On July 21, the Bombay High Court acquitted 12 Muslim men of terror charges in the 2006 Mumbai train blasts case. Five of them were on death row and one had died in jail. These men had been arrested soon after the explosions in Mumbai local trains killed at least 180 people.

The judgement represents a broader phenomenon where people accused in terror cases spend long years in prison before a court finally concludes that there was no real evidence connecting them to the alleged crime.

From 2014 to 2022, according to the National Crime Records Bureau, 8,719 cases were registered under the Unlawful Activities (Prevention) Act, but there were only 222 convictions – a rate of around 2.5%. It is also unclear how many of these convictions will ultimately be overturned following stricter scrutiny by the appellate courts, just like in the train blasts case.

Some have criticised the Bombay High Court judgement, contending that criminal procedure should not come in the way of national security. But a scrutiny of the judgement shows that it was not merely the outcome of sticking to legal formalities but based on an analysis of substantial problems with the investigation and prosecution in this case.

One of the main grounds for the trial court to convict the 12 men was their confessional statements. But when he Bombay High Court examined the circumstances in which these confessions were made, it found that even basic requirements of criminal procedure and evidence law were not followed. The confession should have been in a language the accused could understand and read back to them. In addition, they should have been informed of their right to consult a lawyer.

The High Court also took a detailed look at the allegations of torture made by the accused during the investigation that had not been properly scrutinised at the time. It concluded that the confessions had been extracted by subjecting the men to torture and so were not admissible.

The court also pointed to glaring flaws in how the investigation and prosecution was conducted, such as deliberately suppressing Call Detail Records that could have exonerated the accused at the investigation stage itself.

All of this leads to the very real possibility that the entire case against the 12 men was false or fabricated.

The disturbing pattern of Muslim men booked under terror charges being acquitted after spending years in prison has been well documented.

In 2012, the Jamia Teachers’ Solidarity Association documented 16 cases in Delhi in which men booked for terror offences were acquitted due to the absence of evidence. The Innocence Network India, an initiative by one of the men exonerated in the Mumbai train blasts case, has also documented similar cases.

Both these reports have been cited by the Law Commission in its 277th Report, which recommended that a law be enacted to redress miscarriages of justice.

The Law Commission report said that one of the “gravest instances” of the miscarriage of justice was a terror prosecution that resulted in an acquittal after 23 years: Mohammad Nissarudin had been arrested in 1994 and charged in the 1993 Rajdhani train blast case under the Terrorist and Disruptive Activities (Prevention) Act, 1987, among other charges.

The report envisages a Special Court being set up to determine claims of compensation for wrongful prosecution. It also strongly recommends recognising “wrongful prosecution” as a standard for identifying cases of the miscarriage of justice in India (in contrast to wrongful conviction or wrongful incarceration), This would include police or prosecutorial misconduct resulting in malicious or negligent investigation or prosecution.

Recent judgements, such as by the Supreme Court in the case of Kattavellai vs The State Of Tamil Nadu, as well as the Allahabad and Kerala High Courts, have sought to have the Law Commission report’s recommendations implemented. Article 14(6) of the International Convention of Civil and Political Rights obligates India to enact a legislation to redress miscarriages of justice.

In India, compensation has been recognised as both a private and public law remedy. In the case of public remedies, in cases of fundamental rights being violated, the High Courts and the Supreme Court have, through several judgements, read down the principle of sovereign immunity that would have protected the nation from being held legally liable.

Courts have awarded compensation in cases of illegal detention and police misconduct.

However, Indian courts have been reluctant to order compensation in cases involving alleged threats to national security. In 2016, when six Muslim men acquitted in the Akshardham blast case in Delhi approached the Supreme Court seeking compensation for their wrongful arrest, the court orally observed that entertaining such a petition would set a “dangerous precedent”.

The Supreme Court, in its order acquitting the accused, had pointed to several lapses in the investigation, including clear instances of the police fabricating evidence. Despite these observations, the spectre of national security superseded constitutional propriety.

In stark contrast to this, two years later, the Supreme Court awarded Rs 50 lakh in compensation to Indian Space Research Organisation scientist Nambi Narayanan, who had been booked under the Official Secrets Act, among other offences. He was discharged when the Central Bureau of Investigation filed a closure report in the case.

Narayanan was awarded compensation by the High Court of Kerala, the Supreme Court and the National Human Rights Commission.

Adherence to procedure or the lack thereof during investigation and prosecution are crucial determinants of the fairness of a trial. Human rights advocate KG Kannabiran pointed out that the “defence of a citizen as a person has always been procedure”. Procedural safeguards, such as magisterial oversight in the recording of self-incriminating statements or medical checkups while in police custody, potentially counter factors such as prejudice from impairing the integrity of a criminal trial.

As a consequence, the Bombay High Court’s findings on the procedural lapses in the train blasts investigation and the reasoning are critical to understanding the prosecution case itself. When these findings are read with the findings of courts in other terror cases, it reveals the faultlines of a criminal justice system that has long been overshadowed by similar stories of people incarcerated solely due to their identity or political ideology.

As is evident from the high rate of acquittals under terror laws, these cases collapse once the prosecution’s narrative is tested on the anvil of evidence and legal procedure.

Despite a repeated pattern of cases in which innocent people are falsely charged with serious offences and spend long years in prison, innocence remains a matter of subjective interpretation.

The consistent pattern in terror cases of trial court findings being reversed and the low conviction rates may be revealing but it is equally important to evaluate procedural fairness in these cases.

Establishing factual innocence in western countries has relied primarily on forensic evidence but there are limitations to doing so within the Indian legal system. While DNA-based technology has not gained much ground in investigations, the government’s previous attempts to do so have raised privacy concerns.

However, awarding compensation should not depend only on proving malice in prosecution, something which the Law Commission report also cautions against. It also recognises negligence in investigations as amounting to wrongful prosecution.

Compensation is also just one aspect of redressing the miscarriage of justice. Establishing the accountability of officials involved is just as important, as the Law Commission Report has recognised, as also the Supreme Court in the Nambi Narayanan judgement.

There is an urgent need to rethink the innocence movement in India. Meaningful legislative reforms must be preceded by a wider public articulation and understanding of the various forms of miscarriage of justice.

The Bombay High Court’s judgement in the train blasts case is one of the rare examples of the basic principles of criminal justice being upheld over the presumptions of prosecutorial claims.

The fact that a trial court had convicted the accused on the basis of the same evidence – and even awarded the death sentence to five of the accused – is a chilling reminder of what happens when the spectre of national security and suspicion is allowed to overpower the basic principles of judicial reasoning.

It should be seen as a clarion call to initiate substantive reforms in the practices of investigation and prosecution, as well as the manner in which serious offences such as terrorism are formulated and imagined.

Madhur Bharatiya is an Assistant Professor at Manipal Law School, Bangalore, Manipal Academy of Higher Education. Fawaz Shaheen is a lawyer and researcher based in Delhi.

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