Posts Tagged ‘Justice Dhingra’

Prof. Iqbal A. Ansari, noted Human Rights Activist, joins SIMI debate

September 12, 2008


Prof. Iqbal A. Ansari, noted Human Rights Activist, joins SIMI debate



Dear Yogendra Yadav/Ghulam Muhammed/Javed Anand/ Teesta Setalvad,


Having read with interest the exchange of emails, enclosed is my own opinion along with some papers. I hope the Citizens’ Declaration will receive your attention.


With regards,

Yours sincerely,

Iqbal A. Ansari




Debating SIMI’s Rights and Wrongs

Law, Secularism & Human Rights



[The following are excerpts from email exchanges mainly between Amresh Misra and Yogendra Yadav over Javed Anand’s article “Suspect SIMI? Of Course” (Indian Express, ……….). Apart from the timing and the title of the article, Javed Anand’s presumption that by welcoming the lifting of the ban on SIMI, the Muslim community is expressing its ideological solidarity, which, in his view is nothing short of suicidal, gave rise to rather harsh response from Ghulam Muhammed, to which exception was taken by Yogendra Yadav….which led to Amresh Misra and Yogendra Yadav exchanging messages, which along with my own comments readers may find enlightening.


Also reproduced below is part of my critique of Justice Dhingra’s shockingly pro-establishment judgment in 2003, sentencing Yaseen Patel and Ashraf Jaffary, who were alleged to be members of banned SIMI, for pasting posters calling people to establish Khilafah, in place of Nationalism – Ed.]


SIMI & Hindutva Outfits


It must be stated that SIMI is a group of zealots inspired by a political Islam which is anti-liberal, anti-modern humanistic, which rejects every other culture and religion as anti-god and in that sense it is very dangerous for Muslims, for India and for humanity. Their ideology should be politically, socially and spiritually opposed and defeated, as all other anti-liberal, anti-humanist ideologies like that of the RSS-VHP-BJP- Bajrang Dal which are dangerous for the Hindus, India and mankind should be politically defeated. In case imposing a ban on their activities was considered extremely necessary by generally political consensus, the banning process should not treat Islamist formations as necessarily ‘anti-national’ and Hindutva formations as inherently ‘national’. However individuals associated with these organizations should not be treated as criminals and put behind bars and even otherwise persecuted.


Iqbal A. Ansari (From an article of 2003)



If the Accused Are Muslims, Police Testimony Alone Is Sufficient for Conviction: Justice Dhingra on SIMI Case



Iqbal A. Ansari


On 21 July, 2003 the Addl. Sessions Judge S.N. Dhingra, of the Designated POTA Court New Delhi held two young Muslims, Mohd Yaseen Patel and Mohd Ashraf Jaffary guilty under sections 20 of POTA and 124-A of the I.P.C and sentenced them to five and seven years imprisonment under the two sections for waging war against India and disturbing communal harmony. They were alleged to have been associated with the banned organization SIMI and were apprehended by the police while they were allegedly pasting posters on 27 May 2002 on the wall of Jamia Millia Islamia University Library, New Delhi at about 1:50 P.M., which read:


“Destroy Nationalism, Establish Khilafah”. According to the statement of Mrs. Farhana Jaffary, wife of Mohd. Yaseen Patel, the police had raided their house during the night of 26/27 May and arrested Mohd Yaseen Patel and her brother Mohd Ashraf Jaffary, who was staying with them in her house in Zakir Nagar. The allegation of pasting of posters on JMI Library wall was called a pure fabrication.


The police did not produce any independent witness under the plea that people did not want to be involved in criminal cases to avoid harassment. But what prevented the police to even inform the University Proctor, and the Librarian? The Vice-Chancellor’s office is just across the road from the library. Members of the public may not easily volunteer as witness as claimed by the police, but it constitutes part of University officials duty, especially of Proctor’s staff to keep a watch over whatever is happening, especially in a criminal case by outsiders. Instead of questioning the police officials, who were the only witness in the case, about this serious failure, Justice Dhingra accepted every word of the police statement and allegations as gospel truth under the plea that “there is no reason why the investigation officer should have falsely implicated the accused person or the police persons should have deposed against the accused persons unless they were not actually caught indulging in the act of pasting antinational posters on the wall”.


In another judgment delivered by the same learned judge S.N. Dhingra on 27 August 1996, in case No. 34/95 State Vs. Shyam Vir and others arising out of riots in Tirlokpuri, Delhi in 1984, he had observed that the police and the entire criminal justice system was subservient to the political masters.


Bemoaning that in the 50th year of independence no serious effort had been made to reform the police the learned judge described the true character of the crime investigating agencies in India as “gifts of colonial era of British Empire. They are aimed to sub serve their political masters faithfully”.


How come that Justice Dhingra holds a diametrically opposite view now about the role of the police in this case, as independent, conscientious and dutiful servants of society dedicated to upholding rule of law? What inference, can be drawn about the role of the Courts according to his lordships own observations?


I would like to remind Justice S.N. Dhingra of his own telling remarks made in the judgment of 1996 referred to above that “governmental lawlessness had to be checked”. In the course of the judgment Justice Dhingra had expressed the opinion that not only the police but also “Courts are more available to the wealthy, powerful and resourceful persons. The rich and resourceful are often able to wriggle out of the legal net. The law enforcement agencies are more favorably inclined to the strong and powerful, to the detriment of weak and powerless”.

In times of divisive politics and social inter-group conflicts, it is the judiciary that people look up to for justice. Let the people not get the impression that judiciary has started losing the capacity to transcend existing political climate of opinion and ideological considerations. I have to add that POTA is part of this lawlessness of the government, whose very justice basis provides scope of abuse against political opponents, as has been realized by lits framers. What is not so commonly realized is the fact that POTA is part of ‘jurisprudence of suspicion’ and is supportive of the ideology of Hindu nationalism as the Annual Report of the Union Home Ministry has discussed terrorism within the country, primarily in terms of Islamic fundamentalism and radical leftist movements.


The judiciary therefore need to be more than ordinarily careful in deciding cases related to persons belonging to vulnerable minority religious groups, accused of charges of sedition and waging war against the nation on the basis of posters and pamphlets and other reading material, the like of which was stated by the police to have been seized when they raided the house of the two accused in Zakir Nagar, New Delhi.


Justice Dhingra’s judgment appears to be setting example contrary to his own preaching on the right of all sections to equal justice. Justice appears tilted in this case, tangibly and palpably, in favour of the political establishment and its subservient police and investigating agencies.




Dear Amresh Misra, Yogendra Yadav, Javed Anand and Ghulam Muhammed,

I consider it a bane of Indian public discourse that it has still not come out of the communal-secular paradigm of pre-1947 era, which distorts very formulation of most issues especially those related to Muslims as a religious community. What is needed is an all embracing human rights perspective, of which secularity of State and public institutions is a necessary part, which alone can ensure equal  rights to all individuals and groups. May I know, if Yogendra Yadav is aware of the reality of the communalization of not only the police but the majoritarian orientation of the justice system which has made delivery of secular justice uncertain, especially to Muslims? That is one major reason for the desperation of Muslim youth, which got first manifested in Mumbai 1993, by isolated individuals without any Muslim political and religious group’s support. If “Indian Mujahideen” has really come into existence, all of us need to give highest priority to vigorously pursuing the reform of the police & justice system for impartial law-enforcement for prevention and control of violent conflicts and prompt untainted delivery of justice, that one largely finds in the Western democracies including the U.S.A, where the white American who killed a Sikh in the wake of 9/11 mistaking him for an Afghan Muslim was sentenced to death within two years. Its being a hate crime was given due consideration by the trial court.

All votaries of secularism must keep in view that there cannot be any democratic governance without rule of law; and there can be no secular state without secular justice. However, traditional societies do not live by law alone. Ethno-religious issues causing Hindu-Muslim conflict over more than 150 years, which have been periodically exploited for political mobilization, cannot be left to be resolved by law alone. Rule of law is a necessary but not sufficient condition for managing diversity and ensuring equality in a country like India. It requires conciliation through institutionalized dialogue which needs establishing a statutory Community Relations Commission (CRC) for monitoring, prediction and management/ resolution of inter-religious/ethnic/linguistic conflicts over issues like cow, conversion, Ayodhya, Bande Mataram – which I recommended in the report that I wrote on behalf of the NCM Committee headed by Justice Tarkunde in 1999.

All those recommendations which we started formulating since 1994 in the CFD – CSSS Seminar in Mumbai jointly organized by me and Asghar Ali Engineer, were used by Teesta & Javed Anand in the workshop that we jointly organized in Delhi in 2004 under the Minorities Council, Citizens For Justice and Peace and Communalism Combat, which led to the framing of the Bill on ‘Prevention and Punishment of Genocide and Crimes Against Humanity’ and also specific suggestions on police reform and the proposal for the CRC. Shabnam Hashmi, Harsh Mander & Colin Gonsalves also jointly brought out a good Draft Communal Crimes Bill 2004.


May I ask Javed Anand to remind Teesta as well as Shabnam Hashmi, Harsh Mander and Colin Gonsalves and others working in this area to jointly meet to decide on modalities of a campaign for a minimum agenda for reform of police & justice delivery system and for constituting a statutory CRC/ National Peace Council?


Our civil society initiative supported by a good number of eminent citizens of all communities resulted in the formation of Inter-Community Peace Initiative in 2001 to promote both rule of law and dialogue, whose Conciliation Group brought out Position Papers on most contentious issues. There was fairly good measure of success on the issue of cow, about which my plea to Muslims to declare that they will not slaughter cow for food or ritual sacrifice, in deference to sentiments of sections of Hindus, gained increasing acceptability. However my efforts directed towards preventing Ayodhya II during 1999-2000 failed to yield any result, simply because in spite of reasonable stance of leading Muslim ulama, with whom I was in close touch, the pious looking, soft spoken Shankaracharya Jayanendra Saraswati of Puri turned out to be a spokesman of RSS-VHP.


During all this period I pointed out that traditional Hindus should not allow VHP-RSS to monopolise the Sanatan Dharma Hindu religio-cultural space, as the Hindutva ideology of nationhood – nation worship distorts Hindu religious traditions as well as its being anti-humanistic. Alas search for genuine representatives of non-Sangh Hindu Sanata Dharma, having standing in the community did not yield any result. Hence Ayodhya II, which led to Gujarat 2002, which is encouraging home grown terror.

Now I feel encouraged by Amresh Misra’s insights and perspectives. Shall we all along with other friends have a meeting in October 2008 to revive the ICPI, whose mission statements, aims and objects etc. were all adopted after thorough discussion among friends from right, left and center in January 2001 at Gandhi Peace Foundation.




While discussing legality of the ban on SIMI and political advisability of lifting the ban, besides my observations made in 2003, in the critique of Justice Dhingra’s judgment in Patel and Jaffary case the following may be kept in view:


1. The Unlawful Activities (Prevention) Act 2006 like POTA has majoritarian orientation. Let us examine and amend it so that Shiv Sena and Hindutva formations, which are inherently xenophobic, exclusivist and violent and whose agenda of hate and revenge is responsible for periodic violence against Muslims (and now Christians) and many other regional-linguistic communities, are brought under its scanner. Let us recall the characterization of Mumbai riots (1992-93) by AM Rosenthal of the New York Times as essentially anti-Muslim pogrom, and his observation that Hindu hate literature against Indian Muslims is almost exactly the same in manufactured paranoia as the Protocols of the Elders of Zion, Hitler’s favourite.


There should be no place for such organizations in India which claims to be a secular liberal democracy with human rights commitment. Why do they survive and prosper? Rosenthal again gives the answer: Shiv Sena could have been put down in hours. The state and national governments behave like Weimar reborn – disorganized frightened, gutless.


2. SIMI as initially conceived and organized was not committed to using force or aggressive campaigning of its bigoted ideology of political Islam, though it must be acknowledged that SIMI’s majoritarian ideology of Islam did not wholly owe to the rise of Hindutva in 1980s, its radicalization and possible involvement of some of its members in providing some support to violent acts owes to the aggressive Hindutva campaign after Meenakshipuram (1981) , Ramjanambhoomi Movement (1984); opening of the gate of Babri Masjid (1986); Shilanyas (1990), Demolition & Riots (1992-93). Hence Guru Al Hindi’s characterization of Hindutva politicians as ‘evil’, the police as ‘wicked’ and ‘justice’ as ‘hellish’.


In my opinion it is the illegal ban and consequent indiscriminate persecution of innocent Muslims of all types and ages in the name of SIMI which has hardened sections of Muslim youth into doing their worst.


Lifting the ban is the only ethical, legal and secular political option. But all those Muslims who are committed to justice, peace and democracy should expose the dangers of aggressive tribalisation of Islam by SIMI. In the post-ban period, along with strengthening institutions of rule of law, letting SIMI get normalized and possibly reformed and mainstreamed will have greater success than continuing the State’s repression.


Most important aspect is the socio-political psychology of minorities, especially Muslims. For the Muslim community SIMI has had a marginal existence, even a source of threat to its fair treatment in the country. But singling out SIMI for ban and repression of many innocent Muslims in the name of SIMI, has led to the process of increasing owning of SIMI by the community.


It is this situation-specific owning that Javed Anand (whose sense of belonging to the Muslim community as well as to justice and peace, in my opinion, is genuine) took as a sign of Muslim solidarity with SIMI; hence his effort to warn us of the danger, which Yogendra Yadav welcomed for the health of secular politics. I agree with Yogendra Yadav that Muslims should frankly discuss in public the failings and negative trends  within the Muslim community, including their anti-humanistic interpretation of Islam – which I have been doing – but it is true that most Muslim intellectuals feel that to establish their secular credentials, they must not voice genuine grievances and demands of Muslims.


The treatment of Muslims by the media, especially electronic has not been fair in the current phase of assumption of Muslim guilt unless proven innocent. Hence the ‘Indian Munjahideen’s’ curse against them. But except for a few newspapers and channels it might have been more for commercial reasons of media competitiveness than any communal bias, as has happened in Aarushi case. In any case the way some channels have presented mere suspects in bomb blast cases as proven anti-national criminals requires the Supreme Court and the Press Council to lay down stricter guidelines. My NCM Report (1999) included recommendations for empowering proposed CRC to advise, warn and initiate legal proceedings against erring sections of media, especially when potential for mischief far outweigh considerations of earliest /instant information to the public.


The lawlessness of the lawyers and Bar Associations, denying the suspect/ accused right to fair trial which requires competent counsel of his choice, is no less reprehensible than police lawlessness. It is well that the PUCL has sent a letter on April 15 2008 to the Bar Association of India reminding it the right of accused to a competent counsel of his choice and fair trial.


It is time that secular intellectuals paid attention to the near absence/marginal presence of Muslims in effective positions in most national institutions, especially of governance – all wings and branches of the police and the judiciary – and in various Commissions and the media, which is largely responsible for their distorted anti-secular functioning by neglect or design. It will require implementing the human rights norms on socially diverse composition of all institutions. Unfortunately India takes legitimate pride in its cultural diversity, but its record of social exclusion is appalling, the crucial reason of which lie  in raising the false alarm of ‘secularism in danger’ to deny sectional demands of Muslims, as communal. Hence the need for paradigm shift from secular-communal to concerns related to Human Rights, Justice, Peace & Inclusiveness which require the secularity of the State to uphold rule of law, and ensure substantive equality to vulnerable, and disadvantaged minorities especially Muslims, which necessitates affirmative measures for their adequate presence in effective positions.




Irrespective of genuineness of its authorship, I would like to draw the attention of friends to the following observations made in the email signed by Guru-Al-Hindi and Al Arbi on behalf of ‘Indian Mujahideen’, after Jaipur and Ahmedabad blasts.


“Think of the fraud perpetrated on us in the name of Nanavati Commission. Remember the blasphemy of the Government in the name of judiciary and fast-track courts”

“The terms Democracy, secularism, equality, integrity, peace, freedom, voting, elections are yet another fraud with us”


“You try to fool us in the name of fast-track courts made for ’93 riot cases, through which you wish to free the actual Hindu culprits like Madhukar Sarpotdar who was caught red-handed with illegal firearms while the innocent Muslims arrested in the bomb blast case are being tried in the courts for years and years. Is this the hellish justice you speak of?”


“You agitated our sentiments and disturbed us by arresting, imprisoning, and torturing our brothers in the name of SIMI and the other outfits in Indore, Ujjain, Mumbai and in other cities of Karnataka.”


In the second email the state of policing and justice system is more pithily described in the following words:


“In our last email (ID: password: newdelhi) we told you about Krishna Commission. In that commission it is very clear that the cops who brutally killed the Muslims and destroyed their properties have got promotions and are enjoying good government support, whereas the innocent Muslims who lost everything in riots are still waiting for justice.


In Gujarat also Narendra Modi who gave the orders to kill the Muslims in Gujarat in 2002 won two consecutive term of vidhaan sabha.


Now, we want to shift your attention towards Hyderabad, where recently the Muslim women peacefully protesting against the arrest of innocent Muslim youths, were kidnapped and were tortured brutally by Hyderabad cops.

Babu Bajrangi who killed the Muslim women in their pregnancy and kept their child on spear is moving freely in Gujarat.


Bal Thackeray is free Ijaz Pathan is dead, Tiger Memon still running away, and Shiv Sena continues to spread its Terror on the streets of Mumbai and Maharashtra. The modest Muslim who went for the revenge of the demolition of Babri Masjid were arrested and tortured on the charges of treachery, the rest who fled away from India are now being brought back from different countries of the world. This is only to make Muslims to realize their second class status in the country.”


The two letters are written in a language of a tribal leader who having been hurt to the core is overpowered by rage and starts raving and invoking the wrath of God, who he considers to be on his side. In this unsound state of mind he boasts of his omnipotence which will destroy the enemy and all those who he imagines are even remotely related to the enemy.


Let not our outrage over such a tribal leader of the dark ages make us totally ignore the genuineness of the cause of his rage lying in ‘wicked police’ and ‘hellish justice’ and ‘evil politicians’ especially, though not exclusively, of the Sangh Parivar/ Shiv Sena. While there is a need, especially for the Muslim community, to prevent the rise of such Muslim bigotry by all reformative educational means, the Hindu community should not always use the protective cover of ahimsa and ‘equal respect for all religions’ and liberals of secularism, while ignoring the basic requirements of justice to the vulnerable sections. It is unfortunate that no heed is being paid either by the civil society including the political class and the media or the state and central governments, to the sources of Muslim youth’s anger and desperation lying in persistent denial of justice as repeatedly stated in the email, though its linkage with acts of terrorism in Mumbai (1993) and in Coimbatore (1998) have been recorded by Justice Srikrishna and Justice Gokula Krishna, in their reports.


Riots and terror of retaliatory communal-jihadi variety are two sides of the same coin. It is unfortunate that the considered opinion of the fifth report of the Administrative Reforms Commission as well as pronouncements of the Supreme Court twice during the hearings of Gujarat carnage 2002 cases that communal violence poses more serious threat to the state and society than terrorism has not attracted enough public attention – which has made Prime Minister Manmohan Singh routinely declare during the last SAARC summit that terrorism is the greatest threat to the countries of the region, which makes him easily lay the entire blame at the others’ door. Why should ripping open a pregnant woman’s womb and smashing the foetus be considered a lesser threat to the nation and the State than killing of an infant by splinters of an exploded bomb operated by a terrorist not present to witness the scene, though both cause similar outrage to our conscience? Does gang raping of women and burning them alive and videotaping all the scenes not pose any threat to the State? Should the nation take it in its stride, only because it is labeled as ‘riot’? I am enclosing the copy of a Citizens’ Declaration on Protection of Innocent Persons During All Situations of Use of Force by all parties i.e. the State, the militant political groups and organized hate groups. I would like you to give your consent for signature and lend support by getting it signed by eminent citizens that you know.


With regards,

Yours sincerely,

Iqbal A. Ansari