu (Nepal) recovered a sum of one lakh dollars (Rs: 48,00,000) near Kud on the Jammu – Srinagar highway, when they were less than 150 KMs from Srinagar. During interrogation, police says, the two admitted the money had been received from Altaf Qadri, JKLF's representative in Pak-administered Kashmir capital Muzafarabad to be delivered to Malik in Srinagar. Qadri, police says, had flown to Kathmandu to hand over the money.

With a vehement denial, Malik said Qadri has never visited Kathmandu for the last seven years. He says he had nothing to do with the money and he does not know the young girl from whom the money was recovered. Mushtaq, however, has been a JKLF activist who resumed normal life after he was freed in 2000 after over four years of detention. Malik insists that the government thinks he is trying to subvert their assembly election plans due before September 2002 and is framing him. 

Malik, incidentally, became the first prominent victim when the apparently draconian POTO became POTA in the joint session of the parliament. This triggered the debate whether this law will be misused to silence the dissent. Interestingly, whenever the backdoor channels are busy and people expect a turnaround in the situation Chief Minister Dr Farooq Abdullah orders the arrest of the separatists. 

There was a strikingly different report from Delhi indicating the usual tussle between the PMO and the Home Minister L K Advani. On Malik's arrest, reports said, the state and the central government were aware of the movement of the money and the couple. When the orders were sought on the next step as the couple neared Kashmir, the PMO suggested that neither should the money be stopped nor Malik arrested. This suggestion had come from Brijesh Mishra and A S Dulat and two persons - Home Minister L K Advani and Chief Minister Dr Farooq Abdullah had opposed the idea and ordered the arrest of the couple and later Malik. 

Police claim apart, there seem to be many takers of the framing theory. Many think that if the money was for Malik what was the fun of getting the dollars? Even many say that if at all it was his money why should he get it by hand? Why not the routine hawala transaction that seems to be funding the separatist movement? Since Dar was quoted as saying that the amount was raised by the Kashmiris living in America, many say this could be an effort to malign the Kashmiri Americans who are otherwise under FBI eye after the war against terrorism started late last year?

Kashmir, it may be recalled here, has got a rich history of laws that suppressed the civil liberties and were draconian in nature. In fact the state’s ruling elites at different times have gladly extended such laws to please their masters and later mis-used them to silence their opposition.

The misuse of DIR (Defence of India Rules) in the wake of Sino-India war by the then dictatorial Prime Minister (nomenclature was changed during the premiership of Gulam Mohammad Sadiq from Prime Minister to Chief Minister), Bakhshi Gulam Mohammad to suppress his opponents. And then there was the infamous PSA (Public Safety Act), invoked by the then Chief Minister Sheikh Mohammad Abdullah at a time when Janta Party Government at Delhi did away with MISA (Maintenance of Internal Security Act), which was mis-used by Mrs. Indira Gandhi during the dark days of emergency.

The first victims of PSA during Sheikh’s rule were not anti-national elements but the activists of the then State Unit of Janta Party who dared Sheikh Abdullah during the State Assembly election of 1977. Later, the provisions of this Act were invoked against every political opponent of Sheikh Abdullah including Communist leader Mohammad Yousuf Tarigami, now an MLA. The law continues to be in vogue and is the main "arm of law" after the TADA was repealed. 

Within and outside the official circles, there is a notorious story about the mis-use of law, especially the TADA and PSA by the custodian of law. This is about Javed Ahmad Kathwari, then a 21 years old young man, who was arrested by the security forces in a special operation from a Srinagar locality on January 15, 2001. After being interrogated at many places, grounds of detention were served to him and was booked under PSA. The most heinous crime attributed to him was that of killing of Sohan Lal, a Kashmiri Pandit on September 1993. He was booked and sent to Sangroor jail in Punjab.

However in October 1995 Vijay Mehra, the elder son of slain Sohan Lal, appeared before the designated court under TADA stating that his father had died a natural death in Amritsar in 1965 – almost seven years before Javed Kathwari was born to his family in Jawahar Nagar in 1972. After the newsbreak appeared in November, it took many months to his family to manage his freedom.

So many argue that at a place where the security grid is enjoying massive powers under the Disturbed Areas Act and the Armed Forces (special powers) Act, there was no need for POTO. Even the efficacy of such laws and ordinances are being questioned in Kashmir context. According to Khalid Najib Suharwardy, state’s junior Home Minister, a total of 3,267 cases involving 3,165 persons were registered under TADA – 1810 from Kashmir and 1457 from Jammu - during the period it was implemented in the state. At the moment only six persons arrested under TADA are in custody as 1250 stand bailed out. Those facing trial under TADA include three foreigners and one from Muzaffsarabad (PoK). There are 647 TADA cases still under various stages in designated courts at Jammu & Srinagar. Over the years only 13 accused were convicted under various provisions of the TADA, according to the minister. 

While the debate goes on, a popular perception among commoners is that they will survive. "We have seen the worst of the laws, let us taste POTO as well especially when there is no way out", says Mohammed Ahsan Awantoo, the Chairman of the Human Rights Front. However, the people are puzzled over the stand of the ruling National Conference (NC) - an ally of BJP in NDA. NC members voted in favour of POTO in Lower House but they abstained in the upper house. Then they supported the move in the joint session. "This is plain duplicity", said an opposition MLA. When we raked up the issue in the assembly, he said, Chief Minister said that POTO would have to continue in the state. However, Dr Abdullah said, they will review all the POTO cases registered so far. "We will not permit the misuse of the law and in case we detected something wrong we will even withdraw all the cases", he told the state legislature.
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