Art of the State: Using Presumed Guilt to Prolong Jail Terms

With low conviction rates, it is time for courts call out the police strategy of churning out fabricated stories and framing charges under draconian anti-terror laws to prolong the detention of thousands of Muslims, Advasis, and now Dalits.

Mumbai: On September 20, 2009, the Delhi Police arrested Kobad Ghandy for his alleged role in expanding the banned Communist Party of India (Maoist) in urban areas. The police compared Ghandy’s role with that of Lashkar-e-Tayiba founder Mohammed Sayeed, called him the ‘biggest threat’ to India’s sovereignty; the media took the bait.

In no time, 13 identical cases were slapped on Ghandy across different states. Accused of waging war against the country, sedition, promoting enmity, criminal conspiracy and various provisions of the draconian Unlawful Activities Prevention (UAP) Act, Ghandy was transported from one court to another. But over the next eight years of incarceration at the Tihar Jail in Delhi, the cases against Ghandy fell apart, one after another. By the end of 2017, he was either acquitted or was discharged in as many as 10 out of the 13 cases. Soon after the court ordered his release, Ghandy was implicated in a fresh case and rearrested within a week.

What might appear as a failure of the state machinery in proving his “guilt”, is actually the police’s success, points out Colin Gonsalves, Ghandy’s lawyer in the Supreme Court. “The actual purpose of these cases was never to prove his supposed guilt. But to keep him entangled in the legal system and place him under imprisonment for as long as they can. And the state managed to achieve just that,” Gonsalves explains.

Tihar jail. Credit: Reuters/Files

Most such cases begin with a bang, with the police making allegations of serious criminal involvement, terror stories are manufactured within specific communities. As the trial begins, the initial theories floated in the media are abandoned. Credit: Reuters/Files

The pattern seen in Ghandy’s case is common in several thousand cases where people have been arrested in trumped-up charges of sedition and waging war against the nation. Researchers working closely on terror cases have identified the various ways in which the state machinery is used to keep persons under arrest, especially those from religious minorities or with political thought considered an “affront” to the state.

Most of these cases begin with a bang, with the police making allegations of serious criminal involvement, and terror stories are manufactured within specific communities. But, as the trial begins, initial theories floated in the media, are abandoned. What then remains is only a handful of flimsy claims that invariably go unproven.

Early this month, a similar story began to play out as the Pune police arrested five persons for their alleged roles in the violent attack against Dalits in Bhima Koregaon on January 1. The initial case of inciting violence was changed into an assassination plot targeting Prime Minister Narendra Modi and Maharashtra chief minister Devendra Fadnavis. Even while the FIR or the remand copy submitted to the court did not mention the police’s version, the prosecutor appearing before the magistrate’s court described in detail how these five arrested persons were plotting a “Rajiv Gandhi style assassination”. At a later date, the police once again changed the story. “Now the prosecution has claimed that the five persons were involved in arranging a series of public lectures in the memory of slain Naxalite Yalavarthi Naveen Babu at Jawaharlal Nehru University (JNU). The magistrate’s court granted their custody to the police,” said one of their lawyers Nihalsing Rathod.

Sharib Ali, programme director of Delhi- based research and advocacy group, Quill Foundation, says the usage of UAPA and other terror laws have been categorically reserved for people from Muslim and Adivasi communities and in the recent times even against Dalits. “A political atmosphere is created to brand Dalits as Naxals and break the back of the community’s movement. If you closely look at these cases you realise none of them (charges) are of violent attacks. The charges are mostly of conspiracy, or of possessing certain literature. On the basis of just this, people are imprisoned for years,” Sharib says on the basis of the research conducted by his organisation in cases of terror across the country.

That the five persons are accused of being a part of the banned organisation—the police have claimed they are members of banned organisation CPI- Maoist—does not make for a crime in itself. This crucial distinction has already been made both in the high courts and the apex court on several occasions.

Starting with the February 3, 2011 judgement in the Arup Bhuyan, an alleged activist of banned ULFA’s, conviction appeal, the Supreme Court had ruled that “a mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.” A bench of justice Markandey Katju and Gyan Sudha Mishra had declined the doctrine of “guilt by association” and had called confessions a very weak kind of evidence. Until then, most Supreme Court orders had only mirrored colonial legal practices allowing states to abuse its power and retain people under detention for several years without proving any charges against them.

On January 3, the same year, Katju had rendered another judgement in State of Kerala vs Raneef, where one dentist Dr. Raneef was alleged to be a part of a radical Popular Front of India (PFI). Katju had observed that first and foremost, PFI was not a banned terror organisation and “even assuming that it was an illegal organisation, the court was yet to examine whether all members of such an organisation could be automatically held to be guilty.” He laid his reliance on the U.S. Supreme Court’s judgment in Elfbrandt vs Russell. “Those who join an organisation but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the ‘specific intent’ to further the illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here,” he had cited from the US order.

In another case, Jyoti Chorge Vs State of Maharashtra, Bombay High Court judge Abhay Thipsay relied on the earlier judgements in Bhuyan, Raneef and another Indira Das case and said there was a clear difference in “being a Maoist sympathiser, a member of the banned organisation and participating in a violent attack”. He observed: “A number of persons are influenced and get attracted towards the Maoist Philosophy because of the oppression of the weaker section which they might have experienced in the social set up… it is impossible to hold that all such persons are to be treated as members of a terrorist organization, or that they are liable to be punished for having some faith in such philosophy, or for having sympathy for those who propagate such philosophy.”

Representative image: prohibitory orders under Section 144 of the CrPC (Code of Criminal Procedure) were imposed in and around Nawadih village. Credit: Reuters

A survey by Quill Foundation on over 460 terror accused in Maharashtra found that an overwhelming number of the accused were declared innocent but only after having spent an average of three to five years in prison. Credit: Reuters

Supreme court lawyer and author Gautam Bhatia in his academic paper on the judgement calls Thipsay’s order a “transformative judgement”. He explains, “it represents the clearest and most coherent example of judicial resistance to an almost overwhelming trend in Indian constitutional jurisprudence: The Courts’ willingness to uphold and endorse laws that severely curtail civil liberties by citing “exceptional situations.”

The Quill Foundation has closely studied the pattern in cases registered under terror laws, especially against Muslim youths in the country, and has identified several lacunae in police investigations that go unquestioned. In a survey done on the lives of more than 460 terror accused in Maharashtra, the organisation found that an overwhelming number of such accused were declared innocent but only after having spent an average of three to five years in prison.

Their research shows in out of 93 cases of SIMI (Students Islamic Movement of India) in which more than 200 people were accused of waging war against the nation, only 36 were disposed of and of them 33 resulted in acquittal. In three cases, the court convicted the accused for two years each. Their research further points to the rampant use of extraordinary laws like the UAPA, Maharashtra Control of Organised Crime Act, Terrorist and Disruptive Activities (Prevention) Act and The Prevention of Terrorism Act and its abysmally low conviction rates. The finding, for instance states that TADA was used in more than 76,000 cases over 10 years of its application with conviction rate of less than 1%. More importantly, in over 18,000 cases, i.e. one-fourth of all prosecution under TADA, charges were not filed, with accused spending one-two years on an average in preventive custody.

Sharib wonders if evidence really matters in the criminal justice system any more. “It is concerned how evidence has been reduced to just some technical matter. One can notice an increase in political interferences in various forms like introducing extraordinary laws, bringing larger than life public prosecutors to handle the matters, running media trials… in all this evidence has taken a back seat. These cases are only meant to serve political purposes.”

When the legal aspects about memberships are already settled, the issue is not as much legal as it is operational, reminds Gonsalves. He also goes on to say that while the state continues to be oppressive it is for the magistrate and sessions court to “show courage”. “Most magistrate courts have not been able to look through the police strategy and have only stuck to their versions and prolonged the persons detention for years. It is for the lower courts to rise to the occasion and stand up to the “fairy tales” that the state is offering them in the name of evidence. It is high time that the lower courts and I may dare to say even the high courts show courage and stop this blatant injustice done in the name of terror cases,” Gonsalves adds.


Join The Discussion