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Wednesday, August 04, 2021

Mumbai 7/11 and the trauma of the accused

With legislation like MCOCA, confessions made in police custody that are ordinarily inadmissible under the evidence law, become admissible. The process becomes punishment.


Updated: July 14, 2021 12:39:24 pm
Mumbai 7/11One of the coaches damaged by the blast in Mumbai on July 11, 2006 (Express file photo)

Written by Aiman Khan and Madhur Bharatiya

On July 11, 2006, first-class compartments of seven inter-city trains in Mumbai were ripped by powerful blasts during the evening rush hour. The incident left 187 people dead and 829 people suffered simple and grievous injuries. The damage to railway properties was estimated to be Rs 88,66,239. Seven FIRs accordingly came to be filed across police stations in Mumbai. In the immediate aftermath of the blasts, the ATS picked up 1,500 Muslim youth from different parts of Mumbai, and it was eventually 13 people who came to be accused in the case, while several were listed as absconding.

Much has been documented about the investigation that ensued: Sociologist Manisha Sethi in her 2013 essay titled ‘Dr. Narco and other Stories in Kafkaland’ states that the case hinged upon two things, that is, Call Data Records (CDR), and narco analysis, a practice which was declared unconstitutional in 2010 while the trial was ongoing. The essay makes a reference to the letter circulated by Advocate Shahid Azmi that gives a detailed account of the alleged torture inflicted upon the accused by the ATS. Azmi was assassinated by unknown gunmen on February 11, 2010. Sharib Ali, associated with Innocence Network India, in an essay written soon after the judgment was pronounced, talks about the disappearing trail of evidence: That which forms part of the narrative in the media when the arrest is made, and that which disappears when the chargesheet is filed (which included CDR). The Special Court under Maharashtra Control of Organised Crime Act (MCOCA) and National Investigation Agency (NIA), which pronounced the judgment on September 30, 2015, acquitted one accused, namely Abdul Wahid Sheikh. Seven accused were sentenced to life imprisonment, namely Mohammad Sajid, Mohammad Ali, Muzammil Shaikh, Majid Shafi, Tanvir Ansari, Suhail Mehmood and Zaheer Ahamad and are currently lodged in central prisons at Thane, Nasik and Amravati. Five of the 12 convicted accused were awarded the death penalty and four of them are currently at Yerawada Jail in Pune and Nagpur Central Jail. They are Naveed Hussain, Ehetesham Siddique, Asif Khan, and Faisal Shaikh.

Fifty-year-old Kamal Ansari, who was the fifth death row convict, died due to Covid on April 19, 2021, when the country was ravaged by the second wave. Kamal’s daughter states that he was the only earning member of the family, and her younger brothers are still in school. The family has had to depend upon relatives and the mercy of others to survive. She expresses the pain of not meeting her father for 15 years, and how even after he got Covid, and the family members travelled all the way from Bihar to meet him, the authorities did not allow them to meet him and stated that he was unconscious whenever they went to visit.

Mohammed Ali’s son Suhail also expresses his anguish and pain of not being able to meet his father in two years, as the norms during the Covid-19 pandemic changed. He keeps stating the injustice that is being carried out in the case, as his father is completely innocent. The impact of his father’s long-term incarceration has led to a financial crunch for the family, and has had a severe impact on their mental health, all of which is going to impact the next generation.

The families are suffering not just from financial distress, but also from having to live with the “terrorist” label, which has caused the next generation to be helpless and without any social security. In one case, the child of the wrongfully accused has never met their father.

Abdul Wahid Sheikh, the only person to be acquitted in the case, after spending nine years in prison, completed his legal education post acquittal, and spread awareness that the co-accused, in this case, are innocent. Since then, he has spent six years advocating for their rights and their right to be acquitted from all fabricated charges. Wahid reminds us that the accused in this case were forced to make confessional statements in police custody after third-degree torture, which are admissible as evidence under MCOCA. The accused had subsequently retracted from their statements in court. However, the Special MCOCA court, amongst other things, placed reliance on these retracted confessions while convicting them. It may be noted that retracted confessions have been held to be a weak form of evidence and it is only in certain circumstances in which reliance can be placed upon it, one of which is when they are voluntarily made. Thus, it is the opinion of the authors that the trial court erred in placing reliance upon these confessions. The court, however, acquitted Sheikh of all charges including those of alleged membership to the Students Islamic Movement of India (SIMI). Despite this, four years later, his name featured in the order dated July 29, 2019, passed by the Unlawful Activities (Prevention) Tribunal in the matter pertaining to the 2019 gazette notification declaring SIMI as an unlawful association. In its order extending the ban on SIMI for another five years, the UAPA Tribunal recorded Sheikh’s name as one of the accused who was convicted in the blast case for being a member of SIMI. Sheikh approached the Delhi High Court in August 2019 for expunction of the same. In January 2020, the Court passed an order for expunging his name from the Tribunal order and publication of a corrigendum to that effect.

These developments bring to light a need to address the wider ambit of extraordinary legislation. As clearly seen with legislation like MCOCA, confessions made in police custody that are ordinarily inadmissible under the evidence law, become admissible, in direct contravention of the accused’s constitutional right against self-incrimination. Under UAPA, circumstances in which bail can be granted change drastically, thereby ensuring prolonged denial of their liberty. While it is necessary to address the use of these legislation in curbing freedom of speech, it is also important to examine how these exemptions play out during investigations and trials, and their protracted outcomes, especially in convictions such as in 7/11.

In March 2021, 127 Muslims were acquitted after more than 19 years, by a court in Surat, Gujarat. They were arrested under several sections of the UAPA, and five of them died while the trial was still on. Several such examples show that with laws such as the UAPA and MCOCA, the process itself is the punishment. Even after acquittal, the extensive media trials which are carried out, label these Muslim youth as “terrorists” and impact not only the individual but generations in their family. More often than not, the earning member of the family is picked up, which pushes them into financial distress. The impunity enjoyed by the police and investigative services in framing innocent youths is becoming clearer by the year, with no sight of accountability mechanisms such as compensation for those acquitted or action against the defaulting authorities.

The writers are associated with Innocence Network India

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