The aftermath of the communal violence in Delhi (Debi 2010) is a reality check of where we, as a country, stand in terms of the rights of victims to (1) a fair investigation not polluted by political considerations and pressure, (2) a prosecution system commited to justice and truth not political goals and (3) a judiciary which stands for the principle of satya me jayate not power me jayate which can thereby ensure punishment to those who are guilty. These questions have a more urgent relevance in the light of the decision of the Lt Governor of Delhi to play a direct role in defending the Delhi police. This was expressed in the LG order to uphold the choice of the panel of lawyers for the prosecution in the Delhi communal violence cases, overturning the decision of the Delhi Government.
The LG order has a direct impact in the quest for justice for the victims of the violence. The appointment of a team led by the most trusted law officer of the central ruling regime, the Solicitor General, Tushar Mehta is way beyond the reach of the Delhi police or the LG. This is straight from the top, to the Home Minister Amit Shah, showing the high stakes in ensuring that the judicial process goes the way the ruling regime would like it to.
The LG has referred the “ difference of opinion “ with the State Government to the President of India under Sec 239 AA (4) of the Constitution of India.
This section reads “ Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”
The crucial words here are “ is so urgent” for him to take immediate action. What is the urgency? As details of chargesheets filed come into the public domain, questions are being raised about the sequence of events narrated by the Delhi police and the inconsistencies, the self contradictions in the narration. Statements made by witnesses quoted by the police to strengthen their case often reveal the utter failure of the police to intervene in time to prevent the violence. In addition, courts are also hearing public interest litigations which quote details of the participation of sections of the Delhi police either as direct participants in the violence or as giving encouragement to one side. Videos and photographs have been annexed with many of the petitions which provide incontrovertible evidence. Thus the police, or more correctly, the forces behind the Delhi police, require a guarantee of a team of lawyers who are committed not necessarily to uncovering the truth or to serve the interests of justice but to protect the tales being spun to conceal the truth. Most importantly, the composition of the panel is required to send a strong message to the Courts of the direct involvement and interest of the Home Ministry in this entire process.
On February 26, a petition was heard by the Delhi High Court to direct the police to file an FIR against Kapil Mishra and other BJP leaders for incitement to violence and hate speeches. It was the Solicitor General who argued against it saying that the time was not right “ the police will file FIRs at the appropriate time.” The Court rejected his plea and directed the police to file an FIR within 24 hours. The next day the judge who gave these orders was transferred ostensibly on a pending order earlier made. One can only conjecture as to the impact this may have on the courts hearing similar petitions. These are some of the probable reasons for the “urgency” clause invoked by the LG to ensure that it is the SG and his team who should represent the Delhi police in 84 of such cases.
In this context it may be useful to look back at some of the relevant recommendations made to prevent a situation where justice is hijacked by Governments pursuing political agendas. In 2006, the then Central Government had set up the Second Administrative Reforms Commission ( ARC) which, in the next three years, submitted a series of reports.
In its report on Public Law and Order we find these lines which seem particularly relevant/ ironic today: “ No one, not even the Home Minister in charge of the police administration and answerable to Parliament in the matter, has the power to direct the police as to how it would exercise its statutory powers, duties and discretion.” In its report on Ethics and Governance it says “obstruction of or perversion of justice by unduly influencing law enforcement agencies and prosecution is a common occurrence in our country… The Commission is of the view that the issue of illegal or malafide instructions by any government functionary to any police functionary should be made an offence.”
At the time, the Supreme Court coincidentally was also hearing a petition on police reforms. In its judgement in September 2006 a three member bench headed by the Chief Justice Y.K.Sabharwal directed Government to form “ State Security Commission(s) (SSC) to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines so that the State police always acts according to the laws of the land and the Constitution of the country. “
Taken together the recommendations of the ARC and the Supreme Court on those specific issues, if implemented today, could have perhaps made a difference to the direct concerns of the victims of communal violence in Delhi. But the ARC recommendations to legally prevent political interference in investigation died a silent, unmarked death. As far as the Supreme Court recommendations for the constitution of SSCs are concerned, little happened. If there had been an SSC in Delhi today could it have prevented “ undue pressure” on the Delhi police as envisaged by the Supreme Court or at least brought the issues into the public domain, officially? Of course the problem specific to Delhi is that the police is not accountable to the Delhi Government but to the Central Home Ministry.
Institutions are as good or bad in fulfilling their mandate as those who head them. The present regime is expert in subverting the autonomy of an institution by placing pliable individuals at the helm. After the Gujarat carnage in 2002, it was the Chairperson of the National Human Rights Commission, Justice JS Verma and his team, who dug out the truth from the mountain of lies, subterfuge, through the bullying and the intimidation, to pinpoint the role of the then Government and the political leadership in Gujarat in the communal carnage : “There is no doubt, in the opinion of this Commission, that there was a comprehensive failure on the part of the state government to control the persistent violation of the rights to life, liberty, equality and dignity of the people of the state.” But today, we find that after the communal violence in Delhi, there is a deafening silence from this very institution, the NHRC. Nor have we heard a word from the National Minority Commission. It is a shame that these institutions have betrayed their mandate. There is no excuse or justification. But public opinion needs to be mobilised to make them accountable.
It is the Delhi Minority Commission which is the first and only official institution which has come out with a fact finding report which indicts the Delhi police and leaders of the central ruling regime like Kapil Mishra. It is also the first official report that names Amit Shah as one of those who had made communally provocative speeches during the Delhi elections. The Chairman of the DMC is facing a case and threat of arrest on entirely flimsy grounds. But the report produced is an important document that challenges the official narrative. In the light of the LGs direct intervention on the issue of panel of lawyers, it is clear that it will require a big struggle to get the recommendations of the DMC implemented.
However a weakness in the DMC report is that it does not at all look at the deaths or damage suffered by members of the Hindu community. While it may be said that its mandate is to represent minorities, this is a big gap that remains in the report. Surveys done by the Delhi Solidarity Relief and Rehabilitation Committee of which I am a member confirm what is widely known, namely that the protests against the CAA in the eight sit-in sites in north east Delhi mostly started in January and were entirely peaceful. One may entirely disagree with calls for action and Chaka jam by certain groups supporting the protests, as inappropriate at a particular point of time, but the protests remained peaceful. It was after the hate speech and incitement to violence made by Kapil Mishra on the afternoon of February 23 rd that the attacks started on the women sitting at the protest sites. This is what triggered a response from the Muslim community which led to clashes and attacks from both sides. Criminals with arms from both sides also worsened the situation. If the army had been called in at that time, the situation could have been controlled. However that was not done. On the contrary, within 24 hours the police started siding with the attacks on the minority community and it developed into a horrific one sided against the Muslim community backed by the police.
In its report to the courts, the police itself gives figures which substantiate this. There were 53 deaths of which 40 were Muslims and 13 were Hindus. Of the 473 civilians injured, 288 were Muslims and 185 were Hindus. Of shops damaged, 173 were belonged to Muslims and 42 to Hindus. 13 mosques and 6 mandirs were damaged. There are 751 FIRs registered and 200 chargesheets filed. The total arrests are 1430 as on July 13, 2020. Earlier, giving the breakup of 1340 of those arrested, the Delhi Police PRO stated that 700 Muslims and 630 Hindus had been arrested. He quoted these figures to show that the police was being “ even handed.” When the numbers of dead, the numbers of injured, the extent of property damaged is overwhelmingly from one community, how is it that the arrests from that community are more than from the other side? But even these arrests are being objected to. The circular issued by the officer heading the Special Cell to all officers heading investigations to take “ due care and precaution” since “ there is a degree of resentment among the Hindu community” because of arrests of Hindu men, is under judicial scrutiny. Again it was a senior counsel in the SG team who argued in favour of the police calling the petition challenging the circular “ highly mischievous.” The court in this case was not impressed and made strong comments about the circular. However the incident exposes the partiality in police actions.
A perusal of the chargesheets also show a clear bias. In cases where Muslims have been murdered, the invariable defence given by the police is that the violence which led to their murders by “ Hindu mobs” was “ retaliatory” in nature. For example in the chargesheet on the murders of two brothers, Hashim and Amir, the police identified members of a 125 member WhatsApp group called Kattar Hindu Ekta, who were sending the most communally incendiary messages to each other. Only 12 of them have been charged with the murders. In the chargesheet the police virtually justifies the actions of this gang of communal criminals. “ (they) were annoyed with Muslim community due to riots in Delhi… seething with anger as many stories of Hindus being attacked by Muslims.. they wanted to teach a lesson to Muslims.”
In this chargesheet, the role of the police is also inadvertently exposed. The police did nothing while crowds of men from February 24, 2020, roamed the area around Johripur pulia stopping people and checking if they were Muslim. If they were, they were beaten mercilessly. From the evening of February 24, the chargesheet quotes the most important witness in the case, a Hindu who was stopped on his was home on February 24 by mobs shouting Jai Shri Ram. He fell and when he got up his motorbike was missing. He rushed to the police station to file a report.They asked him to come the following day. He told the police about the mobs in the area but the police did not act. Between 4.00 pm of the February 25, to 10.30 pm on February 26, nine Muslim men were killed in the same place.
But there are no charges against the policemen responsible . The SITs set up for the investigation are headed by men of the same force. They have told the courts that they have no evidence so far of the police role is concerned. Not just the police, but the toxic communal campaign of the BJP leaders and individual leaders directly responsible for inciting the violence find no place in a single FIR or charge sheet. And now, the choice of the prosecution panel also makes it clear enough that top law officers of the country are going to be defending the indefensible. The prosecution has been chosen to present the entirely manufactured narrative which demonizes the anti-CAA protests and blames the violence on a so- called national conspiracy of jihadis, urban naxals and so on, branding all anti -CAA protests as being anti- national. Activists from JNU, Jamia and others have been arrested under the draconian UAPA to deny them bail.
The officially stated reasons for the violence are lies, the investigations are faulty, and the prosecution is chosen to fill up any gaps or weaknesses that are there in this saga of injustice.
August 5, 2020 marks one year of the wholesale destruction of democratic rights in Kashmir. What we are seeing in Delhi, in the aftermath of the violence is an extension of the use of coercive power to extinguish all dissent and protest. The legal strategy and the step taken by the Lt. Governor is part of this agenda.
(The author is senior polit bureau member of the CPI-M)