Clean Chits, Deaths, Acquittals: The Unending 'Tricks of Fate' in Saffron Terror Cases

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 Alliance came to power in 2014. Looking at the character of Swami Aseemanand as a product of the contradictions 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 Abhinav Bharat members was a strong one. A confession under Section 164 in the Code of Criminal Procedure, 1973 with all its checks and balances, corroborating evidence, witnesses and a series of documents, files, and minutes of meetings, put together strong documentary evidence of a larger conspiracy. However, on 16 April 2018, the special National Investigation Agency (NIA) court acquitted all the five accused in the Mecca Masjid blast case (Indian Express 2018). As the judgement remains unavailable, it is difficult to ascertain the judicial reasoning that went into the acquittals.

As many as 66 witnesses (of the 226 deposed) turned hostile in the case (Ahuja 2018). In cases of such political magnitude, witnesses turning hostile is not an unusual phenomenon. However, immediately after the verdict, Justice K Ravinder Reddy resigned. Once his resignation was refused, he applied for voluntary retirement, making it clear that he wanted nothing 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 it raises a pertinent question: what made such a step necessary? The resignation is the latest in a long series of “tricks of fate” that have characterised the legal discourse of “saffron terror.” Such tricks of fate are like meteors—residual energies that sometimes shine very brightly in divinely managed legal–political constellations. And it is possible, as it is in the universe, that such an anomaly might provide an extraordinary glimpse into the brilliant forces 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 to reopen the case, while the NIA is under pressure to appeal against the acquittal (B Nitin 2018). However, this pressure is unlikely to yield due diligence from the NIA. It has displayed an active reluctance in prosecuting the Abhinav Bharat accused ever since it took over cases of saffron terror. As some have pointed out, it is possible that NIA was handed over the cases precisely because of this (Hindustan Times 2016).

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

Saffron Terror

The saffron terror discourse includes seven blast cases between 2004 and 2008 at different sites—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 the evidence (internal conversations and minutes of meeting of Abhinav Bharat in some of these cases) pointed towards a conspiracy being hatched in several parts of the country, with Madhya Pradesh at its centre. Some of the key leaders of Abhinav Bharat, all in close touch with the present ruling party, were Major Ramesh Upadhyaya, Lt Colonel Srikant Prasad Purohit, Sudhakar Chaturvedi, Sadhvi Pragya Thakur, Indresh Kumar, Swami Aseemanand, and Sunil Joshi (Jaffrelot 2010; Reghunath 2014). In that, Joshi was the most important person 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 was murdered 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 with Aseemanand'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 attacks were planned and executed across the country with active support from the RSS, and other Hindutva organisations.

The problem with the discourse of saffron terror is that it is greatly disruptive of what is often 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 ruling dispensation has worked hard to dissociate itself from Abhinav Bharat. This disassociation is almost impossible considering that the top brass of both BJP and the RSS have been publicly seen 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 award marking the birth centenary of M S Golwalkar (Reghunath 2014). It is due to this complex relationship that witnesses keep turning hostile or are killed. The acquittals are very important because this is an existential crisis for the ruling dispensation.

Post 2014, since the National Democratic Alliance (NDA) government came to power with a huge majority, all the saffron terror cases have taken unexpected, though not surprising turns. 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 the centre, Aseemanand was granted bail by the Punjab and Haryana High Court in August 2014. The bail was not opposed by the prosecuting agency, the NIA. The NIA also gave a clean 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 foot soldiers who were accused of planting the bomb. The court, while giving life sentences to the two, questioned the NIA’s clean chit to Sadhvi Pragya and Indresh Kumar, among others, 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 charge sheet, giving her a clean chit. In 2017, the Bombay High Court granted her bail. In the same year, Colonel Purohit, prime accused in the case, also got bail from the Supreme Court and rejoined 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 key people, many of whom would have otherwise received death penalties for the role they played in the violence, are free.  

The Experiment

In retrospect, the seven blasts taken together constitute a sociopolitical experiment that was carried out in the last decade in the country. This experiment had a triple edged strategy. 

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

Second, blasts within the country would fit neatly within the discourse that lay at the core of the RSS–BJP project—national security, Muslims as terrorists and outsiders, and the Congress’ Muslim appeasement. The powerful international discourse of the war on terror that came into being in and after 2001 provided the perfect cover for such an experiment to unfold. 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 and killing fellow Muslims, without any questions being asked. An overwhelming majority of those 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 branding Muslims as terrorists, while the sheer rage of being wrongfully prosecuted, tortured, and imprisoned would further alienate Muslims, and even possibly radicalise them.

All of this together, however, neatly constituted a two-decade long project of religious polarisation. It is important to remember here that this was just one of the projects being executed parallelly. The others, for example, included violent campaigns around cow slaughter and consumption of meat, targeted violence against minorities, and the slow Hinduisation of neighbourhoods. 

Tricks of Fate and the BJP Link

The 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 the NIA 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 straightforward about his project of hate. He was raised within the RSS and worked all his life converting tribals of the Andaman islands and the Dangs in Gujarat to Hinduism (Reghunath 2014). Aseemanand’s belief in violent Hindutva remained unwavering throughout his life. It included the period of his incarceration where he showed great courage in standing up and articulating his beliefs. 

Aseemanand never once denied his role as an architect of the blasts. In fact, he not only confessed and spoke to reporters about it, he even drafted a letter to the President of India accepting his role in the Samjhauta blasts and another to the president of Pakistan expressing 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 and untampered ways, reveals him as an ascetic Hindu missionary who was convinced that Hindus are under attack by Muslims. He wanted to respond in kind and did so. The acts were 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 of hate who could not really understand or chose to stay far away from the political machinations which he was at the centre of. A product of the rabidly anti-Muslim Hinduisation that was being carried out much before him, Aseemanand is profoundly human in the way he combines austere devotion to a cause with such political naivety.  Willing to put himself on the line for his cause, he never could understand why he should hide his role or how, a confession like his could be damaging to the Hindutva cause in a country with a democratic framework. 

In the Mecca Masjid case, the conspiracy was organised in a way that all the different aspects of the work—planning, procurement of SIM cards and weapons, execution and planting of bombs—was handed to different teams who did not know each other. Each section 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, the evidentiary link disappeared. However, Aseemanand’s confession and the taped interviews with the Caravan speak explicitly of the link. In Aseemanand’s words:

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

Dual Law

In India, if the accused names a person, it is enough to not just prosecute the person, but also convict, and if possible, hang him. From 1993 to the present day, in several terror cases where Muslims are the accused, it has been standard operating procedure to use guilt by association as a prosecuting technique (JTSA 2013). Investigative agencies and courts which have displayed great reluctance in prosecuting saffron terror accused and have stood by the altars of the criminal justice system (such as proof beyond reasonable doubt or innocent until proven guilty), have behaved in quite the opposite way when the names on the case files are of Muslims or Dalits. The last decade speaks very clearly of how the investigative and judicial stamp has been used to perpetuate the discourse of Muslim terror, while simultaneously delegitimising the discourse of Hindu terror.

While much can be said about this differential treatment, the Mecca Masjid blast case judgment at this time, in many ways, marks the slow but definitive arrival of a dual law system in the country. Different sets of rules apply for different sections of citizenry. The structures are not encoded in law, but operate socially through preventive policing grounded in suspicion, differential application of law, unequal structures of access to law and justice, and various administrative and social practices that lead to the constitution or formalisation of differential standards. Most academic studies on the change in the criminal justice 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, in fact, has elaborate rules and these change shape/reorder themselves when they take cognisance of different identities/citizen collectives. So much so, that the exception is not an absence of constitutional law, but an active presence of a different set of rules that get activated in different ways with different people. Hence, any analysis of political violence, undertaken legally, needs a more substantive approach. Violence against oppressed communities, through the use of law, displays a complexity in its consciousness of identities or citizenship groups—something that analysis of the state of exception or the normalisation of the extraordinary, overlooks.

 

The author would like to thank Monica Sakhrani for her comments on the first draft of this article and for help in thinking through the subject.

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