In search of lost time
By Uzma Falak
12 September 2015
A chronicle of a Kashmiri man acquitted after more than 18 years of incarceration.
Farooq’s eyes are red from lack of sleep. His hands look cold and withered. In the initial moments of our meeting, only the sound of the rain outside and the porcelain cups we are sipping tea from breach the silence in the room. He is constantly fiddling with his thumbs. I notice a half-chipped-off finger nail. A teenage boy sits silently holding a portable video camera pointed towards us, which makes me uneasy. “He is my nephew. Since my release, he hasn’t turned off his camera,” he says with a mild, comforting laugh. It is around three weeks after Farooq’s acquittal on 29 September 2014.
Farooq Ahmed Khan spent 18 years and four months in various Indian prisons, mostly in solitary confinement.
Staring at the damp mauve walls of the room at his maternal house in Anantnag (also known as Islamabad) in the south of India-administered Kashmir, he speaks heavily and anxiety is evident in his voice. Trained as a mechanical engineer in Anna University in Chennai, he joined Kashmir government’s Public Health Engineering department in 1990. Five years later, at the age of 30, he was charged with carrying out a bomb blast in a market in India’s capital New Delhi, and subsequently faced charges in other ‘terror’ cases.
What he would later experience is a horrifying story about the Indian legal system and a pockmarked path that Khan and many others have been forced to tread. It features a script written by ‘special anti-terror’ Indian agencies that target a particular community and instil fear and crush dissent, while securing promotions and gallantry awards for themselves.
Two days after a blast ripped through Delhi’s Lajpat Nagar market on 21 May 1996, Khan was on his routine commute of nearly 60 kilometre from his workplace in Srinagar to his home in south Kashmir. He says men in plain clothes walked up to him and complained about a water shortage at an army picket in a neighbouring village. “In no time, someone caught hold of my leather jacket from behind, and suddenly I saw scores of military vehicles surrounding me. I found myself in one of the jeeps,” he recalls.
His secret detention was facilitated by the Jammu & Kashmir Police Special Task Force, notorious for its brutal counter-insurgency operations in the region. He was taken to the ‘Air Cargo’ building – one among Srinagar’s many infamous torture centres. Three days later, Khan says he and political activist Farida Dar were flown, handcuffed and blindfolded, to Delhi in a chartered plane. They were accompanied by ‘Black Cat’ commandos of the ‘counter-terror’ National Security Guard, and the Delhi police, who had come to take them from Kashmir.
Both Khan and Dar had been severely tortured during detention in Kashmir. Recalling the first night in custody, Khan says he was subjected to ‘third-degree’ torture, which includes the use of heavy rollers and electric shocks. He was kept naked and severely beaten. “Fuel was poured over my genitals,” he says. He was also subjected to waterboarding, which induces a sensation of drowning and causes damage to lungs and brain. “I felt unconscious after every five minutes.”
He was only thinking of the worst. “I was waiting for them to shoot me,” he says. Instead, the Indian state chose to throttle him through prolonged incarceration.
Khan’s is not an isolated case, but one in a long list. It represents a microcosm of the Indian state’s war on the Kashmiri people, a war waged to control their bodies, collective will and ambitions. His case, however, also demonstrates India’s failure to achieve this agenda: more than 18 years after his initial arrest, Khan is politically astute and resolved to resist the Indian state in Kashmir. “India can incarcerate a freedom-loving body but not its mind,” he remarks.
‘Court of chickens’
The experience with ‘justice’ in Kashmir is captured in an African proverb: corn can’t expect justice from a court composed of chickens. While this reality is also familiar for many Indians who are situated differently in terms of caste, gender, class and region, it is particularly acute in the context of Kashmir.
The coercive authority wielded by the Indian state and the conditions imposed by dominant social and economic forces create a situation in which people are forced to seek justice from a different arm of the same apparatus that perpetrates and institutionalises injustice. This reveals the state’s desire for control and create a sense of powerlessness among people, especially in conflict areas. In places like Kashmir, such choices are made especially difficult by turning the people into passive recipients of its own hegemonic notions of justice.
Commenting on the functioning of judiciary, Khan invokes his prison-mate Afzal Guru, the Kashmiri man sent to the gallows on 9 February 2013 for the 2001 Indian Parliament attack on the basis of ‘circumstantial evidence’, to satisfy ‘India’s collective conscience’. According to Khan, Guru stated that “India’s courts are not independent but extensions of the country’s Home Ministry.”
Khan says expecting justice from the Indian state is foolish. “It’s simply a judicial process to keep the fate of Kashmir people hanging. We have to keep fighting, exposing the truth.”
Out of the ten accused in the Lajpat Nagar blast case, nine were from Kashmir. On 8 April 2010, six of the accused, including Khan and Dar, were convicted in the Patiala House Sessions Court. While Khan and Dar were found guilty under the Arms Act and Explosive Substances Act, the other four were convicted under Indian Penal Code provisions for criminal conspiracy and attempt to murder.
On 22 April 2010, among the six people who were convicted, Mohammad Ali Bhatt, Mohammad Naushad and Mirza Nissar Hussain were sentenced to death, while Javed Ahmed Khan was given life imprisonment. Farida Dar and Farooq Ahmed Khan were released on the basis that their years of imprisonment preceding and during the trial, constituted sufficient punishment. However, Khan was taken to Rajasthan to face trial in the 1996 Samleti bus bomb case.
Four among the accused of the Lajpat Nagar blast case – Mirza Iftikhar Hussain, Latif Ahmed Waza, Syed Maqbool Shah and Abdul Gani – were acquitted of all the charges. However, only Shah and Iftikhar Hussain were released in April and May 2010, respectively. Waza and Gani were also taken to Rajasthan in relation to the Samleti bombing.
On 22 November 2012, the Delhi High Court, on hearing the appeal, slammed the Delhi Police for ‘serious lapses’ in the investigation of the Lajpat Nagar blast case, and acquitted Mirza Nissar Hussain and Mohammad Ali Bhatt, who had earlier received death sentences. However, following a similar script, they had to face trial in Rajasthan for other charges and were shifted to Jaipur Central jail. In September 2014, a court in Rajasthan sentenced Waza, Gani, Bhatt and Nissar Hussain to life imprisonment. Javed Ahmed Khan was given an additional life sentence. Farooq Ahmed Khan, however, was acquitted of the charges, setting in motion his release from prison.
In July 2014, Bhim Singh, a Supreme Court lawyer and chairperson of the Jammu & Kashmir National Panthers Party, a pro-India party, told the press that more than 400 people from the disputed region were languishing in different jails of India. While 37 Kashmiri people are facing life imprisonment, some have been under-trial detainees for the last eight to 15 years. With many under-trial prisoners being held before their cases are decided, a pernicious pattern of victimisation emerges. In cases such as Farooq Ahmed Khan’s, the accused are charged in several cases consecutively, thus prolonging the years of incarceration without conviction.
Challenging the ‘terror’ script
‘Framed, Damned and Acquitted: Dossiers of a Very Special Cell’, a report by Delhi-based Jamia Teachers’ Solidarity Association (JTSA), a civil- and democratic-rights group, documents 16 ‘terror’ cases which fell apart in court because of lack of evidence, or fabrication, tampering and planting of evidence by the Delhi Police Special Cell. The accused in the various cases were incarcerated between three months to 14 years before being acquitted by the courts. People from Kashmir were charged in 11 of the 16 cases examined by JTSA.
“Created in 1986 to tackle terrorism and high-profile crime, the Special Cell has become a law unto itself, a marauding force, ‘encountering’ and detaining ‘suspects’ almost at will,” writes JTSA head Manisha Sethi.
In the discussion of the case State versus Farooq Ahmed Khan, etc, detailing how the cases of those accused with Khan fell apart, the JTSA report quotes judge S P Garg of the Patiala House Sessions Court: “At the outset, it may be mentioned here that the prosecution case rests solely on circumstantial evidence… No reliance has been placed by the prosecution on the testimony of any eyewitness who had witnessed the accused persons committing the offence.”
The report discusses at length the cases of Mirza Iftikhar Hussain, Latif Ahmed Waza, Syed Maqbool Shah, and Abdul Gani, who were exonerated by the trial court of charges levelled against them by the prosecution in connection with the Lajpat Nagar bombing. In Mirza Iftikhar Hussain’s case, Judge Garg remarked that Iftikhar Hussain, by merely being apprehended along with Mohammad Naushad, who was also accused, does not serve as “an incriminating piece of circumstance to infer his involvement in the incident.”
Judge Garg also ruled that the police did not have a basis to arrest Farooq Ahmed Khan given the lack of material evidence against him. The judge pointed to the Indian Supreme Court decision in the case of State versus Nalini, which made it clear that simply associating with the conspirators or even knowing about the conspiracy did not meet the threshold. “The law in this aspect is very clear. In view of the paucity of any worthwhile incriminating circumstance against A4 [Farooq Ahmed Khan], I am of the view that the prosecution has miserably failed to establish involvement of A4 in the commission of the incident,” the JTSA report quotes the judge.
A pertinent observation made by the JTSA is the startling similarity across the different cases. “It is when you place all the cases side by side that you notice how remarkably similar the script is in all the cases. The terror modules are busted in precisely the same manner every time, the accused are apprehended through identical means each time; even the procedural lapses in the course of the investigation and operation are similar!”
With regard to Latif Ahmed Waza, Judge Garg questioned the veracity of witness testimony, given the ‘contradictions and inconsistencies’ and remarked: “I am of the view that prosecution has failed to prove its case against him beyond reasonable doubt.” On the acquittal of Syed Maqbool Shah, the judge noted that “the circumstances relied upon by the prosecution against A8 [Maqbool Shah] do not lead to any inference beyond reasonable doubt of his involvement in the conspiracy. The circumstances do not even remotely… point towards guilt.”
As Manisha Sethi points out, it is only after years of suffering in prison and the experience of having life and financial prospects ruined, while family members endure the difficulties of coping with the psychological burden, that the actual details of these cases come to light. As she puts it, “This is the terrible truth of illegal detention, torture, extortion and frame-ups.”
In her book Kafkaland: Prejudice, Law and Counterterrorism in India, which examines prominent terror case from Mumbai, Bangalore, Delhi and Madhya Pradesh and challenges the “dominant narratives of counterterrorism and the emerging security-industrial complex”, Sethi maintains:
Indian investigating agencies live in the hope that their claims of busting terror modules will not be questioned, that their methods will be condoned and when the confessions they manufacture through torture of suspects militate against evidence and common sense, all will be forgotten. And so the next cycle will begin on a clean state as if nothing happened.
Monopoly on abuse of power
In a neat but busy chamber of the Delhi High Court, R M Tufail, an advocate of Kashmiri origin, sits surrounded by weighty tomes on Indian law. Tufail and his colleague Khalil Ansari were counsels for Khan and the other accused in the Lajpat Nagar blast case. In his incisive way, he traces Khan’s complex case history and the gaps in the police version.
The prosecution claimed that on 21 May 1996, ‘terrorists’ of Jammu & Kashmir Islamic Front took responsibility for the bomb blast at Lajpat Nagar through phone calls made to the media. Khan was alleged to have made the phone call to a TV channel claiming responsibility for the blast.
“If you look at the case evidence, you will see the drama the police played. There were loopholes in the statements, and not an iota of evidence to suggest that he had called from his village number as he was in Srinagar on his duty at that time, which was verified. The phone call wasn’t recorded, no call details, no witnesses. The way they programmed their visit was highly doubtful. They didn’t involve the local police. It was a raid,” the lawyer elaborates.
Tufail also criticised the manner in which Khan was held in custody and the delay in bringing him before a magistrate. Prior to Khan, Farida Dar and others being arrested, the police initially registered the case under the now repealed Terrorist and Disruptive Activities (Prevention) Act, which security agencies used to hold detainees for longer periods. However, shortly thereafter the case was lodged under sections of the Indian Penal Code. Khan and Dar would end up being charged under the Explosive Substances Act and Arms Act, but did not face terrorism charges. As Tufail puts it, “Procedure requires those apprehended be produced before a magistrate within 24 hours. The magistrate should be informed about the grounds. Nothing is followed and the court turns a blind eye to this.”
Based on procedural norms, police are expected to produce an arrest-memo and also inform the families of the detained. However, Khan’s brother Ashiq says they had no clue about his whereabouts. “Through a TV channel we came to know that he had been taken to Delhi,” he recalls. Farooq Ahmed Khan and Farida Dar were taken to the Delhi Police Headquarters where they were, in Khan’s words, “pressurised to either work for the Indian state or confess to having carried out the blast.”
Subsequently, Khan was implicated in other terror cases including Delhi’s Connaught Place bomb blast, which occurred a year before in 1995, the stadium blast in Jaipur in January 1996, and, as mentioned earlier, the Samleti bus bomb blast in May 1996. He would later be acquitted of all of these charges.
The state uses ‘open First Investigation Reports’ (FIR) to implicate people. Senior Kashmir advocate Zaffar Shah says that the state often abuses the open FIR system. “Anyone can be arrested and charged with offenses which happened years before. Till the time the person can prove innocence it does the damage. There are no speedy trials in such cases, and it takes time to prove innocence,” he points out.
Commenting about cases like Khan’s, Shah remarks, “This is an abuse of power by the concerned agencies. These powers need to be taken away.” Advocate Tufail says often in such cases the accused are implicated in more than one case to ensure that the pre-trial period is extended.
The district and sessions court in Bandikui, Rajasthan acquitted Khan in September 2014 saying there was ‘lack of evidence’ to link him to the Samleti bombing, and he was finally released from Jaipur jail. “Farooq was given a seven-year sentence. Instead, he spent 18 years in the prison. Who will justify his 11 [additional] years? This is no justice. Acquittal doesn’t ensure justice,” the advocate states.
Memories of a 6-by-4-foot life
In prison only one season persists: captivity. Khan’s hands sculpt the empty space around him. He sketches, with his fingers in air, his 6-by-4-foot cell in Tihar jail where he spent major part of his prison time. “There prisoners languish for the sight of stars and moon. Even the possibility of a bird fluttering its wings is a dream,” he remarks.
In his tiny cell, he would wait for the clank of keys at 8 am when his cell would be opened till lockdown at noon. The wait would begin again until 3 pm when the locked cells were opened till 6 pm after which he would be left to face the night alone. “I would count the prison bars,” he recalls.
His father and grandparents passed away while he was in the prison. He had to negotiate with loss and pain of having a distressed and broken family. In prison, dreams became a parallel reality for him, a way to navigate through endless possibilities in the prison: “I quite often dreamt of faces and warm spaces I longed for.”
He also spent some time in Jail 3, one of the high-security wards at Tihar, where Mohammad Maqbool Bhat, co-founder of the Jammu Kashmir Liberation Front, and Afzal Guru remained confined before their executions. Khan would sometimes sneak away with his fellow inmates from Kashmir and try to mound the earth of Maqbool’s grave which was otherwise flat. “It is near the gallows and opposite to Jail 3. We would try to mark his grave,” he says. However, in the late 1990s, he says, a fence was built around the surrounding area of Jail 3 and the grave became inaccessible.
Reminiscing about his imprisonment, he recalls the day when Afzal Guru’s death sentence was upheld by Supreme Court in 2005. Khan had light-heartedly told Afzal that his verdict had come very fast compared to their lingering trials, and that it called for a celebration. “Shaheed Afzal went to the jail canteen and bought us sweets and whatever food was available. We celebrated,” he recollects teary-eyed.
Entwined with his memories of fellowship are the brutalities of prison life, especially for those from Kashmir. He says the authorities use various tactics to harass Kashmiri inmates. The infamous ‘Bladebaaz’ gang in the jail attack people with surgical razors “at the behest of the authorities” who then “accuse Kashmir inmates of creating trouble and subject them to rigorous solitary confinement.”
Khan would keep himself updated about happenings in Kashmir, but sometimes grappling with the realities of home was not easy. “In 2010, when over a hundred people were killed in Kashmir, young and old, I became uneasy. The loss and distance weighed me down.” He says in the face of larger adversities, personal difficulty becomes miniscule. His desire for freedom kept him going and in times of utter isolation, nothingness and despair, “prayers became a source of strength” for him. He said he “emerged as a stronger person, with a firmer ideological commitment.”
Khan invested his time mostly in reading. His brother Ashiq, who was 19-years-old at the time of Khan’s arrest and had to quit his studies in Bangalore to follow his brother’s case, says he “would take bags and bags full of books for him. He mostly read books on Islam, autobiographies and texts on resistance movements across the world.”
According to Arshad Hussain, a professor of psychiatry in Kashmir, “Prolonged incarceration such as Khan’s is psychologically very damaging.” However Khan, he argues, comes across as resilient and strong. He uses the term ‘trauma-activated personalities’ to describe individuals like him, who “are able to transform their trauma into a larger struggle, who strive for larger justice without personal vengeance.”
Clinical psychologist Shobna Sonpar, in her book Violent Activism: A Psychosocial Study of Ex-Militants in Jammu and Kashmir, notes that respondents described their common coping strategies, among others, as prayer, putting their faith in God’s will, and continuing with political activism. She writes:
Not all respondents are emotionally distraught. Ideological conviction is a protective factor serving the role of a faith or sustaining belief-system. Those involved in political activism derive support and a continuity of identity in working with their political group and also experience themselves as active and having agency.
In the Kashmir context, Arshad notes, the lowest psychological morbidity is found among political prisoners. He argues that faith, religion and spirituality are strong mechanisms for coping and resilience in extreme cases like solitary confinement – a sort of sensory deprivation, which can otherwise turn a person insane.
Learning to walk again
After more than 18 years of imprisonment, Khan, now in his late 40s, made it through his first harsh winter in Kashmir valley, despite not being accustomed to such weather. “I am indifferent to seasons now,” he says with a smile.
He finds walking difficult. “I can’t climb the stairs. I couldn’t walk on the roads when I was [just] released from the prison and even now I am clumsy.”
As if trapped in a time warp, he feels surrounded by alien sounds and objects. “Even the slightest noise makes me uneasy,” he says. The ringing if the cell phone, the traffic on roads, the incessant honking, even the presence of too many people, make him anxious.
His brother says, “His pulse rate increases if he hears loud voices, noises, or even the slightest thud. He can’t stand people conversing in loud tones and often leaves the room when many people are talking. He talks in hushed voices as if he is still in prison, even over phone.”
Not surprisingly, Khan has trouble sleeping. His first night outside of the prison was a long one. “I was sleepless and restless. I couldn’t sleep on the bed or the carpeted floor.” In the wee hours of the morning he shifted to a small patch of cement and slept soundly. Post-imprisonment, he says he has dreamless sleep. “I am trying to face the real world. Only it is too real for me,” he says with a smile.
He spends his time playing with and teaching the children of the house. He is also engaged in legal battles for his former inmates, and his future plans include writing his prison memoirs. “The book will be a tribute to the martyrs, and to those men and women who were imprisoned or are facing imprisonment for raising their voices against the Indian oppression,” he says.
Professor Hussain refers to Khan’s initial post-imprisonment period ‘as initial euphoria’. “As time will pass, it will be quite challenging for him. It will become more difficult for him in this bigger prison.” Reflecting on his travails and on being released, Khan says, “I have come to a different world. I don’t recognise it. But on the other hand, it feels the same. We still live amid oppression. I don’t feel free.”
~ Uzma Falak is a poet and writer from Kashmir. She blogs for the Oxford-based
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