Terror Trials: Life and Law in Delhi's Courts

THINKING FROM ELSEWHERE

Series editors:

Clara Han, Johns Hopkins University

Bhrigupati Singh, Ashoka University and Brown University

Andrew Brandel, Harvard University

International Advisory Board:

Roma Chatterji, University of Delhi

Veena Das, Johns Hopkins University

Robert Desjarlais, Sarah Lawrence College

Harri Englund, Cambridge University

Didier Fassin, Institute for Advanced Study, Princeton

Angela Garcia, Stanford University

Junko Kitanaka, Keio University

Eduardo Kohn, McGill University

Heonik Kwon, Cambridge University

Michael Lambek, University of Toronto

Deepak Mehta, Ashoka University

Amira Mittermaier, University of Toronto

Sameena Mulla, Marquette University

Marjorie Murray, Pontificia Universidad Católica de Chile

Young-Gyung Paik, Seoul National Open University

Sarah Pinto, Tufts University

Michael Puett, Harvard University

Fiona Ross, University of Cape Town

Lisa Stevenson, McGill University

TERROR TRIALS

Life and Law in Delhi’s Courts

MAYUR R. SURESH

FORDHAMUNIVERSITYPRESSNEWYORK2023

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First edition

For Amma and Appa

CONTENTS

Abbreviations and Glossary

Introduction

1Custodial Intimacy: Law and the Policein Two Parts

2Recycled Legality: Doing Thingswith Legal Language

3Law and the Vulnerable State

4Hypertext: Files and the Fabrication of the World

5Certification and the Fabrication of Truths

6Petition Writing: Desire, Ethics, Mourning

Conclusion: An Acquittal?

Acknowledgments

Notes

References

Index

ABBREVIATIONS AND GLOSSARY

affidavit:This is a written statement that is sworn to as truthful by the person making it. In some courts, such as the Supreme Court, affidavits are used in place of oral testimony.

ahlmad:This is an official in the court bureaucracy. There is usually one ahlmad for each court, who is in charge of the records of the court, ensuring that the day’s files are given to the reader (see below) and that the reader returns the files in good order. The ahlmad holds the keys to the court’s massive filing cabinets and signs off on a number of things from stationery requests to witness reimbursements. The ahlmad also ensures that the court’s orders are followed and acts as the link between that particular court and other courts.

ATS:Anti-Terrorism Squad. In some states (such as Maharashtra and Uttar Pradesh) the police have constituted Anti-Terrorism Squads as special police units to investigate terrorist crimes.

ASJ:additional sessions judge. This is the highest criminal court in a district.

charge sheet:Officially known as a Report under s[ection] 173, CrPC [Code of Criminal Procedure], this document is filed by the police in every criminal case. It outlines the narrative, the evidence, and charges against accused persons.

cognizance:This is the process by which a magistrate takes official notice of a charge sheet.

committal:This occurs if, after taking cognizance of a charge sheet, the magistrate comes to the conclusion that the charges made against the defendant are triable only by a superior court (i.e., the Court of Sessions). The magistrate is then said to commit the case for trial before the Court of Sessions.

cross-examination:This is the process by which the witness produced by one party is questioned by the opposite party in a legal dispute. In criminal trials, most of the witnesses are produced by the prosecution, and the cross examination is done by the defense lawyers. The cross-examination of witnesses takes place after the examination-in-chief (see below).

CrPC:Code of Criminal Procedure, 1973. India’s main law that deals with the procedure of criminal cases.

DD:daily diary. These are diaries kept by each police station. They are meant to record significant events at police stations.

examination-in-chief:This is the process (also known as direct examination in some contexts) by which the witness is questioned by the party who produced the witness. In criminal trials, most of the witnesses are produced by the prosecution, and the examination-in-chief is done by the prosecutor. The examination-in-chief takes place before the cross-examination (see above).

ExPW:exhibit prosecution witness. This abbreviation is written in courtroom depositions, often followed by a number, indicating the witness, and letter, indicating the document being referred to in the deposition. For example, ExPW9/A refers to the document marked A exhibited by prosecution witness number 9.

fard makboojgi:seizure memo. This memo is produced by the police during an investigation. It documents that the police have seized certain physical items as a part of their investigation.

fard nishandehi:pointing-out memo. This is a memo produced by the police during an investigation to document that a witness has pointed out a particular person or object of relevance to the investigation.

FIR:first information report. This is the first record of a complaint made to a police station. It is a written document.

IPC:Indian Penal Code, 1860. The main criminal legislation in India.

JC:judicial custody. After the period of police custody (or PC, see below) is complete, defendants are taken out of the custody of the police and are said to be sent to custody of courts. In effect, they are sent to the local jail pending their trials. The presiding judge has the option to release the defendant on bail, but this is virtually impossible under the Unlawful Activities Prevention Act (UAPA, see below) because of the restrictive bail provisions of the statute.

magistrate:This is the lowest criminal court judge in India’s judicial hierarchy. Magistrates are given the powers to deal with pretrial motions pertaining to arrest, disclosure of evidence, cognizance of charge sheets, and committal to Sessions courts. They also have the power to conduct the trials for lesser offenses. In cities, they are known as metropolitan magistrates (MMs, see below).

MLC:medico-legal certificate. This is a document produced by doctors recording injuries sustained by patients and other medical information pertaining to those injuries.

mukhbir:secret informer. In many cases, the Special Cell (see below) claims that it received information about terrorist crimes from a secret informer, whose identity is not disclosed to the court or to the defense.

MM:metropolitan magistrate. This is the lower level criminal court judge in a metropolitan area.

naib court:A police officer who acts as the Delhi police’s representative in court and is the channel of information and paperwork between the police and the court.

NIA:National Investigation Agency. This is a specialized antiterror police agency set up under the National Investigation Agency Act, 2008. Unlike other police agencies, which are governed by state governments, the NIA is governed by the Central Ministry of Home Affairs.

panch witness:An independent public witness to a police investigation, who is meant to certify that portions of the investigation occurred in the way that the police said that it did.

PC:police custody. After the police officially arrest a person and that person is produced before a magistrate, the police will ask that the person be placed in police custody to aid with the investigation. The magistrate may grant this request or send the person to judicial custody (JC, see above) or release the person on bail. In most terror cases, people arrested are sent to police custody.

PCO:public call office. This is a payphone facility. These are not coin operated and are usually staffed with an operator.

PUCL:People’s Union for Civil Liberties. Founded in 1976, this is one of India’s largest human rights organizations.

PUDR:People’s Union for Democratic Rights. This is a human rights association based in Delhi.

POTA:Prevention of Terrorism Act, 2001. India’s anti-terror law, which was enacted after September 11. Though it was repealed in 2004, most of its provisions were grafted onto the Unlawful Activities Prevention Act (UAPA) via an amendment made in the same year.

PS:police station. The abbreviation usually appears before the name of the police station, as in PS Gole Market.

reader:An official in the court’s bureaucracy who organizes the judge’s calendar and manages the daily case files. Each court has a reader.

rukka:This is a summary of information about an offence that, in some criminal cases, is given to the station house officer (SHO, see below), who then registers a first information report (FIR, see above).

seizure memo:This is a memo written by police listing the articles of evidence that they have taken into their custody.

Sessions Court:This is the highest criminal trial court in a district. Often abbreviated to ASJs, or additional sessions judges (see above), these are given the jurisdiction to conduct trials under India’s present anti-terror law, the Unlawful Activities Prevention Act (UAPA, see above).

SHO:station house officer. The officer in charge of a police station.

SIMI:Students Islamic Movement of India. It is banned as a terrorist organization by the government of India.

Special Cell:The unit of the Delhi police that deals with terror investigations, as well as other investigations that the government assigns to it.

TADA:Terrorist and Disruptive Activities (Prevention) Act, 1985. India’s anti-terror law that was ostensibly enacted in response to the Khalistani movement. It lapsed after ten years.

UAPA:Unlawful Activities Prevention Act, 1967. India’s current anti-terror law. The main legislation, enacted in 1967, was meant to deal with separatist threats from around the country. In 2004, anti-terror provisions were grafted on via an amendment. A significant amendment was made after the terrorist attacks in Mumbai, in November 2008.

vakalatnama:A power of attorney given by a client to a lawyer, which enables the lawyer to act on behalf of the client in a particular case.

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philanthropy

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I went a bit too far

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how do you mean

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I stopped them seeing death before them

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who

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human beings

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I planted blind hope in their hearts

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why

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they were breaking

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you fool

from 4 NO’s Prometheus

Rebound

—ANNE CARSON, RED DOC>

INTRODUCTION

Early in 2008, I took the opportunity to assist a lawyer and good friend, Jawahar Raja, in Delhi in the defense of the Students Islamic Movement of India (SIMI). The government of India had banned the organization on the allegation that its members were conducting terrorist acts throughout the country. These included what we might readily call terrorist acts, such as causing explosions in civilian areas, along with acts that stretched the concept of terrorism (if there is one) beyond recognition: putting up posters that questioned the legitimacy of the Indian state, protesting discrimination against Muslims, downloading Islamic sermons, peddling fake currency, and merely possessing a copy of the Rubaiyyat by Omar Khayyam. If anything, this confirmed my preconceived ideas about the law: It segued with Hindu nationalism to create a climate in which minorities and opposition groups were persecuted.

At that time, I was convinced that the law was an inherently violent institution. I disagreed with those who believe that the rule of law is an unqualified human good (Thompson 1990, 266).¹ The repeated arrests of obviously innocent people on terrorism charges, whose potential sentences could span decades, only confirmed this for me. Before I started research for this book, I understood the state and the law as entities that viewed human rights as a constant threat. As I wrote in 2007, A condition of emergency activates the idea that the body of the citizen is dangerous and intractable, and that the ‘rights’ that adhere to the citizen function as loaded weapons, cocked and ready to be used against the state. The emergent citizen, much like the terrorist, is thus the figure that threatens to shatter the sovereign order (130). The law, I thought then, was an institution that was aimed at destroying human freedom or, at the very least, conditioned to suppress it.

Moreover, five years of law school and internships had put me off courts. In my younger eyes, courts were places of humiliating hierarchy, endless waiting, boredom, and frustration. While theoretical ideas and the intricacies of legal doctrines excited me, I thought of courts as places where ideas and ideals met slow, agonizing deaths. Imagine my trepidation when I found myself entering a courtroom to engage with the law—with institutions that I thought were inherently unfair and unjust.

Before my first day in court, at Jawahar’s office, I felt as if I were being snowed under by a blizzard of papers and files. These paper drifts were so massive that burlap bags and a steel trolley had to be bought to move them. I took a tentative stab at one of these files and opened it up—it was like reading a different language. I recognized the words as being mostly in English, but I was frustrated by their opacity. How was a 161 statement different from a 164 statement? Was the accused discharged or acquitted, and what was the difference? And what on earth was a pointing out memo? Some words were entirely alien and incomprehensible—rukka, fard makboojgi, nishandehi. It was clear that I would have to work hard as I had much to learn.

Before my first day at the tribunal’s hearings, I met a former member of SIMI, Mohammed Yaseen Falahi, or Yaseen bhai,² as I came to call him. Yaseen bhai said to me, with feigned pride, that of all the hundreds of terrorism cases brought against former SIMI members at the time, he was the only ex-SIMI member who had been actually convicted of a terrorist offense. His crime? The police alleged that he had put up a poster in a predominantly Muslim area in south Delhi at a busy intersection in broad daylight. The poster, as described in the prosecution’s charge sheet, had an anti-national slogan—Destroy Nationalism. Establish Khilafat³—in big lettering, with a picture of a closed fist crushing the flags of Russia, the United States, and India. For putting up this poster—something he denies he did—he was convicted of sedition and of membership in a terrorist organization. Yaseen bhai told me of his life in jail, of the indignities he had to put up with, but also the moments of laughter and even friendship. At the time, while I had only a vague understanding of legal processes, it was clear that he had an intimate knowledge of the law from his experiences of trial processes. He spoke with easy familiarity of the mukhbir, or secret informer, who allegedly told the police that he was putting up posters, the absence of panch, or public witnesses, and the convictions under 124A IPC and s. 20 POTA. He said these words to me, assuming that I understood them completely. Yaseen bhai clearly knew more about the law than I did. My five years at law school had left me unprepared for life in courtrooms.

SIMI was first banned by the government of India in 2001, and the ban lapsed every two years. Each time the government banned the organization, the banning order had to be adjudicated before a tribunal. The association was banned again early in 2008, and the tribunal that was constituted was housed in the Delhi High Court building.

The morning of my first day at the tribunal was a hurricane of activity: files had to be tied together and packed, motions had to be printed off a stubborn printer, and thick books had to be flagged with post-it notes and piled into bags. Jawahar, Anand Singh (Jawahar’s clerk), Yaseen bhai, and I scurried around the office trying to make sure that we had not forgotten anything in our last-minute dash to the courts. As we were late, Jawahar asked Yaseen bhai and me to park his car as he ran into the court complex lugging a massive bag, his lawyer’s gown billowing behind him, with Anand pulling a trolley carrying files close at his heels.

It was then left to Yaseen bhai, a person who had been convicted of terrorist crimes, to guide me through the courts. After we parked the car, we walked toward the court compound. As we passed through security at Gate No. 5 of the court compound wall, a security guard asked me to deposit my cell phone with the reception. Yaseen bhai raised his voice: Can’t you see he is a lawyer? and with that I was allowed to keep my cell phone with me. He shepherded me through another security kiosk toward the court building and explained that there were two entries into the court building: one for lawyers and one for the general public. I was to go through the lawyers’ entry and meet him inside at the courtroom. He then rapidly shot out directions, telling me to go to the Annexe building, first floor, courtroom number 35. I nodded blankly. Half an hour later, I arrived at the courtroom in the middle of the proceedings, having got lost in the seemingly labyrinthine corridors. I tentatively entered the courtroom and sat down next to Yaseen bhai at the back of the courtroom. These chairs, wooden and without cushions, were meant for the general public and were apparently unworthy of lawyers. He teased me: Go to the front! Sit with the lawyers! You’re supposed to be a lawyer!

These early days in the courts were confusing. I saw Yaseen bhai hug the police officials who had arrested him and greet the government officials who had banned his organization as if they were old friends. I assumed that Yaseen bhai would be angry with them, but instead it was evident that eight years of regular meetings had led to a certain type of camaraderie that I could not immediately understand. While part of what happened before the tribunal was centered on bigger narratives about the freedom of association and how successive governments had used the law to oppress minority groups, what I found was that most of the time in court was spent going over the minutiae of legal processes: Had the evidence been properly submitted? Were documents properly attested? Could certain questions be allowed during cross-examination?

This new encounter with the courts allowed me to look at this world with fresh eyes. After the SIMI tribunal came to an end, I decided to stay on in Jawahar’s office for the next four years. In doing so, not only did I have to learn the language of the law but also how to navigate files and court records. I learned which court officials deal with what types of issues, as I tentatively tried to navigate through the bureaucracy of courtrooms. I learned that persuasion was a subtle art and was jealous of those with the ability to grease palms with ease. I was taken to the best canteen in the court complex and was told where to get the cheapest photocopies. The rhythm of the court and the language of the law began to structure my life, right down to sleeping and eating, my wardrobe, and my gestures and modes of speech. I became fully ensconced in the world of the court. While once I had seen the law as an instrument of oppression and persecution, I now began to see it as opening up a field through which one had to find one’s way.

I hope this brief autobiographical foray hints at the direction of this book, but let me explain it explicitly here. Building on the long theoretical association of law and force, certain strands of sociolegal scholarship and critical legal thought have centered on the state’s attitude to human life and its exclusionary discourses and practices. At its most benign, the law is seen as an instrument that can affect society by imposing external sanctions and inducements or by shaping social meaning (Sarat and Kearns 1995; Lessig 1998; Sunstein 1996; Goodman 2001; Pound 2002). The law’s close association with force means that it is imbued with the ability to determine which lives are worth living and which can be killed. (Agamben 1998, 2005; Gupta 2012; Mbembé 2003). Accordingly, other strands of legal theory have focused on how the law discursively constructs ideas of a life that is worth living and produces images of its subjects. The law here is seen as the harbinger of material as well as epistemic violence. It colonizes the world, destroying life in the process. Imagining the law as violence or coercion leaves us with no way to respond to it—we must either submit to its power or resist it. It leaves no room to account for the ways in which people creatively use and inhabit the law. It has no place for everyday discourses about the law, in which it may also be seen as vulnerable and negotiable in addition to being violent and overwhelming.

To imagine the law purely as a form of physical and epistemic violence is to elide over the significance that it holds in people’s everyday lives. As we will see in this book, it is the law’s technicalities—the paperwork, legal language, and investigative and courtroom processes—that enables modes of participation and negotiation in the trial process. This is not to say that the lives of my ethnographic interlocutors were not disrupted by their arrests, trials, and detentions. On the contrary, several of them faced brutal torture at the hands of the police, and their years—sometimes more than a decade—in detention during their trials exacted enormous economic, social, and personal costs. Despite these experiences of life-destroying violence, the law’s technicalities enabled life to emerge within courtrooms.

Throughout a trial, the law does not operate in a singular, authorial manner. It is a world of various rules, people, institutions, materials, modes of speech, and processes—all of which I refer to as legal technicalities. In focusing on the technicalities of the legal process, this book looks at quotidian aspects of courtrooms that are often passed over by critical theories of law. It understands legal technicalities as enabling modes of participation in the trial process. In doing so, this book departs from ways of thinking about the law as an instrument of social force or as a product of society (Bourdieu 1987; Pottage 2014). These technicalities can be used not only instrumentally to intervene in the trial processes but also as ways to enable participants in the trial to find a footing in courtrooms.

THE TIS HAZARI COURTS

The terrorism trials that I follow in this book took place mostly in Delhi’s bustling Tis Hazari Courts Complex. In scholarly works on trials, courtrooms have often been described as theatrical spaces where the state performatively constitutes its own power (Felman 2002; Ertür 2015), while the architecture of courts has also been seen as bearing a visual language symbolizing sovereign authority (Haldar 1994; Mulcahy 2007; Khorakiwala 2020). Given that it stands on the north side of Delhi’s old city, abutting the crumbling walls that once enclosed the former Mughal capital, one could also imagine that the Tis Hazari Courts Complex conveys the sovereign authority of the state through its history as well. The court complex was built on an old ground called Tis Hazari, meaning thirty thousand. I was told by lawyers that that the name recounted the history of the place as the camping ground of thirty thousand troops from the Sikh kingdom before they attacked Delhi and enforced a treaty on the Mughal emperor in the late eighteenth century. As a site of bloody violence and enforced peace-making, this would seem like ideal ground to convey the authority of the law.

Tis Hazari itself does not live up to these grand ideas. It would be difficult to describe these courts as theatrical or dramatic, as scholars of political trials and courtroom architecture might, or as living up to the dramatic history of the ground it is built upon. It is a three-story building in the middle of a larger compound, built in what upper-class South Delhi residents might call a Public Works Department style. Once Delhi’s only district court, the Tis Hazari building presently houses the courts for two of Delhi’s nine judicial districts with 136 criminal, civil, labor, family, and traffic courts (Delhi District Courts 2014). It is popularly known as Asia’s largest court complex, and by some estimates, about fifty thousand people visit the complex every day. According to statistics available for 2008–09, a total of 357,221 criminal cases were initiated in Delhi’s trial courts in that year (Judicial Committee District Courts of Delhi 2008). While judicial districts have been recently redrawn, easing the case burden on the Tis Hazari courts, a total of 69,624 criminal cases were initiated in the year ending November 2019.⁴

Another ethnography of the Tis Hazari courts describes it as a place of dirty dealings of all sorts (Mody 2008, 113), where corruption, violence, prejudice, and injustice are endemic. While I did see and hear of a number of underhand dealings, injustices, and acts of violence perpetrated there, the courts could be described in other terms as well. Lawyers would often wistfully talk about the old days, when sab kuch milta tha (you could get anything)—from files and law books, to alcohol and ganja—in Tis Hazari. Parts of the compound resembled a marketplace, while other parts looked like the unplanned residential neighborhoods that can be found all over Delhi. This was a space where people plied their trade—from lawyers and court staff to shop owners and canteen workers—and also made their lives (Nigam 2004).

FIGURE 1. Boards adjacent to the Tis Hazari Court building advertising Colour photo, affidavit, birth certificate, court marriage, marriage registration.

Parts of the compound hold lawyers’ offices that seem to have grown over time, like rabbit warrens. Immediately outside the court building, there are large jumbles of steel desks, set up by lawyers, with crude typewriters and tattered files; they sit alongside rows of ramshackle sheds set up by typists and notaries, with advertisements that read Color Photo, Court Marriage, Affidavit, Birth Certificate, Marriage Registration (see Figure 1). The compound also holds numerous bookshops, photocopying centers, and stationery shops, as well as small restaurants, chai shops, and chaat wallahs. The food attracts monkeys, which enter the courtrooms and not only damage the court’s records but sometimes [also] files and documents [that] are found strewn in the corridors and power cables [that] are found snapped (Deccan Herald 2012).

Depending on where you enter the court compound, you can find yourself either lost in a maze of lawyers’ chambers, facing the rush from Delhi’s metro rail, or being harassed by local touts offering to conduct all manner of legal paperwork. You may also encounter the court’s famous lock-up, where those under trial are held before and after their day in court. Police vans lumber in from Delhi’s two principal jails—Tihar and Rohini—making their way through the anxious crowds streaming into the court.

Once inside the compound, you can enter the main court building through defunct metal detectors and, on occasion, be perfunctorily frisked by a police officer. The building itself is three stories high and is built around a 250-meter-long single corridor that forms the central spine of the building, with courtrooms and offices running along either side of it. The court building also houses the public prosecutors’ offices, a police station, a canteen, a lock-up, a bank, an accounts office, record rooms, and a number of judicial and bureaucratic offices.

The courtrooms themselves are often crowded, noisy, and hot, with litigants, officials, and lawyers walking around and talking. Animated families of those facing trials also sometimes add to the unruly atmosphere. As I awkwardly discovered in the Delhi High Court, here, too, the front seats are unofficially reserved for lawyers, while witnesses, police officials, and the accused waiting for their cases occupy the seats at the back of the room.

When you enter a courtroom, your gaze is probably first drawn to the judge’s desk. In the Tis Hazari courts, the desk is placed on a raised platform at one end of the courtroom. There is usually a door behind the platform that leads to the judge’s personal chambers. Next to the judge’s desk there are two or three people, usually men. One is the reader: this person organizes the judge’s calendar and manages the daily case files in the court. Another is a stenographer (a senior judge may have two stenographers), who usually sits behind a computer with an attached printer. The stenographer’s job is not to transcribe everything that happens in court, but rather to take down the judge’s orders and witness depositions. In an effort to get through their heavy caseloads, it is not uncommon for judges to conduct two trials simultaneously, with witnesses and lawyers crowding around the stenographers at either end of the platform, while the judge deals with a third case, interjecting in the recording of evidence only if there is a dispute between the lawyers. As a result, lawyers, witnesses, police officials, and litigants stand huddled at the front of the courtroom near the judge’s podium. In some of the smaller courts, there is barely half a meter between the judge and the lawyers. I was told a story about how a lawyer was so angry with a magistrate that he leaned over and slapped her—they were that close to each other.

The fact that all testimony has to be transcribed and that there are no juries means that lawyers are less inclined to perform, and the proceedings are usually quite technical, though often contentious, affairs. What this also means is that since you often cannot see through the crowd, you need to get as close as possible to hear what is being said. Sometimes there are gaps in my field notes regarding arguments or witness depositions simply because I could not get close enough to hear what was being said. A common question that I have been asked in court is Unhone kya kaha? (What did they say?)

If you turn your gaze away from the front of the courtroom, where all the action is, you begin to notice that there are other people who are alternate centers of activity. One of these, called the ahlmad, is in charge of the records of the court, ensuring that the day’s files are given to the reader and that the reader returns the files in good order. The ahlmad holds the keys to the massive filing cabinets that store the court’s files