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nature of terrorism which made evidence gathering difficult, more so in a system hamstrung by inadequate manpower and outdated forensics.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