Half Justice

Several men who were accused in terror cases and acquitted after years in jail want the state to compensate for their loss. But it is a long and uncertain battle.

By Sanya Dhingra, ThePrint,

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–Mohammad Aamir Khan, 36, was arrested from old Delhi in 1998 for his alleged role in bomb blasts in Delhi and neighbouring states between December 1996 and December 1997. He spent 14 years in jail before being acquitted. He is rebuilding his life month by month but wonders if his misfortune would prevent his little daughter from accessing a good school.

Mohammad Aamir Khan

–Mufti Abdul Qayyum, 45, was arrested from Gujarat in 2003 and convicted by the Gujarat High Court for his alleged involvement in the Akshardham attack of 2002. He spent 11 years in a jail in Sabarmati before being acquitted in 2014. The modest income he earns as a teacher in a madrasa in Ahmedabad is barely enough to care for his family of four. He and five others went to the Supreme Court demanding compensation but the plea has been sent to a lower court with observations that don’t give much hope.

–Zaheer-ud-din Ahmad, 44, was arrested from Gulbarga, Karnataka, in 1994, shortly after the arrest of his younger brother Nissar-ud-din on terror related charges by the Andhra Pradesh police in connection with bomb blasts on trains on the first anniversary of the demolition of the Babri Masjid. Subsequently they were also named in other terror cases. Zaheer-ud-din was released on bail in 2008 by the Supreme Court after he was diagnosed with lung cancer. He was acquitted in April this year along with Nissar-ud-din who ended up spending 23 years in jail.

The tragedies of Khan, Qayyum and Ahmad are not aberrations. ‘Framed, Damned, Acquitted: Dossiers of a ‘Very’ Special Cell’, a 2015 report by the Jamia Teachers Solidarity Association, documented 23 other cases of men who were charged in terrorism related cases, jailed, tortured, harassed and ostracized for years for being “terrorists”, only to be acquitted by the courts and released into a world they can make little sense of.

Lawyers and human rights activists say there are many more like them whose stories have not yet been documented. While some lose their parents in the course of the tedious judicial processes, others return home to children who have grown up beyond recognition. It’s a life that has been turned upside down many times over. And for no fault of theirs. Is the state responsible for their fate? Without doubt, they say. In fact, some have taken their fight to the state and are seeking compensation to help rehabilitate them. But it’s another long and harrowing legal battle, and if there is any light at the end of this tunnel, it is not in sight yet.

“In India, you get a law in this life, but you get justice in the afterlife,” says Ravi Nair, Director of the South Asia Human Rights Documentation Centre, adding that compensation, or the lack of it, is only part of a much larger problem. There is, he says, a need for a state policy and will to provide compensation to those whose fundamental rights the state violates by falsely implicating them in terror cases and subjecting them to systemic torture.

Mufti Abdul Qayyum

It is a sentiment Aamir Khan fully agrees with. Getting compensation for losing 14 years of his youth and adult life to 19 terror cases – in 17 of which he has been acquitted – is a more urgent need than dwelling on a past marred by torture, immeasurable personal loss and extreme physical and psychological suffering. In December 2015, the National Human Rights Commission (NHRC), which had taken suo moto cognizance of Khan’s case, issued a show cause notice to the Delhi government asking why Khan should not receive Rs. 5 lakh in compensation for wrongful confinement as a terrorist. Seven months on, Khan is still asking the same question.

An unassuming man with an otherwise tentative manner, Khan becomes uncharacteristically stern as he speaks of a robust compensation and rehabilitation policy. Underscoring the need for the state to rehabilitate “victims” like him, Khan, now a father of a two-year old, says that the government should give him “a respectable job” to ensure that his future is not simply an extension of a past laden with sorrow and stigma. Whose fault is it if he does not formally qualify for the jobs he deserves, he asks. “I could’ve very well become a criminal or gangster after my release,” he adds, as he shifts his body weight every now and then. “The third degree torture I underwent makes it difficult for me to sit straight for long,” he explains.

Qayyum, one of the six men to be acquitted in 2014 in the Akshardham case by the Supreme Court, is also fighting for compensation for “the mental and physical trauma suffered by him and his family for almost 11 years on account of his incarceration and being labeled a terrorist”. One of his two children was only a few months old when he was thrown behind bars. When he became a free man again, the child was 12 years old. Qayyum, who was earlier sentenced to life by the special POTA court in Ahmedabad and subsequently by the Gujarat High Court, now teaches in a madrasa and has involved himself in social work.

Rejecting his plea and sending it to a lower court, the Supreme Court said this week that granting compensation would set a bad precedent and open the floodgates for similar pleas. It is, however, not just the compensation which is important to Qayyum. The 45-year-old is also seeking “exemplary punishment” for the officers who he says framed him and plans to resume his legal battle in the lower courts soon.

For Zaheer-ud-din’s family it was a double blow as two of its men were accused of being terrorists and jailed. After its 23-year struggle, the family feels its future is uncertain. Zaheer-ud-din, who was working as a civil engineer in Gulbarga in 1994, now finds himself brooding over his career while all those he once called classmates and friends have stable sources of income. “In 2016, we find ourselves exactly where we were in 1994,” he says.

Zaheer-ud-din Ahmad

Surprisingly, or perhaps not, he does not talk of compensation or rehabilitation. Instead, his voice is filled with a palpable weariness over being caught in a judicial maze. “We’re thinking of starting a small business back in Gulbarga…let’s see what happens,” he says. His brother, on the other hand, has not even begun thinking about the future. Nissar-ud-din, who has spent more years of his life in jail than outside, is only beginning to learn the ways of the world. Already in their forties and more pressing livelihood issues to address, the reluctance to fight for compensation or action against police officers who they believe framed them should not be so difficult to understand, Zaheer-ud-din says. “Action should ideally come from the government’s side,” he adds gingerly.

However, any step towards rehabilitation by the state remains unlikely, according to Prof. Manisha Sethi, an activist with the Jamia Teachers Solidarity Association (JTSA). “In India, the idea of reparation does not exist.” The JTSA report, which documents the cases of 24 men who claim they were framed by the police as terrorists, also says that none of the 24 has received any compensation even though court judgments in all their cases questioned the veracity of the evidence presented by the police.

But the response of the police to this report has been predictable. Reacting to the report when it was first published in 2012 – and updated in 2015 – the Delhi Police had said that in terror cases, “Guilt must be proved beyond doubt”. However, it had also said that “if a case ends in acquittal, the blame is not only at the doorstep of the investigating agency”. The reluctance of public witnesses to speak up in terrorism cases was cited as one of the main reasons for cases resulting in acquittal due to a lack of evidence. Those claims have, however, been clearly countered in court in some cases. For instance, in the case of Irshad Ahmad Malik, the court noted that any effort to enlist independent witnesses “was omitted by the police deliberately”. In another, two public witnesses in front of whom the arrests and seizures of the alleged terrorists were purportedly made, told the court that they were merely made to sign on papers — a blank paper in one case — and neither actually saw the arrests being made or the explosives being recovered from anyone.

Startlingly, in what the report describes as the “reign of impunity”, police officers in each of these cases not only remain at large but many continue to hold important positions despite the courts’ hard questions to investigating agencies.

And this is the larger problem Nair refers to – a heightened sense of official impunity among those in uniform. According to Section 197 of the Indian Penal Code (IPC), no public servant accused of any offence allegedly committed while acting or purporting to act in the discharge of his official duty can be tried by the courts without the prior sanction of the central or state government. This, Nair argues, is a serious impediment to justice for most innocents who are wrongly implicated by the police. To maintain the façade of justice, however, it is the “petty officials” who are prosecuted every now and then, he adds.

Globally though, India is not a unique case and only a few countries have been able to try and address the problem. While the US has long had an ignominious image for its treatment of prisoners of the “War on Terror”, the Obama administration has sought to resettle overseas inmates who are released from Guantanamo Bay. “The one reason the US cannot close Guantanamo is because they can’t find places for resettlement,” says Nair. “They’re not great, but at least they’re trying.”

One case involving an Indian also stands out. Mohammed Haneef, an Indian-born doctor who lived in Australia, was accused of helping his cousin in the 2007 Glasgow Airport attack and arrested in Brisbane. His 25-day incarceration, solely on the basis of suspicion, became the longest without any charge in recent Australian history and Haneef voluntarily decided to leave Australia on being freed. Three years later, when he returned to Australia to seek damages for emotional and financial distress, Haneef was reportedly compensated “substantially”. It was, however, not just the monetary aspect of the compensation that mattered. It also meant a public admission of wrongdoing by the Australian government.

“India has never believed in reparation for harm done by the state,” says Nair. Or as Aamir Khan asks, if there is a policy to rehabilitate former terrorists who shun violence, why is there no policy for someone who was “framed” by the state?

The story is taken from the FaceBook wall of ThePrint.

(Sanya Dhingra is an Editorial Trainee with ThePrint.She can be followed on Twitter @DhingraSanya)