It’s time that the courts call out wilful fabrication of evidence by the police in terror cases

Last month, a trial court acquitted Irshad Ali and Maurif Qamar of terror charges 11 years after they were arrested and charged with being Al Badr terrorists, and eight years after the Central Bureau of Investigation told the Delhi High Court that the two were in fact Intelligence Bureau informers who had been framed by the Special Cell – the Delhi Police’s elite investigating agency – for refusing to carry out the internal intelligence agency’s bidding.

Ali and Qamar figured as Case No 11 in the report Framed, Damned, Acquitted prepared by the Jamia Teachers’ Solidarity Association, which featured 24 such cases from Delhi alone. The 2012 report had details of 16 cases while the 2015 edition had eight more.

Of these, the case of Aamir Khan has received the widest publicity. Arrested in 1998, when he was 18, he was charged with carrying out an astonishing 19 bomb blasts in and around Delhi. Khan was acquitted in one case after another till he was released 14 years later, in 2012.

In 2014, the Supreme Court also acquitted all the six men convicted in Gujarat’s Akshardham attack case – three of whom had been sentenced to death. The apex court liberally used the terms “perverse”, “injustice”, “manifestly unreasonable”, “a gross violation of fundamental rights and basic human rights” to refer to the previous judgements convicting them.

Last May, the Supreme Court acquitted Nisaruddin Ahmad who spent 23 years behind bars, holding that his custodial confession to the police, which was the only piece of evidence against him, should not have been admitted at all. He had been arrested from his home in Gulbarga, Karnataka, in 1994, and booked in connection with blasts in trains on the first anniversary of the Babri Masjid demolition.

The Malegaon and Mecca Masjid blasts cases are also key instances of wrongful arrests.

When prejudice guides investigations

Acquittals in high-profile terror cases are usually followed by some mild questioning around how things could have gone wrong in such important cases. Worn out explanations are perfunctorily trotted out to justify why the police botched up: overworked police force, the skewed police-to-people ratio, political pressure, the stress to crack terror cases, and so on. Prejudice rarely ever figures in this long list.

In the course of a television discussion after Ali’s acquittal, Prakash Singh, a former Director General of Police, and a vociferous advocate of police reforms said that people are arrested wherever the needle of suspicion falls. He postulated that obviously Anil Ambani, the business magnate, would not be involved in terrorism, it would be people from other backgrounds.

It may have not struck him at that time, but with his comments, Singh laid bare the prejudice that guides terror investigations in our country.

Aamir Khan, Adam Ajmeri, Haji Qayyum, Irshad Ali, Shoeb Jagirdar: these are all appropriate suspects towards whom the needle of suspicion turns as if by itself.

Where investigations are inflected by such deep-rooted bias, other institutions do not fare much better. We tend to celebrate these acquittals as the triumph of our criminal justice system – of the essential, even if despairingly slow, justness of our courts. Those exonerated are thankful to the courts for acquitting them, to civil society groups for offering them support and succour, and never display a trace of rancour.

Are we truly deserving of this grace?

Should the system not make amends for the years of wrongful incarceration, for the lives wrecked, for the trauma suffered by the innocent accused and his family?

The Central Bureau of Investigation filed its closure report in Irshad Ali and Maurif Qamar’s case in November 2008. It not only vindicated Ali’s and Qamar’s claims that they had been framed, it also concluded that the arms and ammunition shown to have been apprehended from the duo was planted by the Special Cell, and therefore recommended prosecuting three Special Cell officers for fabrication of evidence.

However, following this report, instead of being honorably discharged and compensated for a clear case of being falsely implicated, both men were sent to trial while the police officers indicted by the Central Bureau of Investigation continued to thrive. Even the Supreme Court left it to the trial court’s wisdom to decide whether to discharge the two, or to try them. The sessions court had the opportunity to acknowledge the egregious wrongs dealt to the two innocent men, to direct filing of charges against the police officers who trapped and framed Ali and Qamar, or at the very least to pass strictures against the errant policemen. Instead, like many other judgments in the past, it has merely noted that the prosecution failed to prove guilt beyond reasonable doubt. It is almost as if the Central Bureau of Investigation report was erased from the record of the courts.

Impenetrable impunity

Indeed, it is striking how, in the face of the absolute absence of evidence, or worse, wilful fabrication of evidence, and the identical nature of cases presented before them by the agencies, the courts shy away from recognising the pattern and naming the disease.

By granting the accused “the benefit of doubt”, the courts make acquittals appear like favours granted that one should be grateful for. It is rare to find acquittal judgments that actually record the malicious nature of the investigation and prosecution. In the absence of such judicial observations, it is well nigh impossible for the acquitted to seek any compensation, or action against the police.

In Aamir Khan’s case, surely a judicial hand should have weighed the meagreness of evidence much before the 14 years it took for his acquittal. And surely, at least one of the several judgments that acquitted him should have commented at his being implicated in a large number of cases, and asked questions at the manner in which he was turned into a prime accused in numerous blast cases.

Even if the courts pass strictures, the code of impunity remains impenetrable.

In 2011, a Delhi sessions’ court in State versus Saqib Rehman and Others, evaluated the evidence presented by the Special Branch and concluded that the accused were:

“[T]otally innocent and have been framed in this case by the aforesaid four police officers in order to achieve their personal gains and/or to settle petty personal scores … or to earn undue honours or awards for themselves.”

The court directed a departmental enquiry “for the misuse and abuse” of the officers’ powers, and the registration of an FIR against the four police officers.

However, the Delhi High Court, which heard the appeal in 2012, upheld the acquittal but held that the lower court was wrong in passing harsh remarks against police officers, and directed that only an administrative enquiry be carried out.

In effect, this High Court order asks that courts turn a blind eye when countenancing fabrication and frame ups – to politely cover up the rottenness of a dysfunctional system, to be satisfied with insipid departmental enquiries that never take place.

Similarly, even when the apex court castigated investigating agencies and lower courts for malicious investigation and prosecution in the Akshardham case, another bench of the Supreme Court rejected a plea for compensation made by the acquitted men. The court said that to compensate Adam Ajmeri, Haji Qayuum and other co-accused for wrongful conviction would set a “dangerous precedent” and open the “floodgates” for such pleas.

But shouldn’t the highest court of the land in fact prise open the floodgates of justice to those subjected to the most terrible human rights abuses by the custodians of the law? A mere acquittal after spending a lifetime in prison does not amount to justice.

Manisha Sethi is the author of Kafkaland: Law, Prejudice and Counterterrorism in India.