Mumbai: In the 26 years he has spent serving a life sentence, there have been many moments where Mohammed Habib Ahmed Khan, who once practised homoeopathy in the central district of Raebareli in Uttar Pradesh, has mourned his downfall from ‘doctor sahab’ to a terror convict in the case of the train bombings in six states in December 1993, a year after the demolition of the Babri Masjid.
Anguished by the thought of dying alone in his dingy cell in the Jaipur central prison and his body being dissected for a post-mortem examination, the 95-year-old Muslim man told Article 14 that all he wanted was to be buried beside his beloved wife Qaisar Jahan, who died of Covid-19 in February 2020.
The loss of his wife of 70 years, whose funeral he could not attend, weighs heavily on Khan. His profound grief and despair have hastened the onslaught of multiple illnesses, severely impairing his sight and hearing and making it difficult for him to breathe.
Home for the first time after his wife died, Khan, father to eight children and grandfather to 23, prays the Supreme Court will look favourably at his petition seeking permanent parole on the grounds of “old age and medical ailments”.
The first hearing in the Supreme Court is on 29 September.
“Court wallon se umeed hai ki hum ko ghar rehne denge. Is halat mein wapas jail nahi ja sakta,” he said. (I hope the court will take mercy and let me stay at home. I cannot return to jail in this state.)
A Prisoner So Old
Khan was jailed for the first time in the Kanpur central jail in 1994. A decade later, in 2004, a Terrorist and Disruptive Activities (Prevention) Act court in Ajmer convicted him under India’s anti-terror law, repealed in 2001 due to a low conviction rate—1.11 % over nine years—and replaced with the Unlawful Activities Prevention Act, 1967, which had a conviction rate of less than 3% between 2015 and 2020.
The low-intensity blasts killed two people and injured eight, for which Khan and 14 of his co-accused were given a life sentence.
Khan is one of 24,753 elderly convicts representing 20.5% of the total convicts over 50 in India, according to the National Crimes Record Bureau data for 2021.
Activist Medha Patkar in her Supreme Court petition seeking the release of prisoners above 70 in the middle of the Covid-19 pandemic last year, said Gujarat and Rajasthan are the worst states for releasing elderly prisoners. Of the 14,764 inmates in Gujarat, 90 are above 70, as per the petition. Of the 9,679 inmates in Rajasthan, 84 are above 70.
Khan was over 90 years old when the Rajasthan High Court granted him parole for 20 days for the first time in August 2018 in consideration of his age and the fact that a co-accused in the same case Asfaq Khan was granted parole by the Supreme Court earlier that year.
Khan was so old that his memory had almost faded, and he needed an attendant to walk or even go to the toilet, Nishant Vyas, his Jaipur-based former advocate, recalled arguing.
Khan was virtually on his deathbed and not in a capacity to harm anyone, Vyas told the court.
“There are clear guidelines and judgments on granting parole to TADA convicts, but other judges did not dare to approve their applications,” Vyas told Article 14, referring to the guidelines laid down by the Supreme Court in Asfaq vs The State Of Rajasthan.
The division bench of Justices A.K. Sikri and Ashok Bhushan in September 2017 ruled, “Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of the offence for which he was sentenced.”
Referring to the 1955 central parole rules as “skeleton in nature” and underlining an “imperative and immediate need” for reforming them, the Supreme Court said, “The most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties.”
Vyas said that many undertrials and convicts in terror cases have no direct connection with the blast or conspiracy. Still, they are arrested due to some vague links like being in contact with the main accused, attending meetings, or sending some money. There was a reluctance among jail authorities and the judges to approve parole applications from inmates booked under terror charges.
“The prejudice within the legal system is deep, especially while dealing with anti-national cases of domestic terror, Naxal movement, or the Kashmir insurgency,” said Vyas. “The lawyers and judges supposed to be impartial hold biased views towards the accused.”
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A System Without Empathy
Prisoners serving life sentences or those charged under anti-terror laws struggle to get temporary relief through parole, furloughs, or bail. The wait can be long, extending to years before the application is approved by either the jail authorities, the state or the central government and finally, the courts themselves.
Last month, the Gujarat government ordered the release of all 11 men convicted of raping Bilkis Bano and murdering her family members, including her infant daughter, during the 2002 Gujarat riots. But for murder convict Brij Bihari Pandey, his release on humanitarian grounds from the Gorakhpur jail in Uttar Pradesh came at the end of his life. He was 108 years old when he was released early by the Allahabad High Court in 2011.
Balaram Sira, 95, serving a life sentence from a prison hospital in Koraput in Orissa on murder charges, is waiting for the state sentence review board to decide on his permanent parole.
Delhi University professor G.N. Saibaba, who is physically handicapped and serving a life sentence for links with the banned left-wing extremist Naxal movement, was denied bail in August 2020 to meet his ailing mother, who died days later.
84-year-old Jesuit priest Stan Swamy’s petitions for bail in the Bhima Koregaon case under the UAPA were opposed or dismissed three times by the NIA and its special court. He eventually died of a heart attack in the hospital in July 2021. The court also denied his request for a straw and a sipper to deal with his debilitating Parkinson’s for nearly a month.
82-year-old activist-poet Varavara Rao, arrested in the same case, was granted bail in August this year.
Mumbai-based criminal lawyer Yug Mohit Chaudhry, who campaigns for humane justice and the abolition of the death sentence, said there was no point in keeping a 95-year-old, ailing man like Khan in prison.
“The purpose of punishment is to deter the convict and others from committing the crime and to rehabilitate and reform the convict,” said Chaudhary. “If punishment doesn’t serve the purpose, imprisonment becomes sheer cruelty.”
The 2003 guidelines by the National Human Rights Commission say that every convicted prisoner is eligible for early release after completing 14 years of imprisonment. Terror convicts undergoing life sentences are entitled to early release after 20 years of imprisonment. “The period of incarceration inclusive of remissions even in such cases should not exceed 25 years,” it says.
Indian Muslims have been wrongfully incarcerated on terror charges. A few have been acquitted by the courts, in some cases after decades of incarceration, after finding no evidence of guilt. In March last year, 127 Muslims charged with terrorism by the Gujarat state government in December 2001 were released after 19 years behind bars. Kashmiri men being released after decades of wrongful incarceration is routine.
As per the 2021 statistics of the NCRB data, Muslims account for 18.7% of India’s prison population, down from 20.2% in 2020, but still consistently higher than their population share of 14.2%.
Murali Karnam, assistant professor teaching justice and politics, at the Hyderabad-based NALSAR University of Law, said the standard applied to determine if a person is eligible for release is not their “rehabilitation or reformation” but the nature of the crime committed.
“In that sense, the eligibility is based on punitive action and vengeance. What happens to the convict after the sentencing—deteriorating health or old age—is irrelevant for the courts,” said Karnam. “In the so-called terror cases, inmates are imprisoned for a long time as it earns the state brownie points of political dividends.”
‘My Friends Looked After Me’
In the early days of his incarceration, Khan believed he could prove his innocence to the police and get out quickly. But days turned into months and then years.
Except for the four years he was out on bail from August 1995 to May 1999, Khan was in prison in Kanpur and Jaipur.
After a decade of imprisonment, Khan’s family started attempting to get him released.
Several of his applications for parole filed by lawyers sponsored by the Delhi-based Jamiat Ulema-i-Hind charity to represent the TADA convicts were dismissed by prison authorities and the Rajasthan high court.
For his early release, the mercy petitions his family sent to the Uttar Pradesh state government, and the president’s office were rejected. In 2019, the ministry of home affairs turned down his petition for permanent parole due to an adverse report by the Central Bureau of Investigation (CBI), the prosecuting agency.
While there was little his friends and political acquaintances on the outside could do to secure his release, Khan’s fellow inmates became his caretakers and confidantes.
When he could see adequately, Khan spent days reading books in Urdu. But over two and a half decades, his vision dimmed, as did the conversations with his fellow prisoners. His knees weakened with each passing year. Khan could only walk with the help of the attendant. The only thing that kept him going was the familiar presence of the ageing inmates and the visits from his family.
“Mere saathi bade acche the khayal rakhte the. If I fainted or vomited, they would help me clean up,” Khan said. (My friends looked after me.)
The Case Against Khan
The demolition of the Babri Masjid in Ayodhya by Hindu extremists on 6 December 1992 and the ensuing rioting that claimed the lives of 1,000 people made worse the Hindu-Muslim chasm, giving way to the rise of the Hindu nationalist Bharatiya Janata Party (BJP) and the rightwing ecosystem to which it belonged. The retaliatory bomb blasts in Mumbai on 12 March 1993, orchestrated by the gangster Dawood Ibrahim, killed over 250.
One of Khan’s grandsons, 38-year-old A*, who spoke on the condition of anonymity, has some memories of the day of the demolition, 150 km away from their home in Raebareli, a bastion of the Congress Party and the Gandhi family. As riots erupted in parts of UP, Maharashtra, and Gujarat, Raebareli’s bustling township of Muslims and Hindu families living in the neatly demarcated mohallas held on to an uneasy calm.
A* remembers Khan weeping as he watched the news telecast of the demolition. With each passing day, he felt it was essential to organise a big protest against the central government, then led by Prime Minister PV Narasimha Rao and the Congress Party.
A proud supporter of the Congress Party all his life, Khan’s home was called the “Nehru house”, and the eye hospital he opened in Raebareli, the first in the city, was also named after India’s first prime minister.
According to Khan’s confession in February 1994, as per the Central Bureau of Investigation, Khan met Jalees Ansari, the convicted mastermind of the blasts, at the end of September 1993.
As per the confession, which he retracted twice, Ansari, a resident of Mumbai, met Khan and other prominent members of the Muslim community in Raebareli.
“We held a discussion over the atrocities and injustice meted out to Muslims…regarding the insecurity feeling of Muslims after the demolition of Babri Masjid and attitude of the Govt. towards Muslims, and it was decided that there should be some action so that the Govt is terrorised and it should be remembered that the matter of Babri Masjid is alive,” the confession reads, as quoted in the 2016 Supreme Court judgment which upheld the conviction.
Ansari, who was trying to procure weapons in retaliation against the growing atrocities against Muslims in Mumbai suggested a big action to mark the one-year demolition of the mosque, as per the confession cited in the 2016 Supreme Court judgment.
During the meetings, Ansari explained that the bomb blasts in the country’s fastest Rajdhani trains, popular with the middle and upper middle class, would terrorise the government and give more publicity to the anger of Muslims.
In August 1994, Khan claimed to have never made this confession. In January 1995, he alleged to have been physically tortured and forced to sign blank papers, as cited in the 2016 Supreme Court judgment.
Khan told Article 14 that he attended these meetings with Ansari and spoke in favour of a non-violent protest.
But his confession, as cited in the 2016 Supreme Court judgment, said that he and the other attendees joined Ansari's plan.
As per the background cited in the 2016 Supreme Court judgment, Khan received Rs 3000 from Ansari two months later to pass on to one Jamal Alvi in Lucknow for purchasing material for the bomb. He sent the money along with three packets of explosives containing sugar and potash to Alvi and instructed him to use it for the explosion. Alvi used the cash to purchase bomb devices.
During the night intervening 5 and 6 December 1993, five bombs went off in trains running in Kanpur in Uttar Pradesh, Kota in Rajasthan, Bhetsan near Surat in Gujarat, and the Moula Ali railway station in Secunderabad in Telangana killing two passengers and injuring eight.
Khan maintains he is innocent.
The Rs 3000 money order receipt found as evidence at the time of his arrest was borrowed from Ansari to prepare for his daughter’s wedding. He said his only crime was to meet Ansari and discuss plans to protest the Babri Masjid's demolition.
In February 2004, the Ajmer TADA court sentenced Khan and 14 co-accused, including Ansari and Alvi, to life imprisonment for the train blasts.
In 2016, the Supreme Court upheld the life sentence for Khan and nine co-accused while releasing four of the co-accused.
Khan lamented that he never got a chance to argue the merits of his circumstances in the case, and he was saddled with the verdict jointly delivered to his co-accused.
“If I had gotten the right pehervi (legal assistance), maybe I would’ve been free too,” he said.
Judgement For Change
In May 2018, the TADA convicts in the Jaipur prison had hope after Asfaq Khan, convicted in the train bombings case, got parole to go home for 21 days after his mother passed away.
This was his fourth attempt to get parole.
The Rajasthan High Court, in May 2016, dismissed Asfaq’s petition for the third time, stating, “We are of the considered opinion that it is a case of the serious and heinous crime where parole cannot be claimed as a matter of right.”
Pulling up the Rajasthan High Court for dismissing Asfaq Khan’s earlier pleas for parole, the Supreme Court in Asfaq vs The State Of Rajasthan said its reason for dismissal was “not apposite”, and one did not “meet the test of law”.
Jail authorities were directed to follow the new guidelines listed in this judgment to consider granting parole.
In May 2018, the Supreme court ruled in Asfaq Khan’s favour, granting him 20 days of parole to go home to Dausa, two hours away from the Jaipur prison.
The judgment became a game changer as it set a precedent for other TADA convicts like Khan to seek parole for meeting their parents.
In August 2018, the Rajasthan High Court granted Khan his first parole of 20 days in consideration of his age and the fact that a co-accused in the same case Asfaq Khan was granted parole.
Khan was also granted parole of 20 days in January 2020. His third parole in February 2021 has been extended by the Supreme Court till date.
As the hearing for his petition in the Supreme Court draws near, his grandson A says Khan has forgotten many things but routinely inquires about the status of his rihai ka dakhla (the matter of his release).
“He made many efforts of proving his innocence, clearing his name in the terror case and getting acquitted, but his hopes crashed by unfavourable court decisions and rejections for early release,” said A. “We only hope the court grants his last wish of early release so he can breathe his last breath, surrounded by children and grandchildren.”
(Shweta Desai is an independent journalist and researcher based in Mumbai.)