Terrorism: India Needs More Efficient Prosecution To Secure Conviction – OpEd

The Ones Who Got Away

In November last year, a division bench of Calcutta High Court acquitted four Lashkar-e-Taiba [LeT] terrorists [including two Pakistani nationals] who had been awarded capital punishment by a sessions court under Section 121 of Indian Penal Code [waging war against Government of India]. While being a complete ignoramus when it comes to legal matters cautions me to steer clear away from commenting on Calcutta High Court’s judgment, one of inferences drawn by it is, to my mind, certainly contentious.  

According to media reports, one of the mitigating circumstances cited by Calcutta High Court [CHC] for releasing the four accused was that they were “not men who were in the higher echelons of the terrorist organisation” [Emphasis added] and noted that the quarto “are foot soldiers who were recruited through allurement or coercion for the activities of the organisation.” [Emphasis added].

While accepting that one of the accused [Pakistani national Mohammad Yunus] had voluntarily joined LeT terrorist group and was trained in use of arms, CHC opined that “He is presently more than 66 years old and there is little possibility of his reverting to the path of terrorism.”

The CHC also noted that the second Pakistani national [Mohammad Abdullah] was a teacher by profession and that “He did not receive any training in use of arms and expressed his mistake in joining the terrorist organisation [LeT].” CHC ordered release of accused Indian national Muzaffar Ahamedas he “was forcibly inducted into the terrorist organisation and given arms training.”

The ‘mitigating circumstances’ to release the four accused terrorists mentioned by CHC indicate that its judgment is based on the supposition that there is “little possibility” of terrorists who are in their mid-sixties, are repentant for being engaged in terrorism, have not received arms training or claim to have been “forcibly inducted” into terrorist organisations, “reverting to the path of terrorism.”

Though a logical inference, to extend the assumption that age or pangs of conscience could make highly indoctrinated terrorists return to the mainstream is being naïve. It’s only after apprehension that terrorists begin talking about how they were forced into joining terrorist groups and start expressing their disenchantment with terrorism. To put it bluntly, such hullabaloo is pure theatrics driven by survival instinct!

Empirical data indicates that the percentage of jailed terrorists who once again pick up the gun after their release [due to inducement or coercion] is inordinately high. Nor does age contribute towards the mainstreaming of terrorists. Hizbul Mujahideen [HM] founder and chief of Pakistan occupied Kashmir [PoK] based United Jihad Council [UJC] chief Syed Salahuddin who is 77 years old remains an active hard core and unrepentant terrorist.

Similarly, lack of arms training isn’t a mandatory prerequisite to join terrorist ranks. 75 year old LeT co-founder Hafiz Saeed has never received formalised arms training and yet he is one of world’s most wanted terrorists with a whopping USD10 million bounty. Lastly, those forcibly conscripted into terrorist groups can always break free by surrendering to the security forces and there have been several such instances. That’s why, whenever an apprehended terrorist claims that he wanted to surrender but couldn’t do so as his comrades always kept an eye on him, be rest assured that he’s lying through his teeth!

There must have been several other substantially sound legal reasons behind CHC’s judgment. However, since the media has only mentioned apparently frivolous mitigating factors like age of the accused, their forced recruitment by terrorists or personal remorse, it conveyed an impression to the public that the Indian judiciary is treating terrorists with kid gloves.

The Ones Who Didn’t

This is why even though coming after 27 years, the recent sentencing of four accused in the 1996 bomb blast incident in New Delhi’s crowded Lajpat Nagar market to life imprisonment without the possibility of parole by the Supreme Court [SC] has restored public faith in the judiciary. The SC has appropriately ruled that “Even though it is the rarest of the rare case, nonetheless considering several factors, we impose a sentence of imprisonment without remission extending to natural life.”

Furthermore, by observing that “The Trial Court awarded the sentence of death more than 13 years ago and the present accused acting at the behest of the principal conspirators are all mitigating circumstances in not awarding the sentence of death even though it falls within the category of rarest of rare cases,” the SC has demonstrated its non-partisan character.

And in stating that the SC needs to “be conscious of the fact that the bomb blast caused at the behest of the accused persons, resulted in the death of 13 persons and 38 persons suffered injuries” and sentencing the convicts to life imprisonment without parole, it has upheld the hallowed tenets of impartiality while delivering justice, both in letter and spirit.

Lessons from Lajpat Nagar Blast Case

The most important issue in the 190 page judgment on the Lajpat Nagar bomb blast is the SC’s incisive observations on the perfunctory manner in which such a serious case has been handled. Noting that “enough vigilance was not displayed by the investigating as well as the judicial authorities,” the SC has fittingly stated that “the delay, be it for whatever reason, attributable to the judge in charge or the prosecution, has certainly compromised national interests.”

It has also opined that “Expeditious trial of such cases is the need of the hour, especially when it concerns national security and the common man,” the SC has pointed out that the Lajpat Nagar blast case “has not been dealt with the required degree of promptitude and attention,” and this keen observation is applicable to almost all terrorism related cases and is one of the reasons for low conviction rate.

The SC has also mentioned that “To our great dismay, we are forced to observe that this [delay and apathy] may be due to the involvement of influential persons which is evident from the fact that out of several accused persons, only few have been put to trial” adding that “In our considered view, the matter ought to have been handled with urgency and sensitivity at all levels.”

It is yet to be seen whether the powers that be will agree with and accept the SC’s remarks to start processing terrorism related cases with the requisite urgency that they deserve. The anguish expressed by the country’s supreme judicial body is however shared by the security forces as they take humongous risks and make immense sacrifices while apprehending terrorists.

Words can’t describe the sorrow, rage and utter frustration that one undergoes on learning that terrorists with the blood of your comrades on their hands have been acquitted, simply because of a shoddy case put up by the prosecution. The kith and kin of those killed too feel cheated whenever terrorists are let off due to ‘technical’ reasons or avoidable procedural flaws during investigation.

It took New Delhi 30 years to book Jammu and Kashmir Liberation Front [JKLF] chief Yasin Malik for his role in the 1990 murder of four unarmed Indian Air Force officers. When finally produced before the court, Malik stated that “with seven [Indian] prime ministers, I have worked,” and his boast aptly exposes the abysmal state of affairs as far as dealing with terrorism related incidents is concerned.

Similarly, despite JKLF militant Farooq Ahmad Dar, alias Bitta Karate admitting on camera to the killing of more than 20 unarmed Kashmiri pandits, he was still released on ‘indefinite bail’ in 2006. While issuing his release order, the Terrorist and Disruptive Activities (Prevention) Act [TADA] judge Justice ND Wani had remarked, “The court is aware of the fact that the allegations against the accused are of serious nature and carry a punishment of death sentence or life imprisonment but the fact is that the prosecution has shown total disinterest in arguing the case.” [Emphasis added].

So, one only hopes that the Indian establishment gets its act together and ensures that the ends of justice are met by ensuring timely conviction of terrorists through proactive and efficient prosecution.