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India: There Must Be a Price to Pay for Wrongful Convictions

Tuesday 30 August 2016, by siawi3

Source: http://thewire.in/57603/cops-judges-andterrorists/

30.08.2016

By Sumanta Banerjee

In refusing to compensate people who were incarcerated on false charges, the Indian judiciary displays a worrying lack of responsibility.

Photo: A man walks past graffiti inside the Jawaharlal Nehru University (JNU) campus in New Delhi. Credit: Anindito Mukherjee/Reuters

The graffiti says: " Stop terrorizing Muslim youths in the name of terror"

The Supreme Court last month refused to entertain a joint plea by six persons who sought compensation for their wrongful arrest in the Akshardham terror case from 2002. They were prosecuted and incarcerated for more than a decade and were acquitted some time ago by the same apex court.

The apex court’s dismissal of the plea has major implications for the human rights movement in India.

It virtually sanctions the continuation of the impunity with which the police and intelligence agencies indiscriminately arrest Muslim youth (on charges of ‘Islamic terrorist’ links), and tribal men and women in Chhattisgarh and other areas (accusing them of Maoist links). It provides them with immunity against the punishment that they deserve for their ham-handed policy of persecuting innocent citizens.

Curiously enough, while one Supreme Court bench acquitted the victims of such police persecution, another bench refused to grant them the right to compensation for their unjustified incarceration. What explains the inconsistency in the two judgments? The six persons who sought compensation were accused in the Akshardham terror attack in Gujarat in 2002. After spending some 10 years in prison, they were acquitted by a Supreme Court bench in 2014 in response to their appeal against their conviction. The bench comprising justices A.K. Patnaik and V. Gopala Gowda held that the prosecution failed to establish their guilt beyond reasonable doubt and they deserved exoneration from all the charges.

Thus, it was apparent that these six were prosecuted through fabrication of evidence by the Gujarat police, which had already acquired notoriety for alleged false encounters. Following their acquittal, the six approached the Supreme Court again, seeking compensation from the state for their wrongful incarceration all these years. As their counsel, the veteran advocate K.T.S. Tulsi rightly told the Times of India, “The apex court gave them back freedom but who can give them back the 10 years they spent behind bars for no fault? The state must adequately compensate them as it violated the right to life brazenly.”

But some of the honourable judges of the apex court do not, apparently, share this view. A bench of justices Dipak Misra and R. Banumathi, in their July 5, 2016 judgment, rejected the appeal for compensation on the grounds that acquittal by a court did not automatically entitle those acquitted to compensation and if compensation is to be awarded for acquittal, it will set a ‘dangerous precedent.’

The first ground is spurious, to say the least, since well-qualified judges can always make a distinction between those who deserve compensation, and those who do not. The second argument, posited by these honourable judges, is in fact more dangerous. It has far reaching consequences, and implies that the state can get away with irresponsible acts like hauling up innocent citizens on charges of terrorism, and putting them behind bars for years, (or in extreme cases, like its police killing them in false encounters).

The victims who survive and manage to get themselves acquitted, do so through the arduous and expensive process of appealing from one lower court to another higher court, till they reach the Supreme Court. And if they are lucky, their case is heard by a bench that is discerning enough to examine the evidence and establishing their innocence. Not all benches are as discerning. The fate of hundreds of innocent people languishing in jails for years on charges of ‘Islamic terrorism’ or ‘Maoist extremism’, hinges on the dispassionate and independent verdict of our honourable judges. Are they fast enough in the delivery of justice, to save these young souls from the agonising experience of incarceration which they do not deserve?

From the bottom to the apex

While repeating the age old cliché, ‘justice delayed is justice denied,’ we should also note that in many cases the apex court itself is responsible for the delay. When complainants appeal directly to it for redressal, its advice is, more often than not, to approach the local high courts first. But, many of the judges of these subordinate courts betray their own upper-class, orthodox , asteist and religious prejudices, by passing adverse judgments against complainants coming from Muslim, Dalit or underprivileged classes, and acquitting their persecutors, who usually belong to the same class and caste that the judges come from. Nothing has changed at this level of the judiciary since that infamous verdict delivered by the judges of the Madras high court, who acquitted the upper-caste landlords accused of killing 42 Dalit labourers (including women and children by setting fire to their hut) in Kilvenmani in Tamil Nadu in 1968. Their excuse for acquitting them was: “Most of them (the accused) were rich men…. It was difficult to believe that they would walk bodily to the scene and set fire to the houses.”

In a replication of that utterly despicable judicial mindset, the Patna high court was also found acquitting upper caste landlords who were held guilty by the lower courts of lynching Dalits in Bihar villages. Its recent judgments relate to two cases: the massacre of Dalit women and children and Muslims, in Bathani Tola in Bhojpur district on July 11, 1996 (by a Hindu upper-caste militia of landlords, called the Ranvir Sena) and a similar massacre of Dalits (by the same outfit) in 1997 in Lakshmanpur Bathe, where the death toll reached 58.

In the first case of Bathani Tola, the honourable judges of the Patna high court in 2012 acquitted all the 23 accused, dismissing the evidence of the witnesses who escaped the massacre as ‘totally unreliable.’ Curiously enough, in defence of their verdict, these judges chose to rely on the submission by a police sub-inspector, under whose watch the massacre took place. The policeman naturally, to protect himself, gave a different account of the event in order to impress the court. But how could the judges accept this version of the sub-inspector who was suspended at the time for his negligence and possible complicity in the Bathani Tola killings?

The second case of the Ranvir Sena’s massacre of Dalits in Lakshmanpur Bathe in 1997. The trial court convicted several from among the accused. But an appeal from these convicted persons led the Patna high court to reverse their convictions, leading to their acquittal. The victims of this act of injustice have approached the Supreme Court. Whether the apex court overrules the acquittals by the Patna high court, and reconfirms the conviction of the accused, depends again on the mindset of the judges who preside over the bench.

Flawed judicial hierarchy

The inconsistency in verdicts delivered by different sets of judges (as evident from the frequent overturning of a lower court judgment by a higher court, as also of differing judgments by two benches in the same Supreme Court), shows how flawed the structure of our judicial system is. The system is run by judges who are not professionally equipped enough to separate the wheat from the chaff while examining evidence. While delivering verdicts, these judges may be guided by their personal beliefs and prejudices (religious, national, jingoistic or otherwise), or by their faith in the police which frames charges against easily available innocent targets.

The most infamous instance of such a judgment was in 2013, when Afzal Guru was sentenced to death by hanging. The apex court’s excuse for hanging him was atrocious and injudicious: the “…collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.” By what measure did the honourable judge assess the ‘collective conscience’ of ‘the society’? Which society? Is our society a homogeneous unit? Besides, even if the ‘society’ of Sangh parivar leaders and their middle class supporters whipped up a mob frenzy demanding the death penalty for Afzal Guru, should the apex court have succumbed to their claim as representatives of a ‘collective conscience’? Should it not have dispassionately examined the evidence, which from all accounts, indicated that Afzal Guru’s participation in the actual conspiracy was debatable?

At the receiving end of such judicial arbitrariness and irresponsibility are the families of the innocent victims of persecution, hounded by a vengeful police force and an inefficient, corrupt intelligence apparatus.

Miserably failing to apprehend the real terrorists, they pick up mainly the youth from the Muslim community as an easy recourse to claim that they have foiled some so-called ‘Islamic terrorist’ conspiracy. For the victims, their parents and relatives, appeals through the various steps of the judicial hierarchy to get acquitted are not only an expensive, time-consuming process, but also a nerve-racking experience. The same experience is suffered by the families of poor, tribal youth in Chhattisgarh, Jharkhand, Andhra Pradesh and other states, when they are picked up on charges of ‘Maoist extremism’.

In the course of such laborious judicial proceedings, a judge may decide after decades that a prior conviction by a lower court needs to be reversed. The plight of these victims of judicial injustice at the primary stage has been recorded in two important books. The first is Framed, Damned, Acquitted:Dossiers of a ‘Very’ Special Cell, a report by Jamia Teachers’ Solidarity Association which documents 16 cases where young Muslims were arrested on the charge of being terrorists, between early 1990s and mid 2000s. On different occasions they were produced before the Patiala House courts in Delhi, which remanded them to police custody or Tihar Jail, where many spent more than a decade under trial, before being acquitted by the high vourt.

The second book is Prisoner No. 11: An Account of My Nights and Days in an Indian Prison, by Anjum Zamarud Habib, a young Kashmiri woman, a political activist, who was arrested in Delhi in 2003, and sentenced by judge Ravinder Kaur of the Prevention of Terrorism Act (POTA) court to a five-year jail term. The POTA court, in the same Patiala House courts premises, had earned notoriety for sending innocent people to jail. She challenged the judgment in the high court which finally released her in December 2007. Recalling her experiences, Anjum says, “I am a free person today but the wounds and scars that jail has inflicted on me are not only difficult, but impossible to heal.”

Similar is the sentiment echoed by Syed Maqbool Shah, whose account can be found in Framed, Damned, Acquitted. He was accused by the police in the 1996 Lajpat Nagar blast case in Delhi and after having spent 14 years of his precious youth in Tihar Jail, was acquitted by the Delhi high court in 2012. Now that he is released, he says, “I don’t know what to do. I have no job and no hope of getting any.”

Accountability through punishment

In the current debate over the mode for appointing judges, what is often ignored is the basic need for a mechanism in our judicial system that would penalise those agents of prosecution and of justice (the police, the public prosecutor, the magisterial and higher courts) who are proven to be irresponsible and biased in carrying out their respective duties. They should be made to pay the price for decisions that ruin the lives of thousands of innocent people. Apart from the occasional mild punishment, like temporary suspension or transfer of errant policemen, there is a need to bring them to trial and impose punishment worthy of falsely implicating citizens.

Errant judges also need to be held accountable in the courts. For instance, the lower court judges who convicted and sentenced six people for their alleged involvement in the 2002 Akshardham terror attack in Gujarat, were ultimately proved to be wrong, as is apparent from the Supreme Court judgment that acquitted them. But the convicted men had to spend about a decade in jail. Should not the Gujarat high court judges pay a penalty for their failure to examine the evidence in its entirety, before hastening on a sentence? Surely it was due to judicial irresponsibility that the six accused had to languish in jail for years.

Given these gross oversights, may I suggest that our honourable judges take lessons from the film Judgment at Nuremberg by Stanley Kramer, in 1961? It is a film based on the records of the trial of the judges of Nazi Germany at the international court which was set up at Nuremberg in 1945-46 for the purpose of bringing Nazi war criminals to justice. The war criminals included 16 German jurists and lawyers, out of whom 10 were found guilty of various crimes ranging from anti-Jewish bias to currying favours with the ruling Nazi government. Their sentencing was based on evidence from the survivors of their prejudiced judgments. The courts exposed their complicity with the ruling regime and their racist bias against Jews.

But then, how many of our Indian judges, whether at the lower or higher levels, have heard of the Nuremberg trials? How can we sensitise them to the humanitarian needs of those brought before them as accused by an unscrupulous police force? How can we ensure that biases of one kind or another play no role in judicial pronouncements?

Sumanta Banerjee is a senior journalist and author