It is the protection and sanctity provided by laws against cow slaughter that have resulted in a close nexus between the local police and cow vigilantes, resulting in most of the lynching murders all over country. A report, soon to be released has outlined these instances in detail. The report has been brought out by Misaal, a collective.
As many as 94% of the deaths that took place at the hands of the vigilante groups – members of Hindu extremist groups. In the majority of the cases, these involved Gau Rakshak Dals (Cow Protection Units) – vigilante groups with their existence linked to governments’ efforts for cow protection, says the report.
The report – Lynching Without End: Fact-finding investigation into religiously-motivated vigilante violence in India – has also pointed out that “in some cases, creating space for private parties to aid the police in enforcing those laws.”
Such attacks and violence mark a shift in the method, from mass violence like communal riots to low-intensity individualised ones, as a part of a strategy to escape “public scrutiny”. “Of late, lynching and vigilante attacks have become the instrument of choice for violence against minorities – particularly Muslims,” the report points out.The report also mentions the “impunity of state and private actors” in cases of hate crime, ensures that the hate violence persists and highlights the “poor working of the criminal justice system”.
The report carried out by an NGO Citizens against Hate shares, “how the largescale use of ‘cross cases’ against victims and witnesses of lynchings –mischievously, in most cases, given most were filed against unnamed individuals – severely limits the ability of victims to fight the long drawn legal battles.”
Adding that the police forces have failed in protecting the victims including those lynched publically, the police inaction, both to protect as well as take action against perpetrators have also “emboldened the latter, resulting in repeated attacks resulting in deaths.”
Since 2015, there have been as many as two dozen cases of lynching and vigilante violence that has claimed the lives of 34 persons, according to the report, and the study has pointed out that most of the victims in these cases belong to a specific community.
“The victims in all cases were poor backward caste Muslims identifying themselves as Qureishi, Meo, Gujjar, and Ansari, mostly those who traditionally make a living by engaging in animal husbandry, dairying, and in the meat supply chain sector,” the report mentions.
TABLE 1 : ON STATE LAWS IN ACCOMPANYING FILE
Extracts from the Report
Perpetrators
Many or all perpetrators are members of some extremist groups, often allegedly affiliated to power centres. .. Some places it was groups like the Hindu Rashtra Sena (in Maharashtra) and the Hindu Yuva Vahini (Uttar Pradesh), all with documented cases of violence against minorities.[1]These have seen a steady increase in their spread and membership– patronised as they are by those in power in respective states and the centre.[2]The HYV for instance was formed by the current CM of Uttar Pradesh, and has a history of violent attacks and instigation of hate crime against Muslims.[3]
“Many BJP ruled states also had more of a direct Gau Rakshak Dal involvement. This was due to two facts. BJP ruled states provided a greater degree of autonomy to allegedly extremist formations to operate – thus GRDs and others BJP supported vigilante groups. Many BJP states also had brought in stricter cow protection laws, and had also provided formal space to these groups to help enforce the laws – as is clearly the case in Haryana.
“…Sections 16 and 17 of the 2015 cow protection law empower private parties, to help enforce the state’s draconian cattle laws. Similar is the case for Mahasrashtra and Gujarat. And Haryana Gau Seva Ayog, established to oversee implementation of cow protection laws in the state, has members that run cow vigilante groups, with several accusations of vigilante attacks.
According to newspaper reports[4], in September 2016, the Haryana Police constituted Special Task Forces in the districts of Haryana to check cattle smuggling across the state. These STFs have been deployed on the borders of Haryana State adjoining western & southern Uttar Pradesh and on major highways – the GT Road connecting Sonipat, Panipat, Karnal and Kurukshetra; the Maneser-Palwal Expressway, connecting Gurugram, Mewat and Palwal; NH-2 connecting Palwal with Mathura and Agra; and NH-8 connecting Gurugram, Rewari and parts of Rajasthan border. The instances of killings by GRD that the our fact finding came across, have been reported from these areas.
Victim families and witnesses we spoke with, informed that Gau Rakshak Dals along with the police, petrol these highways in the night and are armed with sticks, rods, and guns. They stop lorries carrying cattle, extort money from passengers, and assault them, on suspicion of being cattle smugglers. In some instances, these assaults have resulted in deaths. After the assault the alleged smugglers are handed over go the police and the vehicle seized. The victims and their families told us that at times the police is present at the site when the attack is underway. In all our conversations, eye witnesses to the attacks, mentioned that neither the police nor the GRDs asked them if they had the relevant documents for transporting cattle – it was assumed that all those transporting cattle, if Muslim, were breaking the law. Also, in most cases, the trucks were carrying buffaloes or oxen and not cows.
Role of the Police
Police role in the violations of the right to life of victims, involved both acts of omission as well as commissions. The abiding picture is mostly of a police force overwhelmed by the vigilantes. In Giridih, where a mob of 200 attacked Usman Ansari because a dead cow was found near his house, police came too late to save his house from being torched.[5]Similar acts of omission were the story in Ramgarh, where Alimuddin Ansari was lynched to death in broad day light by GRDs. Jharkhand also provides stories of police collusion with GRDs, as in the Jamtara case of custodial death of Minhaj Ansari. Initially police claimed the death was due to encephalitis. This was refuted on production of post mortem report, that confirmed the death was due to physical injuries to the body.
A more common pattern is of police inertia to respond to requests for security.
This was on show in Yamunanagar, Haryana where two cases of vigilante attacks – one year apart (Alisher and Tehsin) – have allegedly the same accused, showing how police inaction gives a blow to the rule of law. Similar inaction resulting in repeat attacks took place in Gautam Budh Nagar district in Uttar Pradesh.
The lynching in Kaimarala village of the district, of three youth (Anas Qureishi et al), in front of a police check post, was the first reported case of mob lynching in UP. It was to be followed only a few months later, by the lynching of Mohammad Akhlaq in Bisara village of the same district, some 25 kms). There are other glaring examples of police inaction to calls for help. And despite written complaints by family members of Ghulam Mohammad, of threats and intimidation by Hindu Yuva Vahini members, the police took no action. HYV members beat the elderly Ghulam Mohammad, the next day, on the road connecting the village to Pahasu town.
Inaction is also mixed up with police bias, against victims. This was the case in display in Latehar lynching incident of Mazloom Ansari et al, when those protesting the gruesome lynching were themselves set upon by the police, and a case of violence registered against them. National Commission of Minorities recommended action against police officers accused by the victims in this case of police high handedness.
In the case of Kaimarala lynchings (Anas Qureishi and two others), the police refused to file FIR for full six days, rather threatened victims’ families, acting more as agents for the accused. So devastated are family members today, that they are still unable to visit Dadri police station to pursue the case, fearful that police in collusion with the accused will harass them again, three years after the lynching took place. In Mohammad Akhlaq’s case (Gautam Buddha Nagar),this bias was demonstrated in the way the police and prosecution tampered with evidence (meat seized and the multiple and conflicting forensic lab reports on it); threatened the family;and stopped them from speaking with media. Family was therefore, forced to leave the village. And in the Ahmedabad case of Ayub Mev, police maintained the murder was a case of accident, and attacked family members protesting in the hospital, when the body was brought.
There were acts of commission too – those that involved the police directly in the murders, as in the case of Minhaj Ansari in Jamtara, where the police SI – along with local VHP head – beat the victim to death, for posting pictures on his Facebook account. So was the case of Khushnood, a factory worker in Kurukshetra, who was fatally fired upon by a combined team of the police and GRD, when making his way home to Saharanpur to cast his vote in Panchayat elections. The case of Mustahsin Abbas from Saharanpur too involved the police, actively working, as we were told by the victim’s father, with the Gau Raksha Dal, to deprive Mustain of his right to life. Arif Qureshi too, was tortured by the police in Delhi and succumbed later to his injuries – we were informed by his father – and also had a case foisted on him. Police personnel are named accused in the first two cases. Senior police and administrative officers were reprimanded by the Punjab and Haryana High Court in the third case, and the case itself handed over to the Central Bureau of Investigation, a federal agency. In the last, the family is much too scared even to file a complaint against the murder.
In Haryana, the police had a greater role in commissions of the crime. Their role legitimised by state cow protection laws, and empowered by their heads sitting on official bodies overseeing enforcement of cow protection laws (see above), notorious GRDs cross over from being vigilante groups (meaning informal, non–state, only providing information etc.) to acquiring quasi-formal authority, helping police task forces with law enforcement. Willy nilly, the police are reduced to minor partner at best, mute spectators, at worst, while the vigilantes pick and choose their victims and the methods of their vigilantism. The consequences of this unholy alliance of police and vigilante groups can be devastating forminorities. As we saw in the previous narrative, a good example is the Kuruskshetra murder of Mustain Abbas, where the High Court, seized of the matter due to a habeas corpus petition filed by the father of the victim, ordered action against the police and administration (severely censured the both SP and DM, and asked for their immediate transfer to inconsequential posts), whilst ordering the police to produce the body of the victim, and transferred the case to CBI.
In Haryana, we heard during out fact finding, of many more instances of deaths due to vigilante attacks and lynchings by GRDs, not reported in the media, and thus not included in the scope of our fact finding. We are making an attempt to list down these cases. Cases of violence by GRDs not resulting in deaths too have surged in the past couple of years, in Nuh and Faridabad districts mostly, but also in districts adjoining Saharanpur and Shamli in UP – Yamunanagar, Panipat, Kurukshetra. And, we also heard of many cases of ‘encounter killings’[6] of Muslim youth by the police. These are mostly on the suspicion of their being criminals. A rapid listing of such cases identified 4 cases involving 7 deceased, just in Nuh district.(see AnnexII).We heard of similar increase in attacks and killings of Muslim youth also from west UP now, in Saharanpur/Shamli – since the BJP took power. These cases were outside the scope of our fact funding. An attempt is being made to list down those cases too.
Will there be Justice ?The Legal process
What of the legal process followed, after the commission of the crime? Did the police follow procedure on registration of cases, arrests of the accused, investigation of the cases, and prosecuting the accused – in terms of framing charges, and ensuring, during the trial process, that the guilty were punished. (see Box 3)And did the state provide victims relief and compensations?
This account, presented below, is based on examination of documents we could obtain from victim families (specifically First Information Reports, arrest memos, case diaries, chargesheet where available, among others), andinterviews with them. We tried everywhere to speak to lawyers that the family may have hired.
All cases are recent – three years to under a couple of months – as a result, most are still at early stages of trial at best. Only in one case (murder of Tehsin, Yamunanagar, 15th March 2015), the session court has already passed orders (in Jan 2016).
First Information Reports (FIR).
Here we will check out the validity of the police registering cases on the criteria of whether complainant was registered or not; whether there was a delay in this; whether the right sections of the law were applied; and whether the FIR recorded the names of the accused when named by the complaints? All these test checks are crucial, as a great deal of the forensic strength of any case depends on the content of the FIR.Getting a crime as serious as murder, registered under the relevant laws, is a basic right of all, as it triggers the access to justice process, although, for the crime of murder, no FIR is necessary for the police to begin the legal process.
Of the cases we investigated, two murders (Arif Qureishi’s, and Farid and Sher Singh, both Punhana block of Nuh, Haryana), had not been registered with the police at all. In the latter case, parents of the deceased had moved the High Court for directions to police to register FIRs, but could not follow up the case. In another incident, again from Haryana (Mustain Abbas, Kurukshetra), victim’s family were able to get FIR filed after a delay of a month, but only through the intervention of the High Court. In yet another, this one from Uttar Pradesh (Kaimarala, Gautam Budh Nagar), FIR was filed by the police only after sustained protest by family members over many days, that included petitions to the state CM and the central Ministry of Home Affairs.
In several cases, the FIRs were filed without the application of section 302 of IPC (Indian Penal Code), meaning thereby, in police records, no murder had taken place. These included the following deceased: Tehsin from Yamunangar (Haryana); Salim from Shamli (UP), and Md. Samiruddin and Md. Nasiruddin from North Dinajpur, and Utera Bibi in Murshidabad, both West Bengal. In the case of double murder and gang rape in Dingerheri, Nuh (Haryana), section 302 was added only after sustained public mobilisation.
And despite victims in their dying statements or witnesses having named the accused, in the following cases, FIRs did not name the accused, rather recorded assailants as unknown – Junaid (Faridabad), Ibrahim and Rasheedan (Dingerheri, Nuh), Salim (Panipat), Khushood Khan (Yamunangar), all Haryana, and Mohammad Mev (Ahmedabad, Gujarat). In the case of Ghulam Mohammad (Bulandshahr, UP), only one accused is named, the rest recorded as unknown.
TABLE 2: AGAINST STATUS OF CASES
Cross cases Against Victims and their Families
Almost all cases, those involving cattle, have ‘cross cases’[7] against victims, parallel to cases registered for murder. The police have in these cases, registered FIRs against the victims under respective Cow Slaughter acts and the Prevention of Cruelty to Animals Act, accusing the victims of smuggling cattle. Many are accusedof stealing cattle, as in the case of triple murder in Kaimarala (Gautam Budha Nagar, UP), where police filed an FIR against the three deceased on the day following the incident, stating that the three were caught by villagers stealing cows and were assaulted by the mob.
Yet an FIR under section 302 IPC (of murder) was filed by police, six days after the incident. Some cross cases also include sections of the Arms Act, making it even a bigger crime against the victims themselves. Other sections used in these cross cases we studied, included provisions of IPC such as 307(attempt to murder), 429 (maiming cattle), 304A(rash and negligent driving), 279(rash driving), 323 (causing hurt), 337 and 338 (causing hurt/grievous hurt by endangering the life and personal safety of others).
The case made by the police is typically along these lines: The police tried to intercept and stop the truck carrying cattle, the smugglers tried to run away. The police chased the vehicle. During the chase, the smugglers fired at the police, the police apprehended the smugglers after the chase or the vehicle met with an accident.
Curiously, many of these cross cases have been registered without naming the deceased, rather in the name of unknown persons, hinting at the possibility there is systematic use of cross cases by the police – either communalised or under political pressure – weaken the victims’ fight for justice. They are handy tools for the police to harrass the already demoralised family members of victim of attacks, and to blackmail them, lest they take the fight against the accused in the murder cases seriously. If that is indeed the intention, these have had the required chilling effects. This was definitely so in the case of Arif Qureishi (Singar, Nuh) and Farid and Sher Singh (both Kheda, Nuh), whose families have shied away from even getting FIRs registered for the murder of their kins.
And in Akhlaq’s lynching case (Gautam Budh Nagar), a cross case was filed against the deceased nine months after the lynching incident, on the orders of the court, when a second forensic report on the meat tested positive for beef, when the original report had tested negative.[8]Combined with the fact that the principal accused has obtained bail, the case against has gone weak since.
If the idea of the cross case is to weaken the victims and their families in their quest for justice, other methods too can serve the same purpose. In the Dingerheri double murder and rape case, the father of deceased, Zafruddin, has been made an accused in a case of murder (of one of the accused) that occurred six months after the initial incident. And, in the case of Mazloom Ansari et al, Latehar (Jharkhand), police filed an FIR – under various sections including 307 IPC ) against family members and other well wishers of the deceased, protesting against Mazloom’s gruesome murder and police inaction there. These serve their intended purposes – to slow the ability of victim families, already burdened, to pursue court cases.
Action against the accused
Police have been slow to move against the accused. No arrests have yet been made in Kaimarala (Gautam Buddhanagar) triple lynching case, despite all the prime accused – Babu Ram, Lilu Pradhan, Vijay Bhatti – being named in the FIR, and the passage of over two years after the incident. Similarly in Kurukshetra murder of Mustain Abbas, despite the case being transferred to CBI, the family inform, no arrests have been made yet.
And in the case of Pehlu Khan, Alwar district, persons named by the deceased in his dying declaration were neither named in the FIR nor have been arrested. No arrests were also made by the police when they reached the scene of the crime. In Ramgarh lynching of Alimuddin Ansari, whilst seven of the twelve named accused have been arrested, arrests of the rest have stopped, according to family members, after former BJP MLA from the area, Shankar Chowdhury, began a campaign against the arrests of the accused. Police had clearly succumbed to political pressure.
In most cases, those that have been arrested, have obtained bails. This includes all accused in Akhlaq’s case (Gautam Buddhanagar); all in Mohsin shaikh’s case (Pune); all in Noaman Zahid’s case Sirmour, Himachal Pradesh); and all those in Mazloom Ansaris case (Latehar, Jharkhand). Family members and others in the village informed us how those accused are now threatening witnesses and intimidating them. Whilst obtaining bail is a right of an accused, early bail in heinous cases such as death by lynching, represents a pathology in the working of the criminal justice system. Either the police delayed completing its investigation, and could not submit the chargesheet within the stipulated 90 days, allowing the accused to claim that the police did not have a strong case, or the prosecution did not oppose the defendant’s bail application sufficiently robustly. Both these factors seem to have helped the accused in our cases.
At the time of the fact finding, most cases had crossed the ninety day mark, and yet investigation was still on in those cases. This is a weaknesses of police investigation, whose burden is borne by the victims. But even in cases where the permissible ninety days have not elapsed –and no chargesheet filed – accused have been successful in getting bail. In Hafiz Junaid’s case (Faridabad), where the investigation still on, one accused has already been granted bail, and victim family fear other accused toowill be bailed out. Similarly, in the triple lynching case in North Dinajpur, three accused have already been bailed. Ghulam Mohammad, Pahasu (2/5/17) and Alimuddin Ansari, Ramgarh, 29/7/17.
In most instances, and based on our interview with victim families and activists, the reason cited was twin: Public prosecutors, fighting the cases are not interested enough to contest bail applications. And victim families – due to a combination of poverty, poor awareness of the legal processes, and the sense of hopelessness of finding justice – are not taking the legal processes seriously.
Investigations by Police
Regrettably, in India, the police is not required to inform the victim families of the progress with investigation. So the earliest that the family becomes aware of how the investigation has gone, is when the police file a chargesheet or a closure report with the courts. Consequently, in cases where chargesheets have not been filed, there was little that the families we visited were able to tell us about investigation, apart from their experiences with the investigation process.
In the Kaimrala(Gautam Budhnagar) triple murder case, the family chased up the police for six months. Finding themselves ranged against strong men supporting the accused, and a biased police, they lost hope and gave up very soon, resigned to accept the murder. The high cost of pursuing legal cases – both the fees charged by lawyers as well as the bribes demanded at every stage of the legal process – in police stations and court houses – were an important factor in this family that ekes a living through manual work and hawking bottled water on highways, quickly losing their interest. They have not kept pace with the investigation since, and neither have the police informed them of the progress. Other families were equally unaware about the progress with investigations. In the case of Noaman Zahid (Sirmour), finding the cost and the inconvenience of following up a case in far away Simla and Sirmour, in neighbouring Himachal Pradesh state, too burdensome, and having little hope for results, they have given up pursuing.
But slow and delayed investigations are also common when special investigations agencies – including federal ones, like the Central Bureau of Investigation, CBI – have been deployed. In the case of Mev (Ahmedabad), though the case was transferred to the Special Investigation Team of the state police immediately after the incident, the family had no update on itsresults, at the time of the fact finding.In the case of Mustahsin Abbas (Kurukshetra), although the case was transffered on the orders of the High Court to the CBI, family members were not aware of any arrests having been made of the accused, and certainly no chargesheet had been filed. Indeed, family felt the CBI was actually harassing family members asking them repeatedly to turn up in their offices in Chandigarh, half a day away, to record statements, including about call records made from their mobile phones. And in the Dingerheri double murder and rape case (Nuh, Haryana), another one transferred to the CBI, this time by the state government, we were informed by the family, that no CBI team had ever visited the crime scene or spoken to family members yet.
Slow investigation meant delays in filing chargesheet, in many cases beyond the stipulated ninety day period, providing an opening for the accused to obtain bails, despite the heinous nature of the crimes they had committed. And where chargesheets had been filed, these we found to have many weaknesses.
One of the first cases to have been investigated was Khushnood Khan’s (of unprovoked firing at unarmed persons by a party of police personnel and GRD members).
Chargesheet was filed by the police forty five days after the incident, on 28th December
2016. What the police delivered in terms of speedy investigation, it took away by compromising its findings. It completely left out section 302 of the IPC, thus watering down the crime committed by the accused (that also included 2 police personnel). Sections used in the Chargesheet were 304, 109 and 285 r/w 34 IPC and 25/30/54/59 of the Arms Act. It was only on the intervention of the High Court that section 302 IPC was later added.
In Mohammad Akhlaqs’ case (Gautam Buddhanagar), the chargesheet was filed within the stipulated time, against the eighteen accused. But here too, the findings were dressed down. The charge of criminal conspiracy to murder u/s 120B IPC was not included and its absence weakened the murder charges filed under Section 302 of the IPC.And in the case of lynching of Mazloom Ansari and Imteyaz Khan (Latehar, Jharkhand), again the chargesheet while filed within the stipulated time, against eight accused u/s 302, 201 and 34 IPC, left the main accused in this case, Binod Prajapati from its ambit. Binod Prajapati, family members informed us, was close to the incumbent Chief Minister of the state.
In all these instances, the victim families reported, the police rather than acting as the custodian of the law, acted in a biased manner, against the victims. In Dingerheri double murder and rape cases, despite the police reaching the crime scene immediately after the killing, with dead bodies still around, the FIR was not registered under sec 302 IPC. The seizures in the rape case were also tampered with. Similarly, in the Kurukshetra murder case, the police did not cooperate with the family, until directions were issued by the High Court. In Noaman Zahid’s case (Sirmour), the district Superintendent of Police, reportedly threatened the family and asked them to agree to a compromise with the accused assailants. Similar police role – to push for a compromise – was reported by family members of Salim Khan, lynched in Panipat. In the Ramgarh case of Alimuddin Ansari, the police acted unprofessionally – post mortem was conducted without consent and knowledge of the family. The police has also been spreading rumours about the deceased – about his alleged misdeeds – rumours that were later refuted by a senior police officer.[9]
Trial
Fraught investigation by the police have implications for passage of cases to trial too. In the case of Mohammad Akhlaq (Gautam Budh Nagar), trial being deliberately delayed by the accused, by moving multiple applications seeking additional documents, medical reports and meat examination report from forensic labs. As a result, and remarkably, seventeen months after the chargesheet had been filed in the present case, the charges have not been framed by the court against the accused persons. But there are other ways in which cases can be compromised beyond delaying them. In Hafiz Junaid’s case (Faridabad), we were informed of threats and intimidations on the family by local power brokers, to not continue the cases against the accused. In the lynching case of Mazloom Ansari et al, the accused have mostly been bailed, and family members we met informed how they have started threatening the family and witnesses, creating problems for witnesses to give evidence in the trials that have begun. And finally, in Tehsin’skilling in Yamunanagr, Haryana, judgement already delivered by sessions court (only nine months after incident), awarding imprisonment to the main accused, whilst three other accused have been acquitted. The decision has not been contested by either the prosecution or the state.
Redress and Restoration
Compensation:
Compensation to victims is the most tangible way the state can attempt to remedy the harm that victims have suffered. International law, under the ‘Reparations Principles’ provides that a state must provide reparations for acts or omissions that can be attributed to the state, and constitute gross violations of international human rights law, or serious violations of international humanitarian law. (Chopra and Jha, 2014:322). Indian law is weak on reparation, yet the practice is for the state to provide some sort of ex gratia relief. Regrettably there is no policy or a common standard laid out. In communal violence cases, the figure has ranged between a shameful Rs 5000 provided to Nellie massacre victims (1981, awarded in …) to Rs. 25 lakhs provided by the Indian railways to the family of Hafiz Junaid, lynched on a commuter train near Delhi. For most the victims of lynchings, compensation and rehabilitation, has been a distant dream.
Pehlu Khan’s family has, according to information provided to us, been provided no support from the state of Rajasthan, where the lynching took place. None has come from Pehlu Khan’s home state too, Haryana, where his family live in Jaisinghpur village, Nuh district, trying to rebuild their shattered lives. Other cases in Haryana have varied. In the case of Ibrahim and Ayesha (Dingerheri, Nuh), one relative has been awarded a government job, in the Waqf Dept. Junaid’s family, in Ballabhgarh, Faridabad, has received Rs 25 lacs as grant from Indian Railways, and a brother offered a government job (grade IV), again in the waqf dept. None of the cases where families belong to Uttar Pradesh– and the murders took place outside the state, or inside – have received any compensation at all.
In Jharkhand, the state seems to have followed a more consistent policy of providing – although nominal – ex gratia relief to families. These, we heard were handed by the district administrative heads themselves, signaling restoring some dignity to the victims. Minhaj Ansari’s family was given Rs 2 lacs, those of Mazloom Ansari and Imteyaz Khan, same amount and a further Rs. 20,000 for burial. Alimuddin Ansari’s family was offered Rs 1 lac ex gratia. They turned down the offer, given its paltry amount.
Legal Aid
Everywhere we went, it was clear that families initially wanted to take up matters through the courts – but the long delays and especially the high costs involved, meant interests an commitment waned. These are poor families, constantly in struggle to makeboth ends meet. For them to pay hefty fees to lawyers, and make time to chase up the police investigators and attend to courts, is a long short. Except for a singular case of Noaman Zahid (Sirmour, HP) we did not hear of any victim being provided legal aid under the much talked about National Legal Service Services Act (and its state and district versions). In the absence of formal legal aid, we heard of specific examples of philanthropicgiving for providing assurance and legal aid. Jharkhand’s was also a case where community action for legal aid/legal advocacy has meant that all cases have some oversight by civil society groups monitoring progress of investigations, arrests and bails, and the trail process. This unlike western UP and Haryana, where there was little of that civil society acting as watchdogs, following up and tracking progress of cases.
‘Communal riots’ vs ‘Lynchings’
India has long history of violence against religious minorities. The principal form this has taken, has been what are called ‘communal riots’ in India, that in reality are mass violence, some bordering on pogroms, with violent elements of the majority community targeting minority groups, often with police support (or tacit connivance) – the most recent major incident being in Muzaffarnagar in Uttar Pradesh in September 2013 (52 persons killed) and in Assam in May 2014 when on a single day 46 persons, 28 of them young children, were murdered in Baksa district.
Of late, lynchings and vigilante attacks have become the instrument of choice for violence against minorities – particularly Muslims. Vigilante attacks and lynchings are different to ‘communal riots’. These are episodic acts of violence, of a localised kind, not mass; targeting individuals or groups of individuals, led mostly by decentralised groups, acting as vigilantes, affiliated to violent anti-minority groups, in some cases, acting with the authority of the state. Lynchings have taken place with regularity recently, threatening to grow into a “national epidemic”. As a result, “Indian Muslims are learning to endure an intense sense of foreboding – a lurking, unnamed, unspoken fear – the persisting danger of imminent violence, of being vulnerable to attack anywhere – on a public road, in a bus or train, in a marketplace, even in their homes – only for looking and being Muslim”.[10]The shift in method, from mass violence to low intensity individualised ones, being perhaps a deliberate strategy by those behind the violence, to at once avoid too much public scrutiny, whilst also more completely excluding the minorities.
The impact this has on the minds of the Muslims and other religious minorities is immense, and of a very enhanced scale compared to that of mass violence. In the latter, the shock was intense, but there was also healing and a process of getting back to normal, of closure – if not through delivery of justice and reparation, then through the passage of time. With lynchings without end, there is no closure. There is no start and end date to these, making fear infinite, ever happening, everywhere. The exclusion is indeed complete!
Communal riots were always considered breakdowns (in rule of law), creating spaces for non-state actors to attack minority groups. The repeat of these breakdowns has been attributed to weak accountability mechanisms – for those tasked to protect right to life of citizens and uphold the rule of law – violence being the result mostly of acts of ommission by the state, although there are numerous instances where state actors took active parts too, in denying the right to life of minorities. Vigilante violence, our study shows, has a clearer element of state complicity; when state empowers private anti-minority groups, through formalising their role in helping enforce state laws to protect cows and other cattle. In Haryana, the head of the Task Force calls this, ‘one form of community policing’.[11] Side by side, those in executive positions, rather than speak unequivocally against the violence, either blame the victims for attracting the violence, or express solidarity with the perpetrators and those inciting violence, thus reinforcing impunity.
Localised, low intensity violence, happening with regularity also serves a more political purpose. We know, violence is not just the manifestation and the outcome of hate, butoften also serves instrumental purposes, as a recruiter to further hate. ‘Lynchings without end’ then, have the added detriment of forever radicalising the youth, recruiting more lynching mobs itching for violence against minorities, and for advertising those acts among a willing audience fed on regular doses of hate and prejudice directed at minorities. They circulate videos of themselves in violent acts, confident in the impunity they enjoy. A society constantly on the boil, serves well the political purposes of ideologies and political formations that thrive on hate and polarisation. As a commentator noted, the BJP is – thanks to these hate crimes against minorities – constantly on election mode, reaping rich political dividends.
Access to justice
Access to Justice for victims of violence – both mass as well as individual acts of lynchings – the barriers are many. A recent report examining large episodes of mass communal violence (in Delhi, 1984; Bhagalpur, 1989; and Gujarat, 2002), reveals how survivors were systematically denied justice. The failures began from stage one, in which a survivor came in contact with the state through the flawed writings of first information reports (FIRs) in cases in which they were recorded, to poor investigation resulting in a large number of cases being summarily closed with no evidence of the complainant being given a chance to represent against the closure as required by law. These were followed by a poor show on arrests of the accused and poorer outcomes on prosecution. This also included an acute weakness of efforts by the prosecution to contest bail applications. Rates of acquittal were significantly high, suggesting either a passive trial court or one that was complicit in subverting justice. Chopra and Jha (2014: 334). The authors contend, “…the scale of these failures, (and) the fact that they are repeated across different episodes demonstrates that these failures are systematic rather than occasional aberrations”, going to conclude, “accountability of public officials ‘comes forth as a particularly weak point. Gaps in the law and procedural barriers to prosecution, make it easier for complicit officials and politicians to escape.” (Ibid)
Our rapid fact finding reveals much the same failures of the criminal justice system in the case of lynching cases – with one difference. Much of the latter violence is enabled by the state formalising laws against cow slaughter and transport, as well as, in some cases, creating space for private parties to aid the police in enforcing those laws. The access to justice then, in these cases, is also markedly different, from that of mass violence cases. We noticed how the largescale use of ‘cross cases’ against victims and witnesses of lynchings – mischievously in most cases, given most were filed against unnamed individuals – severely limits the ability of victims to fight what are long drawn legal battles.
Ultimately, impunity is aided by the victims’ disadvantaged condition. They are too poor, unaware, unconnected, and demoralised, to pursue cases vigorously. The protracted legal processes, lack of transparency, and the long delays in courts, means only those that have the resources and the hope of seeing justice through, will pursue it through to the end. Not many have either. Most families we visited, had not been able to hire lawyers beyond the bare minimum service of protecting themselves. They had resigned to accept the inevitable. Given the immediate and more urgent need to eke a living, for most victims of violence, having lost their main bread earners, the long road to justice does not appear a very fruitful one. Poor awareness and education aids in exacerbating this hopeless situation. Most victim families we visited were unaware of the progress of police investigation, of whether bail applications by the accused had been approved, or of what stage the trial process was in. Indeed, they seemed lacking in any agency. Yet the desire to see justice done, and for those responsible for their loss, to be punished, was strong, everywhere.
Hate crime laws in India
One final observation:Violence against minorities – communal riots or lynchings – are extreme forms for hate crime.This has only poor acknowledgement in Indian jurisprudence, with only weak provisions for hate speech and hate crime.[12] These crimes are still treated as normal murders and assaults, and recorded and prosecuted as such, as if the identify of the victim was of no consequence to the act of the violence. But these acts are clearly motivated by hate and prejudice, and need to be treated as such. India is one of the very few plural democracies without an inclusive hate crime law. Barring the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 2015, there is little for other vulnerable groups – religious minorities, as also ethnic (students from Northeastern states are regularly attacked in Delhi and other cities for eg.) and sexual minorities, and those with disabilities, among others. There is little recognition that crimes against minority groups motivated by their identity, not only affect deeply, the victims directly, but also other members of the community, as well as the wider society – and thus are hate crime, that should be treated as ‘aggravated’, deserving higher levels of penalties.
Recommendations:
For state parties
Individual cases
- Ensure speedy investigation and prosecution of the perpetrators and instigators of lynchings and vigilante violence (including registering FIRs in cases of vigilante violence, where none have been made; quashing mischievous cross cases against victims; challenging bail applications by the accused; appeals against judgment of the lower courts – where accused only awarded minor penalties;
- Independently investigate why there has been inaction by the police in respect of investigation and prosecution of vigilantism, hanging, assaults, murder, and rape.
- Ensure provision of relief and rehabilitation of survivor families; including immediately victim compensation and witness protection, and to rehabilitate them generously in terms of government employment, land, education, medical treatment and other benefits.
- Provision of adequate legal aid to victims to be able to obtain justice
Hate speech
- Investigate hate speech and instigation of hate crime, and prosecute the guilty
- Ensure use of existing provisions under section 153b of IPC.
Laws
- Ensure changes by relevant states in their cow / cattle protection laws to provide safeguards against the out-sourcing of enforcement of cow protection to private parties, including Gau Rakshak Dals. Also simplification and making transparent systems and procedures for obtaining permits and licenses for those wanting to legally conduct business in cattle (dairying and animal husbandry);
- Enact hate crime law that recognises hate-inspired crime and violence against religious, ethnic, linguistic and sexual minorities, and those that are disabled.
- Strengthen hate speech laws, and make use of those to prosecute instigators of hate violence
- And publish data on hate crime, by social groups and hate crime categories
For civil society:
– Provide legal awareness and provide legal training to victims, and vulnerable communities on hate crime, accessing justice, obtaining compensation et al
– Provide legal aid, and other support to victims to be able to fights cases and obtain justice
– Document hate crime and hate violence; and report those to appropriate audiences, to create awareness about these and the trends; and bring the issues in the public domain
– Advocacy with the executive, legislative and judicial wings for improved outcomes for victims of hate crime; and for creation and strengthening of safeguards (laws, systems and capacities) against hate crime
– create a wider acceptance in the country against hate crime against vulnerabl