Indian Defence Review

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.

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 ormala fide actions or inaction.

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.

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.

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.

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.

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.

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.

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.

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.

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.