RECOVERING JUSTICE FROM ROT

 The SC’s recent acquittal of five of the six accused in the Akshardham attack case, citing “gross violation of fundamental rights” by the lower courts and investigating agencies, exposes the dangerous nexus between the lower judiciary and government machinery

Manisha Sethi Delhi 

“Truth is stranger than fiction,” wrote the division bench of the Gujarat High Court in 2010, invoking Mark Twain to explain two letters recovered in perfect, unsoiled condition from the bullet-perforated and blood-soaked bodies of two fidayeens. The court used the letters to confirm the convictions of six men—including life imprisonment and death sentences for three—handed out by the Prevention of Terrorism Act (POTA) special court in Ahmedabad.

In September 2002, an attack on the Akshardham temple in Gandhinagar left over 30 dead and scores injured. The National Security Guard (NSG), requisitioned from Delhi, finally shot and killed the two armed raiders after hours of gun battle. A complaint was lodged the same day. For almost a year, investigations meandered and changed hands, from the local police, to the Anti-Terrorist Squad (ATS), and finally reaching Crime Branch on the evening of August 28, 2003.

At 6.30 pm, GL Singhal assumed charge of the investigation. At 8 pm, he recorded the statement of the first prosecution witness (PW 50) concerning information provided by Deputy Inspector General (DIG) DG Vanzara. The following day, August 29, accused numbers 1–5 were arrested. POTA provisions—absent in the original complaint—and FIR were added on August 30. On August 31, Inspector General of Police (IGP) operations, ATS Gujarat, received a fax message from IGP, Kashmir, stating that one Chand Khan in their custody had confessed to involvement in the Akshardham attack.

It turned out that the Urdu on the recovered letters matched the handwriting of Accused No. 4. Moreover, the six accused readily agreed to make confessional statements detailing their roles in the conspiracy, first before the Superintendent of Police (SP) Sanjay Gadhvi (PW 78), and then before the Chief Judicial Magistrate (PW 99). An Ambassador  was meanwhile seized from Accused No. 6 in Jammu and Kashmir—the car allegedly used to ferry the fidayeens from Kashmir to Ahmedabad, via Bareilly.

All loose ends taken care of and neatly tied up. What was there not to believe in the prosecution story? The Special POTA court passed its judgment convicting all six in July 2006. In June 2010, the High Court opined that “the offence of criminal conspiracy of mass killing of Hindus in Gujarat; of promoting enmity between the two groups on grounds of religion; of inviting support for a terrorist organization; of arranging and managing meeting/s to support terrorist organization; of inviting another to provide money, of receiving money and of providing money for the purpose of terrorism; of use of prohibited arms and explosives; of terrorist act of mass killing without provocation; of attempt to murder and of abetment are established.”

The real story of the Akshardham case is not the malicious investigation, which is by now rather familiar. Even the cast is well-known: GL Singhal, DG Vanzara and their cronies in the ATS and Crime Branch. Neither is it surprising that reading judgments and chargesheets of terror cases induces ennui—like watching a series of mind-numbing B-grade potboilers, where plot, camera angles, dialogues, all resemble each other, to the extent that they all segue into one mess, difficult to extricate from one another. For example, the fortuitous discovery of fragments of papers that point the investigators straight to the accused. In the Red Fort attack case (2000), a paper slip bearing a telephone number allegedly fell from the pocket of an escaping terrorist, nailing the main accused, Mohd Arif @ Ashfaq. In the Parliament attack case (2001), telephone numbers recovered from the dead terrorists led to Mohammad Afzal, Shaukat Husain Guru, Afsan Guru and SAR Gilani. Then there are hazy lines joining Special Operations Group (SOG) in Kashmir to investigative agencies in Delhi and Gujarat. Also characteristic is the efficiency of the investigating agencies—the ATS, or the Special Cell, or Crime Branch—in cracking cases, arresting accused, and wrapping up confessions in no time.

The real story, however, lies in what happened in the courts and the judicial offices. On May 16 this year, the Supreme Court acquitted five of the six convicted men—who had appealed against their conviction—and liberally used the terms “perverse”, “injustice”, “manifestly unreasonable”, “a gross violation of fundamental rights and basic human rights” to refer to the previous judgments and the court’s power to overturn them. So deeply troubled was the apex court by the business of the POTA special court and the High Court that it also acquitted Accused No. 1, who had not even appealed. What played out in the courts cannot be called judicial abdication. That would be too polite. It was nothing short of absolute abnegation of judicial responsibility.

For the long list of crimes the six accused in the Akshardham attack were charged with, and the severe penalties imposed upon them, the evidence produced in court was shockingly sparse. The bulk of the evidence was five confessions extracted from them (No. 5 had refused to confess) under Section 32 of POTA.

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:

“POTA was repealed in 2004. Yet, the trials its implementation has entailed are continuing till date. POTA was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police.

This is an important aspect to be kept in mind while deciding this case and hence, it was pertinent to mention this in the beginning to say that we are wary of the abuse the provisions of this Act might bring.”

POTA was repealed when the last NDA government was ousted. In its place, the pre-existing Unlawful Activities Prevention Act was fortified. Though UAPA does not allow confessions as evidence, as much as a whisper of ‘terrorism’ can produce wonders. The Sessions court, convicting Ashfaq in the Red Fort attack case, held that: “Even if there is some torture or illegality committed by the police officials in the course of investigation, the same does not render the evidence inadmissible.” (See ‘An Unfair Verdict: A Report on the Red Fort Attack by the People’s Union for Democratic Rights’.

 

Terror cases are tried under UAPA for years without sanction being obtained; and when granted, sanction is often proved in court by way of a lowly clerk in the state home ministry testifying to his officer’s signature on the sanction order.

When the UAPA was being amended in Parliament after the 2008 Mumbai attack, LK Advani rued the absence of admissibility of confessions.

Today, his former protégé, who built his initial political career at least partly on the blusterous rhetoric of terrorism—deploying Godhra, Akshardham, the Haren Pandya murder and
numerous other POTA cases and encounter killings as strategic political resources— is preparing for a new counter-terrorism regime.

As though to inaugurate the effort, Singhal—arrested in 2013 by the CBI for leading the Ishrat Jahan fake encounter, and protagonist of the Akshardham attack case—was reinstated by the Gujarat government.

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