It goes without saying that justice delayed is better than justice denied. Without doubt the Supreme Court awarding Rs 50 lakh compensation to ISRO scientist Nambi Narayanan and setting up a panel headed by a retired apex court judge to probe the police officials who framed him in a spy case in 1994 is a welcome judgement. But the fact that it took the former head of the cryogenic division 20 years after the case against him was dismissed in April 1998 to be compensated for the public humiliation he and his family suffered is testimony to the fact that innocents, once exonerated of the charges against them, have a protracted struggle ahead before they can claim some recompense. And those responsible for foisting trumped up charges against them are rarely held accountable. In that context, the outcome of the Nambi Narayanan case is truly a landmark one.
But for every such satisfactory ending, there are countless instances of ordinary citizens having to serve long prison sentences or left to languish in jail as undertrials before being acquitted by higher courts. What’s worse is that once freed, they neither have the resources nor the will to continue the fight like the former ISRO scientist did and are relieved that they have been pronounced innocent. As for their prosecutors, they are rarely brought to book and silently tide over adverse observations made against their conduct by the courts.
Two years ago, on Gandhi Jayanti, I attended a day-long people’s tribunal at the Constitution Club in Delhi where victims in terrorism related false cases presented their traumatic experiences. The event was organised by the India chapter of Innocence Network — a collective of distressed persons, rights activists and lawyers. They had come together to campaign for the rehabilitation of those wrongly convicted and help them claim compensation.
The tribunal was headed by AP Shah, former Chief Justice of the Delhi High Court and an eight-member jury which included legal experts and social scientists. Their unanimous verdict was that the innocents and their immediate families deserved to be compensated and those guilty of framing them punished.
Some of the testimonies presented during the day were shocking examples of the failure of the criminal jurisprudence system, biased investigations and the gross misuse of powers by the police who employed the third degree at will to extract confessions. Here are two illustrative cases among the several testimonies presented:
* Mohammed Nisaruddin was picked up by the Hyderabad police on January 15, 1994 and charged with planting bombs on trains in December 1993. He spent 23 years in prison before the case against him was dismissed by the Supreme Court on 11 May 2016. The court found that the police had no evidence to substantiate its charges except for a confessional statement obtained under duress from the accused. Moreover, the court found that Nisaruddin was picked up on January 15, 1994, held in illegal detention, and shown as arrested more than a month later on February 28. The victim, in his testimony before the tribunal, spoke of the brutal torture he was subjected to before he agreed to sign the confessional statement.
* Mohammed Amir Khan was picked up late one evening in February 1998 when he was on his way to buy medicines. The 21-year-old from Delhi was charged with 19 crimes, ranging from murder, waging war against the nation to masterminding 17 low grade blasts in Delhi, Haryana and Uttar Pradesh. He spent 14 years in prison before being declared innocent by the Delhi High Court in 2012. The court in its judgement noted that the “prosecution has miserably failed to adduce any evidence to connect the accused appellant with the charges framed, much less prove them.” Though he was acquitted, Amir said the trauma in jail has scarred him for life.
Beyond terrorism cases
It is not just terrorism-related cases in which police high handedness comes through. Last week, when Nambi Narayanan’s compensation plea was upheld by the Supreme Court, came news from Punjab that the Justice Mehtab Singh Gill Commission probing the misuse of power by the police had recommended action in 21 cases, including four falsely registered ones under the draconian Narcotics, Drugs and Psychotropic Substances (NDPS) Act 1985.
One case that merited media attention related to a mother and son from Gurdaspur. The former was allegedly caught with narcotics in June 2013 and charged under the NDPS Act. Her son also had two cases of possessing drugs slapped against him. The Commission found that a Gurdaspur court had dismissed all cases against both the mother and son in February 2017. This was because the drugs had been planted on their person by the police seeking vendetta because the woman had repulsed the advances made towards her by one officer. The Commission recommended that “adequate” compensation be paid to both the falsely accused persons, although the state government is not bound to comply with this advice.
The tailor who apparently stitched combat uniforms for the “terrorists” confessed in court that he had been tutored to give false testimony. He also admitted that he had appeared in several other cases as the person patronised by so-called terrorists to tailor imaginary uniforms
According to a senior police official, false cases are foisted for various reasons ranging from flawed investigation, extorting money, proving the effectiveness of the police in solving crimes, for personal glory or to settle scores. Sometimes innocents are targeted simply because someone in power or those who wield influence wish to act against a rival or their friends/relatives. Or it may be to label a particular community or grouping as anti-national to push political agendas. The last-mentioned reason was apparently at play when the police, the IB and sections of the media worked in tandem to foist cases in February 2016 against Kanhaiya Kumar and other students of JNU for staging anti-India protests.
When it comes to cooking up evidence, the Special Anti-Terrorism Cell of the Delhi police has a rather murky reputation. In March 2013, it arrested 45-year-old Sayed Liyaqat Shah at the Nepalese border while he was crossing over to India. He was returning from Pakistan Occupied Kashmir (PoK) under the Rehabilitation and Surrender Policy of the Jammu & Kasmir (J&K) government introduced in 2010. Under this policy, Indian citizens who had turned to militancy and had crossed the LoC could return to Kashmir once they declared their intent to reunite with their families and gave a commitment that they would give up the gun and not indulge in anti-state activities.
Shah’s return was cleared by R&AW, the Intelligence Bureau, Military Intelligence and the J&K police and his name was officially communicated to the Sanauli Integrated Check Post, an entry point along the Indo-Nepalese border. It was here that the Special Cell of the Delhi Police nabbed him and claimed it had information that he was proceeding to Delhi to collect arms from a points person for use in terrorist activities in the national capital. The weapons to be handed over to Shah were also ‘recovered’ by the police from a lodge in Old Delhi and formed part of the evidence against him.
When the case was handed over to the National Investigation Agency (NIA), it found that the evidence against Shah was fabricated. The arms recovered had been planted by a police informer, Sabir Khan Pathan, who the police claimed was absconding. But call records revealed that when the recoveries happened, he was in constant touch with the Special Cell officers. The NIA closed the case in January 2015 and held seven officials of the Delhi police guilty of framing Shah, although no case has been filed against any of them.
It is not clear why Shah was targeted. Was it because the Special Cell had been given a wrong tip off by militants who were upset that one of their former comrades had surrendered and wanted to get back at him? Or was it misguided enthusiasm on the part of the Special Cell wanting to crack a major terror plot and establish its credentials? There is no clarity about the motive behind the arrest.
Activist Manisha Sethi’s book Kafkaland – Prejudice, Law and Counter-Terrorism in India records the bizarre manner in which the Special Cell operates. She traces the story of two young Kashmiri traders who checked into a Karol Bagh hotel in Delhi and were picked up for questioning. They were kept in illegal custody, tortured and asked to sign on blank sheets of paper. Later, they were presented at a press conference as “terrorists” whose devious plans were foiled in the nick of time. The police team which “arrested” them recounted in detail how the “terrorists” accompanied by two other accomplices were driving to Jaipur in a blue Tata Indica when they were intercepted on the highway. There was an exchange of fire and a car chase in true Bollywood style before the accused were overpowered and apprehended.
It was a story that was narrated with great conviction. However, it fell flat when it was revealed in court that the entire plot was the figment of the investigating team’s imagination. There was no car chase. No Blue Indica and no plan to target Jaipur. In fact, even the tailor who apparently stitched combat uniforms for the “terrorists” confessed in court that he had been tutored to give false testimony. He also admitted that he had appeared in several other cases as the person patronised by so-called terrorists to tailor imaginary uniforms!
In the final analysis, when police investigations into terrorism-related events or violations of the Official Secrets Act prove to be blatantly false, it inflicts irreparable damage to the credibility of the force. Currently there are several controversial cases under investigation or being heard in courts, including the Malegaon blasts case, the murder of journalist Gauri Lankesh and the arrest of activists allegedly involved in the Bhima-Koregaon violence. In each of these instances, there are allegations of a biased probe as the police and investigating agencies have a sorry record of fabricating evidence to suit their interests and prejudices or that of their political masters. And they continue to do so with impunity because the system rarely holds them accountable for their transgressions.