By Iqbal A Ansari
In the wake of the conviction and sentencing of the accused in the Mumbai serial bomb blasts case of March 1993, which had taken a toll of 257 innocent lives, the lack of punishment of the instigators and organisers of the riots of December 1992-January 1993, and of the 31 officials indicted by the Srikrishna Commission, whose connivance caused the killing of more than 900 innocent persons, is being widely discussed in the media and civil society. It is also being hammered home that the findings of the commission established a cause and effect relationship between the two series of events.
Given the signs of hope that people are now ready to see how the denial of justice to victims in periodic communal violence especially since the 1980s, has provided a fertile ground for home-grown terrorism, a fresh perspective on the administration of justice that motivates civil society to mobilise support for reform of the judicial system and the police system is overdue. This attempt can be treated as part of a wider project of restorative justice and transformation for peace in the subcontinent.
Spreading hatred, inciting violence
It is likely that Sanjay Dutt’s conviction and sentencing, prescribing rigorous imprisonment for six years, will be treated as an example of the judiciary’s determination to make even the cynics believe that the maxim “howsoever high you be, the law is above you” is a reality. But is this really so? What did the Bombay High Court and subsequently the Supreme Court do to the petition of some concerned citizens who approached the courts for direction to the government of Maharashtra to prosecute Bal Thackeray for spreading hatred against Muslims, and inciting his “boys” to commit violence through his editorials in Saamna, during the time when Mumbai was burning in the communal fire? In the editorial of Saamna of December 5, 1992, Muslims were called “traitors who partitioned the country and haven’t allowed us to breathe ever since”. On December 8, 1992 Muslims were simply terrorised by holding out the threat that they “should draw a lesson from the demolition of Babri Masjid, otherwise they will meet the same fate as Babri Masjid”. On December 9, 1992, the entire Muslim community (whose number was given as 25 crores) were called one of Pakistan’s seven atomic bombs, who will stage armed insurrection on behalf of Pakistan. On January 8, 1993, Shiv Sainiks were directed to shoot on the spot the Muslims of Bhindi Bazar, Null Bazar, Dongri and Pydhonie (the areas called “mini Pakistan”). It is this organised hate-gang of Shiv Sainiks that played a leading role in the bloodbath in Mumbai in December 1992-January 1993, which drove some frustrated Muslim youth to desperation. They committed acts of terrorism in March 1993 as they had lost all hope in the system.
The Bombay High Court took two years to give its decision on September 21, 1994, dismissing the petition of J B D’Souza and others seeking direction to prosecute Bal Thackeray on the ground that the editorials did not violate the law as in their lordships’ view the reference was only to anti-national Muslims and not all Muslims and that in their view “25 crore Muslims” appeared to be “typographical mistake”. Moreover they were of the view that any prosecution of Bal Thackeray would cause the “raking up” of old wounds. The special leave petition in the Supreme Court for direction was dismissed on January 6, 1995 on the ground that it was not wise, nor in public interest for the Supreme Court to give direction, overruling the Bombay High Court. This decision of the apex court was strongly deplored by leading jurists. H M Seervai expressed the opinion that a clearer violation of Sections 153A and 153B was difficult to imagine. He called the interpretation of 25 crore Muslims as a typographical error, absurd and perverse. In his view the government of Maharashtra was determined not to prosecute Thackeray, though its affidavit clearly established that the government knew that the passages, complained of, violated the provisions of Section 153A.
Here was a case of hate speech with malicious intent that aggravated the communal tension and caused bloodshed, fit for successful prosecution, which would have sent the message that Muslims, a vulnerable group, enjoyed equal protection of the law, which is an essential requirement of secularism. But collusion between the Congress government, which flaunts its secularism, and the Shiv Sena, that claimed responsibility for demolition of Babri masjid, and an overindulgent view of the learned judges of the higher judiciary made the hate leader enjoy impunity. While reporting the events in Mumbai in the New York Times Rosenthal had commented that “Shiv Sena could have been put down in hours. The state and national governments behave like Weimer reborn – disorganised, frightened, gutless.” Having failed to protect Muslims, the Congress government exerted its utmost to save their oppressor from the clutches of law.
Subverting justice
Since 1949 the course of the law in general but particularly since Ayodhya – which is the mother of most retaliatory acts of terrorism within India – does not inspire the confidence of a beleagured minority, which has been demonised for perceived wrongs of history. Has the law been influenced by the political calculations of the executive? The Bharatiya Janata Party’s (BJP) White Paper on Ayodhya and the Ram Temple Movement considers that this is so (April 1993, p 152). Expressing satisfaction over the role of the judiciary in the opening of the gates in 1986, the BJP’s White Paper observed: “… When the government is not against, such things can, and do, happen. Even the courts respond.” It has also been confirmed by Swami Swaroopananda Saraswati, who claimed during the Mahakumbh Mela of January 2001 that it was at his behest that prime minister Rajiv Gandhi got the locks opened for political considerations (The Times of India, January 22, 2001).
Hearing of the Best Bakery case and petitions for reopening of more than a thousand closed cases made the apex court pronounce that the course of law in Gujarat amounted to subversion of justice by biased investigation, collusion between prosecution and defence and vulnerability of victim-witnesses, who could be threatened and lured. Because of the wide electronic media publicity of Gujarat, it has been generally taken as a unique case of the state’s complicity and denial of justice to victims, whereas all the components of the course of law subverting justice in Gujarat can be found from Jabalpur 1961 till date.
The most glaring example of such denial of justice is the case of Hashimpura, Meerut and Maliana killings of Muslims on May 22-23, 1987 by the Uttar Pradesh’s Provincial Armed Constabulary (PAC). This was not a case of people getting killed by police firing during riots. Innocent people were picked up from their homes and taken near the upper Ganga canal-Hindon river in Muradnagar (Ghaziabad), where more than 40 young Muslims were shot dead, whose bodies were thrown into the river water. The candid founder-editor of Mainstream, Nikhil Chakravarty compared the event with the “Nazi pogrom against Jews, to strike terror and nothing but terror in a whole minority community”. Eminent citizens, including I K Gujral, Rajindar Sachar and Kuldip Nayar demanded trial of the guilty PAC personnel for treason.
What really happened in the case is unprecedented even in the history of Indian judiciary. UP’s Crime Branch of the Criminal Investigation Department (CBCID) took seven years to complete the inquiry in February 1994. Of the 66 PAC personnel indicted in the report, cases were filed against 19 – all of lower ranks – in the court of chief judicial magistrate (CJM) Ghaziabad on May 20, 1996. All of them, charged with conspiracy, murder and concealment of evidence, continued to be in the active service of the PAC. However, they were never produced before the CJM court between January 1997 and April 2000, though six times bailable and 17 times non-bailable warrants were issued against them. When they surrendered after public and media pressure in June-July 2000, the district judge considered it a fit case for bail – and the public prosecutor was too willing to extend full cooperation to the defence. The court did not even inform the victims, who were pursuing the case. Having watched the course of law in Ghaziabad from 1996 to 2000, I took the initiative to get the case transferred by the Supreme Court to Delhi on September 27, 2002. Issues related to procedural law about the appointment of the public prosecutor succeeded in delaying the trial, which started in July 2006. During the whole year just three witnesses have been examined. It will continue for many more years. Three of the accused have died. The remaining 16 are enjoying freedom. Officers, including the one who ordered firing by the PAC at Maliana on May 23, 1987, which took a toll of 30 lives, are enjoying promotion.
Label of terrorism
Now visualise a similar scene, wherein instead of an armed constabulary the killers are a masked armed gang of Muslims. This will get instant publicity as an act of terrorism which will make all organs of the state’s law enforcement system extra-alert and overactive. Sections of the media too will lend full support by publicising government handouts based on conjectures as proven facts. Hundreds of people even unconnected or remotely connected with any of the suspected terrorists will be detained, tortured and humiliated and on the basis of flimsy, even forged evidence and/or forced confessions, will be charged under draconian provisions of anti-terror laws, and kept in jail for years as under trials and treated as enemies of the nation. The trial court will be too willing to respond to the “collective will of the society”, by convicting as many as possible and awarding very harsh punishments.
Though both sets of events, involve loss of life, limb and property of uninvolved innocent persons, including women, children, aged, worshipers and places of worship, their treatment by all the organs of the state, including the judiciary, as well as by the civil society, especially the majority community, presents a study in contrast, the reason for which lies in the tyranny of labels – one is called “terrorism” and the other “riots”/“disturbance”.
The contrast gets illustrated by the treatment of the Patel and Jaffary case in a Prevention of Terrorism Act (POTA) court. On July 21, 2003 justice S N Dhingra of the designated POTA court, New Delhi, held two young Muslims Mohd Yaseen Patel and Mohd Ashraf Jaffary guilty under Sections 20 of POTA and 124-A of the Indian Penal Code (IPC) and sentenced them to five and seven years of imprisonment for waging war against India and disturbing communal harmony. They were alleged to have been associated with the banned organisation Students Islamic Movement of India (SIMI) and were apprehended by the police while they were allegedly pasting posters on May 27, 2002 on the walls of Jamia Millia Islamia University Library, New Delhi at about 1:50 pm, which read: “Destroy Nationalism, Establish Khilafat”. According to the statement of Farhana Jaffary, wife of Mohd Yaseen Patel, the police had raided their house during the night of May 26-27 and arrested Mohd Yaseen Patel and her brother Mohd Ashraf Jaffary, who was staying with them in her house in Zakir Nagar. The allegation of pasting of posters on JMI Library wall was called a pure fabrication. The police did not produce any independent witness under the plea that people did not want to be involved in criminal cases to avoid harassment.
Judicial bias
In another judgment delivered by the same learned judge, S N Dhingra on August 27, 1996, in case No 34/95 State vs Shyam Vir and others arising out of riots of Tirlokpuri, Delhi in 1984, he had observed that the police and the entire criminal justice system was subservient to the political masters. However, the same justice Dhingra held a diametrically opposite view about the role of the police in this case, as independent, conscientious and dutiful servants of society dedicated to upholding the rule of law. What inference can be drawn about the role of the courts according to his lordship’s own observations? In the course of the present judgment, while dealing with the issue of whether the accused were “learned persons”, who would not normally paste a poster on the wall but would get it done by others, the learned judge observed that the two accused had received their education at a madrasa and were educated basically about Islam, insinuating thereby that they could not be accorded the status of “learned persons”. Does it not betray his lordship’s bias against an indigenous educational scheme, if not against Muslims per se?
The learned judge interpreted the content of the poster to mean that “nationalism must give way to clergy rule under an international Islamic Order”, which he took to mean destruction of the Indian nation by waging war, although the slogan meant nothing more than what is implied by the establishment of Ram Rajya or Kingdom of God on Earth. There can be no better commentary on the mindset of the POTA court than justice Dhingra’s own pithy remark in the 1996 judgment that “the law enforcement agencies are more favourably inclined to the strong and powerful to the detriment of weak and powerless”.
Contrary to the fast track summary trial of the two accused Muslim youth and their conviction for pasting slogans against nationalism, the learned additional sessions judge of Meerut granted permission to the government of Uttar Pradesh led by chief minister Kalyan Singh of the BJP to withdraw the cases related to communal killing of 19 Muslims at Nigar Cinema of Meerut in 1991. Besides charge of murder, the accused were also charged with arson and looting. Charges had been framed and the trial had started. Records show that on December 11, 1998 the government of UP had declined to withdraw the case; but subsequently at the last stage of Kalyan Singh’s chief ministership, an order for the withdrawal of the case was issued on December 12, 1999, without assigning any reason that prompted it to revise its earlier decision. The withdrawal appears to have been politically motivated, as the accused were associated with the BJP.
Reporting about the role of the judiciary during Moradabad riots of 1980, the academicians Satish Saberwal and Mushirul Hasan observed that: “various organs of administration including, alas, the judiciary, appeared to act in a way supportive to the activities of the local police and the PAC” which were partisan; and further that the “Judicial action on the granting of bail and the like were generally such as to let the Hindus off lightly and to come down hard on the Muslims. Clearly the Muslims were up not only against the police but also the judiciary.”
Even while accepting that biases in the individual members of the bench are not alarming and are not the main cause of denial of justice in riot-related cases, it is obvious that the judicial administration has not taken steps to develop any policy perspective and mechanism to deal with communally sensitive hate speech and crime cases, including those seeking award of relief, compensation and rehabilitation to ensure fairness and speed. For example, why has the apex court not considered constituting a Red Bench to deal with communal violence, like it constituted a Green Bench to deal with pollution? And while deciding these cases, the apex court can easily treat norms of international human rights law – which are in the nature of multilateral treaties – as applicable, as it did in Vishaka and several other judgments. Alas, with the only exception of Gujarat, the contrary has been the practice. These cases, including the case of Hashimpura, have been given routine treatment, and on occasions more than the usual indulgence has been shown to moves aimed at delaying a final decision. Let judicial activism once asserted in the Best Bakery case become the norm.
In physical terms, communal riots, pogroms and genocides have caused immensely more loss of life, limb, property, dignity and honour of innocent women, men and children and have caused greater displacement and consequent loss of shelter, livelihood, health and education of vast numbers – mostly from poorer and deprived sections of minority communities than has been the case in terrorist killings. In both types of violence the victims are always uninvolved innocent persons, who suffer grievous losses, just because of imagined community affiliation or just because of their easy access as soft targets. Both should cause equal outrage. But communal violence leaves behind more lasting inter-community ill will and bitterness which may cause longer and deeper social cleavage. Moreover communal incidents generally make members of vulnerable minorities feel too insecure and alienated to plan for the education and careers of their children, and develop modes of thought appropriate for roles of common Indian citizenship.
Wide disparities
In spite of these realities, the official policy perspective, media and civil society’s majority viewpoint treat terrorism as the greatest enemy of the state, and society, whereas communal carnages – which are generally called riots/disturbances – are unfortunate happenings whose victims are largely “others”. Further, being manageable, these riots/disturbances can ostensibly be taken in our national strides, treating them, like the three thousand innocent Muslims killed in Nellie (Assam) in February 1983, as a bad dream. One reason for communal massacres easily being forgotten, is the fact that the victims generally, though not always, belong to poorer sections of minorities who have almost accepted the status of less than equal citizens of the country, irrespective of the majoritarian style of the Muslim leadership’s mobilisational politics over ethno-religious issues. It is this Muslim alienation and acceptance of inferior status which has made the masses reconcile to lack of adequate compensation for losses suffered during riots and neglect of their rehabilitation – which has been made an issue for the first time in Gujarat by the National Human Rights Commission (NHRC), and the national and international NGOs.
Instilling a sense of second class status into the Muslim mind by the official policy and its acceptance by the weaker sections is made palpable by the wide disparity in the payment of compensation to sufferers of riots. Its most glaring recent example is provided by the ex gratia award of Rs one lakh compensation for each loss of life (mostly Muslim) caused by the bomb blasts in Malegaon in September 2006 by the same government with secular pretensions which awarded Rs five lakh ex-gratia compensation for the loss of each life (mostly Hindu) on July 11, 2006 in Mumbai, though the government claims that both incidents are terrorist violence of a similar nature. Neither NHRC nor the National Commission for Minorities (NCM) has cared much to address the issue of wide disparities in payment of compensation to victims of violence.
The rising Muslim educated middle class from which terrorists are recruited, which has not accepted its inferior status as citizens of India, has been nursing a feeling of frustration with the course of law in its community-related cases. They feel betrayed by the apex court in two most crucial cases of the Aligarh Muslim University in the Azeez Basha case (1968) and in the Ayodhya cases, especially in 1990 and 1992. Did the judiciary lack the will to deliver justice? Why did it not heed the warning for stopping L K Advani’s Rath Yatra? Why did it not heed the warning on the permission for Kar Seva on December 5-6, 1992? It is obvious to every one that politicians including Rajiv Gandhi and Narasimha Rao and Sudhakar Naik lacked the will to enforce the law for the protection of Muslims, for fear of losing Hindu votes as had been frankly admitted by the Congress Party and government leaders, when the question about direction to the police not to be tough on rioters in Ahmedabad in 1969 was put to them by Ajit Bhattacharjea. But what made the judiciary lack the requisite will to prevent “the act of national shame” and to treat the case of demolition of Babri masjid as the greatest act of terrorism in independent India?
Restorative justice
In our search for restorative justice that may herald lasting social stability, it is time to remind the judiciary to review its functioning at the subordinate as well as higher levels to identify the sources within the system of delay, distortion and denial of justice in cases related to hate speech and mass hate crimes. There is a need for NGOs and groups involved in promoting police reform to seek supplementary direction from the Supreme Court in its order of September 2006 for implementation of reform measures required for prevention and control of communal violence, which was dealt with by the National Police Commission in chapter VI (1981) and the NCM report, some of which are already incorporated in the Model Police Act (2006) prepared by the Police Act Drafting Committee headed by Soli J Sorabjee, including the recommendation on socially diverse composition of all wings of the system, ensuring adequate representation to minorities.
It is time the judiciary developed a policy perspective on the socially diverse composition of the justice administration system in its entirety, along with institutional measures for neutralisation of biases. But most significantly, it needs to show greater judicial statesmanship while deciding cases having a bearing on issues related to nationhood, culture and religion, the best guides for which will be international human rights norms.
[First published in Economic & Political Weekly, dated Sept. 1-7, 2007]
[photo of Indiffirent lawyer by omnia_mutantur / cristiano