#India- Illegal Detentions of Muslims -No excuses for this error of judgment

December 5, 2012

Vidya Subrahmaniam, The Hindu

 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nature of terrorism which made evidence gathering difficult, more so in a system hamstrung by inadequate manpower and outdated forensics.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


#India- Shocking case of miscarriage of justice

Wanton Lawlessness, Outlook
The Lajpat Nagar bomb blast case of 1996 shows horrendous police culpability — if the court had not noticed the ‘casualness and slipshod approach’ of the police, three persons might have been wrongly executed by the state

Instances of miscarriage of justice are many in India. Sometimes, such instances arise due to gross negligence by the police in the investigation. Sometimes, due to wanton fabrication of evidence and violation of the legal procedures to be followed during the investigation.

Such instances continue to take place and even increase in number because of the lack of fear in the police officers that action might be taken against them for miscarriages of justice caused by negligence or mala fide actions or inaction.

There has been a worrisome increase in the number of such cases ever since terrorism made its appearance in the early 1980s.Calls for ruthless action against terrorists and zero tolerance of terrorism have unfortunately created an impression in the minds of sections of police officers that any methods are good methods for dealing with terrorists and terrorism. Political tolerance of the use of illegal methods in dealing with terrorists has added to the belief that the police can take liberties with the law and procedures while dealing with terrorism.

One has to be firm and ruthless under the law in dealing with terrorists, but one cannot go beyond the law in dealing with them. One has to use the might of the law against them, but one cannot use illegal methods and procedures during the investigation. Use of such methods and procedures prove counter-productive.

Since many of the acts of terrorism committed in India are by jihadis, innocent Muslims have often been the victims of mala fide investigation. Instead of controlling terrorism, it aggravates it by adding to the anger in the Muslim community against the police and other investigating agencies. It becomes a vicious circle. The more illegal the methods used by the police, the more the terrorism. The more the terrorism, the more illegal the methods used by the police.

A shocking instance of such wrongful action and miscarriage of justice has been brought to notice after 16 years by a Division Bench of Delhi consisting of Justice Ravindra Bhat and Justice G.P.Mittal. In a judgement delivered on November 22, 2012, it has acquitted two Kashmiri Muslim convicts who had been awarded death penalty by the trial court in a case relating to an explosion in the Lajpat Nagar Market of New Delhi in 1996 in which 13 persons were killed. Another convict’s sentence was reduced to life term.

It is a horrendous case because if the court had not noticed the wanton miscarriage of justice by the police, three persons might have been executed by the state on the basis of evidence of questionable value and authenticity. It was not a case of the police unconsciously using such evidence, but wantonly using such evidence in full knowledge of its lack of authenticity in order to obtain a conviction.

The judgement has said: “Police have not maintained minimum standard of probe in the case, test identification parade (TIP) was not conducted, statements of vital witnesses were not recorded. There was also absence of (police) daily diary entry in the case.” The court has observed that there was casualness in the investigation of the case.

While we have taken many steps to improve the quality of intelligence collection and physical security, we have not succeeded in improving the quality of investigation. This has had two results. Firstly, an increasing number of undetected cases. Secondly, instances of the use of wrongful methods and miscarriage of justice in cases which are claimed to have been successfully detected.

After the 26/11 terrorist strikes in Mumbai, the government had set up the National Investigation Agency (NIA) to improve the quality of investigation. Despite this, the number of undetected cases has been increasing. This judgement has drawn our attention to a serious case of miscarriage of justice due to bad investigation in the year 1996– sixteen years later. One does not know how many more such instances remain unnoticed or undetected during the prosecution and trial.

It is important for the government to go into this and take corrective action to prevent a recurrence of such instances. There is a need to improve not only the quality of the investigation, but also the quality of the supervision over the investigation by senior officers.

B. Raman  is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies. E-mail: seventyone2@gmail.com Twitter @SORBONNE75)


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