The case of the government against SIMI is based on thin ice
The last few months saw Students Islamic Movement of India (SIMI) a lot in the news with references to the faceless Intelligence Bureau’s leaked “information” that “dreaded terrorists” are a part of SIMI or that “dreaded terrorists” were apprehended and they were “ex-SIMI cadres”. One wonders why no one questioned the press as to why all of a sudden, after February 2006, SIMI started appearing in the news. The reason is quite obvious. SIMI was banned for the third time on 8 February 2006 and the ban notification itself said that “there is no violent incident involving SIMI since 2004”. The government needed to first condemn SIMI in the eyes of the general public with the active aid and abetment of the mainstream media including "respectable" news papers and television channels who have carried on a vicious campaign against SIMI. Even before the Tribunal constituted to decide the correctness of the ban imposed by the government could arrive at a decision (expected before 7 Augsut 2006), SIMI was totally demonized in the eyes of the general public and the media trial of SIMI was over. All incidents that took place in the meantime like the hoax attack on the headquarters of RSS at Nagpur, the Aurangabad arms haul, the Mumbai blasts were immediately blamed on SIMI without a shred of evidence whatsoever.
So one would assume that since this government and its agencies, which are ready to blame SIMI for all that is wrong in the country, must've had much to say against SIMI before the Justice B.N.Chaturvedi Tribunal hearing the case of the government to ban. Even in the course of hearings before the Tribunal, most newspapers were misreporting the proceedings. It would be interesting to see why the government had to resort to a media war rather than fight its case before the specially constituted tribunal. This was the case of the Government before the Tribunal:
The ban notification was issued by the Joint Secretary, Home Ministry, Mr BA Coutinho who stated before the Tribunal that it was his decision to ban SIMI. The ban notification and the background note stated that SIMI deserved to be banned for clandestine activities and links with 20-odd organizations through whom SIMI was allegedly operating. The background note clearly says that there was no violent incident in which SIMI was involved in the last 2–3 years. Coutinho, who was the main witness of the Government, stated before the Tribunal that the Government was not concerned with the period prior to the previous ban, that is 27 Sept 2003, and the period subsequent to the present ban, i.e., 8 Feb 2006. He also admitted that there was no action taken regarding the several allegations made in the notification against SIMI. The note mentioned that the erstwhile president of SIMI [Shahid Badr Falahi] was training Muslim youth in the use of lathis and in karate and judo. However, he said that the government despite having “information” about all this, did not register a single crime though they felt that such incidents amounted to crimes. This obviously casts a doubt on the truth of the allegation itself. If they knew that the former president of SIMI was training persons in judo and karate then what was the difficulty in prosecuting him for it? It is another matter that training in judo, karate and lathis is no crime in this country. There is no action taken by the Government with regard to a 19-page note issued by the government in support of the ban.
When asked if the Government’s case was contained in the notification and the note, Coutinho stated that its case was in ‘addition’ to the note and notification contained in “secret files” which could not be shown to SIMI as the Government claimed “privilege” on the said files.
The note in support of the notification according to him was not the “only” material based on which Mr Coutinho sought the ban. Thus the government was not even willing to disclose the basis of the ban to the banned organization! Five large “secret” files were submitted in sealed envelopes to the Tribunal. The note which supports the ban and the notification in support of the note don’t refer to any “secret” material. The case of the Government was that these five files and a VCD containing a movie were the “secret material”. At the instance of the tribunal, however, the movie was shown. It turned out to be a movie titled ‘Jehad-e Hindustan’ which had clips of violence against Muslims from Gujarat obviously lifted from the many documentary films made on the Gujarat carnage in 2002 as also clips of violence against Palestine by Israel and clips of the demolition of the Babri Masjid etc. Any person who is reasonably computer-literate could have used existing digital footage to put together such a film. The voiceover was either songs or vitriolic speeches, the substance of which was difficult to decipher. None of it was in English, Hindi or any other language which any of the 34 government witnesses understood.
The star witness of the government Mr Coutinho did not even know what the substance of the voiceover was. He did not have a transcript. He admitted that the VCD was of a very poor quality and it was difficult to decipher its contents. He could not show the connection between that VCD and SIMI in any manner. He also did not disclose who it was seized from. He also fished out several Urdu magazines which he claimed were found circulating in the market and stated that they were published by SIMI. He said that he did not know their contents or who published them or whether they were yet available in the market and did not know why they were not banned if publishing them amounted to crimes. In fact, in all those magazines the full details of the printer, editor and publisher were given, yet he did not even know about those details! To add to that, he “quoted” from his secret files and admitted that even the secret files did not say that the magazines belonged to SIMI or had any connection with SIMI.
To prove its case against SIMI, the government cited several cases under the Unlawful Activities Prevention Act registered between 1998 – 2001. Is it not surprising that SIMI has been in existence sine 1977 and had close to 24,000 members, a central office at Delhi and about 10 zonal offices, and several other offices with its activities known to all in civil society. All of a sudden it turned “criminal” and “terrorist” after the NDA regime with the BJP in the driver’s seat came to power? In about 1998, the government of the day started registering cases systematically against SIMI’s members and on 27 September 2001, it banned SIMI for the first time. Most members of SIMI especially office-bearers were picked up in the night of the 26-27th September itself and put behind bars. All kinds of false cases were registered during the next 5 – 10 days against most persons who were associated with SIMI.
Most of these cases did not reach even the trial state and the government later refused to give sanction to prosecute. Several have resulted in acquittals due to the inconsistency of the statements of police officers themselves. After those cases no fresh cases were registered with any reference to SIMI or to any crimes under the Unlawful Activities Act till much after April 2006. The government had no evidence to offer by way of activities of SIMI during the entire period extending from 27 Sept 2003 to 27 Sept 2005. It was the Government’s case in the words of their star witness Mr Coutinho that the present ban was a “fresh” ban. That it was based on the material for the period 27 Sept 2003 to 27 Sept 2005 or even 8 Feb 2006 (though technically SIMI could have had legitimate activities during the period of 27 Sept 2005 to 8 Feb 2006 as there was no ban operating then). However, after the ban was imposed on 8 Feb 2006 in four "crimes" cited in evidence, SIMI has been mentioned. No proof, however, has been placed to show the connection of those accused with SIMI. In fact, with regard to a case registered in Aurangabad against one Amir, who is supposed to have “confessed” that he is a member of SIMI. Way back on 9 May 2001 when he had been involved in some crime, SIMI had clarified in ‘Lokmat Times’ that Amir was not a member of SIMI. The newspaper clipping was filed by SIMI before the Tribunal and the government could not dispute it.
Mr Coutinho specifically stated that the Aurangabad crime of May 2006 was not relevant and not taken into consideration while imposing the ban. Even the rest of the cases were grossly motivated. In Khandwa there were altercations between two communities on 12 April 2006 on the occasion of Id Milad. Several FIRs were registered and are probably forgotten by now. However, four days later, on 16 April 2006, another FIR was registered calling the clashes of the 12th of that month as a “conspiracy by SIMI” and several persons from far-off Jalgaon and Kota etc including young women, were arrested for this "crime". The house of the erstwhile president of SIMI Shahid Badr was also raided in the night of 5 May 2006 even as he was attending the hearing before the Tribunal in Delhi.
That being the case, the government at the end of the day relied only on the “Secret Files” as they had no real evidence to offer in support of the ban notification. The so-called “cases" against SIMI during the relevant period of 27 Sept 2003 to 27 Sept 2005 are the most shocking. None of them have a mention either of SIMI or of the Unlawful Activities Prevention Act. In particular, they are Crimes Nos. 882/2004, 632/2004, 618/2004, 101/2004 (all of Andhra Pradesh), none of which mentioned SIMI/ Students Islamic Movement of India nor had crimes under Section 10,11, and 13 of the Unlawful Activities Act or any crime of cession or cessation. In fact, the first three were cases in connection with protests by the Muslim community angered by the false implication of the 54-year-old Maulana Naseeruddin. In one of the crimes, the first accused is the local MLA. In another case, a local youth who was protesting, was shot in cold blood by the Gujarat police party then in Hyderabad. The last crime is a protest by citizens of Hyderabad against the visit of George Bush to Hyderabad.! The government has shown that it is willing to cite anything against SIMI in its desperate attempt to ban it. In Crime No. 40/2005 (Special Cell Delhi), the chargesheets did not have any mention of SIMI. As also in crime no 16/2003 (Gujarat) which is also of this period, the chargesheet does not mention SIMI.
The Supreme Court in Mohinder Singh Gill vs Chief Election Commissioner AIR 1978 SC 851. para 8. State of UP vs Lalai Singh Yadav (1976) 4 SCC 213 at paras 6,8,9,10,15,17; Harnam Das versus State of UP (1962) 2 SCR 487. paras 11-13) has clearly held that the decision of the government should speak for itself and stand on its own. It cannot be buttressed by affidavits filed later neither can material, that was not in contemplation of the government at the point of time it made up its mind, be taken into consideration. These cases further say that the court has to asses the case of the government based on the evidence it offers in support of the case and cannot rely on other material. In other words, the court cannot substitute its decision for that of the Government. Surely, therefore, on Coutinho’s admission, the material that relates to the period prior to 27 Sept 2003 and after 8 Feb. 2006 cannot be taken into consideration. The government, even as per the decision of the Supreme Court in Sodhi Sukhdev Singh versus State of Punjab (1961) 2 SCR 371. @ 383, 384, 388 – 393 and 411, cannot take into consideration the “secret files” unless it files an affidavit explaining the reason it cannot disclose the contents of the document, the nature of the document and what injury to public interest would be if the same was disclosed to the banned association. In short, en masse “privilege” without any classification of the documents is not permissible.
If the Government has its way, it would like the Tribunal to decide the ban on SIMI solely on the basis of the “Secret Files” without disclosing any of its contents to SIMI or its counsel. If such a procedure were to be adopted, there would be no need to have a hearing. The tribunal can decide the case on its own without any reference to SIMI because, anyway, all the “evidence” is so secret that it cannot be shown to SIMI or its counsel. It is, of course, beyond one'es comprehension as to what is so secret about the files or evidence against SIMI. If one is to go by the VCD, then it is obvious that the government does not wish to disclose the files as they will only expose the weakness of the Government’s case! In the case of the ban on RSS (which is the only case in Indian history where a Tribunal constituted to adjudicate a ban has lifted the ban), the tribunal of Justice P.K. Bahri refused to look into ‘secret files’ which the government did not wish to disclose to the banned association on the ground that when valuable fundamental rights of the association were being curbed by the ban, the adjudication of the correctness of the ban ought not to be done on the basis of secret files.
The alternative ground that the government tried to base its case on, is that the two judgments of the previous two tribunals are relevant for the purposes of the present tribunal. They deal with different periods and they have both blindly accepted the case of the government. For example, the Judgement of the Tribunal of 2003 blindly accepted the case of the government and even went to the extent of saying that if SIMI could mobilize funds for putting up a defence before the tribunal it certainly must exist! The 2001 tribunal said in its judgment that confessions though not acceptable under the Indian Evidence Act can be used by the tribunal! The correctness of the judgments are at large before the Supreme Court (2001 judgment) and the High Court (2003 judgment) and their facts do not pertain to the period in question. Yet the government in the absence of any other evidence is seeking to rely on them. If an organization which is supposed to remain banned for two years is again banned after the expiry of the two years on the basis of the previous judgment banning it, then there will be no end to the number of years for which it can be banned for the same old reasons.
The government also tried to make much of the language of SIMI’s constitution. This constitution has been around since 1977 and no one objected to it till the BJP came to power and decided to ban SIMI in 2001. Why then is the Government so hell-bent upon banning SIMI? It's not an organization that is underground, its activities were out in the open, known to all and its representatives have through lawyers contested every ban imposed by the Government. No organization, which has terrorist and cessationist objectives and does not recognize the Indian constitution and sovereignty, has ever appeared before the tribunal adjudicating the ban. SIMI is obviously a soft target for the Government to show to the majority community that it is not appeasing Muslims. The government has chosen a legitimate and progressive Muslim organization to perpetrate its policy of gagging Muslims on the ground that its is extremist. There is nothing in Indian laws to call an organisation "extremist" merely because it has an open religious composition.
The government has missed the point that having such religious organisation overground is in fact an insulation against the youth turning to terrorist and clandestine activities. Won't such ban result in the Muslim community of this country getting further alienated and wondering if anything that is "Muslim" will not be tolerated by the government of the day even if it is legitimate, over-the-ground and in the public sphere? It is an understatement to say that the Government has done a great disservice to the Muslim community and the country by banning SIMI.
As the hearings before the tribunal were going on, several persons who were earlier with SIMI prior to the 2001 ban, were “picked up”. They were referred to as “dreaded terrorists.” “Cell phones” and “magazines” were “recovered” from them. The witch hunt became stronger as the case of the Government before the Tribunal grew weaker. SIMI’s erstwhile members were unable to get a single news item putting forth their point of view published even in respectable newspapers with stated “secular and leftist” credentials. It certainly has ruined the faith of the Muslim community in the Government and the fairness of the Indian polity.(To appear in The Milli Gazette's print edition of 16-31 August 2006)
There is no case against SIMI
The Government of India, Ministry of Home Affairs by notification dated8.2.2006 has banned Students Islamic Movement of India (SIMI) for the third time. SIMI was first banned on 27th September, 2001 immediately after the bombing of twin towers of the World Trade Center at New York, USA on 11th September, 2001. SIMI remained banned from September 27, 2001 to September
27, 2003 during which period several prosecutions were launched against its erstwhile members for crimes such as putting up posters, making speeches, putting up stickers etc. SIMI's name was also dragged into several prosecutions under the provisions of Terrorist And Disruptive Activities Prevention Act (TADA) or the Maharashtra Control of Organized Crime Act(MCOCA) or even the Unlawful Activities Provisions Act 1967 of persons who were not even members of SIMI but however, the Government alleged that they have been members of SIMI. In fact the erstwhile president of SIMI Shahid Badr Falahi, against whom 7 cases have been registered for putting up posters and giving speeches has already been acquitted in two. Despite the fact that it is the Central Government's case that they have not registered a single crime against any member of SIMI after May 2003, they have yet banned SIMI for the third time on 8.2.2006. In fact, the second ban of SIMI dated 27.9.2003 came to an end on 27.9.2005.
Therefore SIMI was in existence between 28th September, 2005 and 7th February, 2006 but it was unable to function in any manner because of the fact that all its offices were yet sealed, most of its members were demoralized or had crossed the age of 30 years which automatically disentitled them to continue as a member of SIMI, as SIMI has an age limit of 30 years for membership and due to lack of offices and as all its accounts were frozen, some of the erstwhile members also had to fight the criminal cases foisted against them by the State. No persons would of course be willing to take up membership of SIMI fearing harassment and prosecution by the Government. In the background note to the ban, not a single instance of any activity of any sort has been mentioned for the period 28.9.2005 to 7.2.2006.
In this background, the 8th February, 2006 notification has been passed by the Central Government notifying the ban on SIMI under Section 3(1) of the Unlawful Activities Prevention Act but also imposing an immediate ban under Section 3(3) proviso of the said Act. According to the judgment of the Supreme Court of India in the case of Mohd. Jafar vs. Union of India 1994 Supp. 2 SCC 1, for an immediate ban to be imposed, the reasons should be distinct and different from the reasons for the ban itself. To cite an example, if the stated objectives of an organization are secessionist or unlawful in any manner, it could be banned under Section 3(1) and the ban will become operative if after hearing the case of the Central Government and the organization proposed to be banned, the Tribunal constituted to adjudicate the ban comes to the conclusion that the organization is such that it deserves to be banned. However when an immediate ban is imposed, the ban comes into effect immediately even before the adjudication is completed. For such a ban to be imposed, apart from the organizations' stated objectives, goals and aims being illegal if the organization is also involved in the violent secessionist anti-national activities it merits an immediate ban. Such special reasons would have to be cited by the Central Government to impose an immediate ban upon the organization in addition to the reasons for the ban itself. Such grounds further should not pertain to stale incidents but should pertain to incidents, which immediately precede the ban. In the case of SIMI, on all three occasions an immediate ban has been imposed and on none of the occasions were special reasons given for imposing immediate ban. By the notification dated 8.2.2006, immediate ban has been imposed though not a single instance of so called unlawful acts have been cited subsequent to May 2005. It is therefore surprising as to how an immediate ban has been imposed.
The ban notification which itself shows that there is no violent incident involving SIMI since 2004 yet says that SIMI has the potential to indulge in illegal activities. The reasons given for the ban are that SIMI if not banned would,
(i) Continue their subversive activities and reorganise its activists who are still absconding.
(ii) Disrupt the secular fabric of the Country by polluting the minds of the people by creating communal disharmony.
(iii) Propagate anti-national sentiments.
(iv) Escalate secessionism by supporting militancy.
Apart from making vague allegations as above without reference to any specific instances, the ban notification alleges that SIMI is involved in 'clandestine' activities or that it has secret links with militant organizations like Jaish-e-Mohd and Lakshar-e-Tiaba. No specific incidents of any crimes have been cited though numerous organizations have been named in the notification claiming that SIMI is involved with them or functioning through them in a pseudonymous fashion. Most of such organizations named in the background note to the notification either do not even exist and if they do, they have not been banned and no crime has been registered with regard to the functioning of these organizations. Some of them are respectable organizations such as Tamil Nadu Muslim Munetra Khazhagam which took part in the electoral process as alliance partner in the Democratic Progressive Alliance of which DMK and Congress in Tamil Nadu are members. TMMK participated in the electoral process both for Parliamentary and State Legislature elections. The President of the TMMK has represented the minority community before the United Nations' Council for Human Rights 9th Session of the United Nations Working Group on Minorities conducted by the United Nations Human Rights Commission in Geneva in May 2003 and also met the Prime Minister of India, Dr. Manmohan Singh on 6th December, 2004 as a leader of a delegation from Tamil Nadu.
This being the case, the Government has to prove before 8th August, 2006, before the Tribunal constituted and headed by Justice B. N. Chaturvedi of the Hon'ble High Court of Delhi that the Government has a case against SIMI to confirm its ban. The Tribunal is traveling all over India to examine the witnesses being produced by the Government of India in the form of police officers and the SIMI is permitted to cross examine them. The Government has so far produced 3 witnesses in Maharashtra, one in Kerala and one in Tamil Nadu. None of these witnesses in their examination or cross examination have confirmed anything that has been said in the background note. All these are public documents. However, wherever witnesses do not have an answer in the allegations made by them they conveniently claim that the same are based on 'intelligence reports' and that they would not like to disclose such intelligence reports.
In fact, it is the erstwhile National Democratic Alliance which banned SIMI in September, 2001 and September, 2003. The Tribunals appointed to look into the previous bans (Justice S. K. Aggarwal in 2001 and Justice R. C. Chopra in 2003) confirmed the ban on SIMI on the basis of the statements of Government witnesses and called the statements of the erstwhile President of SIMI as a self-serving and also stated that the SIMI had the wherewithal to defend itself before the Tribunal and therefore obviously it meant that it existed. The fact that SIMI defended itself before the Tribunal was itself held against it. The challenge to the confirmation of the ban by the first Tribunal in 2001 is pending before the Supreme Court and the challenge to the decision of the second Tribunal is pending before the High Court of Delhi. In fact, SIMI activists and their Lawyers who appeared before 2001 and 2003 Tribunals claim that they were not even allowed to properly cross examine the witnesses, most of their questions were disallowed, evidence of witness of Government were given to them at the last minute and they were not given enough time to prepare for cross examination. In one instance during the adjudication of the 2003 ban, the venue and dates of hearing of the Tribunal in Gujarat was not clear to the local counsel as a result of which he could not appear during the sitting of the Tribunal. Taking advantage of the absence of representation by SIMI at the hearing, the most important witness against the SIMI who was the Joint Secretary of Government based in Delhi was flown to Ahmedabad and was examined and his affidavit was accepted without cross examination. He was not even supposed to depose in Gujarat. A writ petition moved by SIMI saying that they were not even aware of the time and place of the sitting of the Tribunal and therefore were unable to cross examine the witness and in any event that witness (Joint Secretary to Government of India) was supposed to be examined in Delhi and so his examination in Ahmedabad was deliberately done to not to give them the opportunity to cross examine him, had to be withdrawn as the High Court of Delhi was disinclined to entertain the same.
SIMI is one of the few organizations though religious and devoutly Islamic but has been over the ground and in existence in civil society. Even the ban document of 8.2.2006 does not accuse SIMI or its activities of any violent incident. Parallels can be drawn with organizations such as All India Catholic University Foundation (AICUF), which like the SIMI is involved in educational, cultural, religious and philanthropic activities. The stated objectives of the AICUF include following the catholic religion. SIMI has been praised for its philanthropic service after the earthquake in Gujarat, which it executed without collection of a cent of foreign funds. It clearly seems to be a soft target for the Government to show the majority community that the Government is not going slow on Muslim organizations. The Congress Government by banning it seems to be making a point that it is not going soft on Islamic fundamentalism and is using SIMI as a scapegoat to establish its aims.
It is also clear that a war is being carried out in the media against SIMI. After each hearing the affidavit of the Government is widely publicized in the news paper reports though no correspondent from any newspaper attends any of the hearings to acquaint themselves with the proceedings and to find out if the statements of the Government were able to withstand the test of the cross examination. Not a single Press person ever attended these hearings but very promptly the case of the government against SIMI finds mention in all leading newspapers. In Aurangabad and Nagpur crimes as late as May 2006 and the recent bombing of the Rashtriya Swamsewak Sangh (RSS) in Nagpur are being blamed on SIMI. There is no doubt that these are the crimes which are required to be dealt with severely under the provisions of the existing law. But it is only due to the fact that the government has absolutely no basis to support its ban on SIMI that subsequently events like the bombing of the RSS office or the recovery of arms from one Mohammed Amir Shakeel Ahmed are being blamed on SIMI. It is being said that these persons particularly Mohammed Amir Shakeel Ahmed is a part of SIMI. SIMI had clarified way back on 9th May, 2001 that this person Mohammed Amir Shakeel Ahmed had nothing to do with SIMI. However, the Press continues to report that he is a part of SIMI obviously at the instance of the Government Agencies. A sustained and concerted effort is being made to seek to reinforce these false impressions in the minds of the public that SIMI is a terrorist organization. This obviously will lead to interference with the judicial process of the Tribunal. The Supreme Court of India, the High Courts of various States and many Courts all over the world have held that press reports, movies, Television reports trying to show accused persons / defendants as guilty while they are being tried by judicial forum, certainly amounts to interference of justice and contempt of court because there is clear and present danger to the valuable right of the person to defend himself. Even if the Tribunal is not supposed to be influenced by the references in the newspapers but after an impression is being created in the minds of the public that SIMI is a terrorist organization by the so-called respectable newspapers and thereafter if the Tribunal holds otherwise for the lack of evidence, the said judgment of the Tribunal will be viewed with disrespect and suspicion by the citizens of this country. After the concerted and consistent media reports against SIMI especially after the ban was made and that too in the partisan manner by the newspapers without taking into consideration what transpires in the hearing but merely reproducing the affidavits of the government in the daily news papers, certainly amount to interference with the courts of justice. The ban being in the nature of a fetter on the right to association, right to religion and right to freedom of expression no useful purpose will be served if time and again associations are banned and not allowed to exist. This kind of an attitude on the part of the government will certainly lead to alienation of minority organizations from the mainstream. Very few organizations which have been banned under the Unlawful Activities Provisions Act have even cared to appear and challenge the ban before the Tribunal. They have simply refrained from appearing before the Tribunal adjudicating the correctness of the ban and the bans were confirmed. SIMI is one of the few organizations which has been appearing, leading evidence and contesting the ban through judicial process. However every ban imposed against any organization in the history of India has always been confirmed by the Tribunal appointed to look into the ban except in the case of the Rashtriya Swayamsevak Sangh whose ban was lifted by the Tribunal appointed under the Unlawful Activities Prevention Act.
Given the fact that SIMI is a democratic organization with no motives or activities which are a threat to sovereignty of the country and that it has had no activities for the last five years, and no activist of SIMI has been found to be guilty for pursuing illegal activities for and on behalf of SIMI surely the government will not be helping the case of communal harmony by banning such an organization and singling it out for discrimination. Today SIMI has no members, no offices and no activities to speak for the last five years yet it stands banned. However, within a short period i. e., by the 7th August 2006 the fate of SIMI will be decided by the Justice B. N. Chaturvedi Tribunal.