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Islam and Politics ( 27 Apr 2018, NewAgeIslam.Com)

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The Judiciary Is Independent, but the Justice System Itself Is Not: An Acquittal That Erased Hopes



By Jyoti Punwani

28th April 2018

Asaram Bapu’s conviction in a rape case has restored some of the faith in the judiciary that had been eroded by the acquittal of Swami Aseemanand in the 2007 Mecca Masjid blast case. That acquittal left many bewildered. It is not as though terror accused have never been acquitted in the past. But Aseemanand’s name is forever linked to his December 2010 confession which had made front page news. The magistrate sending him to judicial custody to reflect on his decision, reminding him that he could be inviting a death penalty on himself by confessing, was also reported. His second confession a month later to another magistrate, wherein he again owned up to his involvement in the Mecca Masjid and other bomb blasts, also received wide publicity.

The circumstances of his confession as mentioned by Aseemanand, are also what made the entire episode unforgettable. The RSS leader’s encounter in a Hyderabad jail with a young Muslim who would go out of his way to bring him food and water, and the discovery that this boy had been earlier jailed and tortured for the Mecca Masjid blasts, was what set off remorse. The confession that emerged out of this remorse shook the young Muslim too, who, in an interview with this writer, compared Aseemanand to Mahatma Gandhi.

Though Aseemanand retracted his confession soon enough, it was expected to stand as evidence, given all these factors. When it didn’t, the law itself suddenly seemed to turn from a solid entity in which millions have faith, to something fluid which no one could depend on. Faraway in Mumbai, the acquittal of Aseemanand shook the faith that about 95 riots victims had in the law. For the last 20 years, this bank peon has been fighting a largely lonely battle to bring to book the policemen who shot him in the back as he knelt for Namaz inside a mosque. That firing killed six innocents, and led to the arrest of 54 Muslims (including this peon), on false charges of attempt to murder and rioting. All of them were acquitted more than a decade later.

A sitting judge inquiring into the riots indicted Sub-Inspector Nikhil Kapse for the firing, and the Bombay High Court ordered a reluctant CBI to investigate the incident. Even after the CBI exonerated the policeman, this victim didn’t stop fighting, believing in the judiciary that had, till date, never failed him. The strength of the belief that had lasted all these years, was betrayed by Aseemanand’s acquittal. A day before Aseemanand was acquitted by an NIA court in Hyderabad, a Sessions Court in Mumbai witnessed an open intervention by the state into an ongoing trial. It was merely a change in prosecutors, but the manner in which it was done, and the reason for it, marked it as extraordinary.

The special public prosecutor, appointed on the specific request of the mother of a young man allegedly killed in custody way back in 2003, was sacked. He learnt of his sacking in court, when another public prosecutor informed the judge of it. The timing of the sacking was significant: coming after the special public prosecutor had wanted to take the custodial death to its logical end. A witness had named four policemen as having tortured Khwaja Yunus, an accused in a bomb blasts case, till he collapsed. The public prosecutor wanted these four to be made the additional accused in the case.

That was obviously not the state’s desire. The previous government, headed by the ‘secular’ Congress-NCP, had already refused sanction to prosecute these policemen. This government, headed by the BJP-Sena, doesn’t seem to want them brought to trial either. The special public prosecutor had acted too independently for his own good. He consulted no one before submitting his application to add these four policemen as accused, complained the public prosecutor who replaced him.

The judiciary is independent, but the justice system itself is not. Courts hand down verdicts based on the evidence put before them. When prosecuting agencies, obviously on the instructions of their political masters, play around with the evidence they present to the court, a particular accused may well benefit. The CBI did not prove that the young Muslim was in jail during the same time as Aseemanand was.

Or, a particularly professional prosecutor, who does not think it necessary to consult the government while performing his duties, can get suddenly sacked, bringing relief to the accused.

But such victories can turn out to be dangerous. For, the message they send out is often too much to bear for those whose lives depend on the integrity of the judicial system. Few people wronged by the powers that be actually fight back. Those that do, find that the already slow-moving judicial system, becomes doubly so because the powers that be know how to delay matters in court. Still, they fight on doggedly.

Till one day, the manipulations by their powerful opponents makes the fight seems meaningless. What happens then? The young Muslim who met Aseemanand in jail, the bank peon in Mumbai,  Khwaja Yunus’s old mother, whose husband, a retired government employee, passed away prematurely a year after his son’s ‘disappearance’—who do they turn to now?