The Innocent Accused: Are we biased against the minorities? | weekend | Hindustan Times
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The Innocent Accused: Are we biased against the minorities?

A Delhi court recently acquitted two accused in the 2005 serial blasts. This is only one of many cases in which those charged by cops have been eventually found innocent by courts

weekend Updated: Mar 01, 2017 17:31 IST
Poulomi Banerjee
terror-accused

In September 2006, Parvez Ahmed Radoo, son of a college professor, left home in Kashmir to pursue a PhD in Pune. He had already completed his post-graduation in Zoology from the University of Pune. Radoo took a flight to Delhi, and was scheduled to travel on to Pune. But officers of the Special Cell of Delhi police detained and subsequently arrested Radoo for being a Jaish-e-Mohammad operative, and accused him of being in the national capital with the intention of carrying out terror attacks. He would spend the next seven years in prison before being acquitted by a trial court. In a letter written during his captivity in Tihar, Radoo laments, “The Special Cell actually wanted to show me before the media and tell them that they had arrested a person (terrorist) who had arrived in Delhi to explode bombs on the occasion of Deepawali. How they were befooling their public.”

Unfortunately, Radoo’s is not a one-off case of the police picking up the wrong man and then trying to pass him off as a terror accused. Earlier this month, a Delhi court acquitted two of the three accused – Mohammad Rafiq Shah and Mohammad Hussain Fazili – in the 2005 Delhi serial blasts case for want of evidence. The court observed that the Delhi Police had “miserably failed” to prove the charges. Last year, nine accused in the 2006 blasts in Maharashtra’s Malegaon were acquitted by a special court.

Proof is in the numbers

In 2015 the Jamia Teachers’ Solidarity Association released the second edition of Framed, Damned, Acquitted: Dossiers of a Very ‘Special’ Cell. The report gave details of 24 terror cases in which the accused had been arrested by officers of the Special Cell, but had been acquitted by the court for want of evidence. In the preface to the first edition released in 2012, the Association says that the cases being reported by it were only “the tip of the proverbial iceberg”. “There are two crimes being committed here. One is the act of arresting someone on a suspicion of fact to satiate the sense of law and order and the second is the incomplete act of investigation,” says sociologist Shiv Visvanathan. There were serial blasts in Delhi in 2005. But who were the real perpetrators?

Those in the police force are unwilling to admit that an acquittal means that the wrong person was charged. “An acquittal only means that the evidence didn’t pass judicial scrutiny,” says an officer of Delhi Police. That can hardly have been the case with Mohammad Rafiq Shah, who had been pleading with the police ever since being detained in 2005 that he was at university in Kashmir at the time of the 2005 blasts and had been writing an examination paper, as his attendance record and the statements of his professors have since proved to be true.

A case of prejudice?

“There is a bias. You need a target. The ritual of law and order has to be completed. Stereotypes help. If you have an unemployed Muslim youth, bearded, Kashmiri, as your accused, he is easily accepted as the perpetrator of the crime. It is the accompanying acts to terror that are often more frightening than terror,” says Visvanathan.

“My work shows me that there is not an individual bias, but an institutional bias,” says advocate Vrinda Grover

The bias, feels advocate Vrinda Grover, is so deep-seated that we are unwilling to even admit that it is there. “My work shows me that there is not an individual bias, but an institutional bias,” says Grover. Terror cases, feel many defence lawyers, see an easy manifestation of inherent biases. “These cases are more in the public eye. There is a pressure on the police to deliver. People belonging to the minority community are targeted. The arrests make headlines, the cops get medals, but when it is proved in court that the accused is innocent, I don’t see the medals being taken back,” says lawyer Kamini Jaiswal.

Mohammad Hussain Fazili with his father Ghulam Rasool Fazili and mother Fatima at his home in Buchpora on the outskirts of Srinagar a day after coming back from Delhi. He was recently acquitted in the 2005 Delhi blasts case. (Waseem Andrabu/HT)

Lack of accountability

Grover agrees that police accountability is necessary. “I have found that the rigour of investigation is inversely proportional to the gravity of the case. The police have to be held accountable,” she insists. Grover gives the example of the Akshardham temple attack case where the Supreme Court had rapped the investigating agencies by saying, “Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature... Instead of booking the real culprits...the police caught innocent people...” .

Read: After freedom, the fight for justice

On a personal level, Irshad Ali, who was falsely accused of being an Al-Badr terrorist in 2006, has taken a stand. In January 2017, he filed a case in the Delhi High Court urging it to order the CBI to re-open their closure report in which they had recommended that police officers who had framed him be booked for criminal conspiracy. The hearing is due in March.

But often, the person is too broken by the years in custody to think of getting back at the system. Radoo, in his letter written from Tihar, mentions being given electric shocks. Torture – physical and mental – is part of the nightmare years spent by every innocent behind bars. In the Akshardham case for example, one of the accused, Mufti Abdul Qayum, who was on death row, said he had been forced to sign the confessional statement prepared by the police under coercion.

“The law says that an accused is innocent till proven guilty, but in the case of a terror accused, he becomes guilty till proven innocent,” says lawyer Kamini Jaiswal

Mohammad Aamir Khan, another innocent accused, who spent 14 years in custody before being acquitted, had said after his release, “I would lie awake at night and often cry myself to sleep... I thought my entire life would pass within these walls”. He has since co-authored a book on his experiences. Often it takes all of one’s courage and determination to simply pick up the pieces of one’s life and move on. There is hardly ever any rehabilitation by the state. The years of fighting for release take a financial toll on families, making it difficult to carry on the fight for justice.

Guilty till proven innocent?

It is because of the courts that many have finally managed to prove their innocence. But lawyer Kamini Jaiswal feels much depends on the judge. “I remember in the Parliament attack case, one of the accused, a woman, used to sit and cry in court. The judge commented, ‘Why are you crying now? Why didn’t you think of the consequences before committing the crime?’ And this, before the verdict was out,” says Jaiswal. “The law says that an accused is innocent till proven guilty, but in the case of a terror accused, he becomes guilty till proven innocent.”

Not everyone agrees that the reason for so many poorly-investigated cases is bias in the investigating agencies.A retired officer of the National Investigation Agency, for example, blames it squarely on the incompetence of the state police. “The selection of officers is poor. Investigation is not everyone’s cup of tea. There are also not enough good public prosecutors,” says the officer. He too stresses on the need to hold officers accountable.

Meanwhile, bias or bad investigation, the price of the cops’ mistake is paid by people like Radoo, Rafiq, Aamir and all the other innocent accused, whose lives and whose families’ lives have been torn apart by careless allegations.