The ugly face of justice: Anand Teltumbde reviews Abdul Wahid Shaikh’s ‘Innocent Prisoners’

“The struggle of man against power is the struggle of memory against forgetting.”

— Milan Kundera, 'The Book of Laughter and Forgetting'.

What if the state that is supposed to have been created by the people, the real sovereign as the constitution proclaims, turns into a monster that devours them? What if the police, vested with the responsibility of protecting people with law and order, turns into an organised gang of criminals supported by the state, conspire against innocent people, arrest them, torture them, and kill them with impunity? What if the legislators elected by the people to protect their rights and interests turn against them as anti-nationals and terrorists, and pass draconian laws in assemblies and parliament, to arm police against the people?

What if the judiciary, supposed to be independently exercising checks over the excesses of the executive within the framework of the Constitution exercises bias in favour of the executive against people? What if the media, meant to mediate on behalf of the people to question the state authority become a “godi” media and trumpeter for the very same authority? And what if these features are not a one-off occurrence but have become the established order, the defining character of the system that may occasionally yield justice as exceptions? It is just such an ugly face of the system that we live in which is mirrored by Innocent Prisoners.

A sinister modus operandi

Indeed, it is a disturbing saga of the degeneration of the criminal justice system of India, exposed
through the narrative of the first-hand experience of its victim, who spent nine years of his youth
before being acquitted by the court. The case was the serial bomb blasts in the Mumbai suburban (local) trains of Western Railway that took place over just 11 minutes at seven places on July 11, 2006, killing 209 people and injuring over 700. After a spate of arrests of Muslim youth, a total of 13 of them were tried by a special Maharashtra Control of Organised Crime Act (MCOCA) court, which pronounced its verdict sentencing five to death, seven to life imprisonment, and acquitting one, the author of the book.

What is more disturbing is that it exposes a pattern, a sinister modus operandi of the police of devastating lives of innocent Muslims by charging them for terror acts, which is structurally made easier in India and more profitable than catching the real culprits. Taking a cue from the “Global War on Terror”, the military campaign of the United States following the 9/11 attacks in 2001, the Indian state made Muslims the default terrorists.

It used this global attribution to the hilt by creating the legal infrastructure of anti-terrorist draconian laws and granting impunity to the police and security forces for rounding up innocent Muslims, humiliating them, brutally torturing them to extract confessions and punishing them with life imprisonment or even death – either through legal processes or through extra-legal encounters – in each case of terror attacks, whether genuine or not, keeping these hidden from people in the name of national security. The whole thing is associated with jingoist nationalism, which is whipped up to generate mass approval for these blatantly criminal acts. In the resultant communal frenzy, Muslims, who account for more than one-seventh of India’s population, are being systematically diminished to non-persons in India.

Abdul Wahid Shaikh, the author of the book, is one such victim who, according to his narrative (pages 277-319) was repeatedly picked up by the police, brutally tortured each time, and eventually put behind the bars for nine years. As he writes, the police did not have a shred of evidence except for confessions by the 11 of the 13 accused, extracted through inhuman torture and threats of implicating and torturing family members, including raping women folk.

Shaikh, who earned his law degree during his incarceration, provides the five-stage process of formalising confessions, as per the statute books involving the DCP-level police and the judicial officers, which is observed only in its violation. The confession, it may be argued, could be an exceptional occurrence through personal remorse, but police custody yields a huge crop of it. In seven of the 11 cases, 11 of the accused out of total of 12 made these confessions, which provided a script for police witnesses.

Every terror case curiously produces confessions that serve as the basis of ruination for the accused. The judiciary has a role in ascertaining the genuineness of these confessions, but it coolly forsakes it. Each one of these 11 accused had cried in anguish in court that the police had tortured them into signing blank pieces of paper and written their own stories. They hadn’t given any confession as they were innocent. But the courts paid no heed and, despite being shown several marks of fabrications in those confessions, took them as good enough even for awarding death sentences.

Police impunity

The book provides a systematic explanation for how the police have an intrinsic motivation for not taking the tedious route of apprehending the real culprits and, instead, catching innocent Muslims to fabricate cases for their conviction with fake panchnamas, fake witnesses, and fake confessions. While the former route may not guarantee the conviction that gets promotions, cash rewards, plum posts, and presidents’ awards, the fabrications largely do. Contrary to the commonplace notion and official fiction that such criminal acts take place in the lower echelons of the police force, the book names some of the highest police officials as the fountainheads of such practices. And, needless to say, these officers derive their power through their nexus with political bigwigs.

As the book puts it, “dishonest investigation, custodial torture and extrajudicial killings by the police are endemic in India and are carried on with impunity.” Rarely does a policeman get convicted for such acts. The infamous case of the Malegaon blast in a mosque cemetery compound, in which 31 people were killed and over 300 suffered injuries, all of them Muslims, may best illustrate the rot in the system. The Anti-Terror Squad had arrested nine innocent Muslims and fabricated evidence against them to, possibly, get them death sentences. But when the National Investigation Agency took over the investigation, it found no evidence against them, and, rather, that the crime had been committed by a Hindu terrorist group. But despite an officer of the level of Assistant Commissioner of Police being found responsible for such a serious criminal act, no action was taken against him.

Also, no action was taken even in the Akshardham case – the suicide attack on Swami Narayan Akshardham mandir in Gandhinagar, Gujarat on September 24, 2002 – where the special POTA court convicted all six Muslim men arrested by the CBI, awarding death penalties to three of them, life imprisonment to one, and rigorous life-time imprisonment to two. This was upheld by the Gujarat High Court. But when the case went to the Supreme Court, it gave an exceptional verdict acquitting all of them. Discarding the key evidence of the two uncreased and unstained letters purportedly recovered from the bullet-marked and blood-drenched pockets of the two diseased suicide attackers, it expressed “anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such grievous nature,… instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and imposed grievous charges against them…”

However, the Supreme Court still refrained from using its powers and recommending action against the police. By then the victims had already lost 12 years of their lives, while the policemen in question got several promotions, apart from other forms of recognition in cash and in kind. Such leniency of the judiciary towards the police has emboldened the latter to conduct themselves in an unruly manner with impunity. Shaikh poignantly calls the system the “Police Raj”.

While the victims undergo third degree torture in police custody, used mainly to extract their confessions, this does not disappear even when they are sent to prison under judicial custody. Jails, being under the judiciary, should be governed by the law, and be safer than police custody, which is rife with criminality, torture, and humiliation. But in practice they are no better. Jails are governed by the totalitarian rule of the jail superintendents, are opaque to the public, and are in cahoots with the police.

There are several instances in the book where even a legitimate question to a jailor was taken as an affront, leading to a merciless thrashing of those under trial. I have myself seen prisoners being flogged without rhyme or reason as a means of being welcomed to jail, of being beaten black and blue for a minor misdemeanour, and punished with solitary confinement.

Howsoever unlawful this behaviour, there is no easy remedy, as the judiciary, instead of applying its mind to the issues raised, mechanically keeps calling and waiting for the “say” of the jailer, which is seldom overruled.

Shaikh was a school teacher in Mumbai before being trapped in the case. Instead of buckling under torture and police threats, he internalised a new role for himself. As part of this process, he wrote down truthfully everything he went through, exposing the criminality of the state that undeservedly gets described as constitutional, liberal, democratic, secular, republican, and so on. While by no means is he the first or the last one to survive the monumental injustice of India’s criminal justice system, he is certainly among the few who has dared to expose it. Most people who escape the jaws of death or incarceration for life in political cases like terrorism choose to suppress what they have lived through, and unknowingly help the draconian system to persist.

Shaikh has gone beyond merely narrating his experiences – he has provided analyses too. He has also ventured to offer pragmatic tips to future victims when they face their ordeal, so that they do not allow the police to succeed easily in their sinister intrigues. This adds to the value of the book. Braving continuous harassment by the police, Shaikh goes around the country lecturing on the viciousness of the system and on this book.

Having undergone 31 months of incarceration before being released on bail in the Bhima Koregaon case, concocted by the state to curb dissent by putting 16 of us human rights defenders in prison, I read the book with a sense of déjà vu. But I imagine all those who wish to know the reality around them will surely profit from reading it.

Innocent Prisoners: Stories of Muslim youth falsely implicated in 7/11 Mumbai train blasts and other terror cases, Abdul Wahid Shaikh, Pharos Media & Publishing.