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Tuesday, May 24, 2022

The Kasab contradiction

The butcher of Karachi silently slaughtered innocents at Chhatrapati Shivaji terminus.

Written by Vinaysitapati |
December 19, 2008 3:40:58 am

The butcher of Karachi silently slaughtered innocents at Chhatrapati Shivaji terminus. In custody now, Ajmal Ameer Kasab is singing like a canary. India has used his confessions, along with phone intercepts, as evidence to implicate Pakistan in the court of global opinion. And it’s been bought: the UN has banned the Jamaat-ud-Dawa — thought to be the Laskhar’s front — while the US and UK unequivocally point to Pakistani fingerprints on the Mumbai massacre. Clearly, the confessions of Kasab matter. But here’s the rub: they cannot be relied upon by Indian courts. Sections 26 of the Indian Evidence Act and 162 of the Criminal Procedure Code state that confessions in police custody are inadmissible as evidence. The rationale: the police might be incentivised to torture. Special laws such as MCOCA, NDPS and (the now deceased) POTA permit these confessions, but Kasab isn’t being held under special laws. So the very evidence that India relies on, that the world community buys, our courts refuse to admit.

“This isn’t a contradiction per se”, says legal scholar Sudhir Krishnaswamy. “What is a political ‘fact’ may not be a legal ‘fact’. Corruption allegations might be bandied about politically, but it’s not legally valid unless certain procedural requirements are fulfilled”. While I agree in general, legal presumptions must surely be based on some ‘real’ reference point. And, if Kasab’s confessions are believed the world over, then surely our own courts should consider believing them. The UPA doesn’t think so, and repealed POTA partly because it contained this “draconian provision”. And in the slew of anti-terror proposals that Parliament passed the day before, this provision was conspicuously absent. Why exactly?

India’s acronyms of anti-terror laws are despised by many for targeting Muslims; permitting police confessions is seen as prone to misuse. But here’s the problem: laws don’t target communities, their enforcers do. It’s a question of political choice. There is nothing intrinsically anti-Muslim about permitting police confessions. In other words, blame (if you choose to) the BJP, not POTA.

A more serious objection to permitting police confessions is that it incentivises the police to torture. Our police force’s reputation doesn’t help, as this (obviously) apocryphal tale demonstrates: An American, Israeli and Indian police team enter into a competition. The task: to locate a lion in a large forest. The Americans map the forest by satellite, send in Swat teams with censors and locate the lion in an hour. The Israeli team enters the forest, no one knows that they’re up to, but in 50 minutes flat, they’ve located the lion. The Indian police enter the forest. An hour passes, three, then five. The frustrated organisers finally enter the forest — only to find that the Indian police have tied up a bear and are whipping it whilst hollering “bol, tu sher hai” (“confess, you are a lion”).

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An unfortunate reputation perhaps, but undeserving? A former IPS officer told me: “Police training is so bad, that most policemen think that brute force is their only job description.” Sections 26 and 162, then, seem to make sense. The problem is: they have a cost. There is a huge time gap (sometimes years) between investigation and trial. An accused who is likely to confess soon after capture, will be less likely after 4 years of waiting. Indian laws do have a mid-way remedy: section 164 permits the accused to be produced before the magistrate soon after, and confess. But the process is so cumbersome that, except for high profile cases, it rarely works. Given India’s aversion to numbers, it’s hard to find statistics to prove that invalidating custodial confessions causes the guilty to go free. But two police officers I spoke to (both of whom write on human rights) admitted that confessions before police officers are often a valuable tool.

BJP general secretary Arun Jaitley is smug about the Kasab contradiction — his BJP wants any new anti-terror law to include confessions to police officers as valid. How to prevent torture? He has three safeguards. First, the confessions must be video-taped. Second, the accused will be presented before a magistrate within 24 hours who will check for torture; and third, confessions must be only to a superintendent of police or above. To these three conditions, let me add a fourth: the senior police officer who supervises the confession must be responsible. If torture is later proved, he loses his job, and is sent to jail.

Will these four safeguards prevent torture? It’s hard to know for sure. But, sections 26 and 162 don’t prevent torture; they only presume that a magistrate is more reliable than a police officer. Better, then, that a police superintendent takes personal responsibility, in addition to a magistrate exercising her discretion. Some might find this unpalatable. My only request is that they de-link the admissibility of police confessions from the anti-Muslim bias in the war against terror, and focus instead on effective safeguards. Besides, sections 26 and 162 have a cost. If you doubt this, think Kasab. Should we have to wait for Kasab’s trial (a year away at best) before accusing Pakistan? Or should we, with safeguards, rely on his confessions to the police. The world has spoken. Parliament should too.

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