By TwoCircles. net staff reporter,
Cambridge, Mass – Vinay Sitapati, a PhD student at Princeton University, New Jersey, and also a columnist with the Indian Express, gave a talk at the Harvard Law School on Mar 25 2014. The talk was titled “After Judgement Day: The Indian Supreme Court’s Quest for Justice for the 2002 Gujarat Riot Victims.”
Sitapati laid out at the outset the question he was asking as part of his doctoral research: “Under what circumstances are court judgments complied with?” He further specified that his research deals with “political judgments,” where, as he put it, “the ‘political’ is a heuristic for judgments where the judge wants socio-political change.”
Sitapati added that his research has to do with poilitical judgments in the areas of land, Hindu-Muslim conflict and caste, especially as they apply to India and the effect of the intervention of the Supreme Court of India.
“Most people equate a judgment delivered as the impact,” he said, touching on the fact that more often than not judgments do not translate into their being actually being carried out, that is, in compliance.
“The first thing you have to look at is the immediate formal judicial response – that is the first hurdle,” he said. In fact, quite often it is the case that judgments are overruled by subsequent legislation, through constitutional amendments, for instance. This explicit way of annulling a judgement is in addition to other ways in which a judgment is not complied with, such as apathy or and an attitude of ignoring, which Sitapati included in the category of “state capacity,” or the state’s ability to ensure justice.
Sitapati focused on the “most political judgement” in the Hindu-Muslim conflict in India, that of the “NHRC versus the State of Gujarat” judgement of 2009 with regard to the Gujarat riots of 2002.
“What was the immediate political response of the state,” Sitapati asked. “Nothing. Well, there was a motion for imposing President’s rule in parliament, bu that was defeated – this was the immediate poltical response.”
“What was the immediate legal response of the state in 2002: 1257 people killed, the law must enter…” Sitapati further asked.
Laying out the typical flow of the Indian criminal justice system, from the registering of a case till its completion – the steps of filing the First Information Report (FIR), subsequent investigations, the filing of a chargesheet, the trial, the judgement and the appeal – Sitapati pointed out that out of approximately 4252 FIRs filed in 2002, half had been closed by 2004 for “want of evidence.”
“I’ll tell you how ironical it is: I did ethnographic work at about 50 riot-sites. Riots don’t require Sherlock Holmes to solve the problem – these are public acts – most riots are perpetrated by neighbors so the witnesses know them. So the conviction rate should be above the normal conviction rate,” Sitapati said. Instead, as he had pointed out earlier, half the cases were closed for want of evidence.
“And number of convictions till 2004: zero. 1257 people killed, zero convictions – one of those amazing crimes” he added.
Siatapati proceeded to explain why this happens: “Even though the Indian judicial system is notionally independent, part of the process of justice is controlled by the state governent – the police and the prosecutors are in the hands of the state government. So even if the judges might be independent, there are very easy ways in which a state government implicated in violence can actually ensure very poor chargesheet rate and very poor conviction rate.”
The situation led to several activist groups and human rights groups moving the Supreme Court of India. The court finally acted in three ways – by ordering a re-opening of the previously closed cases, by ordering 11 special trials in which it arranged for police from outside Gujarat and by putting into place a witness protection program where the police were drawn not from the Gujarat Police but from the Central Industrial Security Force (CISF) to cut down on intimidation.
The reopening of the cases did not improve the conviction rate – it was at 5% – as it was handled by the Gujarat criminal justice system. However, the special trials in which the Gujarat government was completely removed registered a conviction rate of 38%, approximately 8 times higher.
Why this stark difference in conviction rates?
“The roadblock was not the lack of the Gujarat government’s ability to ensure justice – it was a politicized bureaucracy. Every aspect of the criminal justice that was not independent was deeply compromised. For instance prosecutors were VHP and RSS people who had aligned with the BJP, witnesses were physically intimidated,” Sitapati explained.
“On the other hand, when the Supreme Court intervened to ‘insulate that bureaucracy,’ to appoint its own prosecutors, to get police officers who were IPS officers from other state-cadres, you ended up with much higher conviction rates.”