SAURAV DATTA | 10 DECEMBER, 2016
Malicious Prosecution in India is Real, while Justice is Illusory, Suggests Panel Report
Impunity reigns supreme.
How are the terms wrongful conviction and malicious prosecution to be defined in the Indian context, especially in so far as members of a particular minority community (read: Muslims) are concerned? How are the victims of such state-atrocities to be compensated, and whether they should be compensated at all? What happens to the scores of people accused of terror offences, who have spent years in police custody and incarceration, borne unspeakable acts of torture, and have had their lives devastated for good?
These form the core issues of the final People’s Tribunal’s report on justice to those whose sufferings are heartrending, to say the least, and exposes the gaping sores plaguing the Indian policing and justice delivery systems. Relying upon the testimonies of those acquitted in the most notorious of terror Cases- the Bombay train blasts of 7/11, the Malegaon blasts, the Akshardham Temple case (Gujarat) and the Mecca Masjid blasts case- 18 in exonerees’ cases in total- and voluminous legal documents, the final report (the preliminary version of which was released on 3 November this year in Delhi) ,prepared under the aegis of Justice (Retd.) A.P. Shah, who headed the tribunal and has been a tireless champion of human rights throughout his judicial career,, makes out a compelling case for awarding just compensation to the victims of police malice, which the Indian Express newspaper, writing on a 2014 report (prepared by the Directors General of Police of four states) not yet made public (mysteriously, or otherwise) pinned down to problems of “perception management”.
Talking about the media, the final report also lambasts the mainstream media for being a handmaiden of the police and the state for being their handmaidens in slandering arrested individuals for ever. One only has to look at the press-conferences organized by the police to parade terror-accused as terrorists before the wider public audience, and thereby subjecting them to a “trial by media”, which the Law Commission has noted in its 200th report, does influence judicial decision-making.
Wrongful Conviction and Malicious Prosecution.
What is prosecutorial malice? Is it borne out of the police’s (and prosecution’s inherent communal bias- because the investigation and prosecutorial agencies have an umbilical cord among themselves), or are there hidden factors (and vectors) which are yet to be mapped?
The final report (available here) clearly points to the former. It relies not upon hollow rhetoric, but scholarly studies conducted and published by Omar Khalidi and Ashghar Ali Engineer, which show the partisan bias of the police.
The report follows the Bingham Test for determining the meaning of wrongful convictions- as laid down by the House of Lords (now Britain’s Supreme Court) which held that it was not legal fiction, and there was not a substantial difference between being proved conclusively innocent and innocent beyond reasonable doubt.
Lord Bingham, writing for the majority, held that :
“But the issue of “actual innocence” and opposed to what may be thought of as the legal fiction of “presumed innocence” has been raised in the Adams appeal because of the compensation provisions of Article 14(6) ICCPR which states that:
“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”.”
Despite signing the ICCPR (International Covenant for Civil and Political Rights), India and its courts have routinely strayed from holding the state and its agents morally and legally culpable of flagrantly violating the basic rights of its bona fide citizens.
Contrary to this , as it is often said , believed, and practised in India, conclusions of guilt or innocence are often lead up to by a thorny path- it is a gamble.
Sadly, the report does not focus upon prosecutorial malice, which lies at the heart of all wrongful convictions.
One has to just look at the Akshardham terror- accused’s acquittal- all six were convicted, and four of them even sentenced to death- all because both the trial court and the Gujarat High Court chose to overlook the glaring infirmities in the prosecution’s case and the tell-tale signs of custodial torture that the convicts bared before the trial court magistrate.
The report fails to dwell upon the linkage between all the convicts being Muslims (one of them a cleric) and their being maliciously framed.
Compensation- A Distant Dream
In 2013, the Supreme Court ruled in the case of Ankush Shivaji Gaikwad that it is mandatory for a magistrate to award compensation to victims of crime- police malice in this case. But the ruling, which is a binding precedent, is honoured only in the breach. For instance, in July this year, a Bench headed by Justice Dipak Misra (who, some day, is in slated to be the Chief Justice of India), held that that awarding compensation to the Akshardham case acquitted would only open the floodgates of litigation, and hence ought to be denied. This, despite a previous 2014 Supreme Court ruling’s withering criticism of the illegal action by the cops and the courts below.
There are legal hurdles too- India’s Unlawful Activities Prevention Act (the law used against most terror-accused) prohibits the payment of compensation as guaranteed by any of the provisions of the Code of Criminal Procedure.
In such dire circumstances, is it justified to blame and prosecute those who take up the gun to battle for what they believe to be justice delivered, the report screams out.
As Justice Shah pointedly said in his speech, these screams get louder because of the howls surrounding the issue of Hindutva terrorism, involving the likes of Sadhvi Pragya and others of their ilk. He asked why do the investigative agencies apply different standards to different communities ? Why would the investigating agencies book Muslims for triggering off bomb blasts in a graveyard on a day considered as holy and auspicious by many?
The answer as any conscious would tell one, is only blowing in the wind.