Bail for the Kashmiri photojournalist in NIA’s flimsy terror case doesn’t mean much in the Valley’s long, cruel experience with New Delhi’s rule of law.
As details began to emerge in the case of Kamran Yousuf—the Kashmiri photojournalist arrested by the Indian police last September and charged for stone-pelting and “waging war against the government of India”—it seemed the case built by the National Investigation Agency (NIA), India’s top anti-terrorism organisation, stood on flimsy grounds.
Yousuf’s bail granted by a Delhi court on Monday was thus much anticipated—even though it remains an exception in cases of such nature.
The primary evidence presented by the NIA against Yousuf, 20, was the fact that his mobile number was “persistently located at places where counter-terrorist operations were in progress”.
Yousuf, the NIA stated, was not a “real journalist” as he had not fulfilled the “moral duty of a journalist” by covering developmental activities of the government, had “no formal training”, and had chosen to “only cover the activities which are anti-national and earn money [from] such footage.”
Months of relative silence around the case suddenly ended with the anti-terror agency receiving scathing criticism from various quarters.
The Committee to Protect Journalists (CPJ) hit out at the NIA saying the agency “is way out of its league and has no business defining what ‘a real journalist’ should cover” while Amnesty International said it “believes the charges against him to be fabricated and politically motivated, and part of an attempt to stifle journalism in Kashmir.”
“There’s nothing against him,” said Yousuf’s lawyer Warisha Farasat. “They’ve tried to attach documents here and there about what constitutes a journalist, they have protected witnesses that are irrelevant [some are Indian paramilitary CRPF troops] and just can’t be relied upon, there’s been no identification, there’s no material evidence against him, he’s not a member of any terror organisation nor has any organisation been named at all, there’s not even any link between him and the others named in the charge sheet… Basically, they’ve failed to produce anything against him.”
“We have, ironically, used the NIA charge sheet against him to argue his case,” she said.
The NIA, she said, has analysed his phone details and as per their own analysis found nothing—he’s been talking to legitimate people. His presence at sites of stone pelting, etc is naturally understood, she said, as it is his job to cover such incidents as a photojournalist.
Yousuf has been prolific as a freelance photojournalist working since 2014 with some of the region’s major media houses.
“Newsrooms across the world are packed with journalists who never attended a formal journalism class. You don’t need a degree to become one,” said a Srinagar-based Kashmiri journalist. “Such professionals continue to be the majority of journalists here, who worked for regional and international media and covered the worst phases of conflict in Kashmir, just as Kamran did.”
“They have attached thousands of pages to the charge sheet,” said Farasat, “but they haven’t been able to argue anything really substantial in the court.”
“He is an innocent little boy, doing his job as a photojournalist,” said Mohammad Yousuf, Kamran’s grandfather. “If not in areas of conflict, where would he be? That’s no crime, that’s his job.”
“They said he was receiving money, but they saw his bank accounts. Just one was active, the other suspended for lack of deposits. The active one had no more than a few hundred rupees,” he laughed. “So they have failed to prove their allegations. The NIA couldn’t speak a word in response—timan phoreow ne akh jawaab ti.”
Charged also with offences under the Unlawful Activities (Prevention) Act (UAPA) and for being a “member of a terrorist organization”, Yousuf, Amnesty International noted, could face life imprisonment if convicted of the charges.
“Six months have already passed, God knows what Hindustan intends to do, what its policy is,” Mohammad Yousuf said before the bail was granted.
Kashmir has an overwhelming presence of the Indian armed forces who operate under the shield of draconian laws such as the Armed Forces Special Powers Act (AFSPA) while dissent remains brutally suppressed through “lawless laws” such the Public Safety Act (PSA). Soldiers can kill anyone on suspicion while individuals can be imprisoned without charges. Along with many other similar laws, analysts say, the establishment ensures control over people a vast majority of whom demand an end to Indian rule.
Kamran’s bail doesn’t mean much in this larger context.
Kashmir might as well have lost count of people arrested on such flimsy grounds and branded terrorists. Many never returned—more than 8,000 Kashmiris have been subjected to enforced disappearance. While lakhs have been severely tortured, rape has been used a war weapon, and over 70,000 have been killed in brutal counterinsurgency since an armed uprising that began in 1989.
Then there are others who got arrested and acquitted—but only after long and devastating legal battles and incarceration of as many as 14 years.
One such man, Mohammed Maqbool Shah, has a huge file of documents related to his case that he continues to protect. “I can’t come to terms with the fact that I haven’t been compensated. I lost the prime of my youth,” he said. Maqbool spent a decade and a half in prison in Delhi on charges of terrorism until he was proven innocent and released. At 30, he had spent half his age in prison on false charges. Arrested in 1996 at the age of 16 and let go in 2010, the evidence held against him was a spare tyre that the police claimed they found in his rented room in Delhi and belonged to a car used for the 1996 Lajpat Nagar bomb blast.
If the albeit delayed outrage in Kamran’s case is considered a helpful factor, one must go through Maqbool’s fat file. There are faded newspaper clippings and photocopies from the early stages of his arrest and trial that had clearly outlined the gaping holes in the prosecution story.
But then, media and rights groups have been documenting hundreds of similar cases of such subversion of due process over the decades. None of this has affected any correction towards justice.
Maqbool’s once prosperous family business was forced shut with mounting debt over his case. His sister died of brain haemorrhage after she saw him in jail. His father too died waiting for him. “The government didn’t listen to any of my pleas for compensation,” Maqbool said. He finally got a class IV job at J&K Bank, he said, on “humanitarian grounds”.
Shariq Reyaz, a lawyer based out of Delhi, said, “In many ways it’s a failure of the State. If you want to be seen as a welfare state and not a police state, you cannot allow such wanton arrests of its citizens purely on the basis of unsubstantiated suspicion. An intervention from State is called for because the instances of abuse are far too many and the State can’t always see itself as only the prosecutor. It is a protector in equal measure if not less.”
If an alleged offence, the lawyer continued, has taken place within the state, the entire consequence of the alleged offence has ensued in the state and no part of the alleged offence has taken place outside the state, then the investigation as well the trial ought to take place in the state and not elsewhere. “It is basic criminal jurisprudence,” he said.“Fundamental rights are compromised if not denied when accused have to stand trial elsewhere. It is incumbent for any effective state to see that its powers are not indirectly usurped and the jurisdiction of its courts denuded in a manner unknown to law. Cases of stone pelting including whatever criminal colour one may add on to it are entirely within the ken of the state government.”
Another lawyer closely working with the case said: “For a long time nobody knew what evidence they had collected, or concocted. But they couldn’t have taken more than 180 days for filing the charge sheet [as per the relevant law, else the accused gets bailed by default]. Now we finally have the details… and there is no substance in it. It shouldn’t be difficult to fight it out. In terms of legal arguments too, the NIA has had nothing to say at the hearings, they almost seem to be unprepared. A local Srinagar thana would have done a better job.”
What’s old, what’s new
What sets a difference in the latest NIA investigations, however, is the larger strategic offensive against Kashmir’s pro-freedom leadership and the 200-odd armed militants in what has been termed a “lasting solution” to the Kashmir conflict by the Modi-led regime in New Delhi.
Kamran appears in a charge sheet that names 11 others including Pakistan-based Hafiz Saeed, PaK-based Syed Salahuddin, Hurriyat leaders including Shabir Ahmad Shah, Nayeem Ahmad Khan, Altaf Ahmad Shah and businessman Zahoor Ahmad Watali.
What looks similar, observers say, is the modus operandi used for ensuring prolonged incarceration.
A Delhi-based lawyer watching the case closely said, “The problem is the moment you apply UAPA and invoke ‘terrorism’, the judges simply stop applying their mind. There’s a modus operandi… you have a Muslim accused, terror charges, and suddenly a bail becomes an impossibility. It’s been made a matter of practice by the judges… Trial stage mein evidence dekh lenge. The judges need to push and question the investigation agencies. Why are all these cases bungled up? Are you getting the right evidence? Why can’t questions be raised right at the remand stage? The agencies have been given hands too long. Innocent people languish incarcerated. Years pass, and suddenly you are told no one has committed the crime.”
A family member of one of the accused, closely following the case said, “They say subversive acts, money laundering, terror funding, but where’s the evidence? Where’s the evidence?”
It’s been six horrible months in jail, the family member continued. “I’ve gone through the entire 13,000-page charge sheet. There are accusations, but basically no evidence, actually nothing about the charges. A copy of a 2016 protest calendar is mentioned as evidence, a piece of paper that mentions a random figure is shown as evidence of ‘crores of rupees laundered’ or ‘unaccounted wealth’. Suppose that’s true, where did the money come from? Where did it go? There’s nothing about that.”
Then there’s a letter sent by Afzal Guru—about his financial and other difficulties for fighting his case—while he was in jail, the family member said. “But Guru sent letters to many people. Press notes, protest calendars, and IT returns have been included. All this is anyway in public.”
Another family member asked, “If protest calendars were an evidence, don’t they know who made them?”
“Why’s nobody among the top Hurriyat leadership being touched? Is it because then the government won’t be able to control the public backlash? They are basically taking the middle course, they go after the tier-two leadership and tear the top leadership apart from their organisation, cadre and the public,” the second family member said. “They wanted to delegitimize the leadership’s image, and there are people, unfortunately, who accept that narrative. If this is a people’s movement, they must trust their leadership.”
“It’s all a massive conspiracy to crush the movement,” the first family member said. “The top resistance leadership—Geelani, Mirwaiz, Yasin—have been left helpless and isolated.”
Kamran’s arrest, Farasat said, is an attempt to gag the media. Now the NIA is trying to teach what journalism means, it is just an abuse of the process of law, she told PTI.
“But the point is,” the first family member said, “Why not at least openly accept that these are political prisoners, and treat them accordingly? They’ve been begging the judges for life-saving drugs. They are being kept among petty, dangerous criminals.”
“I can’t tell you how intimated I felt even as a visitor.”
Another family source said the families have been trying to pull all kinds of string and it turns out people at New Delhi feel the whole thing has backfired, particularly with extraordinary hype on one hand and lack of evidence on the other.
“But we expect no justice,” the first family member said. “It’s their system, their police, their judiciary. They are free to do whatever suits them.”
A day before Kamran was eventually granted bail, I asked his grandfather what if Kamran turns out to be another Kashmiri among the long incarcerated ones. “I have put my trust in the One who created the earth and the sky, night and day, man and all creatures,” he said. “The One who feeds or deprives us, the One who gives us birth and death… will do justice here, too.”
Maqbool Shah, meanwhile, looked at the dense concrete that the vast orchards of his neighbourhood have become during the years of his incarceration. Real estate prices have skyrocketed, and the once prosperous family—or rather what has been left of it—is struggling for basic survival. “You know what the price of land here used to be, and what it is now,” he asked me. “How do you fight a world that’s beyond recognition? How do I survive?”
Some names have been withheld on request.