Truth is stranger than fiction: a note on the Akshardham acquittal

June 3, 2014

June 3, 2014

Akshardham

by Ra Ravishankar

The Akshardham attack of 2002 has recently been in the news after the Supreme Court acquitted all the main accused persons. As the first case where the accused were convicted under POTA, the acquittal is an apt illustration of all that’s wrong with repressive laws and how they are used to criminalize Muslims.

A brief chronology

On September 24, 2002, two heavily armed fidayeens attacked the Swaminarayan Akshardham temple in Gandhinagar, Gujarat. The attack left 33 people dead and more than 85 injured, several of them seriously. After a several hour gun battle in the early hours of September 25, the fidayeens were dead. An FIR was filed the same day, and the investigation was handed over to police inspector V. R. Toliya. On October 3, the Anti Terrorism Squad (ATS) took charge of the case, but after a few fruitless months when the investigation didn’t make much headway, the case was transferred to ACP Singhal of the Crime Branch on August 28, 2003. Events then unfolded at a breathtaking pace, as if to make up for the lack of progress in the intervening eleven months.

On August 28, the day ACP Singhal formally took charge of the case, he interrogated Ashfaq Bhavnagri after verbal instructions from his boss, D.G.Vanzara. The next day, at 2 p.m, five people were arrested and charged with criminal conspiracy. The prosecution alleged that the Akshardham attack was planned to avenge the anti-Muslim riots of 2002, and that it was hatched in Saudi Arabia, Hyderabad, Ahmedabad and Jammu & Kashmir. The next day, provisions of POTA were invoked. The next day, in a remarkable coincidence, the Gujarat ATS received a fax from the IGP Kashmir that someone in their custody had disclosed (during an unrelated interrogation) his involvement in the Akshardham attack!

Thus, within three days after the case was transferred to the Crime Branch, all the six main accused persons were in custody! By early October, all but one of the six accused persons – except Abdullamiya Yasinmiya — had confessed. On November 21, the Gujarat government sanctioned prosecution under POTA, and the chargesheet was filed before the designated Special Court on November 25, 2003. The six accused were convicted by the Special Court (POTA) on July 1, 2006 and sentenced as under:

A1: Altaf Malek, 5 years rigorous imprisonment
A2: Adambhai Ajmeri, death by hanging
A3: Mohammed Salim Hanif Sheikh, life imprisonment
A4: Abdul Qaiyum Muftisaab Mohmed Bhai, death by hanging
A5: Abdullamiya Yasinmiya, 10 years rigorous imprisonment
A6: Chand Khan, death by hanging

The sentences were affirmed by the Gujarat High Court on June 1, 2010. Altaf Malek was released after serving his sentence, but the other five appealed to the Supreme Court (SC). In an order dated May 16, 2014, a Supreme Court bench comprising Justices A K Patnaik and V Gopala Gowda exonerated all the appellants (as well as Altaf Malek), and expressed their “anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.”

As tempting as it is to slip into banalities about truth always triumphing, and how the intellectual independence of the judiciary (in the midst of a Modi wave) augurs well for democracy in these troubled times, it’s worth poring over the Supreme Court judgment for the insight it offers into the ease of criminalization of ordinary Muslims.

The case that wasn’t – A study in prosecutorial misconduct

The Supreme Court evaluated the merit of the lower court judgments on these grounds:

(i) Whether the sanction given by the Gujarat state government for prosecution under POTA is in compliance with section 50 of POTA
(iI) Whether the confessional statements of the accused persons were recorded in compliance with strictures laid down in section 32 of POTA
(iii) Whether the testimonies of the alleged accomplices can be relied upon to corroborate the (retracted) confessions of the accused
(iv) Whether the spotless & crease-less letters allegedly recovered from the soiled, bloodied and bullet-ridden bodies of the fidayeens were written by the accused, A4
(v) Whether there is any independent evidence, besides the (retracted) confessions of the accused and the testimonies of the alleged accomplices to indict the accused

1) Section 50 of POTA mandates that “[n]o court shall take cognizance of any offence under this Act without the previous sanction of the Central Government or, as the case may be, the State Government.” The sanction requirement is presumably meant as an additional safeguard against arbitrary exercise of the draconian provisions of POTA. For it to be a meaningful safeguard, it goes without saying that the sanctioning authority has to independently assess the situation, perhaps discuss the need for such a sanction with the investigating officer, and reach a decision after due application of mind and free from external pressures of any kind. In the present case, the SC judges found clear evidence to the contrary and voided the sanction, castigating the then Home Minister (Narendra Modi) for “non-application of mind in granting sanction.”

2) Article 20(3) of the Indian Constitution provides that “[n]o person accused of any offence shall be compelled to be a witness against himself.” However, Section 32 of POTA allows confessions made “before a police officer not lower in rank than a Superintendent of Police” to “be admissible in the trial of such [a] person for an offence.” A PUCL appeal on the constitutionality of this provision was disposed of by the Supreme Court on grounds that certain provisions in Section 32 make it safer and deter the police from coaxing confessions through torture. In the present case, the officer recording the confessions, DCP Sanjaykumar Gadhvi, admitted that “he did not assure the accused persons that not making the confessional statement will not put them in adverse position.” Furthermore, the SC judges inferred from the testimony of the Chief Judicial Magistrate that “he was able to record the statement of the accused persons, read it over to them and enquire about any coercion and torture, all in a period of half an hour. It is highly improbable that a confessional statement running to more than 15 pages could be read back to them within half an hour … His conduct in recording of statement under Section 32(5) of POTA merely resembles that of a passive reluctant officer involved in some procedural formality.” Concerned with these and other violations of “safeguards” built into Sections 32 and 52 of POTA, the SC judges ruled the confessions inadmissible in law.

3) The prosecution’s case against the accused persons relied strongly on the testimonies of three alleged accomplices. In their judgment, the SC judges ponder the reliability of evidence given by accomplices, discuss guidelines laid down by prior SC decisions to assess their credibility, and then evaluate on merit the confessions in this case.

On the general question of reliability of accomplices, the judges refer to a SC judgment from 1968 that held an accomplice “unworthy of credit unless he is corroborated in material particulars” and cautioned: “The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and how has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue.”

As regards credibility, they quote from a 1975 SC judgment which held: “An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place … Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt … Ordinarily, however, an approver’s statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal.”

In the present case, the testimonies of the alleged accomplices absolve themselves of criminal liability for the conspiracy to attack the temple, while also failing to prove the guilt of the accused persons beyond reasonable doubt. The judges also noted the “inordinate delay in recording of the statements of the accomplices [which] casts a grave suspicion on the reliability of the testimony of the accomplices.” One of the alleged accomplices later retracted his testimony, and claimed to have been illegally confined and tortured by the Crime Branch for about two months, besides threats to criminalize his family. All this led the judges to “fear that the story against the accused persons and its corroboration through the statements of accomplices is an act of concoction to make up a case against them.” They ruled that the “evidence of the accomplices cannot be used to corroborate the confessional statements of the accused persons in the absence of independent evidence and the delay of more than one year in recording their statements causes us to disregard their evidence.”

4) Abdul Qaiyum Muftisaab Mohmed Bhai (Accused A4) was charged with giving shelter to the fidayeens and writing two letters in Urdu that were recovered from the dead bodies of the fidayeens. Neither charge could be proved, but the latter proved particularly untenable. Firstly, the seized letters were not kept in sealed covers, increasing the possibility of their being tampered with subsequently. More importantly, despite the letters having (allegedly) been recovered from the dead fidayeens, whose clothes were stained with blood and mud and bore multiple bullet holes, “the letters remained clean, without any tear, soiling or stains of blood and soil.” When the defence counsel questioned this incongruity, the High Court ruled that “truth is stranger than fiction” and that “it is not possible to disbelieve that two write ups in Urdu were recovered from the body of the deceased Fidayins.” The SC duly ruled that the letters cannot be used as evidence against the accused.

5) The SC judges took due note of the fact that the accused persons had retracted their confessions, had alleged that they were tortured and threatened with death by “encounter” as well as death of their loved ones, and had repeatedly requested before the Special Court (POTA) to transfer the case to the CBI for an independent inquiry. The judges also found glaring inconsistencies in the confessions of the accused, “each of which contradicted the other and was actually fatal to the case of the prosecution.” Likewise, the depositions of prosecution witnesses were “contradictory and disrupt the chain of events and turn it into a confusing story with many discrepancies, defeating the roles of each of the accused persons which have been allegedly performed by them.” They ruled that “none of the events of the alleged criminal conspiracy was supported by independent evidence that inspires confidence in our minds to uphold the conviction and sentences meted out to the accused persons.”

Who are the guilty?

Thanks to the Supreme Court’s meticulous take-down of the prosecution’s case, we now know that the six persons accused of the Akshardham attack and convicted by the lower courts are innocent. After their release, the “framed 6” have demanded monetary compensation for their time spent in prison as well as criminal prosecution of the police officers responsible for their torture and wrongful imprisonment. As mentioned earlier, five of the six accused persons retracted their confessions as having been made under torture and threat to their lives (through fake encounters) and that of their families. Two of the retractions, quoted in the SC verdict, describe the illegal detention and torture in some detail, and name the following Crime Branch officers for participation/complicity in the torture and framing: G. L. Singhal (then ACP, and head of the investigation), D.G. Vanzara (Singhal’s boss, who transferred the case back from the ATS and entrusted it with Singhal), VD Vanar, R.I. Patel.

Later developments confirm that this wasn’t a case of the Crime Branch running amok; the rot extended all the way to the top of the political establishment. Two of the main torture-accused in the Akshardham case, D.G. Vanzara and G.L. Singhal, continued to rise through the Gujarat police ranks thanks to a spate of fake encounters, but have since been chargesheeted by the CBI for criminal conspiracy in the fake encounter of Ishrat Jahan and three others. After several years of imprisonment, a bitter and unrepentant Vanzara asserted that the Crime Branch and ATS “simply acted and performed their duties in compliance of the conscious policy of [the Gujarat] government”, and charged the Gujarat government with “reaping very rich political dividends … by keeping the glow of encounter cases alive in the sky of Gujarat.” Vanzara is hardly a model for probity, but his charges against the Gujarat government have some credence since they are not exculpatory and conform to the carefully constructed persona of Narendra Modi as a strong leader intent on weeding out terrorists at all costs.

A political establishment intent on criminalizing Muslims to consolidate the support of the Hindu vote bank, and a communalized and compliant police force make for a potent combination. POTA, enacted by the previous NDA government in 2002 (and scrapped in 2004 by UPA-I) provided the sparks. While hardly alone in its misuse, Gujarat government zealously and selectively applied POTA to silence and isolate Muslims in the aftermath of the state-sponsored anti-Muslim riots in 2002. A PUDR report observed that “[a]s seen from its operation in Godhra, POTA emerges as a legalised form of annihilation of minority communities.” Case after case, and numerous public hearings have demonstrated how the now-repealed TADA & POTA or their successor, UAPA, buttress the repressive power of the state by granting it disproportionate and arbitrary powers. The safeguards built into their application exist only on paper, whereas the violations of constitutional rights these acts engender are far too real.

If the political establishment and the police are guilty of sins of commission, the Special Court (POTA) and the Gujarat High Court didn’t quite cover themselves with glory. These courts had strongly relied on the testimonies of the three alleged accomplices to establish the guilt of the accused persons, and though one of them later claimed to have confessed under police torture and retracted it, ruled that this did not “vitiate the admissibility of the evidence against the accused persons.” This is particularly glaring, given the strong propensity of the prosecution to coax testimonies against the accused, and the widespread prevalence of torture in India. The lower courts’ reliance on accomplice testimonies without due scrutiny, therefore, smacks more of a cavalier disregard toward prisoner rights and due process than a misinterpretation of a tricky legal point.

A similar attitude was in display when the High Court accepted the spotless letters – the only material evidence that tied (one of) the accused to the fidayeens — as evidence and justified it with the remark: “Truth is stranger than fiction.” The SC judges also charged the lower courts with not giving the same weightage to the defence witnesses as they have to the prosecution witnesses, and faulted them for completely overlooking the testimony of one defence witness who had suggested that some of the accused persons might have been in police custody much before the official date of arrest (as alleged by them in their confession retractions). The lower courts have functioned more as an appendage of the state and the prosecution than as independent arbiters of justice, be it in rejecting all claims of illegal detention and torture or in their touching faith in the prosecution’s loophole filled story.

A campaign for legal reform

Acts such as POTA and UAPA, or their regional variants such as the Chhattisgarh Special Public Security Act (CSPSA) and Maharashtra Control of Organised Crime Act (MCOCA), have proven very effective to target Muslims, as well as to criminalize political dissent. There is, thus, a clear need to repeal such acts which ride roughshod over constitutional safeguards and fundamental rights [3]. With a new government in place, knowing its penchant for tough anti-terror laws, and the media feeding us a steady diet of terror stories, a tougher anti-terror law might well sneak up on us.

However, the state has enough arsenal at its disposal, even without these acts, to leash political dissent and terrorize the working class and the marginalized. The long-standing repression of Maruti Suzuki Workers Union in Haryana, recent rounding up and illegal detention of about 80 Muslim men (including high school students) in Mumbai, and the arrest in Karnataka of a Muslim student on charges of circulating an anti-Modi MMS are cases in point. Thus, any campaign for legal reform will have to demand more than just a repeal of the anti-terror acts and sedition acts.

Notes

[1] After his release, he revealed the mystery of the two letters: “For three days and nights, they made me copy a letter that they had given me. They (the police) would bring an expert each day to check whether I had copied it well. They would ask me to copy the turns and twists of the Urdu letters so that they looked exactly the same as in the letter. I was very afraid, and did what they told me to do,” he said. “Then they claimed in court that I had written the letters.”

[2] Other testimonies have implicated Amit Shah (then Gujarat’s junior home minister) and Narendra Modi in the fake encounters. Last week, G. L. Singhal was reinstated by the Gujarat government as Commandant of the 12 SRP battalion in Gandhinagar

[3] As KG Kannabiran aptly observed: “Discretionary powers over the life and liberty of people invariably degenerate into capricious judgments by the authority involved, with no accountability to anybody.” (p.85 of “The Wages of Impunity”, 2003)

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