Sharad Mathur

Ujjwal Nikam: The Dark Knight of Justice

Sharad Mathur

Web_Ujjwal Nikam

In his career, Ujjwal Nikam has secured over 600 life imprisonments and 37 death penalties. Such is the trust in his ability to win cases that victims of crime have specifically asked for Nikam to be appointed the special public prosecutor in their case. And that is why he remains one of the most talked about Indian public prosecutor of our times.

To understand the gravity of this, let us take a closer look at the efficiency of the judicial system in which he operates. As of December 2014, there were over thirty million cases pending in Indian courts. From 62.7% in 1972 to 38.5% in 2012, the overall conviction rate in India has come down significantly. Incompetence and corruption plagues the entire process of investigation and prosecution; and as a result the innocent keep on rotting behind the bars and criminals go scot free. The situation is so bad that the honourable Supreme Court had to order the states to take action against investigating officers and public prosecutors if it was found that their deliberate lapses resulted in acquittal of the accused in cases involving serious offences.

Winning a case after another in circumstances like these, he represents the changing face of public prosecutors in India. In conversation with him, I focused on three of his most talked about cases to find out what propels his success.

1993 Mumbai Bomb Blasts Case

In December 1992, Dawood Ibrahim, Anees Ibrahim, and ‘Tiger’ Memon along with their co-conspirators and ISI handlers had a meeting in Dubai where they hatched the conspiracy to avenge the demolition of Babri Masjid and subsequent riots in the city of Mumbai. Following the meeting, a group of young zealots was sent to Pakistan, via Dubai, to be trained in handling explosives and weapons. After returning, on March 12, 1993 these men carried out a series of 13 bomb blasts at different places in Mumbai in which over 350 innocent people lost their lives and over 1200 got injured.

On November 12, police filed a 10,000 page charge sheet against 189 individuals and exactly fifteen days later, the case was handed over to the CBI. Some of these accused were discharged by the courts in coming months and final charges against all the remaining accused were filed between April and June of 1995. It was Ujjwal Nikam’s first high profile case and he was especially called from Jalgaon to Mumbai, both for his track record of winning cases and the fact that the investigators found it difficult to trust lawyers in Mumbai to prosecute the top names in Mumbai underworld. And even in his first high-profile case, Nikam was not least bit hesitant in taking an unpopular stand for doing what was necessary.

Source - Huffington Post

Image Source – Huffington Post

The biggest challenge for the prosecution, in this case, was to establish criminal conspiracy in the court of law and it was virtually impossible to get the direct evidence to support the charge. Moreover, it was also very difficult to establish the role of Pakistan in the blasts. Such was the level of complicity that the Pakistani airport officials had carefully avoided stamping any dates on the passports of the men who went to Pakistan. And there were no eye witness accounts of the weapons and explosives from Pakistan landing at Dighi port, but that of the accused.

But near about the same time when charge sheets were being filed, two of the accused – Mohammed Jameel and Usman Jan Khan – turned repentant and expressed their willingness to help the prosecution. This was the grand opportunity that the prosecution was waiting for; both of them were present at the meeting where the entire conspiracy was hatched, they were also trained in Pakistan, and had received the weapons and explosives from their Pakistani handlers. But this grand opportunity was not all that easy to harvest. If the prosecution would have taken their confession, it would not hold as strong evidence in the court. With the reputation ‘police remand’ enjoys, it would be naive not to suspect the authenticity of confessions extracted. Moreover, a confession can be used against the one who made the confession but not against all the others accused. So when the investigating team asked Ujjwal Nikam for his advice, he had an option of taking the easy way out. But he took a call for which he could invite ridicule. “I asked the investigating team to take the approver route, and produce the duo as witnesses in the case and not as accused. “

The court pardoned the approvers and their testimony, along with other secondary evidences (e.g. the cardboard boxes with the seal of Wah Cantonment seized from the accused), was crucial in Ujjwal Nikam establishing criminal conspiracy and Pakistan’s role in the blasts. In 2006, 100 accused were convicted, 12 of them were handed death penalties, and 20 others received life sentences.

While there is a provision in the law for having the ‘approvers’, most public prosecutors are hesitant to use it. First out of the fear of the moral question – is it fair for one of the accused to go scot-free in exchange of his spilling beans on the entire conspiracy? Second, why to invite accusations of manipulating the witness? Bottom-line is that if a public prosecutor is to use an ‘approver’ to win the case, he would invite more criticism than he would invite for losing the case. But Ujjwal Nikam does not get counted in the ‘most public prosecutors’ for a reason. In his very first high profile case, he took a bold and independent stance with conviction. The fear of ridicule did not stop him from doing what was necessary.

26/11 Trial

On the night of November 26, 2008, Mumbai once again came under siege by terrorists who opened fire on civilians in multiple locations across the metro city, killing 164 people. Nikam, who was appointed Special Public Prosecutor for the case, once again had to establish that the criminal conspiracy originated in Pakistan. But this time, it was not all that difficult. The investigating team had the transcripts of phone calls between attackers and their handlers, proof of the payments for the online calling facility originating in Pakistan, and the data from terrorists’ GPS devise which showed way points from Karachi to Mumbai. However, the challenge laid in the trial of Ajmal Kasab, the lone captured terrorist.

There were overwhelming evidence against him and his conviction was an eventuality. But India, the largest democracy in the world, could not be seen as seeking retribution. That is why, Nikam asked for an open trial and the entire trial was covered extensively by media. And this openness came at a cost.

In June, 2009, news stories describing Ajmal Kasab’s guilt ridden teary eyes appeared in Indian newspapers. The next day, Kasab’s defence lawyer was quoted in a newspaper interview, “These are trying times for Kasab. When people remind him of the gravity of his crimes, he is naturally affected and upset”.  Soon, he confessed of his crime and told the court “If I am hanged for this, I am not bothered. I don’t want any mercy from the court”.  But Ujjwal Nikam was not impressed. “Ajmal Kasab was a trained commando and he was trained to manipulate the sentiments of people,” recalls Nikam.

Source - The Quint

Image Source – The Quint

Now we know that, it would be naive to assume that the public opinion does not impact outcomes of high-profile court cases. If they did not, Afzal Guru would not have hung and Devinder Pal Singh Bhullar’s death sentence would not have been commuted to a life in prison. Ujjwal Nikam might not have required the pressure of public opinion for convicting Kasab, but he most certainly needed it to convict Kasab in just eight months time. So, he did what he needed to do. “Media persons asked me why Kasab was crying and if he was repentant. And I replied in a sarcastic tone that he is demanding mutton biryani! It was a figure of speech but they took it literally. The media had a field day with that,” he remembers. And he did not correct the ‘misunderstanding’, undoing what the tears of Kasab had done earlier.

While the morality of this is debatable, did Nikam’s conviction about Kasab not get vindicated in December 2009, when Kasab retracted his earlier confession? Kasab claimed that he came to Mumbai to try his luck in films, he had never seen a Kalashnikov rifle in his life, and he was picked up by the police from the beach where he was just enjoying the breeze! That, when he was caught on CCTV camera shooting innocent people at the CST station!

Shakti Mills Gang Rape Case

On August 22, 2013 a young photojournalist was gang-raped by five people at the Shakti Mills compound, Mumbai. The accused had tied up the victim’s colleague who was accompanying her, assaulted them both, raped her, and clicked photographs of the victim all the while. Before they let her go they threatened to leak the pictures on social networking websites if the victim would report the rape. And with the same modus operandi, they apparently had raped some more girls in the past but they all kept quiet because of the threat. But the photojournalist lodged an FIR and soon all the accused were arrested. On September 19, 2013, charges were filed against the accused.

It was an open and shut case and convicting the accused was not going to be difficult for the special public prosecutor, Ujjwal Nikam. The victim was alive and was willing to testify against the accused. And there was also enough corroborative circumstantial evidence in the case. But Nikam was not aiming for anything but death penalty for the accused. “I asked the victim, what she wanted. And she told me that she wanted a death penalty for the accused,” Nikam tells me. This invited criticism from many quarters and many activists believed that death penalty would be a disproportionate punishment for the crime they are accused of. When I asked Nikam if he thought the death penalty was a disproportionate punishment, he retorted, “Those boys made the girl suffer so much…Why poisonous snakes who commit such heinous crimes should be allowed to live”. But he balanced it quickly, by adding, “It is not like I always ask for death penalty. I first try to find out if the accused has really committed the crime. I put this question directly to the investigating officer. Once I have the confirmation and the records tally that, my next question is what drove the accused to commit the crime. And then I accordingly argue the case.” And it makes sense. He insisted that the investigating officers drop charges against the teenage daughter of Haneef Sayyed and Fahmeeda Sayyed, two accused in the 2003 Mumbai bomb blast case, as he found that she did not participate in the conspiracy or execution of the bombing; she had merely accompanied her parents to the Zaveri Bazaar where they went for reconnaissance before the blasts.

He received some fierce criticism from some quarters for his handling of this case, but he brushes aside all that by saying, “They have some grudge against me.” To his mind, he is achieving the result with the means necessary to achieve those results. And at times, these means may seem to be harsh or crude to some. When I asked him about the criticism he faced in the 2006 Khairalanji massacre case, he said in a matter of fact tone, “There was no evidence for it (caste hatred as the motive of the murders). Ultimately I secured six death penalties and two life sentences. Shouldn’t that matter more?”

In management parlances, he might just be a little bit over-skilled in the competency of drive for results.  And in a country where conviction rate in murder and rape trials is a meagre 35.6% and 28.6% respectively, it is not necessarily a bad thing.

The Ujjwal Nikam Way

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