The Supreme Court’s recent judgment overturning the convictions of 11 persons mainly under the Terrorist and Disruptive Activities (Prevention) Act (TADA) cuts through the clutter to arrive at the essence of justice-delivery in terrorism-related cases. There is undoubtedly an element of drama in the judgment, which makes reference to a recent Hindi film. Yet the line — “My name is Khan and I’m not a terrorist” — succinctly captures the trauma of a community that has carried the cross of terrorism for far too long and whose members feel defensive and answerable each time terror strikes anywhere in the country. Nonetheless, laudable as the judgment’s human rights approach is, its greater significance lies in going beyond and taking an unequivocal position on the principles of fair investigation and trial, which have somehow come to be seen as dispensable in terrorism cases. In the case under question, the prosecution had argued that disregarding a key requirement of TADA was a technical error which, therefore, could not become a ground for setting aside the convictions. Although the draconian TADA lapsed in 1995, some safeguards were introduced in the law while it was in force, and among them was the addition of a section which made it mandatory for every FIR registered under the Act to have prior permission from the District Superintendent of Police.
The prosecution first tried to falsify evidence by producing a copy of the DSP’s permission. When the Court established that no such permission existed, it argued that the permission was a technical requirement that ought not to have a bearing on the case. The judges rejected the argument saying TADA was an extraordinarily harsh law that could not be interpreted liberally. In the country of the Mahatma “the means are more important than the end,” the judges said, enunciating a truth that the police and the investigating agencies have tended to overlook in their rush to solve terror cases. Thin or fabricated evidence and shoddy investigation do not necessarily help the cause of fighting terror. Far from it, they allow the real terrorists to escape while tarnishing the reputations of innocents. Case after case of arbitrary detentions made on the flimsiest grounds or on trumped up charges, have come to light recently via lower court judgments that have expressed amazement at the state of terror prosecutions in the country. Disturbingly, police forces across India have tended not to take the right lessons from this, seeing terror acquittals as “technical” verdicts arising out of the difficulty in gathering evidence, rather than as a sign that their investigative abilities need serious and urgent improvement.