Human Rights

Guilty by suspicion

Print edition : October 28, 2016

Nine Malegaon residents were acquitted in the 2006 blasts case. A few of them celebrate the decision outside the Sessions Court on April 25. Photo: Deepak Salvi

Azam Gajdhar (left) and Sohail Modi, who were acquitted in a case relating to the Jaipur serial blasts, narrating their experiences in jail at a press conference in 2011. A file picture. Photo: Rohit Jain Paras

Justice A.P. Shah, Chairman, Law Commission of India. Photo: Sushil Kumar Verma

Civil society organisations and individuals have formed the Innocence Network for the falsely accused to “minimise the miscarriage of justice”.

"ROADS had changed, buildings changed, people changed... it was as if my entire world had changed,” said Nisaruddin, who spent 23 years behind bars before he could prove his innocence and walk out a free man earlier this year. Nisaruddin and his brother Zaheeruddin, residents of Kalaburagi in Karnataka, were charged under various sections of the Indian Penal Code, the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Explosive Substances Act, the Arms Act and the Railways Act for the 1993 serial bomb blasts on Mumbai’s local trains.

After the rigmarole of a decade-long trial, in 2004 the brothers were sentenced to life imprisonment by a designated TADA court in Ajmer along with 15 other accused. In the absence of any material evidence, they were charged on the sole basis of confessions allegedly obtained through torture while in custody. Nisaruddin was in illegal custody for 43 days before being shown as legally arrested.

They appealed to the Supreme Court, which finally threw the case out and acquitted Nisaruddin of all charges in May 2016. But the most valuable years of his life were already over behind bars. “When one has nothing more to look forward to, there is nothing more left to fear,” he said. Zaheeruddin spent 14 years in jail. With both brothers battling terror charges from behind bars for inordinately long periods of time, the worst victims of their incarceration were their family members, they said. Shunned and ostracised by society, their father died, while their mother’s health steadily deteriorated and she slipped into depression. The less said about the financial situation of the family the better.

Draconian laws

Theirs is not an isolated case. Many Muslim men have been “picked up” by the police and security agencies in the last two decades as the debate on counterterrorism peaked. Draconian counter-terror laws such as the Prevention of Terrorism Act (POTA), 2002, or TADA and its most recent version, the Unlawful Activities (Prevention) Act (UAPA), allow the investigating agencies to act with impunity and at the same time remove any safeguard against human rights violations of the accused in custody. The “terrorist” tag haunts the accused and their families even after their acquittal, rendering the rebuilding of lives extremely difficult.

“The question then arises, does the State and we, as a society, owe any acknowledgement to them?” asked Sharib Ali, a researcher, while announcing the launch of Innocence Network (IN) on October 2. In the aftermath of a terror attack, when Muslim youths are picked up for questioning, their families are usually left to fend for themselves, with little recourse from anywhere else.

The increasing number of acquittals and the lacunae pointed out in case after case by the courts in the investigating processes necessitate checks and balances to ensure a fair legal process. To fulfil this need, a group of civil society organisations and individuals have come together to form the IN. “Led by exonerees, we hope to work with the system to minimise the miscarriage of justice. We want to introduce a comprehensive framework for rehabilitation and compensation through legislative means. Is there any cost we can put on the system for years of wrong incarceration or for sanctions under the UAPA? For people wrongly incarcerated, acquittal is not enough,” said Sharib Ali, programme head, Quill Foundation. Apart from the foundation, the network is supported by the Jamia Teachers’ Solidarity Association (JTSA), the People’s Campaign Against Politics & Terror (PCPT), Aman Biradari, Karvaan and others.

Apart from Nisaruddin and Zaheeruddin; Shoeb Jagirdar, who was acquitted in the Mecca Masjid blast case; Dr Yunus from Jaipur; Abdul Aziz, who spent 10 years after being falsely charged in the Aurangabad arms haul case; Syed Wasif, who was falsely implicated in 11 cases; and Dr Farookh Makhdoomi, who was falsely implicated in the Malegoan blasts case; and others recounted their experiences before an eminent jury led by a former Chief Justice of the Delhi High Court, A.P. Shah.

While each testimony was different, the patterns of being picked up or kidnapped, kept in illegal detention, tortured, forced to sign confessions, unable to grieve at parents’ deaths, the long-drawn and debilitating battle to prove their innocence and the subsequent condition of life after acquittal were chillingly similar.

Many of them broke down while narrating the torture they were subjected to: sleep deprivation, nails being pulled out, stretch positions, beatings, passing of electric current through the body, pouring oil inside the body and numerous other horrific procedures. Some of them refused to recount the details in front of an audience. “After such torture to break the spirit of a man, why [is] so much weightage given to confessional statements?” asked Syed Wasif.

A study of 18 men who had been exonerated found that they suffered from serious psychological deficits including enduring personality change after the catastrophic experience and post-traumatic stress disorder (PTSD). In 16 of the 18 cases, there was evidence of depressive disorders, panic disorder and paranoid symptoms. Torture and confinement led many to the brink of mental derailment.

Amanullah and Munawwar, who were incarcerated for three and a half years in a Jaipur jail, suffered from severe depression and insomnia. Even when a JTSA team met him in late 2011, Amanullah broke down several times, recalling the horrors of torture. Munawwar, as a result of the severe anxiety and stress, suffered partial paralysis. Mohammed Aamir Khan, who has spent 14 years in jail for multiple cases, also battles depression and insomnia. Many suffer guilt for the suffering and trauma their families have gone through, holding themselves responsible.

Through the testimonies, the tribunal was presented with two concrete propositions. The first: terror accused who are eventually acquitted have a right to compensation from the state not only for the loss of livelihood, property, future earnings, etc., but also for the traumatic experience of incarceration for no fault of theirs. The trial process amounts to a gross and unreasonable deprivation of the right to life and liberty of the falsely accused individuals. The second proposition was that the police officials responsible for the investigation and prosecution of these cases be held criminally liable for the gross violation of the rights of the innocent accused.

India is a signatory to and has ratified the International Covenant on Civil and Political Rights (ICCPR), Article 14(6) of which says: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

Case for compensation

Drawing from global experience, the IN has sought to strengthen its case for compensation for people who have been acquitted. New Zealand, France, Germany, the United Kingdom and Australia all have laws of varying nature that provide for compensation. In contrast, India, despite being a signatory to the ICCPR, does not have a legislative framework to provide justice for the wrongfully convicted. The Code of Criminal Procedure provides only for a limited and paltry amount of compensation and that too only in a limited number of circumstances. Prosecutions under the UAPA do not fall under any of the compensation provisions.

The only remedy for such victims is to sue for damages. In the Akshardham attack case, the Supreme Court reversed the verdicts of the POTA court and the Gujarat High Court, coming down heavily on the lapses at various stages of investigation. And yet, no reparations were made. However, in some instances, the Supreme Court has granted compensation, such as in Daulat Ram vs State of Haryana where it was found that the investigating police had fabricated a case under TADA and the Arms Act, and the accused individuals were awarded a sum of Rs.5,000 payable by the State of Haryana and recoverable from the police.

While it may be impossible to fix the value of the loss of livelihood and dignity, the IN explained, again through international experiences, that reparations could be calculated for both loss of livelihood and the trauma faced behind bars. For instance, 11 accused men in the Jaipur SIMI (Students’ Islamic Movement of India) case spent three and a half years in jail—182 weeks in custody, in tiny airless cells where humiliation and torture became the order of the day and despair turned them into depressives. Outside, their families were stigmatised and their businesses destroyed while they struggled to make ends meet.

Dr Ishaq’s medical practice was ruined as was Dr Yunus’. Dr Yunus’ wife and four children had to survive by accepting support and charity from well-wishers. Taufeeq, Dr Ishaq’s son, also accused in the case, was midway through his studies in Unani medicine and surgery. His education was interrupted by his illegal incarceration.

Nadeem’s small grocery shop collapsed. Nazakat was the sole breadwinner of the family after his father had expired, barely a month before his arrest. His tractor parts shop lies desolate today. Amanullah’s mobile phone business could not be resumed after his release.

After listening to the testimonies, Justice Shah said: “Getting implicated in terror cases is very different from any other case: the family’s isolation, job, future prospects, all get jeopardised. Right to life is not simply animal existence; it means a life of dignity. There is also a fear that if you support terror accused, there is going to be further persecution, but we must come out and speak about it. We must also take up these issues with the legislators.”

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