| by B. Raman
( November 26, 212, Chennai, Sri Lanka
Guardian) Instances of miscarriage of justice are many in India. Sometimes,
such instances arise due to gross negligence by the police in the
investigation. Sometimes, due to wanton fabrication of evidence and violation
of the legal procedures to be followed during the investigation.
2. Such instances continue to take place
and even increase in number because of the lack of fear in the police officers
that action might be taken against them
for miscarriages of justice caused by negligence or mala fide actions or inaction.
3. There has been a worrisome increase
in the number of such cases ever since terrorism made its appearance in the
early 1980s.Calls for ruthless action against terrorists and zero tolerance of
terrorism have unfortunately created an impression in the minds of sections of
police officers that any methods are good methods for dealing with terrorists
and terrorism. Political tolerance of the use of illegal methods in dealing
with terrorists has added to the belief that the police can take liberties with
the law and procedures while dealing with terrorism.
4.One has to be firm and ruthless under
the law in dealing with terrorists, but one cannot go beyond the law in dealing
with them. One has to use the might of the law against them, but one cannot use
illegal methods and procedures during the investigation. Use of such methods
and procedures prove counter-productive.
5. Since many of the acts of terrorism
committed in India are by jihadis, innocent Muslims have often been the victims
of mala fide investigation. Instead of controlling terrorism, it aggravates it
by adding to the anger in the Muslim community against the police and other
investigating agencies. It becomes a vicious circle. The more illegal the
methods used by the police, the more the terrorism. The more the terrorism, the
more illegal the methods used by the police.
6.A shocking instance of such wrongful
action and miscarriage of justice has been brought to notice after 16 years by
a Division Bench of Delhi consisting of Justice Ravindra Bhat and Justice G.P.Mittal. In a judgement
delivered on November 22,2012, it has acquitted two Muslim convicts who had
been awarded death penalty by the trial court in a case relating to an
explosion in the Lajpat Nagar Market of New Delhi in 1996 in which 13 persons
were killed. Another convict’s sentence was reduced to life term.
7.It is a horrendous case because if the
court had not noticed the wanton miscarriage of justice by the police, three
persons might have been executed by the State on the basis of evidence of
questionable value and authenticity. It was not a case of the police
unconsciously using such evidence, but wantonly using such evidence in full
knowledge of its lack of authenticity in order to obtain a conviction.
8. The judgement has said: "Police
have not maintained minimum standard of probe in the case, test identification
parade (TIP) was not conducted, statements of vital witnesses were not
recorded. There was also absence of (police) daily diary entry in the
case." The court has observed that there was casualness in the
investigation of the case.
9. While we have taken many steps to
improve the quality of intelligence collection and physical security, we have
not succeeded in improving the quality of investigation. This has had two
results. Firstly, an increasing number of undetected cases. Secondly, instances
of the use of wrongful methods and miscarriage of justice in cases which are
claimed to have been successfully detected.
10. After the 26/11 terrorist strikes in
Mumbai, the Government had set up the National Investigation Agency (NIA) to
improve the quality of investigation. Despite this, the number of undetected
cases has been increasing. This judgement has drawn our attention to a serious
case of miscarriage of justice due to bad investigation in the year 1996----
sixteen years later. One does not know how many more such instances remain
unnoticed or undetected during the
prosecution and trial.
11. It is important for the Government
to go into this and take corrective action to prevent a recurrence of such
instances. There is a need to improve not only the quality of the
investigation, but also the quality of the supervision over the investigation
by senior officers. ( 25-11-12)
(The writer is
Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi,
and, presently, Director, Institute For Topical Studies, Chennai, and Associate
of the Chennai Centre For China Studies. E-mail: seventyone2@gmail.com Twitter @SORBONNE75)
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