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Updated: December 5, 2012 19:33 IST

No excuses for this error of judgment

Vidya Subrahmaniam
Comment (12)   ·   print   ·   T  T  

From illegal detentions to wrong convictions, India’s terror prosecution is in dire need of attitudinal overhaul

Only those condemned to await their own deaths will know what it is to be suddenly blessed with the elixir of life. On November 22, two Kashmiri men found themselves lifted out of the darkness of their death row cells into light, life and liberty after the Delhi High Court set aside their convictions in the 1996 Lajpat Nagar market bomb blasts.

Grievously wronged

Mirza Nissar Hussain and Mohammad Ali Bhatt were grievously wronged by the Delhi police and the prosecution which, in the words of the High Court, committed lapses so “grave” that they raised “a question mark on the nature and truthfulness of the evidence produced.” The case had fallen below the threshold of “minimum proof required in a criminal trial,” the court said.

Minimum proof and maximum punishment? Why were Hussain and Bhatt sentenced to death when there was no evidence even to convict them? The curious fact here is that the trial court itself was distressed by the quality of the police investigation, which it described as “highly defective.” Hussain and Bhatt eventually bridged the impossible gulf between death and freedom because a sensible, sensitive appellate court was able to see that the evidentiary dots simply did not connect in their case.

This High Court judgment, and a Supreme Court judgment of September 2012, have taken our understanding of terror investigations to a level where the usual excuses can no longer suffice to explain away acquittals. Indeed, if a pattern has emerged in recent years of terror trials leading to acquittals, it has equally become a pattern for the police to blame the acquittals on the nature of terrorism which made evidence gathering difficult, more so in a system hamstrung by inadequate manpower and outdated forensics. The implication is that the men are guilty but get away.

The High Court rejected the police-prosecution argument that the law and the courts demanded “impossible standards” of proof which was bothersome in terror crimes. It said the “weakness of the state” could not justify “lowering of standards.” Very significantly, the court also noted that the evidence appeared to be manufactured.

Overturning the convictions of 11 persons under the Terrorist and Disruptive Activities (Prevention) Act (TADA), the apex court berated the prosecution: firstly for falsifying evidence regarding a key TADA safeguard and then for arguing that the case did not turn on this piece of “technical evidence”. The plea was not good enough, the court said, dealing a blow to the spurious logic that subterfuge was a small aberration in the battle against terrorism.

Adnan Bilal Mulla

I record here the travails of Maharashtra resident Adnan Bilal Mulla. The case is not quite as dramatic as the one illustrated above but it shows the lengths to which the state will go once it has judged a citizen to have made the transition to terror suspect. Adnan was to get married on May 24, 2003. The marriage took place instead on April 14, 2010 — at that because his fiancé, now wife, mustered the will to wait for a man sent to jail under the Prevention of Terrorism Act (POTA). Through the seven years he was in jail, Adnan, who owned a fruit juice stall in Padgha in Bhiwandi, could not get bail, nor was he brought to trial. Nearly a decade after his arrest, trial has still to start in the case, and alert to the dark possibilities of the future, his family lives each day as if it were the last.

Adnan’s lawyers went back and forth from trial court to High Court, filing applications, appeals and writ petitions, before securing his release on bail in February 2010. The prosecution constructed a powerful story of terror and conspiracy. In actual fact, the evidence was thin and far from constituting grounds for believing Adnan was guilty as charged — a legal requirement to justify persistent denial of bail.

Quite to the contrary, startling evidence surfaced while Adnan was in jail to show that the police had kept him under illegal detention for over a month and charged him under POTA when he refused to implicate Saquib Nachan, his brother-in-law and the main accused in a series of three bomb blasts recorded between December 2002 and March 2003. The trial court thrice refused Adnan bail, the last time in 2008, just months after a judicial enquiry confirmed his “illegal and unauthorised” detention. The enquiry report concluded: “There is a clear probability that the investigating agency did not want to make Adnan an accused but it wanted to make him a witness.” In other words, Adnan was summoned as a witness against Saquib, and when he did not oblige, he was made a co-accused with Saquib and charged similarly: conspiracy to wage war against the state by committing terrorist acts.

Two years earlier, in February 2006, a two judge-bench of the Bombay High Court had rejected Adnan’s bail plea, condemning him in harsh language and justifying his incarceration through broad-brush theories of “larger conspiracy” and “guerrilla war against the state.” The rejection prompted Adnan’s family to file an RTI application seeking his whereabouts between May 5, 2003, the day he went missing, and June 9, 2003, when he was shown as officially arrested. The reply nailed the police lie: Adnan was given over in custody to Mumbai’s DCB-CID on May 5, 2003. Armed with this proof, Adnan’s lawyers demanded a judicial enquiry into when and why he was arrested.

The enquiry, conducted by Principal Sessions Judge T.V. Nalawade, established the following. On March 27, 2003, the Padgah police registered an FIR against Adnan and several others for obstructing the arrest of Saquib. It was a bailable offence, and since Adnan was shortly to get married, he surrendered to the Padgah police on May 5, 2003. He should have been released immediately. Instead he was handed over to DCB-CID which took him into illegal custody. When Adnan emerged from confinement 36 days later, it was as a co-accused in an omnibus terror conspiracy allegedly plotted by his brother-in-law.

During the enquiry, the prosecution argued that Adnan did not speak of his illegal detention when he was produced before the authorised court on June 9, 2003. Judge Nalawade’s answer to this was that long detentions and the fear of “further harassment” often forced suspects to withhold the truth.

Four years after Adnan was lambasted by a bench of the Bombay High Court, a second bench of the court, with one of the judges being common to both, commented on the injustice done to him and released him on bail.

The judges took on record the enquiry report of Judge Nalawade: “The enquiry indicates that the appellant was initially picked up as a witness, and when he refused to give a statement against the main accused, who is his brother-in-law, he was shown as an accused and for doing so he was shown to have been arrested on 9/6/2003.” The judges pulled up the trial court for refusing Adnan bail and for its failure to consider the changed circumstances arising from the contents of the enquiry report. The judges further said: “the evidence [produced by the prosecution] cannot be, as of now, read as to hold that there is sufficient evidence to record a conviction against him [Adnan].”

Adnan’s story is by no means unique: illegal detention, planted evidence and denial of bail have become so much the rule that not just the police force but society at large has come to view these as legitimate weapons to be deployed in the fight against terrorism. A recent study of 16 terror crime acquittals by the Jamia Teachers Solidarity Association showed illegal detention and trumped up charges in a majority of cases. More recently, it has been disclosed that a member of the R.D. Nimesh Commission expressed serious doubts on the “date, place and timing” of the arrests of two bomb blast suspects in Uttar Pradesh.

Worst bias

Terror suspects suffer the worst attitudinal biases because the horror of terrorism tends to bring out the vigilante in the ordinary person. The state capitalises on this revulsion to such an extent that terror suspects are thought to have no rights at all. In 1996, the Supreme Court laid down a set of procedural safeguards, known as the D.K. Basu guidelines, to prevent illegal arrests and custodial torture. The charter gave an arrested person the right to inform his relatives of his arrest “as soon as practicable.” It also placed an obligation on the police to convey to the relatives the details of “the time, place of arrest and venue of custody.” Though the charter has since passed into law, it is not even followed in the breach. The pregnant wife of Fasih Mahmood — an Indian engineer working in Saudi Arabia who went missing in May this year — had to file a Habeas Corpus petition to establish his location when she was entitled to get this information from the Indian authorities.

Fasih, who has been named a co-founder of the Indian Mujahideen, was formally arrested in India on October 22. If he was illegally detained, his family should have been told about it — not only because the law gives them this right but because illegal custody is where forced confessions happen, leading to vitiated trials and verdicts.

This article has been corrected for an editing error.

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I feel we are now living in a police state. The police enjoys unlimited powers supported
by judiciry and protected by State. The human rights of the citizens are being
trampled by the state through i9ts power arm i.e. poloice and such other forces. India
has not yet signed the international instrument against violence . Torture, forced
confessions and fake encounters are the routine. I feel unless we compell the state to
implement police reforms guaranteeing fredom of action and making it accountable
for its actions, we cannot claim our selves to be a true democratic country.

from:  S R Darapuri I.P.S Retd
Posted on: Dec 5, 2012 at 14:15 IST

While it is welcome that one court or the other gets to the bottom and
delivers justice in such cases, is it enough to just pull up the trial
courts or the police for the gross mishandling? Should we not have a
procedure in place that punishes them for such lapses? Only then can we
be assured of having set a strong deterrent.

from:  Ramnath R
Posted on: Dec 5, 2012 at 13:44 IST

agreed. we have to be careful in deployment of armed forces personnel in sensitive areas so we do not alienate with the general public whose understanding is crucial so that their support is available in nabbing real culprits.
It is sad that we have to continue to waste millions of hours of productive man power and billions of rupees which could have been avoided had the nehru government acted with foresight immediately after independence and and had not trusted the united nations which by and large is controlled by western interests inimical to indian development since early days

from:  V.krishnaswamy
Posted on: Dec 5, 2012 at 12:35 IST

How far the state can intervene in our life? That is the most appealing
question of the hour. In the name of nation's security, the state and
the security are making the citizen of this country more insecure and
vulnerable. Illegal detention and brutal torture is a daily issue in
areas like Jammu & Kashmir, North East and the recent additions are
Chattisgarh, Jharkhand and Andhra Pradesh. It gives us immense sorrow to
see that such kind of incidents (like described in the article) happen
daily and hardly any justice is being provided.

from:  Kaustav K. Sarkar
Posted on: Dec 5, 2012 at 11:50 IST

Our judiciary system is to protect people and convict the guilty,but
the way our police or investigation agencies brings up the facts and
reports to courts are under big question mark.Various case discussed
above shows the incompetencies of our investigating agencies and
judiciary to truly convict the guilty. Fabricated facts can anyway put
anybody behind bars.We gave our self our constitution and judicial
system to protect the right of everyone and punishment for
wrongdoing;but if system works in this manner whom we can hope from?
Our judicial system really needs a overview and the scrutiny of
investigation agencies also needed,otherwise 7 years of unnecessary
detention might not disturb our system but will throw apart roots of a
happily settled family and their faith in our system too.

from:  Mayank Kanga
Posted on: Dec 5, 2012 at 11:49 IST

Looks like the Indian Govt, Indian media and the Indian public in general don't seem to understand the ramifications of such prejudice and wrongdoing against the Muslims in general and Kashmiris in particular. Maybe half of the bomb blasts that take place in India are carried out by wronged people or their sympathizers. India if not for the sake of Justice or sensitivity, at least for its own safety must not destroy others' lives -- and all the right-thinking people must raise their voice strongly or else they can be guilty of silence.

from:  Yashwanth P
Posted on: Dec 5, 2012 at 11:04 IST

The Plight of Bhatt and Hussian is not new in India.
There have been numerous such cases some reported by media, and some
not.
But due to the ineffectiveness of police, common people have to bear the
brunt.
The article shows not only the inefficiency of police but also of the
trial court, as in case of Adnan.
Strict action need to be taken against police in such matters.

from:  Kumar Anshul
Posted on: Dec 5, 2012 at 09:53 IST

Really sad.India's prosecution truly needs an immediate overhaul.Illegal detention, forced confession and wrong convictions are a torture and inhumane.There should be punitive measures against the state police involved in such incidents and it it should not be restricted to terror prosecutions only.

from:  vineet
Posted on: Dec 5, 2012 at 09:49 IST


Investigation process should be made transparent and fair without any
bias.Government should take necessary steps for amendment in order to
ensure that the loop holes are not being used by any one during
prosecution against the acquittal.

from:  Surendirababu
Posted on: Dec 5, 2012 at 09:05 IST

It is very sad to note these innocent muslim men have suffered under draconian laws

from:  Malick
Posted on: Dec 5, 2012 at 03:59 IST

Unjust make criminals of those who have to carry it out. Critical review of thses laws of detention without trial are a pre-requisite for fair play and the prevention of incidents as cited. while the security agencies need time and protection in safe guarding the country, this must not over ride the rights of individuals. Such aws allow for shoddy detective work. A strong culture of human righrs is required so as the prevent these incidents.

from:  viren
Posted on: Dec 5, 2012 at 03:23 IST

What this article indicates is not just illegal detentions and convictions but an unfortunate reality of stigmatizing particular community as Terrorists.
Also, regarding Criminal Justice Delivery, this newspaper, in the past, has noted that percentage of Muslims in the prisons is disproportionately larger than their population. It is a sensitive and serious issue.
The other significant thing is that, not much of the mainstream media focuses on Criminal Justice System.
So, this issue has multiple facades - social stigma, archaic laws, pending police reforms, judicial delays & role of Media.
Thanks for publishing this article.

from:  Mahesh J
Posted on: Dec 5, 2012 at 00:52 IST
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