Turning Approver: The Dubious Legal Practice That Led To David Headley’s Pardon

By MENAKA RAO | 11 December 2015
On 11 December 2015, a Mumbai special court pardoned David Headley, the Pakistani-American who scouted targets for the 26/11 terror attacks in 2008 that had been planned by the Lashkar-e-Toiba. The court granted him a pardon on the grounds that his evidence as co-conspirator was “of immense importance and assistance to the prosecution.” Headley will now depose as a prosecution witness before a special court on 8 February 2016.
Headley’s offer to turn approver was conveyed by public prosecutor Ujjwal Nikam who has applied the established but rarely-used law several times in his career. In a profile by Menaka Rao in our May 2015 issue, Nikam stated, in defence of this provision, “One has to set a thief to catch a thief.”

The provision of the “approver” is an old and established one, but prosecutors use it sparingly because, in spite of its legitimacy, it raises serious ethical questions. First, there is considerable debate over whether a prosecutor should free a person known to have participated in a criminal conspiracy. Then there is the question of whether an accused person can ever turn approver without the manipulation of an investigating agency—a body which controls all the witnesses produced for a trial.

Further, if an approver is promised complete freedom in exchange for their testimony, it is difficult to say that the testimony is completely voluntary. A former judge of the Bombay High Court told me that this lack of certainty makes the use of an approver a dangerous proposition. “It is a very weak piece of evidence,” he said of an approver’s testimony. “There must be substantive evidence to which the confessional statement may be added. It is a shortcut method of proving guilt.” Using an approver to fix the other accused, he said, “always shows lack of investigation.”

In some legal systems, such as that of the United States, a state prosecutor—in the US, the district attorney—is actively involved in the investigation. Indian prosecutors, however, are not supposed to do this. Lawyers may be appointed as “police prosecutors” to help police patch up legal loopholes before the case is presented. But the public prosecutor is an independent agent who takes a stand for justice. They may use their discretion to determine how a case is conducted, and are allowed even to file for discharge of the accused if the facts of the case seem unsatisfactory to them. The use of an approver necessitates the prosecutor being privy to investigation, and involves the choice of the most “natural” witness from among the accused persons.

Nikam first used the approver provision while working as a public prosecutor in Jalgaon, he told me, although he could not remember when this was. The case involved the murder of a pregnant woman by her family members. One of those hired to commit the crime was made an approver, which led to the other accused being convicted and sentenced to life imprisonment.

The criminal conspiracy under investigation in the 1993 bombing case was vast and complex, with each of the accused persons facing a variety of charges in addition to the main list of crimes. Some were found to have travelled to Dubai for a planning meeting, while others were supposed to have gone to Pakistan for arms training. Some had smuggled arms and explosives along the Konkan coast and met in Mumbai to prepare for the bombings.

Operating under the Terrorist and Disruptive Activities (Prevention) Act of 1987—the feared and much-criticised TADA—investigators recorded 88 confessions. These were by and large admissible in court, even though several were retracted later. However, confessions extracted under TADA were, at least in the letter, required to be given voluntarily and recorded in perfect accordance with procedure. (It was another matter that the law, first enacted during the Punjab insurgency of the 1980s, made it so easy for law enforcement agencies to abuse the extraordinarily wide range of powers it granted them that it was eventually taken off the books.) But an approver’s evidence would stand, as Nikam told me, “on a different footing”: it was direct, and less likely to be rendered inadmissible on technical grounds. Singh told me that Nikam had brought up their need for approvers even before the chargesheet was filed. “He was quite firm on using the legal ploy,” he recalled. “When the prosecution uses an approver, it is willing to make the sacrifice of prosecuting a person who is fully involved in the case.”

Two accused men agreed to become approvers, which Nikam says was the clinching factor in the trial. “On the basis of this evidence we got so many convictions,” he said. But some of the lawyers defending the accused in these cases alleged that the approvers were coerced. “One of my clients, Nasir Dhakla, had alleged that crime branch officers were forcing him to turn approver,” Farhana Shah, who represented many of the accused in the trial, told me. Dhakla was found guilty of having obtained arms training in Pakistan, and participating in the conspiracy.

In 2006, when I was a reporter for the Indian Express, I met one such approver, whom the journalist S Hussain Zaidi called “Badshah Khan” in his landmark book on the bombings and the investigation, BlackFriday. At one point in our interview, Badshah Khan told me he felt remorseful about the whole incident. I had tracked the 1993 case in the special TADA court, and saw over a hundred accused persons brought up. I wondered what it was about him that got the investigators to choose him as approver.

“The approver had a good photographic memory,” Singh told me. “He rattled off names and dates easily. He appeared to be a natural witness.”

“It has often been remarked that Nikam’s record shows an unusually high reliance on approver evidence,” the Mumbai-based human rights advocate Yug Mohit Chaudhry told me via email. “While making a person approver is permissible in law, how a person is made an approver leaves many questions unanswered. The manner in which it is done, the tactics used, are often very questionable.”

For his part, Nikam seemed nothing but proud of his reliance on the provision. Prosecutors did not use approvers in cases very often, he admitted, but the law “is based on practical wisdom. One has to set a thief to catch a thief. In cases where there is no direct evidence, the law allows one criminal to depose against others. While the approver’s evidence is looked at with suspicion, if there is corroborative evidence, the evidence can be relied upon.” The question of skill was not irrelevant, either. It was very difficult, Nikam said, to get a person to turn approver. “He can turn either ways in a trial. The prosecutor has to be very careful.”

Menaka Rao is a freelance journalist from Mumbai. She writes on law and health.

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