THE SENIOR ADVOCATE A MARIARPUTHAM was all set for an important day in court. He was to appear in front of a division bench of the Supreme Court on 15 April 2015, representing the National Investigation Agency, India’s primary anti-terror task force, against five accused in one of the nation’s largest terror attacks. On 29 September 2008, during the Islamic holy month of Ramzan, two bombs concealed in a motorcycle had exploded in the Muslim-dominated town of Malegaon in north-western Maharashtra, killing six people and injuring more than a hundred. Another bomb had gone off on the same day, near a mosque in the Muslim-majority Sukka Bazaar area of Modasa, a town in Gujarat.
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The accused were all members of a Hindu militant group called Abhinav Bharat, linked to several senior Rashtriya Swayamsevak Sangh leaders. By the time Mariarputham got up to address the judges on the case seven years later, Narendra Modi’s Bharatiya Janata Party—the political wing of the RSS—had been in power at the centre for nearly a year. The argument that Mariarputham had prepared for court that day was interrupted.
The hearing pertained to a case filed by Pragya Singh Thakur and several other key accused in the case, challenging their trial under the Maharashtra Control of Organised Crime Act—a stringent law against repeated unlawful activity. Thakur had previously been a national executive member of the Akhil Bharatiya Vidyarthi Parishad, the RSS’s student wing. For the prosecution, trying Thakur under the MCOCA was vital, as the law allowed confessions made to the police—which are otherwise inadmissible in court because of the possibility of being extracted by force—to be used as material against those accused. In their confessions, three of the accused claimed that Abhinav Bharat had collected a large stash of weapons and that Thakur had met the other members of the terror cell at a training camp in Pachmarhi, Madhya Pradesh, two years before the attack. The confessions were backed by witness statements, as well as audio and video recordings seized from the laptops of the accused.
Thakur’s bail would mean a major defeat for the NIA’s case, and the MCOCA was the primary tool to prevent it. Along with Aseemanand—a former national head of the Vanvasi Kalyan Ashram, the RSS’s tribal wing—Thakur was the most high-profile name tied to a string of seven bombings across five states, in 2007 and 2008, which the Abhinav Bharat network had allegedly executed, killing a total of 119 people, most of whom were Muslim. The bomb in the Malegaon blast had been left outside a mosque on a motorcycle registered under Thakur’s name. She had also allegedly attended training camps, in which she and other accused planned all the attacks and were trained in bomb-making and the use of weapons.
A year before the hearing, Thakur had challenged the NIA’s constitutional validity and, by extension, its right to investigate the case. Representing the NIA, Mariarputham made a strong case defending the agency, and the Bombay High Court upheld the agency’s investigative powers.
The case to maintain the MCOCA against Thakur was not a hard one to make. The evidence against her was strong. Rohini Salian, the NIA’s special prosecutor in the case, had presented the evidence to the Bombay High Court only a year earlier, and the court had found it sufficient to deny Thakur bail since “a strong prima facie case” existed against her. Before Mariarputham could start his speech, however, a voice from the other side of the room piped up. Tushar Mehta, a close confidant of the prime minister who had been appointed as the additional solicitor general two months after Modi assumed office, told the Supreme Court that Mariarputham could not appear in the case. He gave no reason for his objection. Anil Singh, another freshly appointed additional solicitor general, appeared before the court to argue on behalf of the state of Maharashtra. Singh stated that he had already made his argument, but Mehta said, “I will be appearing on behalf of the state of Maharashtra in addition to Mr Anil Singh. I’ll put forth all the facts.”
A visibly upset Mariarputham asked to be allowed to leave the court. The bench, however, said that it would like to hear him. Mariarputham argued that, due to the gravity of the offence, the accused were not entitled to bail. Mehta, now representing the NIA, undermined this argument by saying that, “in the event of granting bail,” severe conditions should be imposed. The division bench ruled that there was “considerable doubt” about the involvement of six of the accused in the case, including Thakur, and that the trial court ought to hear their bail plea afresh and decide on whether the MCOCA was applicable. Salian later told the media that, the day before the hearing, Mariarputham had been unofficially asked by a senior NIA official to not appear on the agency’s behalf. Mehta, Singh and Mariarputham did not respond to questions.
Seven years later, the case is in shambles. Several major witnesses in the case—20 at last count—have turned hostile. The NIA has now challenged the “questionable circumstances” under which the MCOCA was invoked against other suspects. The case all but unravelled by the NIA’s own doing. The trial in the case is still ambling along.
In January 2017, the NIA recommended that Thakur be granted bail. Two years later, she was elected to parliament on a BJP ticket. Mariarputham’s role in the NIA appears to have faded since.
THE YEAR 2008 was a high point for the Congress-led United Progressive Alliance government. The economic boom triggered by liberalisation in the early 1990s was reaching a peak. Signalling the hopeful growth of a burgeoning Indian middle class, Tata had launched the Nano, reportedly the world’s cheapest car. It was a good year for government employees, who had been promised a forty-percent raise by the sixth pay commission. India’s first lunar probe was successfully launched. In October that year, the United States and India signed a historic nuclear agreement, a diplomatic coup that suggested the West’s recognition of India as a stable democracy. The UPA, led by Prime Minister Manmohan Singh, had by then passed a series of progressive laws—particularly the National Rural Employment Guarantee Act, the Forest Rights Act and the Right to Information Act. There were renewed assurances that the country’s most backward would not be left behind by what western analysts called the Indian economic miracle.
Along with Aseemanand, Thakur was the most highprofile name tied to a string of seven bombings across five states, in 2007 and 2008, which the Abhinav Bharat network had allegedly executed, killing a total of 119 people, most of whom were Muslim.
This brief reverie came to a sudden halt in November. Two months after the blasts in Malegaon and Modasa, India witnessed another deadly attack. Ten members of the Lashkar-e-Taiba, an Islamic militant organisation based in Pakistan, went on a rampage across several key locations in Mumbai, killing almost two hundred people and severely injuring three hundred others. The three-day bloodbath was India’s most fatal terror attack. It put an end to the mirage of domestic stability that India had successfully projected to the world. Several members of the European parliament were present at the Taj Mahal Palace Hotel, one of the targets. A total of 29 foreign nationals died in the attack.
The Manmohan Singh government found itself working overtime to address domestic and international anger. In op-eds and television debates, fingers were frequently pointed at India’s lack of a police force with federal jurisdiction that could efficiently investigate offences with inter-state and international ramifications. The BJP, then in opposition, denounced Singh’s repeal of the Prevention of Terrorism Act, insisting it was evidence that his government did not have the will to handle militant violence. The POTA had been enacted by the BJP-led government of Atal Bihari Vajpayee in the aftermath of the 2001 attack on parliament. It was the most recent incarnation of a set of laws that, since colonial times, had vested the police with extraordinary powers to crack down on movements that were seen as extra-constitutional.
The Congress manifesto before the 2004 general election promised to repeal the POTA, recognising its frequent misuse against marginalised communities, and Singh’s government did so soon after assuming office. After a series of bomb blasts struck Mumbai in 2006, Singh ruled out the possibility of bringing back the POTA. “It is far from true that POTA is the only means to deal with terrorists,” he told the media. “There are many other ways. We will strengthen our intelligence-gathering ability and we will look at the security apparatus, both at the central and state levels, to do that.”
Most security experts believed that the 2008 Mumbai attack was due to a complete failure to act upon intelligence inputs. “In early 2008, intelligence trickled in, primarily from US agencies, that the LeT was planning to attack Mumbai,” the investigative journalist Josy Joseph wrote in his book Silent Coup. “Unfortunately, this information flowed into a severely contaminated intelligence set-up, where it mixed with unreliable inputs, and often outrageous falsehoods, that were sending Indian agencies on wild-goose chases. The secretive world of intelligence, with almost no external accountability and minimal formal audit of the quality of its information and analysis, believed its own lies and falsehoods, amplified its own biases and justified its own mistakes.”
On 29 November 2008, the day the siege in Mumbai ended, the Congress leader P Chidambaram took charge as home minister. Besides amending the Unlawful Activities (Prevention) Act to bring back several provisions of the POTA, Chidambaram created a surveillance infrastructure that has cast long shadows over Indian democracy. He first envisioned a National Counter Terrorism Centre, whose mandate was to prevent and contain terrorist attacks, and respond “by inflicting pain upon the perpetrators.” The NCTC was supposed to oversee a wide array of surveillance infrastructure. This included the National Intelligence Grid—an integrated database—and the Crime and Criminal Tracking Network System, an online tracking system that ties together fourteen thousand police stations across the country. As of early-2022, neither the NCTC nor NATGRID had been fully operationalised, but their scope in a panopticon of heavily centralised data-gathering has only expanded under Modi’s rule.
India’s most professional investigative agency, formed primarily to deal with terrorism alone, has morphed into one that is sent after inter-religious couples, cattle smugglers, human-rights lawyers, Rohingya refugees and octogenarian priests.
The second step was the creation of
