In all of the most oppressive regimes of the present century, legality values, particularly in the area of ordinary and political crimes, were not simply ignored but were in fact deliberately and systematically destroyed. We may trust such regimes to identify what is essential to their own existence, and the lesson they teach is that massive assault on values of greatest importance to liberal societies will be preceded by the extinction of the legality ideal. These are the views expressed by Francis A Allen while surveying the American justice system.1 We should examine whether our Indian experience is any different.
Between 1968 and 1975, the institutions functioning under the Constitution comprehensively defeated the concept of equality and social change in all spheres of life. This gave rise to social and political movements with a radical thrust. Repression against these movements produced violence which could contend with State violence. This violence against the State was christened terrorism and to contain terrorism lawless laws were enacted; the latest is known by its acronym POTA.
Over the past two or three decades we are witnessing the struggle of the habit of legality against problems posed by political and social fragmentation of a pluralistic society. The concept of secularism and the rights of minorities are currently under attack by the forces of Hindutva. Though the Constitution recognises the plural character of our society, issues of plural societies are never confronted and resolved democratically by any of the institutions functioning under the Constitution.
The attack on minorities commenced with the Sikh riots in 1984. All the courts up to the apex court were not geared to deal with such large-scale genocidal violence. Nor were the innumerable commissions of inquiry set up for such purpose. When post-Babri Masjid demolition violence occurred in Bombay city in 1993, it was not a riot but was a targeted attack on the minority community. The police bureaucracy down to the constable was suffering from a Hindu perspective and the criminal justice system was no exception.
The government was driven to appoint the Srikrishna Commission to inquire into the riots. The findings were a scathing charge sheet against the government and its law enforcing apparatus as also the political parties. The appointment of commissions are political placebos administered by governments to tide over complaints by citizens. These are devices to manage atrocities and bad governance.
As riots are crimes, these need to be investigated and tried. The courts were not geared to investigate and try the offenders whose terror uprooted people in large scale from their areas and turned them into refugees in the city they had been living in for generations. These were no longer communal riots. There was a qualitative difference in the violence employed against the targeted groups.
"Rioting" as defined by the court may not comprehend "Genocide". The government did not take notice of the genocidal trends in the Sikh massacre of 1984 and the assault on the Muslim minority in 1993 by the majority community, and bring forth an appropriate law to prevent and control these trends. They did not show the same alacrity they displayed in bringing forth anti-terrorist legislation.
The communal violence that we were used to prior to 1984 was not genocide. The concerted attack on secular values and on minority communities has been on the increase post-1984. It was a challenge to the plural character of society and the assurance of equality to the constituents of this plural society. The attack against the Muslim community in Gujarat after February 28, 2002 was the most brazen violation of the Constitution by a duly constituted government. The Best Bakery case is part of that brazen attack on the Constitution and its values. By the time Godhra occurred, there had been a total erosion of all institutions of the State, more importantly the judicial system.
The carnage in Gujarat is part of the political campaign of the ruling party in the state and at the Centre. The major way in which Hindu religion was pushed into politics was there for all to see. What happened to the minorities from 1984 onwards and what happened in Gujarat on February 28, 2002 is genocide and not a riot as defined by Macaulay’s Code. If the Court had recognised the event as genocide the perspective of the Court would have been entirely different. All the ingredients of genocide are present in this carnage.
The 1948 International Covenant defines the crime of genocide. Crime of genocide means killing members of the group; causing serious bodily and mental harm; deliberately inflicting on the group conditions of life calculated to bring about physical destruction in whole or in part. There was present in these cases genocide, conspiracy to commit genocide, direct and public incitement to commit genocide and complicity in genocide.
The Supreme Court was shocked by the total unfairness of the trial and the partisan investigation. The apex court painfully pointed out: "In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code, the underlying object which the court must keep in view is the very reason for which the court exists, i.e., to find out the truth and dispense justice impartially and ensure also that the very process of courts are not employed or utilised in a manner which gives room to unfairness or lend themselves to be used as instruments of oppression and injustice." What has happened in this case is precisely what the judges said should not happen! Would such acts not amount to complicity with the culprits responsible for the carnage?
The judgement is remarkable in its righteous indignation and frankness and is a rare and unequivocal judgement regretting denial of justice to the minority under attack but at the same time it is sterile as it does not leave behind guidelines assuring justice to the minorities in the years to come. What was unstated in the judgement and what has driven the judges to righteous indignation was the scale of complicity of the government, the investigation, the prosecution and the courts including the high court.
In the political context, the reference to Mahatma Gandhi is ironical. In fact, it was the second killing of the Mahatma by the ardent followers of Godse. Godse had the courage to give his reasons for killing the Mahatma. The followers have none. The judges say criminals have no religion and that no religion teaches violence. If we examine the history of religions we may not be as willing to give such a clean chit to religions. The judges say, "the fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than alien enemy." Quite true.
A further reading of the judgement, between the lines, tells us that the judges knew who the real culprits are. "Modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and women were burning and were probably deliberating how the perpetrators of the crime can be saved or protected."
The apex court differentiated between the persons responsible for the carnage and the persons involved in the carnage, the planners and the perpetrators and the "wanton boys", the conspirators and their instruments. The unhappy part of the judgement is that notwithstanding the indignation at the failure of every institution of the State, the prosecution is directed only against the perpetrators. In our criminal justice system the principal culprit is either not prosecuted or let off if prosecuted.
They were reluctant to point out all the infirmities in the judgement of the high court. They describe the case as an "exemplary one, special of its kind, necessary to prevent its recurrence". The questions that immediately arise are: What guidelines have they set out for preventing recurrence? Should they not set out guidelines to ensure that religion does not enter the sphere of political government? Should they not have set down a principle of trial of these cases under the chapter on public tranquillity read with the Genocide Convention of 1948 to render complete justice?
All these acts leading to the carnage satisfy the principal ingredients of a terrorist act under Section (3) of POTA. The mob might not have used firearms & explosives, but surely arson could not have been managed on such a large scale without the use of inflammable and/or explosive substances. If Godhra offences could be terrorist acts, post-Godhra offences could equally be terrorist acts, and treating similar offences differently would obviously be iniquitous, unless one assumes that minorities per se are terrorists.
In course of time the police officers who are guilty of complicity during the carnage and thereafter in subverting the investigation, the trial judge and the high court judges will all be rewarded with promotions, elevations and even medals in recognition of excellence! PC Pandey, commissioner of police, Ahmedabad, during the period of the carnage has already been rewarded with a promotion as additional director, CBI.
Police officials guilty of culpable indifference and negligence deserve to be removed from service, those among them who are culpable deserve to be suspended and tried, and the high court judges for their anti-Constitutional judgement deserve to be impeached, or at any rate informed that they should, in the interests of constitutional governance, resign their judgeships. Independence of the judiciary should not become a haven for the perpetrators of unconstitutional and anti- constitutional deeds.
All this could have been done by the Supreme Court under Article 142 0f the Constitution. The Supreme Court was against any limited interpretation of the expression ‘cause or matter’, as that would nullify wider Constitutional powers. The Supreme Court observed on another occasion that it was advisable to leave the power undefined and un-catalogued so that it remains elastic enough to be moulded to suit the situation. It is not relevant to refer to the dicta of the courts — American and Indian — to tell us that courts will not take cognisance of matters which are best settled in the streets.
What happened in Gujarat in March 2002, what happened in Mumbai in January 1993, and to members of the Sikh community in 1984 are genocidal trends and courts, as enforcers of International Covenants, ought to have taken serious note of these blatant transgressions of human rights and devised jurisprudential and procedural tools to deal with this situation. A magniloquent attack on lawlessness is hardly a substitute for doing justice to the wronged. A court which innovatively protected propertied interests by devising the concepts of prospective over ruling and basic structure could have devised a concept for disqualifying a chief minister or other ministers as having been constructively responsible for the carnage by redefining a writ of quo warranto for meeting these situations. If the chief minister Modi had been disqualified on the principle of constructive responsibility, Rule of Law would not have become the fugitive that it has become now. Bal Thackaray’s Mumbai is not going to be any different. Seeing Rule of Law fleeing like a fugitive could invite private justice and the terrorist may say, "I shall repay."
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1 The Habits of Legality, Francis A Allen 1996 Oxford New York