Subscribe to SIAWI content updates by Email
Home > fundamentalism / shrinking secular space > India: Victimisation of minorities - concocted terror charges, mostly (...)

India: Victimisation of minorities - concocted terror charges, mostly against Muslims

Thursday 2 February 2017, by siawi3

Source: https://www.thequint.com/opinion/2017/01/31/false-terror-cases-can-compensation-assuage-the-victims-trauma-delhi-police-special-cell

False Terror Cases: Can Compensation Assuage a Victim’s Trauma?

Jan 31,02:30PM

download-31-02

Another so-called “terror case” prosecution has fallen apart in the light of judicial scrutiny. Eleven years after Delhi’s notorious “Special Cell” detained Irshad Ali and Maurif Qamar for allegedly being members of the Al-Badr Brigade, a trial court in Delhi acquitted them of all charges pointing out that they were in fact police informers who had been falsely framed.

This is in addition to the debacle it suffered in court over the “Malda fake currency” case, where the Special Cell claimed to have caught – in filmy-style – men attempting to smuggle fake currency into Delhi. Once again the trial court found out that there was simply no basis for the Special Cell’s case.

Adambhai Ajmeri was found guilty of having been part of the terrorist attack on the Akshardham Temple in Ahmedabad, his conviction was upheld by the Gujarat High Court, but was entirely acquitted by the Supreme Court that found that the whole case had been concocted against him and five others. This was after 11 years in prison and eight years on death row.

Victimisation of Minorities

I could go on, but the stories are depressingly identical. Innocent men – mostly Muslims – are picked up in the name of “anti-terror operations”, detained for years, while evidence is cooked up and false charges slapped on them. Usually these cases fall apart on the most basic judicial scrutiny. Sometimes, as in Adambhai’s case, it requires the Supreme Court’s intervention before justice is done.

All of these cases are indicative of a deep-rooted prejudice and dysfunction in our police forces.

Delhi Police’s “Special Cell” may be the most notorious, but by no means exceptional in its persecution of innocents. The Jamia Teachers’ Solidarity Association has documented 16 such cases, including Irshad and Qamar’s cases. Such abuse of the criminal justice process and the victimisation of Muslims have been well-documented and widespread.

It’s not just Muslims in the context of terror cases. People from socially and economically backward classes are also severely discriminated against by police when it comes to even routine cases.

Is the State Responsible for False Charges?

The root cause behind false charges in terror-related cases is the lack of reforms in the police, often seen as an instrument of state control.
The State owes responsibility in false terror cases since the law establishes that onus of malfeasance of public servants lies with the government.
What needs to be worked out is a mechanism of providing compensation to the victims, by the State and its intricate bureaucracy.
Compensation should be provided only in cases where the accused has been in custody for more than 60-90 days and the case is a fabricated one.
There should be a punitive element as well, making the errant police officers liable to bear a certain amount of the compensation.

Discrimination Against Tribals, Dalits

The caste-wise break-up of under-trials across the country, and also those who have been sentenced to death, shows a distinct bias towards the Dalits and adivasis. The recent “Swathi murder case” is another example of this discrimination. After detaining a Dalit man, who was accused of being the murderer on the most flimsy evidence, police were unable to file a chargesheet even six months after having allegedly “cracked” the case.

His death in police custody – in poorly explained circumstances – only makes the initial arrest and investigation more suspicious. Many adivasis still languish in jail as the Chhattisgarh government detains them under the notorious Special Public Security Act, 2005, slapping multiple false cases on them, denying even basic legal protection to the most vulnerable sections of the society.

The basic, underlying cause for this is the fact that the colonial police force inherited by the modern Indian state has not been reformed at all. It is still seen as an instrument of state control of the subject population, both by the rulers and the ruled. The police forces are ill-equipped and ill-trained to be modern police forces fit for a constitutional democracy, and are in no way representative enough to inspire confidence in the weaker sections of the society.

Need for Police and Judicial Reforms

Reforming the police forces will take a generation at least – that is, if the state governments cease resistance to reform and seriously start implementing even the most basic recommendations made by the Supreme Court. There is a need for a much-wider reform, including reconceptualisation of what a police force in India is supposed to do, who it is supposed to protect and from whom.

That said, there are some things that can be done instantly to remedy the injustices suffered by those who have been at the receiving end of the police malfeasance in criminal cases.

One argument that is made is the granting of compensation to those who have been victimised by false terror or other criminal cases. However, this didn’t find favour with the Supreme Court recently when the victims of such false accusations approached it seeking compensation.

Responsibility of the State

There is no denying though that the need is pressing and the State cannot escape responsibility. It is well-established in law that the state is responsible for the malfeasance of its servants in the course of their official duties. This principle is applicable even if the government servant exceeds her brief, but so long as the act was done while she was “in uniform” (so to speak), the Government can be held liable. This is a claim that can be made not only in the context of the law of torts, but also in the realm of constitutional law.

For instance, the Union Government on the orders of the Calcutta High Court and the Supreme Court, had to pay compensation to a Bangladeshi woman who was raped by the Indian Railways employees on railway premises. Custodial deaths have been held to entitle the deceased’s family to compensation from the government responsible. Most recently, we have seen the National Human Rights Commission direct the Chhattisgarh government to pay compensation to the adivasi women who were raped by the security forces.

But, false terror and other criminal cases are not one-off failures that require one-off remedies from the court. The victims of the criminal justice system, who have suffered economically, emotionally, physically and psychologically for years on end can’t be expected to gird their loins for a long and bruising battle in courts. The problem is systemic and so should be the solution.
Compensation for the Victims

Equally, it would also be utopian to expect the State to set up a sufficiently-responsive and active mechanism to provide compensation for such victims of the criminal justice system. Given that most of the victims are dis-empowered, to expect them to negotiate the intricacies of bureaucracy and other state agencies on a matter where the State would already be disinclined to believe them would be an unfair burden.

In such a situation, what reasonable solution can we offer?

One possible answer is to empower the court that acquits or discharges unfairly charged persons to award compensation to those whose lives have been destroyed by the false case. Since this court or more specifically, this judge, is the one who has just examined all the evidence in a case and has taken a call on the guilt or otherwise of the accused, where the judge finds that the case has been falsely foisted on a person by the police, she should be empowered to award compensation to the person she has acquitted or discharged.

To make this mechanism more effective, and targeted, compensation should be awarded not in all acquittals, but only when two criteria should be met: the accused should have been in custody for more than 90 days or 60 days statutory limit placed in the Code of Criminal Procedure, 1974 and that the case should have been patently false. The latter would be fulfilled if the police did not follow the statutory procedures in collecting evidence, or made false statements in the court or elsewhere, or are shown to have subjected the accused to torture or other degrading treatment to obtain a confession. This does not preclude separate criminal proceedings against the concerned police officers for perjury, assault and other crimes; it will ensure that at least the unfairly accused gets some relief.

Quantum of Compensation

The concerned court should be empowered to take any further material that the victim can place before deciding the quantum of compensation. The compensation should not only address the economic aspect, loss of income, and expenditure on litigation, but also address the emotional and psychological trauma that such false cases cause. There should, in addition, be a punitive element to this compensation that should, ideally, be recoverable from the concerned police officers.

The concept of a criminal court awarding compensation is not unknown in the Indian law. Section 357 of the Code of Criminal Procedure, 1973, allows the court to direct the payment of compensation to the victim of a crime from the fine payable by a convicted person.

State Governments Should Take the Lead

Likewise, if an accused has been arrested on the basis of a complaint given by a person, and the court finds that no case was made out against accused, it can award compensation to such accused in accordance with Section 250 of the Code of Criminal Procedure. It is also not entirely unfamiliar to the system – in most places the same judge exercises both civil and criminal jurisdictions in a given district. To that extent, it is a reform that is rather easily implementable.

When compared with large-scale police reform, this is relatively low hanging fruit for the state governments in India to undertake. That our criminal justice is broken and dysfunctional cannot be disputed. Rectifying it should not only focus on addressing the larger issues, but also address the needs of the victims of this system.