Naseema Bano from IoK and Lawless Special Laws of Indian State

By Shanti Agarwal

There are several incredible women in Kashmir (Editor’s Note: read as Indian Occupied Kashmir) who are behind bars for their political ideology rather than any armed resistance they have been taking part in.

The National Security Act (NSA), the Public Safety Act (PSA) and the Unlawful Activities (Prevention) Act (UAPA) are among the regular laws, outside the Indian Criminal Procedural Code (CrPC) that are used rampantly against these brave women leaders.

One of those Kashmiri women is 56-year-old Naseema Bano.

Naseema Bano was arrested by the police on June 20, 2020, following a raid at her residence by a joint team of the police and Indian Army in Rampora village (Qaimoh), Kulgam district in south Kashmir. Her bail was again rejected on July 14 although she has critical health problems.

Naseema Bano and Lawless Special Laws of Indian State
Naseema Bano and Lawless Special Laws of Indian State

Bano was arrested in a case (FIR No. 30 of 2018) under Sections 13B, 17, 18, 18B, 19, 39 of the UAPA.

“Bano is allegedly involved in a serious criminal case because her son Tauseef Ahmed Sheikh took arms to save the grace of Kashmiri girls who had been subjected to sexual torture of Indian military forces. Tauseef was killed in a gunfight with the state armed forces on May 6, 2018. Since then Bano is a new target of Indian atrocities.

Police claim Bano is  involved in recruiting at least two youth (her sons) into terrorist ranks, arranging arms and ammunition, communication and logistics for terrorists and terror organisations

New Delhi claims that Bano had been recruiting militants because she had a photo with her son who was an armed-resistance follower. What is clear is that it is her pic with her son, which took rounds in Occupied Kashmir irked the authorities, who have been anyway in a mood to tell the world that no mother will be spared in IoK.

After the murder of his son, she wanted to die for meeting her late son but later on, she decided to stand with the cause for his late son gave his life—-Freedom from Oppression.

Her elder son, Farooq Ahmad Sheikh was also arrested in November 2018 and he is at Anantnag district jail.

When Kashmiri journalists questioned the police for arresting a woman without solid charges, the police said that she (Bano) was involved in much more serious offenses and her role has surfaced in recruiting at least two youth (her sons) into terrorist ranks, arranging arms and ammunition, communication and logistics for terrorists and terror organizations.

Police released a separate statement which says:

“Just because she happens to be a woman or the mother of a killed terrorist does not make her immune to arrest. It is the prime duty of the police to arrest criminals to safeguard people it serves and that is what it has done. Anyone who wishes to challenge the decision is free to approach the court of law for redressal”.

Bano’s sister Rafeeqa when contacted said that the police raided their houses several times and then arrested Bano, and the family had no information for several days where she was.

While giving details of Bano’s arrest Rafeeqa says:

 “They ransacked the house and even beat up family members. Then, they conducted searches in the entire village. After returning from the village on the morning of June 20, the police summoned some villagers and asked them to bring members of the Sheikh family to the police station.

My sister, her husband and other family members went to the police station in the afternoon. While other members were released, she (Bano) and her husband (Abdul Salam) were detained”.

Later in the evening, she said the police released Salam while Bano was formally arrested.

She is a diabetic patient and suffers from heart ailments as well. After her arrests, her health condition had deteriorated and she had to be hospitalized”.

Bano is presently lodged in the women’s police station in Anantnag. The Sheikh family has now approached a court to seek her release.

There are many Banos in Indian Occupied Kashmir but their cases are purged and the people around them are unaware of their fate.

The Indian legislature has made several laws that negate fundamental rights and are even contradictory to each other. These laws were passed by the Parliament in specific circumstances but have been used for Indian military and para-military forces without their connotation and denotation of specific circumstances.

The use of these laws has been continued even after the circumstances in which they were created have passed because these laws have endowed the state with excessive powers to violate constitutionally guaranteed rights at both the individual and at the community level.

There is a long history of abusing these extraordinary and special laws in India and forces use such laws to snub who question human rights violations conducted by military or para-military forces.

Some of the glaring examples of misuse of such laws include:

Table of Contents

NSA

The National Security’ Laws to Suspend Fundamental Rights (NSA) have usually been deployed against those who have protested against gross human rights violations committed by the military and the government.

In 1992, Niloy Dutta, Parag Kumar Das, and Ajit Bhuiyan were arrested in Guwahati under unspecified sections of the NSA. It was alleged that they were disrupting the process of peace-building in Assam and were involved in “anti-national” activities that threatened the sovereignty of the country. They were released eight weeks later after the arrests were met with much protest. They were the founding members of Manab Adhikar Sangram Samity (MASS), which had been compiling evidence of military atrocities and the use of rapes in the state for the past year.

MASS had incontrovertible evidence of Army atrocities and flagrant violations of human rights by the Indian Armed Forces during operation Rhino. MASS sent three groups fully equipped with audio and video gadgets to three zones of the slate to compile cases of army atrocities. Braving severe restraints imposed by the army and civil authorities, these groups had succeeded in recording cases of arrest, torture, molestation, rape, killing and so on. With painstaking effort, they compiled a comprehensive 65-page report enlisting the cases of army atrocities, which included 13 cases of death in army camps, seven cases of rape, as many as 120 cases of brutal torture, 139 cases of illegal detention and 63 cases of indiscriminate army raids in villages, unlawful public beatings and torture, all with specific dates, places and blow-by-blow accounts of the incidents, fully substantiated by physical evidence. They also recorded the most brutal incidents on films. Most damaging of all was a video cassette that had recorded the atrocities on women much of which cannot be written and shown in public.

PSA

The Public Safety Act (PSA) is another act that has been used indiscriminately in Kashmir to facilitate preventive detentions of “suspected militants”, especially since Burhan Wani’s death in 2016.

The PSA has been called a “lawless law” because of the arbitrary nature in which it is used.

The scope for arbitrary detentions under the PSA is tremendous. First Information Reports (FIRs) under this law are usually “open FIRs.” The police merely record that a certain incident has occurred, and even if some names are recorded, the FIR also states “and others.” Therefore, any person can be arrested under these FIRs as having been involved in the protests.

The scope of Open FIR for misuse is best highlighted by Khurram Parvez’s case. The police dossier listed four FIRs as the grounds for his arrest. However, he was not named in a single one of these FIRs. He was just one of those “others” to have been arrested as a consequence.

Another case that highlights the scope of misuse is that of Abdul Rasheed Bhat. As per the records of his government job, he was present at work at the time of the offence, but was named under all three open FIRs listed in his PSA dossier.

UAPA

 

We remember that in August 2018, the Unlawful Activities (Prevention) Act (UAPA) was used to arrest five human rights activists by accusing them of being “Naxals” operating against the state because they were questioning alleged rapes conducted by Indian military forces against marginalized communities.

The UAPA has also been misused wildly, and several controversial arrests had been made under it. One of such cases includes the arrest of Delhi University Professor G N Saibaba on the allegation of being Naxals.

The major charge of the prosecution is that the accused in this case were waging war against the country and supporting the ideology of a banned organisation, CPI (Maoist). Anybody can easily understand that to “wage a war” somebody needs weapons and none of the six accused in the case were shown as possessing any weapon on them when arrested, nor did the police find any in searching their houses. Supporting an ideology, even if the same ideology is adhered to by a banned organisation, cannot be a crime. Such a verdict would not have been possible without the extreme provisions found in the draconian anti-terror UAPA.

In June 2018, in an article titled Urban Maoist, Professor Anand Teltumbde (he is in jail since April 2020) wrote that the “draconian Unlawful Activities (Prevention) Act (UAPA) gives the police unaccountable authority to arrest, slap any number of charges, and ensure that the arrested rot in jail as the law meanders through the courts”. He was writing in defence of Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson – all Dalit activists –  who were arrested under the UAPA, allegedly for being associated with the “Elgar Parishad”. The state claimed that they were Maoists or Naxals who engaged in inflammatory speech that eventually precipitated the violence at Bhima-Koregaon. Incidentally, in August 2018, Teltumbde himself faced arrest under the UAPA, ostensibly for being an “urban Naxal”.

 

POTA

In February 2003 28 Dalit and Adivasi agricultural workers were arrested in Uttar Pradesh, who were allegedly Naxalites. Some of those arrested were later shot in an encounter killing. Navlakha outlined how the “preventive” nature of POTA allows the law to be misused.

Like its predecessor TADA, the promulgation of POTA falls in that category of law where persecution is embedded in it.

More than 76,000 persons had been detained under POTA for years on end destroying lives and ruining their kith and kin. POTA has established itself as a piece of legislation that is meant to terrorise precisely those sections of the population which are vulnerable and are victims of gross injustices and therefore the maximum numbers of those charged under POTA are landless or land-poor Dalits and Adivasis accused of being Naxalites, Kashmiris fighting against oppressive Indian rule or Muslims accused of working in tandem with Pakistan.

POTA was preceded by the Terrorist and Disruptive Activities (Prevention) Act, 1985 or TADA. When it was repealed a decade later, a report in EPW said, “The abuse of TADA is built into the law itself. By replacing normal law and procedure it eats into the foundations of democracy.” According to the report, by mid-1994, 76,166 people had been arrested under TADA but less than 4% were actually found guilty.

We Indian believe we are the largest Democracy on earth but we are shy to ask ourseleves what kind of Democracy we have produced?  We have produced Lawless—Laws through our Parliament.

 

Editor’s Note: Shanti Agarwal (Real name withheld on the request of the writer) is a Law Student Human Rights activist from New Delhi.