RECOVERING JUSTICE FROM ROT

Remember, POTA allows the admission of confessions made to a police officer as evidence—otherwise inadmissible under the Indian Evidence Act. The Supreme Court has nonetheless laid down several safeguards to ensure that the confessions are free and voluntary, including that the accused be informed in writing that they are not bound to confess, and that their statements, if made, shall be used against them (32 [2]). Such letters of caution should precede the confession, and should in fact form one seamless document. The confessions in this case, recorded by Deputy Commissioner of Police (DCP) Sanjay Gadhvi, stand apart from the letters of caution he supposedly issued to the accused before taking their statements. Moreover, in his cross-examination, Gadhvi admitted that he had not cared to examine the accused for signs of torture or physical assault. Neither did he—disclosed in the cross examination—assure the accused persons that not giving a confession would not endanger them.

Gadhvi gave these men, who had been in Crime Branch custody for over a month, a mere 15 minutes to consider their decision to confess. While one may try and understand Gadhvi’s desire to side with his fellow officers, how does one excuse the Chief Judicial Magistrate? The accused were presented to him to fulfil POTA provision 32 (4), which requires the magistrate to determine the validity and voluntariness of confessions.

First, the rapidity with which the CJM enquired about the well-being of the accused, recorded the statement, read it back and signed it, could have given Singhal himself an inferiority complex. Accused No. 4’s statement, for instance—which ran into 15 pages—was recorded, read aloud and processed in 30 minutes flat. But what vitiated the safeguards entirely was the CJM’s order to return the accused to Crime Branch custody, rather than judicial custody. Imagine this: a man in custody of the crime branch for a month; produced before a senior police officer who, caring neither to check if he has been forced to confess, nor to reassure him that he will not be returned on remand to the crime branch, records his confessional statement; within 48 hours, the man is produced before a magistrate, who repeats the callousness of the police officer. The man is returned to the investigating agency. Is this confession fair, voluntary and hence admissible incriminating evidence against
the accused?

Both the POTA court and the Gujarat High Court found confessions that were recorded under the absolute power of the crime branch completely admissible. Both agreed that prosecution proved that procedure had been followed. Both concurred, in contravention to settled principle, that section 32 (5) of POTA does not compel the CJM recording the statement to send the accused to judicial custody—not unless torture is expressly alleged. Both paid little heed to the disappearance of suspects’ medical records, which could have proved the allegation of fracture resulting from torture. Both dismissed retractions of confessions—wherein the accused alleged that brutal violence had forced them to confess—as mechanical and tutored.

Neither was concerned by the fact that the case unravelled with such great speed as soon as the crime branch took over the investigations. The precipitous speed of investigation was referred to by the HC indulgently as “gathering of momentum”. Neither cared that  Vanzara—whose role in finding PW 50 triggered other arrests—was not listed as a witness, depriving the defence of the right to cross-examine him. Neither saw that the state Home Ministry had swiftly granted the sanction for POTA, without thought or regard to facts.

It did not trouble either the POTA court or the High Court that there was in fact not a shred of evidence, apart from dubious confessions linking the accused to the crime. There were, of course, the letters, retrieved in pristine condition from the slain militants. That the handwriting expert who testified that A-4 had written those letters could not read or write Urdu, or even differentiate between Urdu, Persian or Arabic, was a trivia neither court could be bothered with. The only ‘proof’ offered for hawala transactions—a diary with entries of cash under the code name ‘Jihad’—was accepted without a trace of irony. The Ambassador seized from the SOG compound in Srinagar bore no papers demonstrating that the car belonged to Accused No. 6—or had indeed been recovered from him.

In the end, one is left with contradictory confessions, which both courts found adequate to sentence three men to death.

The application of POTA, thus, was crucial to the sustenance of the case.

The trial records of the Akshardham case validate the fears expressed by civil liberties’ activists. The People’s Union for Civil Liberties (PUCL) has argued before the Supreme Court against allowing police officers to record confessions, cautioning that once the police obtain confessions, magistrates are only used mechanically to put the seal of approval. It is evident here that safeguards remained a lifeless formality, hardly ever held up to any reasonable scrutiny.

The Akshardham attack case mirrors the Parliament attack case in more ways than one: the manner of investigation; the weak evidence; the rampant flouting of safeguards; the arguments in court defending all this.

Collective conscience ultimately outweighed the respect for substantive procedure in the latter—the Supreme Court rescued Adam Ajmeri from Afzal Guru’s fate—but can we offer that as consolation to a man who lost 11 years of his life?

The Supreme Court, in writing the Akshardham judgment, is keenly conscious of the sordid history of
this law:

This story is from the print issue of Hardnews: JUNE 2014