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Nashik–Bhusawal Acquittal and Beyond

Mahtab Alam (mdmahtabalam@gmail.com) is a multilingual journalist and executive editor of the Wire Urdu. Previously, he has worked with Amnesty International India.

The acquittal of 11 Muslim men after 25 years by a special Terrorist and Disruptive Activities (Prevention) court in Nashik raises questions about the enabling conditions for such victimisation. Along with scrutinising the role of anti-terror laws, media, and the judiciary, the issue of compensation needs to be foregrounded.

On 27 February, a special Terrorist and Disruptive Activities (Prevention) Act (TADA) court in Nashik (Maharashtra) acquitted 11 Muslim men nearly 25 years after they were arrested. These men were arrested in May 1994 for allegedly conspiring to “avenge’’ the Babri Masjid demolition by carrying out terror attacks. They were charged under the now-repealed TADA and several other sections of the Indian Penal Code (IPC). As per the police complaint (Shaikh 2019) filed against the initial nine accused by police inspector K D Ingle of the Bhusawal Bazar Peth police station, “The accused persons have committed the offence of sedition and conspired against the country by creating a Muslim organisation of Al Jihad Tanzeem.” However, according to the accused, who are now acquitted by the court, “our only mistake was being born Muslims” (Shantha 2019).

This is, of course, not the first time when Muslim men accused of terror charges have been acquitted after long years of incarceration, and there is hardly any mechanism to ensure that this will not be repeated in future. By now it is well-documented that young and educated Muslims are arrested on flimsy and fabricated charges and even if they are acquitted eventually, it is no relief as they lose everything by then. The process itself has become the punishment. Take the case of the Ahmed brothers (Alam 2016) from Gulbarga (Karnataka), for example. Like these 11 men, Nisaruddin Ahmed and Zaheeruddin Ahmed were accused of carrying out terror attacks avenging the demolition of Babri Masjid. While for Nisaruddin it took 23 years to step out of jail (because he was implicated in other cases as well), his elder brother Zaheeruddin had to spend 14 years in jail. The case of Delhi’s Mohammad Aamir Khan, who had to struggle for 14 years to prove his innocence, is the most well-known case of such injustice. Similarly, there are dozens of other cases that clearly establish that the accused were punished for no crime.

Over the years of their incarceration, these men lost everything—education, job, family, social acceptance and confidence. In many cases, their parents died while they were in jail and they were not allowed to attend the last rites. Moreover, most of these accused were arrested while they were young—studying or working—but by the time they are acquitted they have nothing substantial to do and nowhere to go because over the years the world has changed completely. Due to long years of incarceration they also develop mental health issues. In addition, there is the fear of a rearrest, and the tag of an ex-terror accused continues to haunt their lives even after acquittal. On the other hand, those responsible for implicating them in false and fabricated cases have gone unpunished; in fact in some cases they have been rewarded. There are four broad reasons for this state of affairs.

Anti-terror Laws

The first and foremost among them is the very existence of the so-called anti-terror laws such as the TADA, the Prevention of Terrorism Act (POTA), the Maharashtra Control of Organised Crime Act (MCOCA) and Unlawful Activities (Prevention) Act (UAPA). These laws by their nature have been arbitrary, and reverse the cardinal principle of the criminal justice system and violate natural justices, that is, every accused is innocent until proven guilty beyond reasonable doubt. In this context Ujjwal Kumar Singh (2004) rightly observed that “like all extraordinary laws, it [POTA] bypasses due process, so that abuse/misuse is woven into its provisions.” Moreover, in the implementation of these laws there is an inbuilt bias towards certain communities, especially Muslims as far as terror-related cases are concerned. This can be understood from the fact that in the wake of the Godhra massacre while the POTA was exclusively used against Muslims, no Hindus were charged under the POTA in connection with the post-Godhra violence against Muslims (Human Rights Watch 2003). Despite all that, the conviction rate in the TADA as well as the POTA cases has been low.

Throughout its existence 76,036 individuals were arrested for crimes under the TADA. Of these, only 1% ended in a conviction. Similarly, at the time of its repeal, in 2004, 1,031 persons were arrested under the POTA (Kalhan et al 2005). Trial was finally completed with regard to 18, of which 13 were convicted. One can argue that it only proves that if there is no real case then persons accused will be acquitted. True, but what is important to note here is that by the time they are acquitted and released they will have been incarcerated for years for no reason, and they are left with social and mental trauma. And if this proves anything, then that is the absence of any case to begin with and the zeal to show that counter-terror mechanism is at work, even if it ruins the lives of innocent people instead of countering terror activities.

Like the TADA, the POTA was repealed too (by the United Progressive Alliance government) but we eventually got UAPA in its place, which is even more draconian, opaque and arbitrary. In the current form of the UAPA, especially after its amendment in 2008 and 2012, the act has become a tool to target and criminalise dissidents and minorities. Moreover, as Manisha Sethi (2014) notes,

There is no study to prove that a tough law acts as deterrence against terrorism—howsoever one may choose such laws leading to gross violations of citizens’ rights: illegal detentions, torture, false cases, long periods of incarceration—a wholesale recipe for “disaffection,” in fact.

Hence, with laws like these in hand, it becomes very easy for the state and police to use process as punishment because these laws also allow long years of incarceration without trial.

Media Narratives

Apart from the draconian laws, media works as another enabler of undue punishment in these cases. Media through its sensational and unverified reports creates an atmosphere where questioning and raising valid doubts about the state or police version is seen as an act against “national interest.” Those who raise such questions are often termed as “anti-national” by not only the state and its agencies but also journalists and lawyers. In most of the terror-related cases, reporters file stories in which the state version is treated as gospel truth and they do every attempt to sensationalise it. The accused in most of these cases are portrayed as enemies of India, hardened criminals and masterminds of several terror acts across the country. As a result, what happens is that before the courts decide about the accused the persons are already seen as guilty by the people at large. And since most of the accused belong to a particular community, the entire community is seen with suspicion, which has a long-term impact on the community, especially on its youth. It also gives rise to phrases like, “Not all Muslims are terrorists, but all terrorists are Muslim.”

And most importantly, given the atmosphere against the accused outside court or amongst the public at large, the court and the judge also do not want to take risks at the initial stage. In fact, in some cases even if there is not enough evidence to prove that the person accused is indeed responsible for what he has been charged with, the courts have invoked the collective conscience of the society. “The incident,” argued the Supreme Court while delivering judgment in Parliament attack case, “which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender” (Indian Express 2016). This also happens because when the accused are arrested, the news of their arrests find space on the front pages of mainstream newspapers and are debated on prime time shows of most of the news channels for several days, apart from their sensational reporting based on unverified facts. Often it becomes impossible to separate facts from fiction while reading and watching these reports and discussions. However, when they are acquitted that news is either not reported at all, or even if reported, they are not given even one-tenth of space of what the news of their arrest got. Like other cases, this also happened in Nashik–Bhusawal case. News of their acquittal was initially only reported by Urdu newspapers and some community news websites. Mainstream media organisations reported about it after several days, that too marginally. Ashfaq Meer, one of the 11 men who were acquitted in the Nashik–Bhusawal case rightly asks, “Where are the headlines now that we have been acquitted?” (Punwani 2019). Notably, while he was imprisoned a Hindi daily ran a headline claiming “Doctor Terror ladki paida honey se naraaz” (Doctor Terror angry at the birth of a girl). Contrary to the newspaper’s claim, the fact is that Meer was not even aware of birth of the child, forget about being angry. Again, it must be noted that, this is not an isolated case of reporting. Documentation done by the Jamia Teachers Solidarity Association (JTSA 2012) indicates that it is rather a norm than exception.

Role of the Judiciary

The third reason for continuation of what we have been witnessing is the approach taken by the courts in these cases. The courts are often indulgent towards the prosecution in such cases which makes these cases linger for years, meanwhile bail plea by the accused are rejected and hence, they have to spend time in jail most of the time. For example, in the Nashik–Bhushawal case, the first information report was registered in 1994 but the charge sheet, a mere 20-page document, was submitted to the court only in 1998. However, they were lucky enough to be released on bail, which is often not the case. The courts time and again have denied bail (Business Standard 2018) to an alleged member of Indian Mujahideen Fasih Mahmood, who was deported from Saudi Arabia in 2012. Mahmood had been charged in connection with a case of setting up an alleged illegal arms factory. The court said that there was no valid reason to grant bail to Mahmood, considering the gravity of offence and the serious allegations against him.

This judicial tendency is not a feature of lower courts alone. According to Shylashri Shankar (2015) who has studied the role of the Supreme Court in terror cases,

the judiciary’s interpretations, which show an increasing propensity to allow more cases under such laws while also diluting the protection of civil liberties, have worsened matters. For instance, the court allows for noncompliance with the requirement for judicial custody at times of ‘urgency’, but the notion of urgency is ambiguous.

Her study reveals that

116 judges served on different benches to hear 194 anti-terror cases. Of these, 86 judges heard more than 1 case … About 40% of the judges were pro-state 50% to 75% of the time, 19% were pro-state 75% to 99% of the time, 10% were always pro-state, 7% were always anti-state, and 20% were anti-state less than 50% of the time.

To a great extent, courts while adopting this approach heavily rely on anti-terror laws and the atmosphere created by the media reports.

Lack of Remedies

Since there is no proper mechanism to address the wrongful prosecutions, it allows the situation to continue. The Law Commission of India (LCI 2018) in its recent report, while taking into consideration the cases of Nisaruddin and Aamir Khan among others notes that, “under the current set of remedies, claim and grant of compensation for the said miscarriage of justice still remains complex and uncertain.” It further notes that,

The criminal justice system, as it stands, does not provide for an effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions. As things stand, there is no statutory or legal scheme articulating the State’s response to this issue. Moreover, given the endemic and sensitive nature of the issue, and the glaring inadequacies of the available remedies, there is a pressing need for an explicit law for compensating the victims who have suffered miscarriage of justice at the hands of the State machinery—laying down State’s statutory obligation to recompense these victims of wrongful prosecution, and a dedicated judicial mechanism to give effect to the same.

The commission headed by Justice B S Chauhan, former judge of the Supreme Court recommended certain specific amendments in the Code of Criminal Procedure (CrPC), 1973 in order to incorporate the provisions for compensation. In fact, the commission also presented a draft bill—the Code of Criminal Procedure (Amendment) Act, 2018—in its report. It has been more than six months that such a report was submitted to the Government of India, but there is no sign of it being fully or partially accepted and acted upon. Neither did the report get much media traction nor is it being discussed by policymaking organisations, both government as well as private. Even today, when we are witnessing general elections, wrongful and malicious prosecution is hardly on the agenda of any political party. This is despite the fact that it affects a large number of our population, including political activists.

Conclusions

As rightly observed by the Law Commission, there is an urgent need to bring legal remedies in order to address wrong prosecutions. In addition to that what is also needed is to repeal draconian laws such as the UAPA and the MCOCA. Even more important is that another draconian law be not brought in its place as happened in the case of the TADA and the POTA. Needless to say that this is not possible without a strong political will, which is lacking at this point of time across political parties. What is also important in this regard is that our judiciary must favour the principles of natural justice instead of state and collective conscience. Similarly, media houses and journalists must start doing fact-based reporting, instead of acting as stenographers and spokespersons of the police and state agencies, especially because these reports can ruin the lives of people.

References

Alam, Mahtab (2016): “Who Will Return Our Precious Years, Ask the Wrongfully Incarcerated,” The Wire, 24 December.

Business Standard (2018): “HC Denies Bail to IM Member Fasih Mahmood in Terror Case,” April 2019.

Human Rights Watch (2003): “Compounding Injustice: The Government’s Failure to Redress Massacres in Gujarat,” https://www.hrw.org/reports/2003/india0703/Gujarat-05.htm.

Kalhan, Anil, Gerald P Conroy, Mamta Kaushal, and Sam Scott Miller (2005): “Colonial Continuities: Human Rights, Terrorism and Security Laws in India,’’ Columbia Journal of Asian Law, Vol 20, No 1.

Indian Express (2016): “What Supreme Court Said When It Upheld Death for Afzal Guru,” 26 February, https://indianexpress.com/article/explained/parliament-attack-2001-what-....

JTSA (2012): “Framed, Damned, Acquitted: Dossiers of ‘Very’ Special Cell,” Jamia Teachers Solidarity Association, http://www.jamiajournal.com/wp-content/uploads/2012/09/JTSA-Report-Frame....

LCI (2018): Wrongful Prosecution (Miscarriage of Justice): Legal Remedies, Law Commission of India, Report No 277.

Punwani, Jyoti (2019): “Where Are the Headlines Now,” Mumbai Mirror, 13 March.

Sethi, Manisha (2014): Kafkaland: Prejudice, Law and Counter-terrorism in India, Delhi: Three Essays Collective.

Shaikh, Zeeshan (2019): “Maharashtra: Cleared of Terror Charges after 25 Years, 11 Men Look to Rebuild a Lifetime Lost,” Indian Express, 7 March.

Shankar, Shylashri (2015): “Judicial Restraint in an Era of Terrorism: Prevention of Terrorism Cases and Minorities in India,” Socio-Legal Review, Vol 11, No 1, pp 103–24.

Shantha, Sukanya (2019): “Our Only Mistake Was Being Born Muslim: A 25-year Fight against Terror Charges,” The Wire, 11 March.

Singh, Ujjwal Kumar (2004): “POTA and Federalism,” Economic & Political Weekly, Vol 39, No 18, pp 1793–97.

Updated On : 8th Apr, 2019

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