Petition in Supreme Court Accuses National Investigation Agency of Soft-Pedaling Hindutva Terror Cases

Even as the Modi government told Parliament on Tuesday that the National Investigation Agency will not oppose the grant of bail to Swami Aseemanand – prime accused in the Samjhauta Express blast case – a PIL has been filed in the Supreme Court accusing the premier investigation case of going soft in terror cases linked to right-wing Hindu groups.
Sixty-eight people were killed in the February 2007 bombing of the Samjhauta Express, most of them Pakistani nationals. The NIA “has not found any basis” to challenge Aseemanand’s conditional bail, Minister of State for Home Haribhai Parathibhai Chaudhary disclosed in reply to a written question on August 11.

The PIL filed by former Additional Solicitor General of India Indira Jaising on behalf of petitioner Harsh Mander –  a former IAS officer-turned-social activist – seeks to draw the apex court’s attention to the NIA’s efforts to exert “external pressure/influence” on Special Public Prosecutor Rohini Salian  to “go soft” on the 11 accused in the 2008 Malegaon blasts case and “thereby trying to seriously compromise a free, fair and transparent trial.”

Among the accused are Pragya Singh Thakur (a former ABVP activist), retired Major Ramesh Upadhyay, Colonel Prasad Purohit, and Sudhakar Dwivedi, all of whom are associated with the Hindutva radical group Abhinav Bharat. Salian went public with her allegations in an interview with the Indian Express dated June 26, 2015.

The PIL argues that as is evident from Salian’s statement, the “hallmark of the Special Public Prosecutor’s office i.e. its independence from government influence, has been severely compromised” and seeks the intervention of the Supreme Court to ensure “that the trial is conducted in the most impartial and fair manner irrespective of the outcome…”

The petition refers to Salian’s statement that since the NIA took charge of the case under the orders of the Ministry of Home Affairs on April 13, 2011, it has not added any further evidence whatsoever in the Malegaon blast case or cases relating to other terror acts by organisations claiming to propagate the cause of Hindutva. This, despite the fact that the confession of Aseemanand refers to the involvement of Hindutva radical groups in the Samjhauta Express and Mecca Masjid blasts (both in 2007) and Malegaon blasts (2006).

Although the Rashtriya Swayamsevak Sangh officially insists Aseemanand has never been associated with the organisation, RSS activists from West Bengal – where he hails from – have said he was indeed active in the sangh. On his part, the Samjhauta blasts accused has made no bones of his close links with the RSS.

Specifically raising the issue of the role of political pressure in delaying the trial of the 11 accused in the 208 case, the PIL  argues that “subversion of judicial process and interference thereof by the state itself and / or through its agencies, defeats the fundamental right of free and fair trial.”

The case has undergone a convoluted trajectory: On January 20, 2009, the Maharashtra ATS, headed by the late Hemant Karkare, filed its charge-sheet pertaining to the 2008 Malegaon blast case before the special Maharashtra Control of Organised Crime Act (MCOCA) court in Mumbai. Rohini Salian was appointed Special Public Prosecutor in the case. The ATS investigations threw light on the existence of Abhinav Bharat and subsequently, some of the accused in the 2008 Malegaon blast were found to be behind other attacks such as the Malegaon 2006 blast.

On July 31, 2009, a Special Court constituted under MCOCA discharged all the 11 accused from the offences punishable under that Act, stating that at the time of the 2008 Malegaon case, cognisance of the charge-sheets in the other blast cases had not been taken. However, on July 19, 2010, the Bombay High Court set aside the discharge order stating that cognisance of the offences had been taken by trial courts before the Malegaon charge-sheet came up. The case went back to the MCOCA Special Court.

After the NIA took over, there was no serious follow-up of Salian’s statement about the accused being members of Abhinav Bharat. In a strange twist of circumstances, in August last year Aseemanand was granted bail by the Punjab and Haryana High Court, where the Samjhauta blast case is registered (although, since he was unable to meet the conditions set for bail, Aseemanand is still in jail).

Next, the accused in the Malegaon blast case challenged the Bombay High Court order in the Supreme Court. The apex court  in its order of April 15, 2015, stated that the accused could not be charged under MCOCA since there was no evidence. Further, the order said the accused can approach the Special NIA Court when constituted, for bail and that it was for the Special NIA Court to consider whether MCOCA provisions are applicable and decide accordingly. That is where things stand at present.

Hence, coming as the petition does in the wake of recent statements made by Union Home Minister Rajnath Singh in Parliament about terrorism being devoid of religion, the stage seems set for yet another battle, with the principle of rule of law in the country hanging in balance.

see also 
It is no secret that the unstated reason for the government’s opposition was that Mr. Subramanium was the amicus curiae in the Sohrabuddin encounter case (Sohrabuddin Sheikh was prosecuted by the same CBI) and in other cases, where senior figures of the current government are allegedly complicit... In a country where the Judiciary is in charge of its own appointments, something more substantial than an IB report based on innuendo and hearsay is required before impugning the integrity of the candidate and the appointment process.
"The masterminds of the 26/11 attacks are treated like heroes in Pakistan. We are not there yet, but if hidden hands nudge the judicial system to free murderers of the saffron variety, we will be soon"
The Broken Middle (on the 30th anniversary of 1984)

More on justice in India, the death penalty, etc.

NB: I am adding a citation from an important book on Nazism written in the 1930’s: Behemoth, The Structure and Practice of National Socialism; by Franz Neumann. (New York, republished 1963, p 27). A pdf file may be read here: <> DS
(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. 
Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… 

‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…

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