April 26, 2013

Care should be taken that the punishment does not exceed the guilt; and also that some men do not suffer for offences for which others are not even indicted. – Marcus Tullius Cicero, Roman philosopher, statesman and orator (BC 106-43).

Under the title “Return my dignity, man tells court”, Dhananjay Mahapatra reported in The Times of India (12-3-13) that in a heart rending plea, a person acquitted of rape charges has moved the Supreme Court seeking restoration of his lost dignity and honour. If the Nirbhaya gang rape case in Delhi sanitized politicians, police, judiciary and the media  on security of women as well as not revealing the identity of a rape victim (notwithstanding Home Minister Shinde’s paux pas of proclaiming in Parliament  the names of three children raped and murdered in Maharashtra), the man who was acquitted in the similarly sensational Mayapuri rape  presented to the court how a person framed in a sexual assault case faced ignominy and was treated with suspicion by society and police.

Niranjan Kumar Mandal, who spent four years in jail before being set free, told the court that he was treated as an outcast even after his acquittal. The 2006 Mayapuri rape had shocked Delhi as a hearing and speech-impaired pregnant woman was sexually assaulted in a moving car. Mandal, who ran a diagnostic centre, was in jail for over four years before a trial court acquitted him. He said: “My wife and children suffered a lot of humiliation and suffering, affecting their life and education”.

Contrast this with a Los Angeles-dated report published in Telegraph (London). A man who was arrested for suspected drunk-driving and held in solitary confinement for nearly two years after prison authorities “forgot” about him, has accepted a $ 15.5 million settlement, one of the highest US civil rights payouts to a prisoner. Stephen Slavin, 59, spent 22 months in a New Mexico jail cell, where his toenails grew so long that they curled under his feet, he developed bedsores and fungus and fell into a state of delirium.

His lawyer said: “the very large payout does not give back to Slavin what was taken from him, but if it prevents others from enduring the pain and suffering he was subjected to, then the fight has been worthwhile.” Slavin was stopped by police in August 2005 and accused of being drunk and in a stolen vehicle. He claimed the car had been given to him by a friend to drive across the country. He was never seen by a judge and appeared depressed arrived at the detention centre and was put in solitary confinement.

Slavin’s case was dismissed in June 2007 and he sued the jail, with a jury awarding him $ 22 million in January 2012. The jail appealed and refused to pay. Following mediation, Slavin accepted $ 15.5 million.

Now, let us revert to India. The Indian situation is widely debated and is well reflected in an article titled “Booked but not guilty” by Ashish Tripathi and published in Deccan Herald (9-3-13) and excerpted here. According to him, life of innocent people put behind bars and later released for want of evidence can never be the same. Every terror strike brings agony and annoyance, and challenges counter-terrorism response. The latest Hyderabad twin blasts in February 2013 were no different. They revived a raging debate on illegal detentions by the police on the basis of suspicion. Some members of the minority community, arrested but released later in the aftermath of the 2007 Mecca mosque blast in Hyderabad, were picked up again. As many as 30 Muslim youth had been falsely implicated in the terrorist attacks that occurred at Mecca mosque, Malegaon in Maharashtra and Ajmer Sharif. The Andhra police alone had arrested 21 for Mecca mosque blasts. All these 30 youth are now on bail after the National Investigation Agency (NIA) picked yawning holes in police probe as the sleuths, on the contrary, pointed out the involvement of right-wing elements.

Before we come to some specific cases cited by Tripathi, late us take on board the comments of Mani Shankar Aiyar., former Union minister, an MP and a social commentator (The Week – 10-3-13):”The fact is that the minute there is a terrorist attack, our police,  TV anchors, and large swathes of public opinion so quickly leap to the conclusion that there must be a Muslim hand behind the outrage, that literally hundreds of innocent young Muslims (and virtually no Hindu) are immediately picked up and incarcerated under torture for several years on end. Let off by courts – in one notorious case, after 16 years in jail (longer than a normal life sentence for murder) – they are then turned out into the street with no support, no relief, no rehabilitation, no apology and no attempt to remove the stain on their character, rendering their families bereft and themselves quite jobless. What is their fault, except that they do not belong to the Hindu religion?”

Coming back to Tripathi’s specific cases, Ishad Ali and Maurif Qumar were branded as Al-Badr terrorists and  arrested by Delhi Police’s Special Cell in January 2006. In the last seven years, the trauma faced by them has instilled fear in the duo from Bihar. But, they have not given up the fight to come out of the stigma they still carry. They continue to appear at Delhi’s Tis Hazari courts to get themselves declared innocent. Their fault: they defied the police which tasked them to work on a secret mission in Jammu and Kashmir. Prior to their arrest, they claimed to have been working as Intelligence Bureau (IB) informers. Their glimmer of hope was the Delhi High Court, on their plea, directing the CBI to probe their charges that they were framed in the case. The CBI concluded that the Special Cell planted explosives for falsely implicating them. Despite the clean chit, the accused police officers are seemingly beyond the reach of law. The trial court did not take cognisance of the CBI’s closure report. When their case travelled to the apex court, it directed the trial court to consider all material before deciding whether the two were wrongly framed. The case is still dragging on.

In a more recent case, journalist Muthi-Ur-Rehman Siddiqui and his associate Yusuf Nalaband were among 15 persons arrested in 2012 from Bangalore on charges of plotting terror strikes. The NIA dropped the charges against them after six months in jail, due to lack of sufficient evidence. One of their associate, DRDO scientist Aijaz Ahmed Mirza, however, was granted bail as the NIA failed to file charge sheet within the stipulated time. Though he was acquitted, he lost his DRDO job , provoking Press Council Chairman Katju to write to the Defence Minister to restore the job.

Without question, life for all these people can never be the same again. Irshad, however, has resumed driving his taxi and Maurif is back in his workshop making bags. Can these persons get back prime time lost behind the bars since they were falsely implicated in cases? Or, should not the police be made accountable for the blemish put on their career and required to personally compensate them?

The Supreme Court fiercely guards the right to life and liberty that the Constitution guarantees to its citizen as it has demonstrated in several judgments. So far, courts have been very reluctant to interfere whenever any person is arrested by the police during investigation on the premise that it is prima facie domain of the investigating agency. Court will not interfere unless there is something very glaring, believes Supreme Court advocate Sishir Pinaki. Advocate M S Khan, who has argued terror-related cases, blames intelligence agencies for creating “rumour network” at the institutional level. “The Intel agencies are not accountable to any authority. Many innocent people are picked up at their instance by the police. If the poor accused is acquitted after years, he is left with no option but to try to pick up the threads of his life again,” he says.

“The police have to act against odds. Despite all constraints, if we fail to prove charges against some of the accused or fail to file charge sheet against them, it is not that they are all innocent. Instead, it is primarily because we don’t have enough prosecutable evidence against them,” a senior police officer said. “We pinpoint people on the basis of certain inputs only,” he adds.

In Rekha Vs State of Tamil Nadu (2011) case, the Supreme Court said, “Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time).” Dealing with the cases of foreign-origin prisoners languishing in Indian jails even after completing their sentences, the Supreme Court has maintained, state cannot take away liberty of any person on technical or legal pretexts as it is the protector of the rights of every citizen.

During the Raj regime, suing the government was dubbed as pissing in the sand – you have nothing to show for it. Even now, writ against the Government is like fighting a Goliath, with the whole Government’s resources (Tax-payer’s) arrayed against the protesting individual. Since there is no liability against the irresponsible, or frivolous, faceless babu or cop, he calls the shots – often frivolously and irresponsibly. So, fixing responsibility and extracting damages personally from the guilty cops and babus may help in controlling their wrong-doings.