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Prosecution of riot cases under independent authority

By Iqbal A. Ansari

The comparatively speedy conviction of the guilty in the Bilkis Bano Case by a Mumbai sessions Court was universally acclaimed for the flickering hope of justice in the system that it has helped arouse, especially in the victims of hate crimes. However while welcoming the verdict we need to keep in view that the successful investigation and prosecution of the case was not the result of mere tenacity of the victim in the face of all adversities and the support she enjoyed from the civil society groups; it rather owed itself to a rare judicial activism at its best in riot related cases.

It was the initiative of the bench headed by Chief Justice V.N Khare, committed to making the law subserve the cause of justice, that led to transfer of cases on the ground of political-judicial environment in the State that appeared to be conducive to collusion between the prosecution and the accused, and reopening of closed cases on the basis of credible complaint of incorrect FIRs and suppression of evidence and partisan investigation.

Further reinforcement to the pillar of justice was provided by the direction to appoint prosecutors in consultation with the victims, and by the appointment of amicus curae, whose functions included ascertaining political background of prosecutors to ensure their independence.

In the Bilkis Bano case it is fresh inquiry into the entire case by the independent agency of the CBI that made all the difference. Now fresh impetus has been provided to the process of delivery of prompt untainted justice by the Apex Court’s order directing the Gujarat Government to constitute the Special Investigation Team (SIT) headed by former CBI Director R.K Raghvan, having three senior IPS officers from Gujarat and one from U.P. for a further probe into 14 riot cases in Gujarat related to rape, murder and arson at various places including those at Godhra town, Gulbarg Society and Naroda Gaon, Naroda Patiya in Ahmedabad, Best Bakery in Vadodara, Ode and Sardarpur massacres, Baranpura, Machipity, Tarsali, Raghovpura and Pandarwada.

The SIT have the power to conduct any inquiry necessary for investigation. In the last week of August the Bench will give further directions.

However, we should not ignore that hundreds of other riot cases in several States, some of which are no less gruesome than those in Gujarat, 2002 are awaiting delivery of justice for decades. In most cases FIRs are not filed or filed in a manner that no proper charges could be framed against culprits. Investigations are generally influenced by partisan considerations. In this regard the findings of Justice D.P. Madon Commission of Inquiry into Bhiwandi riots (1970) needs to be recalled. It say that “the working of the Special Investigation Squad is a study in communal discrimination. The officers of the Squad systematically set about implicating as many Muslims and exculpating as many Hindus as possible, irrespective of whether they were innocent or guilty”.

Keeping these considerations in view the Sixth Report (1981) of the National Police Commission (NPC) while endorsing the proposal of Special Investigation Squads and Special Courts, observes that “we should also have some special provisions in the law and procedure which will take into account the peculiar circumstances in which these offences are committed to ensure that the course of justice runs smoothly and to the advantage of society at large”.

In a recent seminar on insecurity among minorities on the day following the Bilkis case verdict, Justice V. N. Khare observed that it was the duty of all courts not to deal with cases of communal riots as ordinary law and order problem. Moreover, in his view, the prosecution of such cases should be done under an autonomous state body, not under the State Government. Justice A. M. Ahmadi expressed the opinion that by amending and enlarging the scope of the Protection of Human Rights Act, 1993, the NHRC may be empowered with the investigation and prosecution of such cases. Earlier in 1996 Justice V. R. Krishna Iyer and Justice H. Suresh had suggested establishment of Minorities Commission in each State through Constitutional amendment, empowering them to “investigate and prosecute all cases arising out of communal riots”. Since cases of communal hate crimes are basically violation of citizens’ right to life and limb; freedom and dignity; property and places of worship, and since most often during such mass violence the role of the State’s political executive is suspect, and that of the police is partisan, it will be appropriate to bring investigation and prosecution of all such cases under the National Human Rights Commission, which may perform its function jointly with the National/ State Minorities Commission.

Those whose federalist commitment is so strong that they would not tolerate any encroachment upon State’s autonomy in keeping maintenance of law and order as its exclusive domain, must keep in view that it is the country’s national government which is a party to the International Covenant on Civil and Political Rights (ICCPR), which is in the nature of a multilateral treaty and whose implementation is binding on the Government of India, especially after the Pledge it has signed while seeking election to the newly constituted UN Human Rights Council in June 2006. To be able to fulfil its obligations under Article 355 of the Constitution, “to protect every State against internal disturbance” and “to foster respect for international law and treaty obligations” as provided for in Article 51 (C), the Parliament is empowered under Article 250 “to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention.”

The inefficacy of the existing law is best illustrated by the fact that investigation and prosecution of Hashimpura killings of Muslims in May 1987 by the PAC has been the prerogative of the same U.P. Government’s agencies i.e. the CBCID and the public prosecutor appointed by the sole discretion of the tainted political executive. It has resulted in inordinate delay of 19 years for trial to start, with a Public Prosecutor in whose appointment the victims have had no choice, even though the case was transferred by the Supreme Court from Ghaziabad to Tees Hazari, Delhi on 22 September 2002 under the tacit assumption that there was collusion between the accused and the public prosecutor. Further delay of four years for trial to start owes itself to lack of prompt appointment of an efficient public prosecutor who could pursue the case with a sense of commitment to get justice done, irrespective of political and communal considerations.

Even more pathetic is the story of the adjoining village of Maliana, 10 Km west of Meerut, where according to Amnesty International’s Report “at least 30 residents are estimated to have been deliberately shot dead by the PAC” on 23 May 1987 and their houses burnt and looted. However, no cases seem to have been filed, and the victims have received just rupees forty thousand for each loss of life. And there is no move to deliver justice to victims, and punish the guilty. The killers of Nellie’s 3,300 innocent Bangla speaking Muslim immigrants in February 1983 are enjoying impunity. It is reported that of 688 cases that were filed, 378 were closed because of lack of evidence. The remaining charge sheeted cases were all withdrawn when the AGP came to power in 1985.

The situation calls for a review of the status of all riot cases pending in courts of law along with information on cases not filed or closed or withdrawn as well as information on amount of ex-gratia payment of compensation to victims. The NHRC as well as the NCM have already powers to undertake this work. Such information should lead to appropriate legislation covering all past hate crimes.

As Modi has been using the dismal record of lack of secular justice in past riot cases as a shield to protect himself, and as the Congress is the greatest sinner of acts of omission and commission causing periodic blood baths including Nellie (1983), Delhi (1984), Hashimpura-Maliana (1987) and Ayodhya (1992), it is for the human rights and peace activists and proactive senior media persons to jointly campaign for promise of justice to become a reality – which holds the potential of preparing the ground for a grand inter-community conciliation with peace-dividends for all segments of the sub-continental people, especially as Muslim initiative is underway to counter terrorism.

We need to constantly remind ourselves that it is the climate of impunity which is the major source of recurrence of communal violence. We need also to keep in mind that it is some frustrated young members from among the victims, who having lost hope in the justice system fall prey to the designs of terrorist outfits. Such a correlation between riots and homegrown terrorism, earlier testified by Justice Srikrishna Commission’s findings on Mumbai serial bomb blasts of March 1993, and later by Justice Gokula Krishnan report on Coimbatore bomb blasts of February, 1998 has been confirmed by the judgment in the Coimbatore blasts case (October 2007) which gives credence to the fact that certain sections of the Muslim community not only lost faith in the government but also in the judicial system “as violence was let loose against the Muslim community in and around Coimbatore in November-December 1997, driving them to a state of perpetual fear and a sense of helplessness”.

In view of this, Constitutional promise of secular justice to vulnerable sections of society, combined with our interest in successfully tackling terrorism should make us learn the right lessons from the Apex Court’s directions in the Best Bakery and Bilkis Bano cases followed by the recent direction to reinvestigate cases by SIT, leading to development of an appropriate jurisprudence of mass crimes.