Srinagar: On 8 March 2022, Mudasir Ahmed Ganaie, 21, left for his workshop in the Kirmanabad Sozait area of Srinagar at 10 am, the motor mechanic’s daily routine over the last two years.
As Ganaie was about to reach his workplace, a call from an unknown number flashed on his mobile. A policeman was on the line, summoning him to the Kothi Bagh police station in central Srinagar that very day. Ganaie’s heart sank.
Distraught, Ganaie returned home, and at 2.45 pm, with his brother and a cousin, left for the Kothi Bagh police station about 14 km to the southeast. When Ganaie got there, the police immediately arrested him.
It was only later that his brother learnt that Ganaie had been accused under under sections 88 (act not intended to cause death) and 269 (act likely to spread infection) of the Indian Penal Code (IPC) 1860 and under Section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act (UAPA) 1967, an anti-terrorism law.
Ganaie and three other mourners, the police alleged, raised independence slogans such as “Free Kashmir” and “Azadi (freedom)”, considered “anti-national” by authorities, during a Muharram procession on 17 August 2021. Since this occurred during the Covid-19 pandemic, they were also accused under Section 51 (obstructing state officials from duty) of the Disaster Management Act, 2005.
Muharram is the first month of Islamic calendar, the second holiest occasion after Ramzan. The 10th day of Muharram is called Ashura, a solemn occasion for Shia Muslims, who regard it as the day Imam Hussain, the grandson of the Prophet died in battle in 680 AD. Muharram began on 11 August 2021 and Ashura fell on 20 August that year.
Processions mark the fifth, eighth and 10th days of Muharram, with mourners self-flagellating to mark the Imam’s death. It was from such gatherings that Ganaie and other mourners, from among about a thousand who participated in the eighth Muharram procession, were accused of slogans against India, routinely regarded now as a crime.
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The latest arrests of Shia mourners in March 2022 under the UAPA for slogans raised seven month earlier was a new use of the law, evident after August 2019, when New Delhi abrogated Kashmir’s limited constitutional autonomy.
The UAPA, as we have reported, has seen rampant and random use in Kashmir. Police often do not file chargesheets, courts often dismiss charges—as has already happened with three Shia mourners arrested in 2020—but accused and families must endure a process that, critics have said, becomes the punishment.
Indeed, there appears to be a randomness to the UAPA cases.
Overall, 12 Shia mourners faced UAPA charges. Eight were arrested in March— four are in police lock-ups and four are in Srinagar central jail. Two are on bail granted by courts in Srinagar and Baramulla, while two other cases were not pursued. Since 2019, police have filed 15 UAPA cases against Shia mourners. The charges against three were dismissed in court.
About a quarter of Kashmir’s Muslims are Shia, often regarded by security forces and mainstream media as being favourably disposed to India—although there is no clear evidence this was the case—in a region with a bloody, long-running rebellion.
‘What Was The Crime?’
Among the three others arrested with Ganaie that day were Rafakat Hussain, 34, father of two and owner of a car garage. On 6 March, as he helped his seven-year-old daughter Sania Zahra get ready for tuition, Rafakat also received a call from the police summoning him to the Kothi Bagh police station.
“Taking part in a religious custom is a fundamental right,” said Rafakat Mushtaq, 22, Hussain’s brother. “Booking my brother under UAPA is undemocratic. Some mourners, whoever they were, merely chanted slogans; didn't use any weapons, so for what crime was my brother booked?”
Apart from Rafakat Hussain and Mudasir Hussain Ganaei—at 21 the youngest mourner to be jailed—two others arrested at the same time and since incarcerated in Srinagar's Kothi Bagh police lock-up for 27 days were daily wager Muzzafar Hussain Reshi and school bus driver Mohammad Abbas.
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Thirty-seven-year-old Hussain Reshi’s arrest also came out of the blue. His brother Mohammad Sultan Reshi, 44, said that in August 2021 police detained hundreds of mourners when they tried to march towards Srinagar’s Lal Chowk. Hussain had also been detained but was released by the evening.
In early March 2021, he too was summoned on phone to the Kothi Bagh police station. In this case, too, the father of three told his family he would be back soon but was instead arrested. As in Ganaie’s case the family learnt of the UAPA case only later, said Mohammad Sultan.
The UAPA allows detention without trial for six months, turns the burden of proof on the accused and specifically disallows bail not just for alleged terrorist acts but alleged terrorist activity, as Article 14 has reported (here and here) before.
Only 2 Of 750 UAPA Accused Convicted: Govt
Jammu and Kashmir (J&K) registered the country’s highest number of cases, 346 in 2020 alone, filed under the UAPA according to 2020 data, the latest available, from the National Crime Records Bureau (NCRB) in 2021.
On 15 March, in response to a Parliament question on arrests under UAPA, union minister of state for home Nityanand Rai said that only two of 750 people accused under the UAPA in J&K between 2018 and 2020 had been convicted. In response to an earlier question on UAPA on 14 December 2021, Rai said of 346 people arrested under UAPA in J&K in 2020, 103 were on bail and four acquitted.
Almost half of those arrested in J&K under the UAPA were below 30. In 2018, this number was 89, in 2020, 166—the highest in the country.
Ganaie’s friend Arshid Ahmed, 24, said they did not ever believe the draconian law could be used against Shia mourners, but it has been especially apparent after Muharram, when marchers have raised slogans against India and for independence.
Over the last three years, young Shia mourners have voiced their demand for political rights. Police claim to know of attempts to “instigate people”.
“We respect religious sentiments, but it is also our responsibility to defeat ill designs of vested interests,” Vijay Kumar, inspector general of police, was quoted as saying.
‘This Has Never Happened Before’
Families and friends of the men arrested were in shock. “Every year we take part in Muharram gatherings,” said Ahmed. “It is our religious obligation, and it has never happened before that mourners were booked under UAPA.”
“You cannot violate religious freedom by filing anti-terror law against mourners,” said a family member of Mudasir, speaking on condition of anonymity for fear of police reprisal.
“Azadari (mourning ritual) is our religious right, no force on earth can stop the mission of Imam Hussain who fought against tyrant ruler Yazid 1,400 years ago in Karbala,” said Rafakat Mushtaq.
In another rash of arrests on 25 March, police picked up four more men and accused them also under UAPA for allegedly raising “anti-India” slogans during Muharram processions of 2021.
Yaseen Rather, 29, who has a barbecue shop was among those arrested, days before his engagement on 30 March. Authorities in the Kothi Bagh facility where he is held helped his family solemnise the ring ceremony in police lock-up in a 15-minute event.
Court Rejects Charge Of Unlawful Assembly, Police Invoke UAPA
Soon after the Ashura procession of 20 August, 2021, police filed a first information report (FIR) against “unidentified persons” in a Muharram gathering that set out from the village of Mirgund in Budgam district.
“In one clan among the huge gathering, unidentified mourners were holding a banner on which Free Kashmir was written,” said the FIR.
Police raided the homes of labourer Irfan Ahmed, 26, and tuition master Maqsood Hussain, 27, of Shareefabad in Budgam. Irfan Ahmed’s mother, Zoona Akhtar, 53, said she would hand him over to police if they could prove Irfan was part of the procession.
Many from Shareefabad went out for the Ashura procession in August 2021 in Budgam’s main chowk, said Akhtar. “But Irfan stayed home,” she said, “So how could he have raised the ‘free Kashmir’ banner?”
A local, seeking anonymity, questioned how the police could discern who was carrying the banner. “It was a massive gathering,” he said. “The police couldn't identify the real accused.”
The outrage of Shia mourners and their families was echoed in former MLA of Budgam Aga Syed Ruhullah’s tweet on 27 August: “Two guys from Shareefabad held a flag reading ‘Oppressed Kashmir’ in 10th Muharram procession in Budgam. Police respond by booking them under oppressive UAPA to prove that they are not oppressed. This model of policing should be adopted by every democracy in the world.”
Irfan and Maqsood were not arrested.
Muharram Processions Banned Since 1989
Since 1989, the Indian government has imposed a ban on the customary eighth- and 10th-day Muharram processions at Srinagar’s Lal Chowk, citing the possibility of anti-India sloganeering.
Ever since, mourners have routinely defied curfew orders, faced police batons and thrashings and shouted pro-freedom slogans. This is the first time mourners have been identified weeks and months later, as they were after the 2021 procession, summoned and arrested under the UAPA.
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The men in Kothi Bagh lock-up were among thousands of Shia mourners in the eighth Muharram procession at Srinagar's Lal Chowk on 17 August 2021.
The pressure on mourners has been apparent since a poster of slain militant commander Burhan Wani appeared in such a march in Srinagar in 2018, disconcerting the government.
Muharram processions were formally disallowed after the abrogation of Article 370 in 2019.
Bail In One Law, Jail In Another
In August 2020, residents of Gund Hassi Bhat in Srinagar, where Arif Ahmed Dar, Sajaf Hussain Parray and Raja Mehboob, where three UAPA accused live, stepped out for the fifth-day Muharram procession along with hundreds of mourners. In a procession, a group chanted anti-Indian slogans and shared videos on social media, which were widely shown by Pakistani media.
The same evening, a J&K police spokesperson said police in Parimpora in Srinagar and about 8km from Gund Hassi Bhat, had “taken cognizance” of a social-media video in which mourners were chanting “pro-Azadi slogans” in a Jaloos-e-Aza or Muharram procession.
A police statement issued later that day said “some boys” from a nearby area of Budgam “took advantage” and “raised pro-Azadi slogans”. The statement named Sajad Hussain Parray, 21, Arif Ahmad Dar, 22, and Raja Mehboob 20, All three were residents of Gund Hassi Bhat.
Police filed FIRs against all three under IPC sections 143 (unlawful assembly), 188 (disobeying government order), and 269 (negligent spread of disease).
Arrested, the three men spent two months in Parimpora police lock-up before being moved to the Srinagar Central Jail, where they spent another month till a Srinagar special TADA (Terrorist and Disruptive Activities (Prevention) Act) court dismissed all charges in November 2020.
After the court dismissed IPC charges against mourners in 2020, the J&K police started to use the UAPA for similar incidents. Ansar Ali Pandit, 25, who promotes Kashmiri art and Kashmiri shawls in Delhi, and a mourner was among the first to be charged so.
Pandit was a volunteer serving water on 21 August 2021 during the 11th Muharram procession in Budgam. His little niece was with him. As she played with his mobile, according to Pandit’s mother, the phone “accidentally” went live on Facebook and Burhan Wani’s poster was seen in the procession.
Within 48 hours, J&K police encircled Pandit’s house and arrested him under UAPA. He spent three months there, before he got bail in November 2021.
“After three months of incarceration, Ansar Ali was released. His wedding, scheduled to be held right after Muharram was delayed over the UAPA incident,” said Pandit’s brother Kifayat.
Misuse Of UAPA Questioned In Parliament
Senior criminal lawyer in J&K high court, M A Bhat referred to an oft-cited 1995 Supreme Court judgement that ruled that until it is established that slogans incited violence, it could not be considered seditious. Bhat said similarly a person holding a banner and slogan without any further action or incitement cannot be accused of an offence under UAPA.
“This is a very dangerous trend, booking every dissent under UAPA will not work for long,” said Bhat. The 1995 case dealt with two public servants who shouted ‘Khalistan Zindabad’, ‘Hindustan murdababad’ and ‘Raj Karega Khalsa’ after former Prime Minister Indira Gandhi's assassination in 1984.
“It appears to us that the raising of some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from any one in the public can neither attract the provisions of Section 124A [sedition] or Section 153A [promoting enmity between different groups] IPC,” said Supreme Court Justices A S Anand and Faizan Uddin in their judgement. “Some more overt act was required to bring home the charge to the two appellants, who are government servants.”
Bhat said the slogans heard or banners seen in the Shia processions are on the same lines and cannot invite UAPA. “The Constitution provides for the fundamental right of freedom and expression under Article 19(1)(a); that all citizens shall have the right to freedom of speech and expression,” Bhat said.
“I have seen UAPA misused in very many cases,” said Bhat. “In most of the cases, police failed to connect the offence with UAPA. The maximum number of accused get discharged in court. This trend needs to be looked into before it spoils many lives.”
The abuse of the UAPA has not gone unnoticed. In a question in the Lok Sabha, the lower house of Parliament on 15 March, Trinamool Congress member of Parliament (MP) Dibyendu Adhikari asked if the “government has any proposal to amend the UAPA law to prevent the harassment of innocent persons”.
Minister of state for home Rai said that conviction was the outcome of “an elaborate judicial process” that included the duration of trial, appraisal of evidence, and examination of witnesses. “There are adequate Constitutional, institutional and statutory safeguards, including inbuilt safeguards in the UAPA itself, to prevent misuse of the law,” said Rai. “The UAPA has been amended in the past keeping in view the requirement. Presently, no amendments in the UAPA are under consideration.”
Shia Cleric Faced UAPA Too, Leaders Warn Against RSS
Another of those detained after Muharram processions was a prominent Shia cleric from north Kashmir’s Baramulla district, Manzoor Ahmad Mallik, 50, arrested on 18 August 2021, a day before Ashura.
Summoned to Pattan police station, he did not return. When his family went to the police station looking for him, they were told he had only been “detained” and would be released after the 14th Muharram, or 23 August, said Mallik’s relative, Muzamil, who used only one name.
But the police had arrested Mallik in an UAPA case filed against him a year before in 2020 during Muharram. No action had been taken in the case over the year. Mallik was in the Pattan lock-up for 25 days from 18 August 2021 till a Baramulla court granted him bail.
Majlis Ulama Imamia, a grouping of Shia maulvis in Kashmir, criticised Mallik’s arrest and demanded his immediate release.
Shia leader and three-time Budgam MLA Aga Ruhullah Mehdi told Article 14 that the ideology of the Rashtriya Swayamsevak Sangh, parent organisation of India’s ruling Bharatiya Janata Party was against the “survival of Muslims”.
“They don’t see Muslims as equal citizens,” said Mehdi. “They want to marginalise, turn the Muslim population into second-class citizens and take away their rights.”
While there have been instances, and a popular perception, of Shia support for the BJP, Mehdi said anyone from any sect of Islam would bear the “brunt of their [BJP government] policy and will be targeted”.
“[There is] no difference between Shia and Sunni in their Ideology,” said Mehdi. “If you are a Muslim, you will face the onslaught of RSS ideology.”
Mehdi said that although courts had given judgments that slogans do not amount to violence and terrorism, “this BJP-RSS combined regime is against citizens’ rights and especially against the rights of minorities”.
“Why only single out Muslims?” said Mehdi. “The plight of Dalit and Christians is there to see, Christians too were targeted on Christmas eve.”
“We have a collective challenge, every minority,” said Mehdi, “for not only Muslims are at the receiving end of this regime.”
(Irshad Hussain and Mubashir Naik are independent journalists based in Kashmir.)