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Parliament Attack Case: No Redress for Wrongly Accused

By NANDITA NARAIN and NEERAJ MALIK
The authors teach at Delhi University.

The Times of India, Jan. 15, 2004

The recent high court judgment on the December 13 Parliament attack case acquitting S.A.R. Gilani and Afsan Guru of all charges (reversing the earlier judgment of the special trial court that pronounced the death penalty for Gilani and five years' R.I. for Afsan Guru) received a mixed reception in the press. It was the occasion for introspection by some on the role of the media and attacks by others. For almost two years, the country's first case under P.O.T.A. has been used by the state, the press, and even the judiciary as 'our challenge' to the 'threat to democracy,' and as an instrument to evoke and define nationalism. Yet, the high court judgment compels a closer look, both for what it says and for the implications of what it does not say for a fair system of justice.

Why were Gilani and Afsan acquitted? Because the high court decisively rejected the sole piece of 'evidence' produced by the prosecution against Gilani holding that it did not even 'remotely, far less definitely and unerringly,' point to Gilani being party to the conspiracy. Similarly, the prosecution's imputation of knowledge of the conspiracy on Afsan's part, was rejected by the H.C. since no cogent or firm inference of guilt had been established by the prosecution against her. If this is so, why were Gilani and Afsan arrested in the first place, charged under P.O.T.A. and incarcerated for almost two years when there was no real evidence against them? They did not belong to any banned organisation, no incriminating evidence was found against them, and they did not make any confessional statement.

What is becoming clear after the pronouncement of the H.C. is that without the use of P.O.T.A., the state would not have been able to keep them in jail or deny them bail. But what is striking is that even under P.O.T.A., the police had no case at all against them, as the H.C. acquittal clearly acknowledges. Another important aspect of the H.C. judgment is the question it raises about the functioning of the police with respect to the arrest memos of Gilani and Afsan, implying that they were fabricated. The court held that the prosecution 'stands discredited as to the time of arrest' and admits that it was probable that Gilani's brother was in 'illegal confinement and forced to sign papers' (paragraph 251). These points of the judgment are seriously damaging to the prosecution.

A second aspect of the judgment is that it is severely critical of the police for 'brazenly parading' the accused, an action that vitiates the criteria required for the identification parade. The judges held that the police misused the court's grant of police custody, meant to enable investigation. With the police discredited on at least two counts, and with no evidence against Gilani, what is even more striking is that the trial court had nevertheless awarded him two death sentences and Afsan five years' R.I. Had the H.C. judgment made a mention of the judgment delivered by the special trial court, not based on the minimum standards of justice, it would have served as a guiding principle in future cases.

Why are strictures against faulty prosecution and miscarriage of justice important? Because they draw attention to the basic requirements of the rule of law. It is a way of serving justice by acknowledging the wrong done to the victims of wrongful arrest and confinement, and it becomes the basis for reparations. It restores faith in the judicial system. Unfortunately, this acknowledgement too is missing in the H.C. judgment. Further, strictures are important to ensure the accountability of those who occupy public office so that they do not misuse the powers vested in them. They send a message to those who might consider violating the rule of law in the future. Immense injury has also been done to Gilani and Afsan by sections of the media that virtually declared them guilty even before their trial began.

Irresponsible and unverified reports suggested that Gilani was flush with funds from dubious sources. While there was no evidence that Afsan knew about the conspiracy to attack Parliament, she was held responsible for the loss of 14 lives - not just the nine policemen, but also the five terrorists who were killed in the attack. Armed with P.O.T.A., the legal system and the media have inflicted great harm on all the accused, working jointly to create bias and repugnance amongst the ordinary public. Consequently, the situation remains unchanged even for those acquitted. Gilani's family has found it virtually impossible to find housing, the children were denied schooling and indeed their very childhood. They were shunned even by children in their neighbourhood.

Afsan's experiences have been both physically and psychologically traumatic. Beginning with the violence of the arrest and interrogation during her pregnancy, humiliation by the officials in court and jail, repeated bouts of illness, and the delivery of a child, she has been subjected to so much stress that though acquitted, her future as that of her infant child remains fragile. Both Gilani and Afsan face continued tribulations. Their security is not guaranteed, and as people with a public history it is doubtful whether they will ever be able to get on with their lives. Who will take responsibility for the irreparable damage done to them?