Make police officers criminally liable for malicious acts: People’s Tribunal

The report of the Tribunal points out that “the depositions (of the falsely implicated people) explicitly make clear all that is wrong with the criminal justice system when it comes to dealing with cases of terrorism”.

Written by Muzamil Jaleel | New Delhi | Updated: December 10, 2016 6:00 pm

The ‘People’s Tribunal on Acquitted Innocents in Terrorism cases’ pointed out the “special nature of wrongfulness in terror prosecutions and asked the government to act against the police officers responsible for such cases and make them criminally liable for the malicious acts done by them in their official capacity”. The tribunal was led by eminent jurist and former Chief Justice of Delhi High Court Justice A P Shah. The final report of the Tribunal was released on Saturday.

A number of Muslim men from across the country, who had been falsely implicated in terror cases and spent years in jail before their acquittal and exoneration by the courts, deposed before this People’s Tribunal in October earlier this year.

The report of the Tribunal points out that “the depositions (of the falsely implicated people) explicitly make clear all that is wrong with the criminal justice system when it comes to dealing with cases of terrorism”. The Tribunal has also put forth five major suggestions as a way forward- Compensation, Accountability, Legislative Reforms, Institutional Reform and Guildelines for Media.

“In testimony after testimony, we heard of illegal and wrongful detention, torture in police custody, forced confessions extracted under duress, long incarceration, repeated denial of bail, to be acquitted finally years after their arrest,’’ the report said. “It was deeply saddening to hear the testimonies about destroyed lives. That this was a result of callous and malafide action on the part of those whose duty it is to uphold law was even more frustrating. While wrongful arrests imply that the actual perpetrators of the terror attacks are free to continue their operations and increase insecurity for society as a whole, continuous targeting of a community will also fuel a sense of injustice. If allowed to fester, this may itself become a source of insecurity”.

The Tribunal concludes that “mere acquittals after years of incarceration are not enough and there must be some recompense for the years lost and lives devastated”. “As the apex court observed, it is the duty of the state to apply the healing balm. This is not a fantastical demand, but grounded in sound public law, which the courts have themselves elaborated over the years,’’ the report said. “…alongside compensation that the state must offer in recognition of its liability and victim’s rights, those guilty of falsely framing innocents in terror cases must suffer penal consequences”.

To explain the “special nature of wrongfulness in terror prosecution”, the Tribunal’s report says that such “wrongful prosecution did not result from mere technical errors or genuine human lapses in investigation, but from willful and malicious investigation and prosecution”. “…it is routine for police and investigating agencies to round up and arrest Muslim youth in the aftermath of any bomb explosion or attack. The most striking example of this is the manner in which investigation into the Malegaon blast 2006 was carried out. Members of the Muslim community were rounded up, trumped as SIMI activists and shown as key suspects despite the fact that at least one of them was already in police custody at that time, and another key accused was hundreds of kms away leading the Shab-e-Baraat prayers in Yavatmal on that very day,’’ the report says. “The recent developments in the case where the trial against the accused hailing from powerful politically connected groups appears to be collapsing do not augur well. The testimonies lend credence to the charge that the investigating agencies are prejudiced and that they manipulate and fabricate evidence to make unnecessary arrests, only for the reason that the accused belong to a minority community”.

The Tribunal also blames the “draconian architecture of anti-terror legislation” for “false implication of scores of youth on charges of terrorism” because these laws have lawless character and grant “excessive powers to the investigating agencies”. The Tribunal also raises the issue of stringent bail provisions under the widely used Unlawful Activities Prevention Act (UAPA). “For a person charged of an offence under UAPA, obtaining bail can be virtually impossible….with the result that under trials charged in UAPA continue to languish in jail for years before being granted an acquittal,’’ the report said.

The Tribunal questions the admissibility of confession before a police officer under laws like Maharashtra Control of Organised Crime Act (MCOCA), saying it “militates against the very fabric of Indian Evidence Act”. “Abdul Wahid remained in prison for nine years without bail. He was charged under MCOCA…The only piece of ‘evidence’ against him was his confession, which he retracted as soon as he was sent to judicial custody. And yet, for nine years, he did not get bail. He also detailed the horrific torture in the custody of ATS, which he and his co-accused were subjected to, in order to extract the confessions,’’ the report revealed.

The Tribunal says that it is a “troubling fact that even courts accept low-grade evidence in terror cases” and blames the “long-drawn trials” for such long incarceration of people falsely implicated in terror cases. “The nature of charges in terror cases, the public sentiment whipped up by the media, and the legal provisions in anti- terror laws, all work to ensure that even if deserving, the accused’s applications for discharge are not entertained; and bail applications are rejected as a matter of routine,’’ the report says.

The Tribunal questions the widespread impunity granted to the investigators even after when the Court has indicted them for willfully manipulating evidence. “The rampant discourse on ‘war on terror’ legitimates the arrests of Muslim youth and grants impunity to investigators. In every single testimony, we heard sordid tales of torture, narco-analysis, manipulated evidence,’’ the Tribunal says. “This is not a case of ‘some bad officers’ but points to a widespread institutional crisis, where violence against suspects has become entrenched, where false arrests are condoned, where investigators guilty of framing innocents are not punished – but rather decorated and feted,” the report says. “Torture is endemic to India’s policing culture. In terror investigations, however, it seems to be the very cornerstone. Part of the reason may be the admissibility of confessions as evidence under TADA and POTA previously, and currently under MCOCA”.

The Tribunal also raises the “irresponsible and sensationalist role played by a section of media in reporting on terror crimes and arrests of suspects in such cases”. “News coverage of such investigations routinely labels suspected detainees as culprits and often becomes the primary source of their stigmatization among the community,’’ the report says. “Iftikhar Gilani, a journalist himself, narrated how, when the Delhi Police raided his house in 2002, journalists collected outside his home were reporting that Gilani had absconded. All this while, Gilani was inside his home and in fact watching this live on television”.

The Tribunal observes that “the social consequences for those accused of terror crimes are far worse than those wrongfully arrested and charged with other types of crimes”. “This includes stigmatisation of accused, isolation even subsequent to acquittals; inability to gain employment as the past always resurfaces; and lastly, the fear of being arraigned for another terror crime,’’ the report says. The report quotes the testimony of another falsely implicated person Wasif Haider: “Even after seven years of acquittal, I am as isolated as I was in jail. Social boycott and stigma still continues…I am jobless man. No one is ready to give me job. I can’t start my business because no one wants to deal with a ‘terrorist’, no matter I was honorably acquitted by the court.”

The Tribunal says that it “laments the abject failure of (official) human rights bodies such as NHRC and SHRC to acknowledge and intervene in such cases of wrongful arrests and prosecution”. The report says that “in contravention to its international obligations, even having signed the ICCPR, India has failed to create a legislative framework to provide justice for victims of wrongful prosecution or wrongful conviction. Many other countries have converted this commitment into law”. “In India, lack of a legislative framework should not dissuade the courts from granting compensation in these cases, and indeed in expanding remedies for victims of long periods of wrongful incarceration in terror cases,’’ the report says, quoting SC’s landmark judgment in the Rudal Sah case and Nilabati Behera case.

In its recommendations, the Tribunal has emphasizes, “the dignity of those acquitted must be restored” and “the harms inflicted on them must be redressed within the framework of rights rather than charity”. “Those who had been wrongly convicted should be entitled to compensation from the state. Those who are responsible for subverting the rule of law – police, prosecutors etc. – must be held accountable,’’ the report says.

“The police officials involved in such cases must be held accountable. These police officials should be made criminally liable for the malicious acts done by them in their official capacity”. On Media’s role, the Tribunal says that they (Media) “ought to be cognizant of its power to devastate lives through sensationalism and partisan reporting”.

“The media must refrain from pronouncing the accused as guilty till a formal pronouncement is made by the court. Further, the media must publish an apology, if it had written defamatory material against the acquitted innocent at the time of his arrest,’’ the report says. Suggesting legislative reforms, the Tribunal seeks that “the Prevention of Torture Bill should be passed by the Parliament. Provisions of the anti-terror laws, Indian Evidence Act and Criminal Procedure Code should be amended to hold erring officers accountable and to curb custodial violence”.

The Tribunal has also asked the NHRC and SHRC to “establish a dedicated cell in the commission to especially look into the cases relating to acquitted persons and their grievances”. “The NCRB must start collecting and compiling the data with regard to the acquitted persons,’’the report says. The Tribunal was organised by Innocence Network, India, a voluntary group dedicated to work for the rights of the people wrongfully prosecuted under terrorism charges.

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