State credibility at stake

Police credibility in India has always been rather low, but it now appears to be scraping rock bottom. One of the critical contributory factors has been the highly visible ‘investigations’ into crimes — including high-profile terrorist cases — that have been carried out, apparently, with questionable competence in the fullest glare of the media. Crucially, even where the Police are right — and it is important to recognise that they often have been — they have discovered ways of undermining their own case, both in terms of credible prosecution and in terms of public perceptions.

It is now abundantly clear that there are tremendous deficiencies of training and capability in investigative procedures right up to the highest echelons of the police. This was most dramatically illustrated in the Aarushi murder case, when an officer of the rank of Inspector-General of Police from Uttar Pradesh articulated perhaps the most crassly worded cock-and-bull story at a widely reported Press conference, accusing the parents of the murdered girl of the crime, against a lurid — and wholly speculative — backdrop of wife-swapping and sexual indiscretions.

But that case was quickly abandoned and another was constructed against Dr Rajesh Talwar’s compounder Krishna and his associate Rajkumar. The CBI — India’s premier investigative agency —did little to restore the integrity to the investigative process, and failed to file a chargesheet in the case. As a result, its ‘prime accused’ were released on bail and are believed to have fled to Nepal. Thus, from a crime scene that would have been littered with forensic evidence, investigators seem to have manoeuvred themselves into a dead end.

The situation is infinitely more complex in cases of terrorism, where the intimate linkages of terrorist and victim that characterise ‘normal’ crimes do not exist, where perpetrators are backed by sizeable, often technically proficient organisations, and where linkages and networks span several States and extend across national boundaries. As in criminal investigations, terrorist investigators have largely relied on the reconstruction of crimes based on confessional statements — often coercively obtained, and increasingly procured through various pseudo-scientific procedures such as ‘brain mapping’ and narco-analysis, which have no evidentiary value. From these, investigators seek to ‘reconstruct’ the crime, effecting (and sometimes faking) ‘recoveries’, which then become the lynchpins of a tenuous prosecution.

This is fitfully backed by some rudimentary forensic evidence, but the inexorable linkage of perpetrators to the crime scene through technical evidence and independent testimony is overwhelmingly conspicuous by its absence. Inevitably, a halfway competent defence lawyer has a bulk of the evidence thrown out of court as ‘inadmissible’ and has little difficulty in casting sufficient doubt on the remaining fragments of technical evidence. Unsurprisingly, it is only in the ‘rarest of the rare’ cases of terrorism that prosecution actually ends in conviction. Even in cases of conviction, the charges proven seldom relate to the principal charge of terrorism, and are ordinarily linked to lesser offences, such as illegal possession of weapons or explosives.

Worse, the limited evidence available is increasingly compromised by premature and contradictory flows of ‘information’ to a sensationalist and ignorant media, both through official releases and an unceasing trickle of motivated ‘leaks’. In this, every line of tentative investigation is reported as ‘fact’ — and such ‘facts’ are often officially undermined by contrary, and equally preliminary, claims by other agencies, especially in crimes that have ramifications and linkages across multiple State boundaries. These apparent contradictions, which may be entirely explicable within a rational framework of analysis and investigation, have the potential to undermine eventual prosecutions, as defence lawyers cite these as evidence of inconsistent and unsustainable evidence.

Two recent cases — the Batla House encounter and the present Malegaon investigations into the ‘Hindu terror’ network — graphically illustrate all that is wrong with existing terrorism investigations. In both, the police claim they have the right suspects in hand; in both, however, premature disclosures and the absence of concrete and technical evidence, compounded by conflicting disclosures by diverse agencies, have tended to undermine public credibility. The situation is worsened with agencies overreaching themselves to tie up current investigations with a range of high profile unsolved cases, often on the most tenuous of evidence.

It is not the intention, here, to make any evaluation of the evidence in either of these cases. The full quantum of evidence is only available to the investigators at this juncture, and no outside agency has the competence or access to second guess investigators or pronounce judgement at this juncture. What is clear, however, is that police disclosures and conduct have created the spaces for, and contributed directly to, widespread politicisation of both cases.

In an ideal world, this would have no impact whatsoever on the investigative process or outcome; but conditions in India are anything but ideal. With major political formations aligning themselves — directly or implicitly — with the accused in both cases, the integrity of future investigations and prosecution is under explicit threat: Charges may, in the foreseeable future and under changing political dispensations, be diluted; evidence can be fudged; case files may disappear; the stage may well be set to get the accused off the hook.

But infinitely worse is the fact that deep and pervasive doubts have been sown in the wider public — especially among elements who share the bias of their communal affiliations. Once again, in a society with a high quotient of respect for and implementation of the rule of law, this would be irrelevant. In India, however, this is crucial. Whatever the outcome of these cases, there will be a substantial community that will remain convinced that injustice has been done — and the incoherence of the case currently being made by official agencies through the media will be cited as ‘incontrovertible’ evidence. This does not just undermine the legitimacy of the outcome in these particular cases alone; it undermines the legitimacy of the state at large. An enveloping sense of injustice consumes communities today, and is the seed of much political violence in the country.

Police officers in India have long been given a raw deal and the police have been subjected to a sustained and vicious process of class denigration from all quarters. Under the circumstances, the desire to parade their successes, to seek public reaffirmation through selective disclosures to the media, is natural and understandable. But it is proving deeply counter-productive, at once, for their own dignity, and for the larger objective of justice administration and counter-terrorism.

(Published in The Pioneer, New Delhi, November 18, 2008)