From time to time, when a Rafiq Shah, or an Amir Khan, or a Nisaruddin is acquitted of charges of terror and released from prison after years, there is some public conversation on the question of false arrests and miscarriage of justice. In due course, these unfortunate men fade from public memory and struggle to retrieve a life from the wreckage around them. Rafiq spent 12 years in prison, Amir spent 14, and Nisaruddin, a mindboggling 23 years. Rafiq was accused of planting a bomb at Sarojini Nagar market in New Delhi, Amir of engineering 19 blasts in and around Delhi, and Nisaruddin of planting bombs in five trains on the first anniversary of the Babri Masjid demolition.
Rafiq was a student at Kashmir University when he was arrested. He insisted to the police that he was in class that day and the university also confirmed his attendance. But the elite anti-terror agency of the Delhi police simply suppressed the university communication. There was not an iota of evidence against Amir, a teenager, and as for Nisaruddin, the Supreme Court noted when acquitting him that the confession on which his conviction by the TADA (Terrorist and Disruptive Activities Act) court had been based was inadmissible as evidence, and should not have been allowed into court. Why did these three men spend such long periods in jail? In 2012, our group, Jamia Teachers’ Solidarity Association, brought out a report, ‘Framed, Damned, Acquitted’, which identified certain patterns in the way terror cases are investigated and prosecuted. The boilerplate language of the FIRs, stock witnesses, scant regard for any procedural norms, wilful planting of evidence, illegal detention and torture to extract false confessions — these are the standard operating procedures of the Special Cell.
Add to this prosecutors who do not behave like officers of the court but as lackeys of the investigating agency, and a hyperbolic media which announces the guilt of the accused as soon as the police produces them in a press conference. And then there is the law itself. The broad definition of ‘unlawful activity’ in UAPA (Unlawful Activities Prevention Act), which embraces practically everything that the government may disapprove of — ‘words, either spoken or written, or by signs or by visible representation or otherwise’ — has made commission of violence quite peripheral to the charge of terrorism. In Madhya Pradesh, for example, a state which has not witnessed any blasts or bombings, there are cases booked against Muslim men for ‘furthering the activities of the banned organisation, SIMI’. And the proof of this? SIMI literature (and its photocopies) predating the ban on the organisation becomes the bulk of the ‘evidence’. The recent conviction of Professor Saibaba (and four others) bears out the deeply lawless nature of this law, and demonstrates that wrongfulness is not confined to the stage of investigation alone, but afflicts the judiciary itself. Among other items of evidence of terrorism accepted by the court are ‘cap’, ‘newspaper’ and a ‘banana’, codes apparently for being a Maoist.
While documentation by civil liberties groups has pointed to the insidious workings of special laws such as UAPA and TADA and POTA (Prevention of Terrorism Act) before that, there is scant recording of how unjust and brutal the system can be even in ordinary crimes of robbery, murder, and petty crimes, especially for the poor. The National Crimes Records Bureau is of little help as it collates no data on wrongful prosecution in any kind of crime. Studies in the US, Australia, Canada and Britain have identified a host of reasons why innocents come to be falsely accused of crimes they did not commit. In part at least, we share some of those causes: contaminated evidence, shoddy investigative practices, and poor legal representation. With the founding of the Innocence Project at Cardozo Law School in the 1990s in the US, several law schools spawned their own legal clinics devoted to exoneration of the accused. Their dogged pursuit of justice, relying mostly on advanced DNA technology, has helped free more than 250 wrongly convicted people. Of these, an overwhelming number — 98 per cent — were convicted for rape, murder or both.
Before we imagine a technological panacea, be mindful of this statistic: 70 per cent of those freed through the efforts of the Innocence Project belonged to the minorities, pointing to the systemic biases of the criminal justice machinery. The deeper malaise, of prejudice and systematic perversion of norms, of legal immunity to investigators, can hardly be undone by a technological fix. Besides, the pseudo science of truth serums and narco tests abounds in criminal investigations. Adjudicating on the competing demands of ‘efficient’ investigation and individual liberty, the Supreme Court of India had, in 2010, in Selvi vs State of Karnataka ruled that no individual could be forced to be subjected to techniques such as Narco-analysis, Brain Electrical Activation Profile (BEAP), Functional Magnetic Resonance Imaging (FMRI) and Polygraph as they militated against the Constitutional guarantees.
The urgent question that stares us in the face is about the rights of those who have emerged from the prison cells after years of incarceration. While India is a signatory to the International Covenant on Civil and Political Rights (ICCPR) whose Article 14(6) calls for states to lawfully offer recompense to those wrongfully convicted, India has refused to convert this into law. In fact, only a few of those 168 countries have done so — among them Australia, France, Germany and the UK. Many will remember the swiftness with which the Australian government compensated Dr Haneef who was falsely accused by the Australian police of aiding terrorists in 2007. In India, the only remedy is a civil suit but most of those exonerated are too battle-weary after years of incarceration and trial to undertake another legal case for compensation.
Even when they have done so, as those acquitted by the Supreme Court in the Akshardham case did, the courts have not allowed their petitions. Very often, the courts, while acquitting, merely record that the prosecution has failed to prove guilt beyond reasonable doubt, ignoring the mass of evidence which points towards a malicious frame up. One can only cite Justice Baroness Hale of the UK Supreme Court who, speaking for the majority, widened the definition of miscarriage of justice: “Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the State can prove his guilt beyond reasonable doubt… if it can be conclusively shown that the State was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished.” While technological advances must be incorporated into investigations, it mustn’t become an alibi for increased surveillance and invasive technologies. The debate on police reforms ought to move beyond autonomy from political authorities to creating a more accountable force. Today, legislative reform for compensation may appear distant, but perhaps the first step could be that the courts record the mala fide nature of the investigation while acquitting the accused.
Return to Innocence
Cops cooked up evidence
Satyam Babu spent eight years in jail after being framed by the Vijayawada police for the murder of a 17-year-old student. The trial court accepted the police version but the High Court picked holes in the material presented by the police. In a rare case, the court awarded Rs 1 lakh as compensation.
DNA proof to his rescue
In 1997 a Japanese woman was murdered in her apartment. Maimali, a Nepalese worker, was arrested, physically abused and not allowed a lawyer. He was sentenced to life. He appealed stating that the DNA evidence was not his and was acquitted in 2012.
Saved by the word
Paul Blackburn spent 25 years in jail after he was convicted, aged 15, for sexual assault and attempted murder of a nine-year-old boy in 1978. The court learnt that the cops “did not tell the truth” when they said he had confessed.
Trio walks free after 23 years
In 2016, three men walked out of the Jaipur jail after 23 years when the Supreme Court acquitted them. They were booked for causing five bomb blasts on trains in 1993 on the first anniversary of the demolition of Babri Masjid.
(Manisha Sethi is the author of Kafkaland: Prejudice, Law and Counterterrorism in India.)
