The recent High Court judgement in the December 13 Parliament Attack Case acquitting SAR Gilani and Afsan Guru of all charges (reversing the earlier judgement of the Special Trial Court that pronounced the death penalty on Gilani and 5 years R.I. on Afsan Guru) received a mixed reception in the press. It was the occasion for introspection by some on the role of the media (Editorial, The Hindustan Times, 31 October 2003), and vicious attacks by others who tauntingly told civil rights activists that welcomed the judgement to ‘go home’ to Pakistan (The Pioneer, 31 October 2003). For almost two years, the country’s first case under POTA 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 in India today. Yet, the High Court judgement 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 for all Indians.
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 definitively and unerringly’, point to Gilani being party to the conspiracy (High Court judgement, para. 412). Similarly, the prosecution’s imputation of knowledge of the conspiracy on Afsan’s part, was rejected by the HC since no cogent or firm inference of guilt had been established by the prosecution against her (para. 420).
If this is so, why were Gilani and Afsan arrested in the first place, charged under POTA and incarcerated for almost two years when there was no real evidence against them? They did not belong to any banned organization, no incriminating evidence was found against them and they did not make any confessional statement. What is becoming clear after the pronouncement of the HC is that without the use of POTA the state would not have been able to keep them in jail or deny them bail. But what is striking is that even under POTA, a law widely debated for the manner in which it fails to secure the rights of the accused, the police had no case at all against them, as the HC acquittal clearly acknowledges.
Another important aspect of the HC judgement are the questions 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’ (para. 251). These points of the judgement are seriously damaging to the prosecution. A second aspect of the judgement 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 (para. 139). The judges held that the police ‘misused’ the court’s grant of police custody, meant to enable investigation. However, despite clearly identifying such serious miscarriage of justice, the High Court stopped short of passing strictures on the police.
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 5 years RI. Had the HC judgement made a mention of the rather over-adventurous judgement delivered by the Special Trial Court, not based even 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 HC judgement. Further, strictures are important to ensure the accountability of those who occupy public offices so that they do not misuse the powers vested in them; they also send a message to those who might consider violating the rule of law in the future. While this is so for all cases under the normal legal system, it becomes even more imperative when a draconian law like POTA is invoked.
Immense injury has also been done to Gilani and Afsan by sections of the media that virtually conducted their own public trial and declared them guilty even before their trial began. An irresponsible and unverified report was published that Gilani had bought a house in Delhi (The Hindustan Times, 17 December 2001), imputing he was flush with funds from dubious sources. A film repeatedly aired in December 2002 on Zee TV presented, in a documentary form the prosecution version as "factual", representing the accused as dreaded terrorists, guilty without doubt. And while there was no evidence that Afsan knew about the conspiracy to attack the Parliament, she was held responsible for the loss of 14 lives – not just the 9 policemen, but also the 5 terrorists who were killed in the attack on the Parliament (Special Trial Court judgement, para 263).
Armed with POTA, 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, as, in the vitiated atmosphere, 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. Could it be that she has been specially targeted because she is regarded as having transgressed boundaries by marrying outside her community? The trial court judgement that convicted her suggested as much by holding that she violated her ‘constitutional obligation to uphold the sovereignty of India and her ‘duties towards the state’ by placing her husband before the nation (Special Trial Court judgement, paras. 262-263).
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?
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