In April this year, nine Muslim men who were arrested for the 2006 Malegaon blasts were acquitted by a Sessions Court, as there was no evidence against them. In May, Union minister for law and justice DV Sadananda Gowda had expressed concern over false terror charges slapped on Muslim youths that are followed by acquittals due to lack of evidence across the country. There is surmounting evidence, that extraordinary legal provisions to deal with “terrorism” (presently the UAPA, earlier TADA and POTA) promulgated at various junctures have vilified and targeted specific communities. The investigative bias complements the prejudiced image of a Muslim as someone prone to violence driven by anger and irrationality and that of a tribal as Maoist up in arms against the government. Therefore, the security discourse emphasises the need for extraordinary laws and absolute impunity to keep ‘marked communities’ within the framework of criminality. The hegemony of the national security discourse has privileged the strengthening of national security laws and a slow erosion of civil liberties. While laws have been harmonised according to the global consensus on the “war on terror”, India has consciously failed to ratify International human rights conventions.
Image: Jayshankar Menon
In a bid to fix quick responsibility following any acts of “terror”, the law enforcing agencies abduct persons deemed suspicious (the testimonies specifically point out to kidnapping or abduction by the police and not arrest), what follows is a media trial wherein the fourth estate act as faithful stenographers of the state. Thus public memory remains prejudiced and fixed onto that moment of televised castigation of people even before the trial has been concluded.
The media, investigating agency or the judiciary have no fear of any consequences and therefore they are able to implicate the innocent through the systematic abrogation of the criminal justice system. In institutionalising impunity, those who keep guard to defend the state from its ostensible predefined enemy continue to remain outside the purview of law even after a series of acquittals. Thus, the arbitrariness and lawlessness of those responsible for enforcing law gets exposed to show the inherent bias and throws light on routinisation of “wrongful prosecution” as a means to portray that the rule of law is being adhered to, even in extraordinary cases of terrorism. As opposed to the spectacle of arrest of an alleged terrorist, their discharge following a number of years, sometimes decades, is not considered a matter of importance. Their struggle largely remains invisibilised.
Taking cognizance of the above, India’s first People’s Tribunal on Acquitted Innocents was organized on October 2 at the Constitution Club of India to call attention to unrepresented and unheard voices of those wronged by the system. The Tribunal consisted of a jury headed by a retired judge, AP Shah along with other distinguished members from the legal fraternity as well as the larger civil society. This event was facilitated by Innocence Network India, which is an all India network of individuals and organisations facilitated and supported by JTSA, Quill Foundation, Peoples’ Campaign against Politics of Terror, Association for Protection of Civil Rights, Aman Biradari, Karvaan and others.
All testimonies revealed a sordid ordeal of brutal torture, the duress under which a confession is obtained, plantation and fabrication of evidence, long-drawn legal proceedings, hostility of jail inmates, constant humiliation and helplessness. The stigma of belonging to the family of a “terrorist” affected their families in ways which iis difficult to reverse. Their little kids were rebuked in school, their elderly parents had to arrange for their legal assistance despite their ailing health. The long wait to see their loved ones walk free took a toll on them.
Md. Nisaruddin was falsely implicated in 1994 and spent 23 years in jail before he was acquitted. His brother, Zahiruddin, who was accused in the same case, spent 14 years in jail. In their absence, their father, “passed away in distress, mother went into depression and the society shunned them.” This is not a one-off case of wrongful prosecution; there are others like them who have spent years languishing in jails, only to be acquitted later for the want of evidence. Senior journalist Iftikhar Geelani, Dr. Faarog Makhdoomi from Malegaon, Shoeb Jagirdar from Jalna, Md. Aamir Khan from Delhi, Dr. Md. Yunus, Haji Md. Salees, Syed Wasuf Haider from Kanpur, Sanauddin from Karnataka, Abdul Wahid and Zubair Ahmed from Maharashtra, who participated in the Peoples’ Tribunal, had similar heart-wrenching stories of abduction, torture, castigation and acquittal to tell.
In the Aurangabad Arms Haul Case, the main accused Adbul Wahid was a driver by profession. He was called to the police station for questioning and was later produced before the media as the man who drove the terrorists around in the city. It still surprised Abdul Azim that the policemen asked him to “rise up to the occasion and do something for his country”. When he resisted, his women relatives were brought to the police station and were threatened of sexual assault in his presence to obtain his signature on his “confession”. In most of the cases, the confession formed bulk of evidence against the accused which was obtained through custodial torture. Victims were subjected to numerous third degree methods of physical harm like electric shocks on private parts, water boarding, gassing, beatings, stretching of legs for a prolonged period of time.
Image: Jayshankar Menon
The narration of every case, brought out persisting struggle of everyday life which is spent amidst social isolation and continuous surveillance. The livid experiences of spending a number of years in incarceration takes a toll on victims and their families. Loss of livelihood opportunities accompanied by shrunken avenues of employment, loss of prime of their youth, multi-layered psychological effects of staying away from their families make it difficult for them to blend easily with the mainstream. The trials run into years and some of the accused have languished in jail for as long as 23 years; before they were acquitted. Their acquittal doesn’t mean a return to normalcy. Since there is no acknowledgement and recognition of the wrong done, their lives are caught in the interminable cobweb of suspicion and enduring struggles to build their lives and support their families.
Everyone present in the hall was moved during the tribunal by these personal accounts. In their preliminary observations, the jury emphasised on the need to fix criminal culpability on investigative officers for wrongful prosecution and that this provision must be made to supersede Section 197 of the CrPC that requires sanction from government departments before a case can be registered. Further, they also pointed out to the systematic ways in which, the entire prosecution process is oriented towards implicating persons from a minority community. They stressed upon the urgency for creating a legislative framework in consonance with India's commitment to ICCPR's article 14 (6) which states that:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
Impunity is not only political and legal, but also moral. The public at large remains detached from the outcome of these cases which contributes to the continuing ostracisation of the victims. Knowledge and public recognition of what happened is important for individual closure. The Tribunal was an effort to publically acknowledge the innocence of these men who were at the receiving end of systematic and institutional prejudice. Through recognising the harm done, the Tribunal sought to make not only the state accountable, but also put onus on the society to orient themselves towards shaping their lives in a holistic manner. It brought out that by dusting off their responsibility of rehabilitation, reparation and fixing culpability for wrongful prosecution, the state and its agencies are wanting to keep a community in the shade of criminalisation.
(Surya Ghildiyal completed her MA in Conflict and Peace Studies from Jamia Millia Islamia in 2014 and currently works in the development sector.
Preetika Nanda completed her MA in Conflict and Peace Studies from Jamia Millia Islamia in 2014. She is currently researching and documenting mass enforced disappearances during the decade-long conflict in Punjab.)