Nearly 30 years after the two phases of communal violence that escalated in Bombay in 1992–1993 following the destruction of the Babri Masjid, the Supreme Court issued a number of orders on November 4, 2022. Amongst the myriad directions issued was the order given to form a committee to examine the records pertaining to 108 people who disappeared during the riots in Mumbai in 1992–1993. The court stated that the Maharashtra government were to employ all reasonable means to locate their relatives or legitimate heirs of those who disappeared. This is the third or fourth time that such directions have been given.

A bench of Justices Sanjay Kishan Kaul, Abhay S. Oka, and Vikram Nath was hearing the said case while disposing of a writ petition filed by activist lawyer, Shakeel Ahmed in 2001 seeking implementation of the recommendations of the Justice BN Srikrishna Committee report, which was constituted by the State Government to probe into the violence. The bench noted that Article 21 of the Constitution of India confers a right on every citizen to live with human dignity and it encompasses into itself the right to live a meaningful and dignified life. In their judgment, the major focus of the bench has been on the payment of compensation to the families of victims in the 1992-93 Mumbai communal riots and also for the revival of dormant cases, by constitution of a special cell, in connection with absconding accused.  

“If the citizens are forced to live in an atmosphere of communal tension, it affects their right to life guaranteed by Article 21. The violence witnessed by Mumbai in December 1992 and January 1993 adversely affected the right of the residents of the affected areas to lead dignified and meaningful life. It cannot be disputed that certain groups were responsible for the large-scale violence in December 1992 and January 1993,” the bench said. (Para 20)

The entire report of the Justice BN Srikrishna Commission of Inquiry can be read here

Justice Oka, who authored the judgment on behalf of the bench, said one of the root causes of their suffering was the failure of the state government to maintain law and order. Therefore, the affected persons had a right to seek compensation from the state government, he added.

“One of the root causes of their suffering was the failure of the State Government to maintain law and order”, the Court held. (Para 20)

Background:

In December 1992, Mumbai saw the worst kind of bloody aftermath of Babri Masjid demolition and communal riots. There were numerous instances of arson and violence reported. More than assaults, people were being admitted in hospitals as a result of police firing. Pursuant to this, there were serial bomb blasts in various parts of the city on  March 12, 1993. In December 1992 and January 1993, as many as 900 people were reported as dead, 168 were missing and 2036 were injured. As a result of the serial bomb blasts of 1993, there were 257 death and 1400 suffered injuries.

The state administration had resolved to provide financial aid to those affected by riots and the series of bombings in a resolution dated July 8, 1993. A second resolution passed on July 22, 1998, and it was determined to pay the missing people’s legal heirs Rs. 2 lakh in compensation. There have been lapses of implementation of this decision.however.

Issues dealt with and Directions given:

1. Compensation:

The Maharashtra government agreed to compensate the victims with rupees two lakh, and the money was given to the legitimate heirs of 900 people who died and 60 people who went missing. The State Government informed the Court that despite the fact that 168 people were reported missing following the disturbances, it could only provide compensation to the relatives of 60 missing people, as the other legal heirs could not be located. Therefore, the Court instructed the State to make every effort to find the 108 missing people’s rightful heirs.

“The State Government shall pay compensation of Rs.2 lakhs to the legal heirs of the missing persons traced out hereafter, with interest at the rate of 9% per annum from 22nd January 1999 i.e. from the expiry of the period of six months from the date of the second Government Resolution, till actual payment”, the Court ordered. (Para 28 iv)

Additionally, the Court ruled that the State must find the other victims who were due compensation under the terms of the first Government Resolution’s annexure but who were not given any. The compensation for the victims listed herein are also subject to interest payments at a rate of 9% per year beginning on January 8, 1994, or six months after the date of the First Government Resolution, until the actual payment is made.

Taking notice, the Supreme Court established a committee to investigate the records pertaining to 108 missing people, which was chaired by the Member Secretary of the Maharashtra State Legal Services Authority. The court also ordered the state government to designate a revenue official, not below the rank of Deputy Collector, and a police officer, not below the rank of Assistant Commissioner of Police, as the committee’s other members. 

“The Committee shall monitor the efforts made by the state government to trace the family members of missing persons, whose addresses are not available and also to ensure that those eligible persons who have not made procedural compliances are assisted to make necessary compliance”, the SC said, adding it will also have to also monitor compliance with the directions issued by it as regards payment of compensation to all categories of victims. (Para 22)

2. Revival of Dormant Cases:

The bench also noted that of a total of 253 riot-related criminal cases, one was still pending while 97 are dormant, as pointed out in an affidavit submitted by the state. In addition to this, 114 cases resulted in acquittal, there were 6 convictions, 1 case got abated, and 34 cases were found unrelated to riots.

It directed the Sessions court to dispose of the pending case at the earliest. The accused must either be untraceable or be fleeing, the court reasoned, therefore that must be the cause. The top court also asked the High Court to issue appropriate directions to the courts in which these cases are pending. 

“The High Court must ensure that the concerned courts take appropriate steps for tracing the accused. The state government will have to set up a special cell for tracing the accused,” the bench said. (Para 13)

The top court said the state government would provide details of 97 cases on dormant files to the Registrar General of the Bombay High Court within one month from Friday. The Apex Court ordered that the High Court send suitable administrative instructions to the relevant Courts where these cases are ongoing. The High Court must make sure that the relevant Courts take the necessary actions to find the accused. It will be necessary for the State Government to establish a special cell for locating the accused. The trial in the ongoing case needs to be accelerated.

The Court further ordered the State Government to swiftly carry out all recommendations made by the Commission regarding police force changes that were approved by it.

3. Failure to provide legal aid services

Senior Advocate Dr Colin Gonsalves, who appeared for the petitioner, submitted that the the Legal Services Authority failed in providing legal aid to the riot victims. He relied on Section 12 (e) of the Legal Services Authorities Act 1987, which mentions that victims of ethnic violence will be entitled to legal aid. The Court observed that it cannot pass any directions for providing legal aid in view of the passage of time. Nevertheless, it examined the legal argument of Advocate Gonsalves and found merit in it. The Court held that the 1992-92 riots will qualify as “ethnic violence” within the meaning of the Legal Services Authorities Act.

“The term “ethnic” can be narrowly construed as including solely “linguistic” or “racial” groups. If it is given a broad meaning, it will include religion, tribe and caste in group distinction. Looking at the conclusions in the report of the Commission and the response to the recommendations of the State Government in the form of the Memorandum, there is no manner of doubt that communal disharmony between two religious groups was one of the main causes of the riots and violence. There are enough indications in both documents that there was tension between the two religious groups which is one of the major causes of the incidents of violence. Considering the object of the 1987 Act, a broad meaning will have to be assigned to the word “ethnic” for the purposes of considering the entitlement to grant of legal aid. Therefore, these incidents of December 1992 and January 1993 are the incidents of ethnic violence within the meaning of clause (e) of Subsection (1) of Section 12 of the 1987 Act. Hence, on an application being made by the victims of the offence or their legal heirs, legal services could have been provided to them by appointing advocates, who could have assisted the Criminal Courts in terms of sub-Section (2) of Section 301 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) during the course of trials. Legal services could have been provided to the victims to challenge the orders of acquittal.” (Para 16)

The Court did point out that those were the early years for the Legal Services Authorities and that over the last few decades, its purview has grown. The Court expressed the hope that such circumstances would never arise in India again, but it also stated that in the regrettable event that they did, Legal Services Authorities would assist the victims.

“We hope and trust that after 75 years of independence, riot like situations will never arise. Unfortunately, if such situations arise, we are sure that the Legal Services Authorities at various levels will come to the rescue of the victims of violence and render legal services to them, keeping in mind the spirit of Section 12 of the 1987 Act”. (Para 16)

4. Implementation of Police Reform Recommendations:

Regarding the concern raised regarding taking action against negligent police officers, it was stated that, in accordance with the commission’s recommendations, FIRs were filed against nine police officers; afterwards, two of them were let go, and the remaining seven were found not guilty. It claimed that the state administration had not given a justification for not contesting the verdict. 

“The State should have been vigilant and proactive in these cases. Now it is too late in the day to direct the State to examine whether the orders of acquittal deserve to be challenged,” the bench noted. (Para 11)

Pertaining to the disciplinary investigation brought up regarding various police officials, it was stated by the bench that given the amount of time that had passed, it would be inappropriate to discuss the appropriateness of the penalties imposed and the validity of the orders issued by the disciplinary authorities.

“In any case, in a writ petition in the nature of a public interest litigation, a writ court should not normally interfere with disciplinary proceedings,” the bench said. (Para 12)

The bench stated that the commission’s recommendations were extremely broad and included numerous ideas for strengthening and upgrading the police force. The state has reportedly adopted the majority of these recommendations, according to a memorandum in government records.

“But what remains is the implementation part. The state government cannot ignore the recommendations made by the commission for the improvement and modernization of the police force and the recommendations shall continue to guide the state government,” it said. (Para 18)

The court ruled that all of the commission’s recommendations for police force reforms that it had approved must be swiftly put into effect by the state.

The order can be read here.

Related:

Babri Mosque demolition case: CBI files objections in acquittal matter

Babri Masjid demolition case: Allahabad High Court to hear plea against acquittal of 32 people

No one conspired to demolish Babri Masjid?

CBI court’s Babri Masjid demolition judgment challenged

The post State Failure to protect lives during 1992-1993 communal violence, compensation for kin of missing persons, dormant cases to be revived: SC appeared first on SabrangIndia.

This article was published in Communalism Combat following Teesta Setalvad’s RTI  Investigation into the promises made by the Congress- NCP Combine to punish the policemen indicted by the Justice BN Srikrishna Commission Report, February 1998.

We are reproducing it today considering its relevance.

Image: Santosh Bane, Bombay 1993
 
Ten policemen have been exonerated in the Democratiic Front Government’s Affidavit in the Supreme Court (2000 September)

Rajendra Bhoi – expired.

RD Tyagi, Joint Commission of Police, (later police commissioner, Mumbai)

Srikrishna Commission’s findings:
“After carefully examining the evidence on record, the Commission is of the view that the story of the police does not inspire credence…The Commission feels that the police were very much influenced by the floating exaggerated rumours of attacks from sophisticated firearms… The result – deaths of nine innocent persons in the Suleman Bakery and adjoining premises. The evidence on record in no way bears out the policy story that they were terrorists, much less with deadly arms; nor does the evidence suggest that it was necessary for the police to carry out such an extensive firing as they did. This is one incident where the police appeared to be utterly trigger-happy and used force utterly disproportionate to meet the apprehensions of private firing assuming there was one. The responsibility for the incident must squarely fall on Joint CP, RD Tyagi who was overall in charge of the operation and API Deshmukh

DF Govt Affidavit:
“No action was proposed against RD Tyagi, then Jt Commissioner of Police, Mumbai for the reason that he had since retired on October 30, 1997 and service rules say if the event in question has taken place more than four year before action is precluded.” Further, the committee exonerated Tyagi while indicting two junior officers under him for the incident: “The Committee did not find that it was feasible to launch a prosecution against him, as the act was done in the discharge of his duty”. Departmental enquiry has, however, been ordered against Lahane and Deshmukh who were members of the Special Operation Squad (SOS) headed by Tyagi!

Dattaray Dhawale, Police Inspector, Nagpada police station

Srikrishna Commission’s findings:
“Police Inspector Dhavale overreacted by firing at a mob of 10-12 miscreants…resulting in injury to a two year old child… The Commission would have been inclined to pass off Dhawale’s case as an unfortunate incident, but a closer examination of the case papers in this case discloses peculiar features.” It is clear that the reason why the Judge recommended penal action against this policeman was because he has tried to tamper with the evidence and show that the mob was 100-120 strong rather than of just 10-12 persons.

DF Govt Affidavit:
“The firing was not unjustified and the injury caused to a 2-year-old child was accidental.”

Subhash Salvi, inspector and Vishnu More, sub-inspector, MRA Police station

Srikrishna Commission’s findings:
“In view of the Commission, Police Inspector Salvi, Police Sub-Inspector Mor and PC 24242 Vidyanath Raghunath Shelar are squarely responsible for virtually handing over Babu Abdul Sheikh to the mob resulting in his being virtually hacked to death.”

DF Govt Affidavit:

“They had done their duty by handing over the constable, Vidyadhar Shelar while in whose custody the injured person was attacked. A departmental inquiry has been initiated against Vidyadhar Shelar, police constable.”

VB Shinge, Shivgaunda Patil, Bhausaheb K Gaekwad, Antop Hill police station

Srikrishna Commission’s findings:
VB Shinge, Shiv Gaunda Patil, Bhausaheb Gaekwad “failed to protect the lives and properties of the Muslim victims”. From January 3, 1993, when a group of 15-20 Shiv Sainiks move around tin Pratikshanagar identifying and marking out Muslim homes with a white chalk mark, to January 9, 1993 when the physical attack took place on Muslim homes, including the burning alive of three Muslims in a car, all incidents took place within striking distance of the Pratikshanagar police chowky.

On April 20, 1993 Vinayakrao Raosaheb Patil was dismissed from service “for developing relationship with criminal elements”. The commission states that the conduct of other policemen from the Antop Hill police station, including VB Shinge, Shivgaunda Patil and Bhausaheb Gaekwad was not above aboard and the ‘massive operation launched by Hindu miscreants in Pratikshanagar was testimony

DF Govt Affidavit:
Committee: “As regards police inspector, police sub-inspector, VB Shinge, Shivaji/Shivgaunda Patil, Bhausaheb K. Gaekwad all working at the Antop Hill station at the relevant time, the committee came to the conclusion that the charge against them that they closed offences as ‘A’ summary (refused to pursue criminal case) and that they could have protected lives and property of Muslims was of a general nature… hence no departmental inquiry was necessary against them.

Shrirang Patade, Tardeo police station

Srikrishns Commission’s finding:
“Shrirang Pathade, popularly known as Richard Hawaldar was openly collaborating with the Shiv Sainiks in looting and violent activities.”

DF Govt Affidavit:
Committee: “There was no substance in the charges against him and hence no departmental inquiry was recommended.”
 
RTI as Tool of Investigation (Meena Menon)
 
First RTI application in Dec 2004 rejected under section 8.

• First appeal rejected in Jan 2006 but second appeal allowed by CIC .

• May 2007 replies from Mumbai police- eight cases against Thackeray, four withdrawn, two closed for lack of evidence and two cases had chargesheets delayed

CIC order

• Second appeal heard by CIC and his final order in October 2010 saying text of orders withdrawing the case etc can be given to me

• More delaying tactics and repliesstarted in January 2011, seven years after my RTI. Almost 20 cases under 153A of IPC.

• In 2000 Home dept asked for all cases against Thackeray. Till date no permission for prosecution

Tahir Wagle case

• Fourth investigation report in 2012 disbelieves eye witness evidence and says no case made out against police for the death of Shahnawaz Wagle in January 1993 outside his home. His sister Yasmin saw him being shot but no complaint was made andthis brazen cover up as Justice Srikrishna called it, will remainexactly that.

Crime and No Punishment

• In the case of Suleiman Bakery , Supreme Court upheld the trial court and high court conclusion that none of the policemen though armed had fired a single bullet.

• In the case of Star Metal works, the TADA court acquitted accused for lack of evidence. Nine people including two children were burnt to death

Missing Persons

• Outside Vile Parle station, sandwiched among vegetable vendors, Rashida Kotawala has been mending bags ever since her husband went “missing” in the riots, along with his brother,   never to return. “If I had sat still hoping for his return, we would have gone hungry,” she says.

No Hawking License
Today her elder son Hussain is studying to be a surgeon while the younger one is doing ayurvedic medicine. Interest free loans from her community, the Bohras, helped her  educate her children. Her only fear  is the civic demolition squad which keeps confiscating her bags and other materials, since she doesn’t possess a hawking license.
 
 
RTI 2007
Guilty Policemen Unpunished Colaba Agripada
Srikrishna Commission Report
 Colaba: SI (subinspector), Vasant Madhukar More, API (assistant police inspector) Sahebrao Hari Jadhav, police constable PC-3181 Suresh Pandurang Ithape, PN-985 Shivaji Govindrao Kashid, PN-2238 Hanumant Pandurang Chavan and HC-3649 Gopichand Shaitram Borase. These police personnel were responsible for allowing the violent mob to hack to death one Abdul Razak alias Aba Kalshekar (CR No. 13 of 1993).

RTI findings by Teesta Setalvad: All these policemen were acquitted on November 18, 2005. Before this the policemen had simply been transferred.

Srikrishna Commission Report
Agripada: PC-23960 of LA-IV Ashok Naik and Rajaram K. Bhoir were arrested while indulging in rioting and violent activities (CR No. 98 of 1993). Ashok Naik was arrested by NM Joshi Marg police.
RTI findings: There has been no prosecution of these two policemen. Earlier, one of them was transferred and thereafter one has passed away.

Guilty Policemen Unpunished Byculla
Srikrishna Commission Report
Byculla: Sr PI (senior police inspector) Patankar, PI (police inspector) Wahule and SI Ramdesai. Their conduct during the riots was extremely communal. They refused to record complaints in which Hindus were the accused and harassed and ill-treated Muslims. Their conduct indicated attempt to shield miscreants belonging to the Shiv Sena (CR No. 591 of 1992). The government should also institute an impartial inquiry into the cold-blooded murder of one young boy, Shahnawaz Hassanmiya Wagle. The inquiry conducted by deputy commissioner of police Surinder Kumar is just an eyewash.
RTI findings: One trial, against PI Wahule, is pending. The other policemen have been exonerated without trial. There has been no fresh inquiry into the murder of the young boy, Shahnawaz Wagle, as directed by the commission.

Guilty Policemen Unpunished Dongri Mahim
Srikrishna Commission Report
Dongri: Joint commissioner of police RD Tyagi, assistant police inspector Deshmukh and police inspector Lahane of the Special Operations Squad are guilty of excessive and unnecessary firing resulting in the death of nine Muslims in the Suleiman Bakery incident (CR No. 46 of 1993).
RTI findings: RD Tyagi was discharged on April 16, 2003, state did not appeal the decision; sole witness Maulana ___appealed in the Supreme Court that shockingly discharged Tyagi in 2007. In  October 1995, under the SS-BJP regime, Tyagi was elevated to the post of commissioner of police, Mumbai
Srikrishna Commission Report
Mahim: Police constable Sanjay Laxman Gawade was openly indulging in riots and violent activities while carrying a naked sword along with Shiv Sena activist Milind Vaidya. Though the constable was placed under suspension and the sanction of the government was sought for his prosecution, the sanction has not yet been granted. The commission recommends that such sanction should be granted.
RTI findings: This is the only case where an accused policeman was dismissed from service, on August 20, 2003.

Guilty Policemen Unpunished LT Marg MRA Marg
Srikrishna Commission Report
LT Marg: Assistant police inspector Kamath, for utter dereliction of duty by not acting against the miscreants in the Diamond Jubilee Compound incident (CR No. 25 of 1993).
RTI findings: API Kamath’s increments were stopped for some months. There was no prosecution.
Srikrishna Commission Report
MRA Marg: PC-24242 Vidyadhar Raghunath Shelar, police inspector Salvi, police subinspector (PSI) More. Babu Abdul Shaikh had been taken into custody by them. But because of their conduct he was attacked and murdered by Hindu miscreants (CR No. 579 of 1992). Though the accused, all active Shiv Sainiks, have been arrested, the conduct of the police personnel is not beyond reproof.
RTI Findings: PC Shelar was kept on minimum pay scale for a year; no action was taken against PI Salvi.
 
Guilty Policemen Unpunished Nagpada Tardeo 
Srikrishna Commission Report
Nagpada: Police inspector Dhavale overreacted by firing at a mob of 10-12 miscreants throwing stones, resulting in injury to a two-year-old child. Constable Sanjay Bhosale was part of the miscreant mob which broke open and looted articles from the shop ‘Cat’s Collections’.
RTI findings: PI Dhavale was exonerated during trial; the state government did not appeal his exoneration.
Srikrishna Commission Report
Tardeo: PC-7783 Shrirang Pathade, popularly known as “Richard Hawaldar”, was openly collaborating with the Shiv Sainiks in looting and violent activities.
RTI findings: PC Pathade was simply transferred and exonerated of all wrongdoing.

Guilty Policemen Unpunished RAK MARG ANTOP HILL
Srikrishna Commission Report
RAK Marg: Police subinspector NK Kapse’s act of unprovoked firing at Hilal Masjid [Hari Masjid] killed six Muslims (CR No. 17 of 1993).
RTI findings: PSI Kapse did not appear before Justice Srikrishna but was simply exonerated through a departmental inquiry on November 20, 2002. He has since been promoted.
Srikrishna Commission Report
Antop Hill: Inspector BB Shinge, subinspector Shivgonda Patil and constables AM Ghadi, AY Kamble, PS Dukare, DR Phadtare, SP Patil and BK Gaikwad failed to protect the lives and properties of the Muslim victims.
RTI findings: Charges were not proved against BB Shinge; Constable Ghadi was compulsorily retired; Kamble was kept on a minimum pay scale for two years; Dukare was suspended and kept on a minimum pay scale for one year; Phadtare was transferred and put under suspension while Patil and Gaikwad were transferred and exonerated.

Related Articles:
1. Mockery of Justice
 

The post Betrayal by the State: Policemen off the hook appeared first on SabrangIndia.

Image courtesy Outlook India

In the Bombay riots 25 years ago after the demolition of the Babri Masjid on December 6 1992, mob lynching, and burning dead bodies so that no evidence remained, was witnessed in many parts of the city. Even before that, in the anti-Sikh pogrom in New Delhi, many were victims of insensate mob fury. Justice has been denied everywhere. Officially, 900 people were killed in the Bombay riots, including 575 Muslims and 275 Hindus.

In the communal violence in Bombay city in 1992-93, the police would not even register a case of murder and often the so-called missing cases would be recorded as missing, believed killed. Families are running around for justice even now. Cases of missing persons were left to the ingenuity of two intrepid NGOs and two individuals who investigated on their own with the help of a small team, which had the government mandate to file panchnamas and do the sleuthing that should have been done by the police.

While 225 cases of missing persons were recorded in the riots by 1995-96, thanks to the efforts of Pappubhai Qureshi of Citizens for Peace and Mariam Rashid of the Society for Human and Environmental Development (SHED), and compensation of Rs two lakh was awarded to their families in most cases, there was no question of punishing the guilty. Eyewitnesses to the killing and burning of Hindus and Muslims during the riots opened up to Qureshi and his team and narrated how murders took place before their eyes. These were things they would never tell the police.

Over two decades after the bloodiest riots the city had witnessed in a century sporadically punctured by communal clashes, there is no sense of closure or justice for the survivors. The city has moved on scarred, nursing its wounds and the hundreds of people whose lives changed forever live, haunted by painful memories. For some, it’s a closed chapter but the fact of the demolition of the Babri Masjid and the loss of their loved ones will remain.

The riots were capped by the city’s first serial bomb blasts on March 12, 1993, in a way eclipsing the carnage in the past two months. About 257 people were killed and 713 injured in the 12 serial blasts which paralysed the city, which had barely recovered from a prolonged bout of violence. The state responded with an alacrity not seen in the riots, the police swung to investigate and arrest suspects, while the main perpetrators quietly left the country. A designated court under the Terrorist and Disruptive Activities (prevention) act, since repealed, was constituted to deal only with the blasts cases in the high security Arthur road jail in central Mumbai and the long high profile trial ended in a 100 convictions, and at least 20 death sentences.

For the riots, the then Prime minister P V Narasimha Rao did institute an inquiry commission in 1993 headed by the meticulous Justice B N Srikrishna who submitted a voluminous report in 1998 after many ups and downs. His report was rejected by the then BJP-Shiv Sena state government which had earlier stopped the commission’s work when it came to power in Maharashtra in 1995 since it was “taking too long and its report would reopen old wounds.” It took the intervention of Prime minister Atal Bihari Vajpayee to restart its work in 1996. The commission was then told to also investigate the blasts and probe the circumstances and causes leading upto it.

The commission clearly indicted 31 policemen for their role during the riots, of who ten were punished, 11 were found not guilty and one died. The commission had also named some political leaders as responsible for the violence especially in the January 1993 phase of the riots. The leader of the Shiv Sena the late Bal Thackeray was named in the report and the police had, even before the riots registered cases against him for hate speech . He was never held responsible like so many others, though former Sena M P Madhukar Sarpotdar was held guilty of hate speech in 2008 and sentenced to a year’s punishment and a fine of Rs 5000.

Of the 2267 cases registered during the riots, 1371 were closed as true but undetected. A special task force reinvestigated 112 of the closed cases, of which in eight cases fresh charge sheets were filed. In 2007, after public pressure that the blasts cases had achieved some measure of justice while the riots cases had not, the state government agreed to send 16 cases to special courts to expedite them apart from creating four other courts to try 253 pending cases. Of the 894 chargesheets, the accused were acquitted in 539 cases. However, the government decided on further action in 50 cases, after reviewing 379 of these cases. Some were convicted in this process but many cases continue to languish. Two petitions in the Supreme Court for justice for riot victims are still pending; one of them was demanding action against the 31 policemen indicted in the Srikrishna commission report.

Truth had already become post-truth even then, and the popular spin added to the hazy memories which often put the blasts before the riots, And people believed what they wanted so much to believe, that the blasts were engineered by Muslims, and so were the riots. Few took the trouble to understand the process and build up to creating a tense atmosphere that preceded the demolition of the mosque or even acknowledge that the riots preceded the blasts. And ten years later the gruesome violence in Gujarat post the horrific train burning at Godhra, once again served to obliterate the memory of the riots in Bombay.

And now, with the vigilante squads of gau rakshaks and mob lynchings, there is a renewed and all pervading sense of fear. Muslims now fear travelling or even eating kebabs, as some said, especially while travelling by train. The license to kill and gloat about it on camera has sent a chill everywhere. Impunity is the norm for such barbaric violence, and it has become institutionalised since long. The Bombay riots were one more step in that nefarious history of deliberately showing a community its place as not even second class citizens. The alienation is complete. The horrors continue unchecked.

Meena Menon is an independent journalist and former deputy editor of The Hindu. She has been a journalist since 1984, starting out in Bombay Magazine and has worked for the United News of India, Mid-Day, the Times of India and The Hindu. She was the chief of bureau of The Hindu, Mumbai, before being posted to Islamabad from August 2013 till May 2014, when she was expelled, and was later based in New Delhi as environment correspondent till March 2015. She is the author of Riots and After in Mumbai, Organic Cotton: Reinventing the Wheel, Reporting Pakistan and co-author of The Unseen Worker: On the Trail of the Girl Child, and A Frayed History: The Journey of Cotton in India.

Courtesy: Indian Cultural Forum
 

The post Remembering the Bombay Riots appeared first on SabrangIndia.

“Now, after nearly two years of the SIT saying that these records, as per the government of Gujarat’s version, are destroyed, you mentioned when I (Teesta Setalvad) brought this to your attention to be recorded in my 161 statement, that then commissioner of police PC Pande has, after the hon’ble court directed the SIT to go into the report filed by the amicus curiae, thereafter produced the entire documentary record that he had scanned and kept aside before they were ‘destroyed’! You also mentioned that there was 3,500 pages of such evidence which the SIT is now, after nearly two years of the inquiry, examining.

We wish to express, as co-petitioners and co-complainants, our distress and consternation at what we believe is a belated attempt by Shri Pande to save his skin or those of his political bosses, as all this while – including in the report submitted by yourself and Shri Raghavan to the hon’ble Supreme Court – you have maintained that these records have been destroyed. Shri Pande has, we have been given to understand, twice before been examined by the SIT in the Zakiya matter, between May 2009 and May 2010. Surely in the 12-month period he ought to have produced this record that he had so carefully scanned and preserved?

It may be assumed that if the inquiry had not reached this stage i.e. if the hon’ble Supreme Court had not impelled or compelled the SIT to go further, Shri Pande’s sudden and generous manoeuvre would have never happened, that is, the “destroyed” records would have remained buried!

Sir, We were particularly disturbed by your interpretation of the actions of Shri Pande, which seemed to be interpreted as his astute generosity (Shri Pande’s) in actually scanning and producing these records at this belated stage. The following questions arise that we wish to place specifically before you:

1. The timing of the “destroyed” records “reappearing” in the action of Shri PC Pande suddenly handing over the scanned CD of all destroyed documents to you post-March 15, 2011 i.e. the last directions of the hon’ble Supreme Court.
2. Since Shri Pande’s role of collusion in the conspiracy has been specifically alleged, we at least cannot see this either as a stray or innocent act and would therefore urge that a hard, objective inquiry into the previous evasion and suppression of evidence, and thereafter the sudden disclosure, takes place and offences against Shri PC Pande are also registered for the earlier suppression and subsequent disclosure.
3. When a senior officer like Shri Pande states that records are destroyed, in the preliminary inquiry, and thereafter turns up with the vanished documents, what are we to make of this? Similarly, we believe that videos will turn up.
4. Shri Pande’s role in the overall conspiracy and his subsequently being rewarded for his silence and suppression make him liable to be inquired into. His personal assets and accounts and those of his family members as also the assets and accounts of other IPS and IAS officials who have been favoured by the government of Gujarat need to be part of the inquiry.
5. We thought it imperative that this matter be placed on record…

I would like to end by stating that the fresh revelations by Shri Pande amount to an effort by a highly placed officer of not merely attempting a cover-up of his suppression of crucial records for nine-plus years but subverting the inquiries into various cases by not making available these records in the individual trials and thereby committing grave contempt of the judicial process. We would like to state that though partial records in the Gulberg cases (police control room and fire brigade, etc) were made available, this happened only after applications under 173(8) were filed by witnesses and did not logically form part of the charge sheet as they should have done from the very beginning. Why were Shri Pande and other senior officials suppressing these records? Allegations of high-level involvement and complicity have been made by victim survivors since immediately after the incidents. Was this suppression related to protection of the mighty and powerful?”

The SIT in 2010

“The Gujarat government has reportedly destroyed the police wireless communication of the period pertaining to the riots… No records, documentations or minutes of the crucial law and order meetings held by the government during the riots had been kept” (p. 13 of the Preliminary Inquiry Report).

The SIT makes this observation but recommends no action for this criminal act.
 

 
Archived from Communalism Combat, April-May 2012. Year 18, No.165 – Introduction, Gujarat 2002

The post Destroyed records resurface appeared first on SabrangIndia.

Phoolka, incidentally, was publicly threatened in the course of a live programme on national television on September 7, 2004 by Union Minister Jagdish Tytler, a man who continues to face the charge of leading and inciting a mob during the anti-Sikh carnage in Delhi. This speaks volumes for the impunity that our system gives to those charged with serious mass crimes. On the basis of the evidence placed before it, the ongoing Nanavati Commission has issued notice to Tytler, on the prima facie ground that there was a case against him. The Commission relied on the eyewitness report of Surinder Singh, a head granthi (priest) of a Sikh gurdwara, who had said in his affidavit that during the November 1984 carnage he saw Tytler incite and lead a mob of rioters to burn the gurdwara and kill Sikhs.

Of the 2,000 prosecutions launched in courts arising out of the massacre of Sikhs, only nine convictions have resulted. None involved prominent politicians or members of the police force who hold command responsibility and need to be directly held responsible and culpable when mass crimes against sections of the population take place.

Eighteen years after Delhi 1984, the Gujarat genocide of 2002 shocked the conscience of the people, including jurists, profoundly. A historic verdict delivered on April 12, 2004 not only attempted corrective justice but in scathing, no-nonsense terms, squarely detailed the hell let loose on the soil of Gujarat by the political leadership. Just as a corrective process was underway and the re-trial had begun in Mumbai in accordance with the historic verdict, (see Special Report in this issue), a serious attempt to challenge these remedial attempts is afoot. Since the day that Zahira Sheikh held her press conference in Vadodara on November 3, 2004, at which she rubbished the historic steps underway to renew faith in the judicial process and hurled baseless allegations at us while declaring herself as a hostile witness, we have maintained that she is a pawn for those who would like to see justice subverted in Gujarat.

In a system and society that grapples with the reality of interminably long drawn out criminal trials, a very low conviction rate (a mere six per cent in criminal cases) and a huge backlog of cases, the phenomenon of witnesses being made to turn hostile is unfortunately routine. Radical reform and corrective measures that include both police and judicial reform, witness protection schemes and a new law to prevent and punish genocidal killings are the crying need of the hour.

Between Delhi 1984 and Gujarat 2002, the mapping of violent internal conflict includes the Meerut-Malliana (UP) massacre in 1987, where Provincial Armed Constabulary (PAC) jawans lined up and shot dead in cold blood 53 Muslim youth and the Bhagalpur massacre of 1989 during which an overnight slaughter of the minority (nearly 1,000 were killed) was organised. In one gruesome incident, bodies were buried and vegetables planted over them in a unique cover-up operation. There have been no convictions worth the name for these crimes. In the post-Babri demolition violence in Bombay 1992-1993, despite the publication of the Srikrishna Commission report in February 1998, no significant prosecutions have followed.

The message is therefore clear. For the perpetrators of a pogrom or genocidal killing, impunity from prosecution and punishment appears to be guaranteed in advance. Armed with this impunity, the mass murderers have mastered techniques of subversion of investigation. And the destruction of evidence is now ‘in-built’ into the very modes of killing adopted. This was clearly visible in Gujarat where a chemical powder was extensively used while burning people so that no trace of the victims remained and which made it all the more difficult to ‘count the dead’.

Demonisation of sections of the population through hate speech and hate writing are a vital ingredient of the genocidal plan. Delhi 1984 and Gujarat 2002 displayed this tendency in full as did the pogroms in between. Economic crippling and cultural humiliation wrap up the picture. If 270 dargahs and masjids were destroyed in the first 72 hours in Gujarat (see Genocide; Gujarat 2002), 450 gurdwaras (nearly 75%) were destroyed or seriously damaged in 1984.

Each or all of these elements have been visible on Indian soil for well nigh a quarter of a century. Nineteen-eighty-four constitutes a watershed in the history of communal violence in post-Independence India. While earlier there were riots, what we have been witnessing with frightening frequency since 1984 are one-sided pogroms and genocidal assaults with the active connivance of, if not brazen sponsorship by, the State. Even as justice eludes the victim-survivors of 1984 (Delhi) and Mumbai (1992-93), the post-2002 attempts to subvert investigation and justice for the victim-survivors of the Gujarat genocide are a new challenge to Indian democracy. Will it respond?
— Editors

Archived from Communalism Combat, November-December 2004. Year 11    No.103, Editorial

The post 1984, 1992-93, 2002… appeared first on SabrangIndia.

After the demolition of the Babri Masjid on December 6, 1992, there was unprecedented violence in Bombay against Muslims in early January, 1993. It was rightly believed by responsible citizens who had gone around the city to ascertain what had happened and who were trying to restore communal harmony, that the police not only did not take action against the rioters but in some cases assisted them….

 ….During December 1992/January 1993, Saamna published a number of editorials which prima facie were a clear violation of Sections 153A and 153B of the I.P.C.

The law in England as to the duty of government to enforce the law has been dealt with in Reg. v. Commissioner of Police of the Metropolis Ex p. Blackburn (1968) 2 Q.B. 118. Lord Denning, M.R. observed: “…There are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable was to issue a directive to his men that no person should be prosecuted for stealing less than 100 pounds, I should have thought that the court would countermand it. He would be failing in his duty to enforce the law. After the decision of the House of Lords in Kursall Casino Ltd. v. Crickitt (1966) 1 W.L.R. 960, the commissioner of police announced that "it is the intention of the metropolitan police to enforce the law as it has been intended'…” (Salmon, L.J. and Edward Davies L.J. agreed with Lord Denning, as to the contention that a mandamus should be refused because Mr. Blackburn had an equally effective and convenient remedy,) Salmon, L.J. said: “It seems to me fantastically unrealistic for the police to suggest, as they have done, that their policy decision was unimportant because Mr. Blackburn was free to start private prosecution of his own and fight the gambling empires, possibly up to the House of Lords, single-handed”: ibid. p.145.

Edmund Davies L.J. agreed…observing that “only the most sardonic could regard the launching of a private prosecution….as being equally convenient, beneficial and appropriate and the procedure in fact adopted by this appellant”.

I have cited this decision of a most distinguished master of the Rolls, Lord Denning and his distinguished brother judges to show that no general policy can override the law, and further that the rule of law must be upheld and enforced by the appropriate authority…
In the context of what I have said above, a question arises as to how power conferred on public authorities in connection with the administration of justice is to be exercised. Justice Jaganmohan Reddy for himself and Palekar J. gave the answer in M.N.S. Nair v. P.V. Balkrishnan AIR 1972 SC  496.…. (Referring to section 494 of the Criminal Procedure Code which permits the prosecution to withdraw from the prosecution), Justice Jaganmohan Reddy observed….

 “… It is the duty of the court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the state go unpunished merely because the government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the public prosecutor merely does so at his behest”: ibid. p.499 (emphasis supplied)….

Jaganmohan Reddy J. rightly observed that the delay caused by the accused by repeated revisional applications could not ensure for the benefit of the accused. Since the judgement of the division bench in Shri D'Souza's petition referred to the “delay” which had taken place in hearing the petition, it may be observed that the petitioner, i.e. Shri D’Souza and his co-petitioner were not responsible for the delay. The Criminal Writ Petition was filed speedily in April 1993. The petition was adjourned for the government to communicate to the court whether it had granted permission to prosecute Respondents 3 and 4 in respect of certain articles for which the police had filed complaints in the magistrate's court, and asked for government's sanction. On June 8, 1993 government stated that sanction had been given. On June 14, 1993 the writ petition was admitted with liberty granted to apply to the chief justice for an early date. (Thereafter the delay in the hearing took place because of the court not having given time or the respondents asking for an adjournment).

(Mr. Seervai refers to the fact that an affidavit was filed on behalf of the state to oppose the admission of the petition in April 1993. This affidavit was filed by an under-secretary in the home department, Shri Kumavat, and refers to the fact that the affidavit mentions that the question as to whether prosecutions should be sanctioned in respect of some complaints filed by the police were referred to the law department. This shows that whether or not sanction should be granted raises a question of law and being a question of law it is the law department which gives the necessary advice. Ultimately, sanction was given in those cases because the opinion of the law department was that as a matter of law the articles violated the provisions of section 153A)….

It would be convenient at this place to consider what test is to be applied by a court in considering whether the articles published in a daily newspaper violate the provisions of sections 153A and 154B. Saamna, a daily newspaper had a wide circulation. The petitioners did not complain of one article but of a number of articles on the same theme.

The question whether those articles promoted enmity between Hindus and Muslims on the ground of religion, race and residence etc. has to be determined on how the general readers of those newspaper would understand those articles and not how a court after elaborate analysis and argument by counsel on either side considers to be the effect of those articles.

It should be borne in mind that the articles complained of had been spread over two months and dealt with acute controversies such as the demolition by Hindus of the Babri Masjid. The ordinary reader of Saamna, or of any other daily newspaper is not given to an analysis of articles, parts of which are complained of by a petitioner.

No doubt as a general rule, any article complained of must be read as a whole. But there are situations in which certain passages and their effect of producing enmity between communities are so strong that no context would prevent those passages from inflaming communal enmity between Hindus and Muslims as will appear later. That was the test which the court had to apply in Shri D'souza's petition, and which the court failed to apply….

Before dealing with the passages complained of and the manner in which the division bench dealt with those passages, the stand taken by the government for not taking action to prosecute Shri Bal Thackeray and Shri Raut for publishing the paragraphs set out in Shri D'souza's petition requires consideration.

The Government was in a dilemma. No officer of the government could say that what was stated in Shri Kumavat's affidavit was false, for it was stated by him to be true to the best of his own knowledge. However, the government was determined not to grant sanction to prosecute Shri Bal Thackeray and Shri Raut and the procedure described by Shri Kumavat would have required the home department to process the case and then send the case for the legal opinion of the law and judiciary department.

A department which gave as its opinion that the articles in Saamna which attacked Muslim police officers violated the provisions of sec. 153A would, a fortiori, give it as its own opinion that the nine articles complained of in Shri D'Souza's petition which attacked Muslims and Muslim community generally violated the provisions of section 153A and sanction to prosecute should be given.

The summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.                                               

Government devised the expedient of getting Shri Ulhas V. Manjrekar, deputy secretary to the government of Maharashtra (general administration department) to file an affidavit replying to the petition on merits after it had been admitted, although the question of granting sanction to prosecute persons under section 153A were dealt with by the home department.

Shri Manjrekar stated that he was filing the affidavit “on the basis of concerned files of my department which I have carefully pursued”. Shri Manjrekar appears to have realised that the records of home department on which Shri Kumavat had relied on behalf of government in his affidavit of April 29, 1993 were directly relevant in replying to the petition on merits after the petition has been admitted.

Therefore, he began paragraph two of his affidavit thus: “At the outset I reiterate and Confirm what Shri D.T. Kumavat, Under secretary to the government of Maharashtra, home department, Mantralaya, Bombay has stated in his affidavit dated April 29, 1993". By reiterating and confirming Shri Kumavat’s affidavit at the outset, he incorporated that affidavit in his own affidavit.

In paragraph two of his affidavit, after the first sentence, Shri Kumavat’s affidavit must be set out. When this is done, Shri Manjrekar, without realising it, has shown that the government has acted mala fide when instead of referring the question of sanctioning the prosecution of Shri Thackeray and Shri Raut to the law and judiciary department for its legal opinion, the government decided not to prosecute them for the reasons set out by Shri Manjrekar in his affidavit.

The government was the first respondent to Shri D'Souza's petition, and it's sidetracking the law and judiciary department whose legal opinion was required, before sanction to prosecute under section 153A (and 153B) was given. This gives rise to the inference that if the government did not seek legal opinion, it was because that opinion would have clearly indicated that the passages complained of in Shri D’Souza’s petition violated the provisions of sections 153A and 153B and sanction to prosecute them should be granted.

A part from what I have said in the above paragraph, there is an inherent contradiction in Shri Manjrekar's affidavit, which also shows that the government knew that the passages complained of in Shri D'Souza's petition violated section 153A. Shri Manjrekar states in his affidavit in reply, that “I reiterate that the government of Maharashtra carefully scrutinised the material published by the Marathi daily Saamna in its issue of 2nd, 5th, 8th, 9th and 15th December 1992 and 1st, 5th, 8th, and 9^th January 1993…Prosecution of the editor and printer of the daily has already been sanctioned in 4 cases by four separate orders dated 9th June 1993. The government has taken a decision that the alleged objectionable material may be used as evidence at the time when the four cases in which the prosecution has been sanctioned come up for trial and hearing” (emphasis supplied). The prosecution in the four cases was sanctioned as violating section 153A of the IPC, namely for promoting enmity between Hindus and Muslims. If the 9 passages complained of in Shri D'Souza's petition are to be used as evidence in support of articles which violated section 153A, it must follow that the government realised that these passages violated section 153A and such violation would be further evidence in support of the prosecution in the four cases, namely, that the writings there complained of violate sec. 153A.

  If the 9 passages complained of did not violate the provision of section 153A, they could not be used to support the prosecution – those passages would be irrelevant. This is an admission on the part of the government that these 9 passages violated section 153A and instead of prosecuting Shri Bal Thackeray and Shri Raut in respect of these passages, the government arbitrarily declined to do so.

Shri Manjrekar stated in his affidavit that since “the government has referred the matter to the Press Council of India, it would be advisable to await the decision of the press council” is an attempt to show that the government was not inactive.

 However, first, the Press Council is not the authority to advise the government whether or not to grant sanction to prosecute under the sections 153A or 153B. The proper authority, as Shri Kumavat pointed out in his affidavit, was the law and judiciary department. This is clear from the government's own action in respect of granting its sanction to prosecute Shri Thackeray, Raut and Desai without referring the matter to the Press Council, but after obtaining the legal opinion of the law and judiciary department.

In my opinion, the affidavit of Shri Manjrekar clearly established that the government knew that the nine passages complained of violated the provisions of section 153A but was determined not to prosecute Shri Thackeray and Shri Raut. Since the power to grant sanction is conferred on government, it must be exercised in good faith and in furtherance of the object of the law, namely sections 153A and 153B.

What I have said about Shri Manjrekar's affidavit shows that government acted mala fide and refused to grant sanction although it knew that the nine passages violated section 153A. The division bench has not realised the effect of Shri Kumavat's and Shri Manjrekar's affidavit. On those affidavits it is clear that government acted mala fide in respect of granting sanction to prosecute in respect of the nine passages complained of after impliedly admitting that they violated section 153A, and could be used by the prosecutor in the four prosecutions against Shri Thackeray, Raut and Desai
In my opinion, on the affidavits of Shri Kumavat and Shri Manjrekar, the division bench should have issued a writ of mandamus directing government to grant its sanction to prosecute Shri Bal Thackeray (respondent 3) and Shri Raut (respondent 4) for violating sections 153A and 153B, IPC.
Reverting to the affidavit of Shri Raut in April 1993 purporting to be on behalf of himself and Shri Bal Thackeray, it was stated, "I am filing the affidavit on behalf of both of us “for the limited purpose of opposing the admission” (emphasis supplied). After the petition was admitted, liberty was given to the respondents to file their affidavits in reply to the petition. Neither Shri Thackeray nor Shri Raut has filed any affidavit in reply.

The division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The side-tracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission (by the Maharashtra government) that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3and 4.

The effect of this failure to file an affidavit in reply has not been appreciated by the division bench. By rules of pleading the omission to file affidavits in reply means that the averments in the petition remain un-traversed and must be accepted as correct by Shri Thackeray and Shri Raut.
 In Shri Raut's affidavit of April1993 (para 7) he says:” Without prejudice to the above, I say that none of the editorials, exhibits A to I, attract the prosecution of respondents 3 and 4 as they have exercised their freedom of expression and commented upon current affairs objectively.” This defence was open to them at the hearing of the petition, but I have already shown that the freedom of expression does not justify publishing articles violating the rights of every person to practice, profess and propagate his religion and insults to the religious feelings of communities. Such offences have not been tolerated by the Supreme Court.

It should be noticed that Shri Bal Thackeray and Shri Raut have not stated on oath that the nine passages complained of do not violate the provisions of sections 153A and 153B because they are torn from their context. It is not for anyone to inquire why they have not said so, and it must be assumed that they had good reasons for doing so.

 In fact paragraph 7 of Shri Raut's affidavit supports this assumption, for Shri Raut has justified the nine paragraphs complained of by stating that they do not attract the prosecution of respondents 3 and 4 and the respondents have exercised their freedom of speech and expression and commented upon current affairs objectively. It is the case of respondents 3 and 4 that the freedom of speech and expression confer on them the right to write the passages complained of even if they violate sections 153A and 153B.

 I will deal briefly with the judgement of the division bench in view of what I have said earlier. As the petitioner prayed for a mandamus directing the state government to grant its sanction to prosecute Shri Bal Thackeray and Shri Raut under the provisions of sections 153A and 153B by publishing the said passages complained of, the questions for the court's consideration was whether the government, knowing and believing that the nine passages complained of did violate the provisions, mala fide refused to sanction to prosecute respondents 3 and 4 for articles which violated the two sections of the IPC.

If so, the division bench was under an obligation to issue a writ of mandamus directing government to give its sanction. The sidetracking of the legal department, the referring of the matter to the Press Council of India which was not the body to give legal opinion, the implicit admission that these passages violated provisions of section 153A and that they could be used by the prosecutor in the four prosecutions already sanctioned show beyond any doubt that these passages violated the provisions of both sections 153A and 153B and the government mala fide declined to prosecute respondents 3 and 4.

It is not necessary to deal at length with the elaborate special pleading by which the division bench held that the passages complained of did not violate the provisions of the two sections. I will only deal with one gross instance of the untenable interpretation put on the editorial in Saamna dated December 9, 1992 (page 38 of the judgement, see page 6)

 At page 37 of the judgement, the court observed: “…In this article, it is true that reference is made to 25 crores of Muslims in India and relying on this, Shri Setalvad argued that Muslims as a whole are criticised. It is an admitted position that in fact in India at that time there were 11crores of Muslims and, therefore, the figure given in the editorial appears to be a typographical mistake and hence from the reference to 25 crores Muslims one cannot draw an inference that whole dig in the editorial is against Muslims as a whole. If one reads the editorial published on December 9, 1992 as a whole, though some caustic language is used, the dominant impression that the reader is likely to carry is definitely not ill-will, spite or hatred towards Muslims in general but it may carry ill-will and hatred against unlawful behaviour of anti-national Muslims including leaders like Imam Bukhari and Shahabuddin.”

 In my opinion, the interpretation given to this exhibit is absurd and perverse. The statement that 25 crores Muslims was a typographical error is based on no evidence. It does not seem to have occurred to the judges that the respondents may exaggerate the number of Muslims in India in order to emphasize the dangers which Hindus and Muslims would face.

Further, the passage divides the population of India between Muslims and Hindus and also states that Pakistan was said to have seven bombs. The seventh bomb was planted in India because Pakistan need not lead an invasion of India: 25 crores of Muslims loyal to Pakistan would stage an insurrection to destroy India. A clearer violation of sections 153A and 153B is difficult to imagine.

In the last two paragraphs which are not conspicuous for their clarity in substance, the court said that if sanction was given, it would reopen wounds between Hindus and Muslims. Public interest required that sanction to prosecute should not be given. This is contrary to the evidence on record.
 The government is prosecuting Shri Thackeray for some articles. The government is normally a better judge of the public interest. The government of India has ordered the prosecution of a number of persons, including a Member of Parliament at the time when riots broke out principally directed against the Sikh community. Such a prosecution would open up old wounds but justice demanded that the guilty should be brought to book.

In my opinion the summary dismissal of the petition for special leave against the judgement of the Bombay High Court by Justices Punchi and Jaychandra Reddy can only be described as amazing and subversive of the rule of law.

A report of the proceedings appeared in the Indian Express by Teesta Setalvad dated January 14, 1995. The two Supreme Court judges had observed that they agreed with the high court's conclusion that it was not in the public interest that the issue should be raked up. But the two Supreme Court judges overlooked the fact that in the whole elaborate judgement (except the last two paragraphs) the court held that respondents were not guilty. The necessary consequence of the summary dismissal is that the Supreme Court confirmed the high court's conclusion that the respondents 3 and 4 were not guilty.
 Justice means justice to both sides in a petition. Not to decide the guilt or innocence of respondents 3 and 4 is a grave abdication of judicial duty to uphold the Constitution and the laws.

For the second reason, namely, that the high court “had its fingers on the pulse of the situation” and public interest would be better served by leaving the situation where it was, there is not a little of evidence that the two judges had their fingers on the pulse of the situation. On the contrary the government which must have its fingers on the situation, did not leave the situation as it was and ordered four prosecutions in respect of articles published by respondents 3 and 4 and one Shri Desai. In respect of these prosecutions government upheld the rule of law.

In view of what I have said in this opinion, the Supreme Court in summarily dismissing the petition for special leave has done great injury to the fabric of our laws. In my opinion once the Supreme Court has before it a full account of the grave issues involved, they should follow the course adopted by the House of Lords in Khwaja's case When it first came before the House of Lords the petition was dismissed. When the petition in Zamir's case came before the House raising the same issues as in Khwaja's petition, the House of Lords recalled its order and admitted the petition.
In my opinion, the Supreme Court should recall its order, admit the special leave petition and decide the matter on merits.

The various segments of this story appeared as part of the cover story of Communalism Combat, January 1995.

The post ‘SC should recall its order’ appeared first on SabrangIndia.

 

It is difficult to comment, much less to criticise, an order of the Supreme Court refusing special leave to appeal under article 136 of the Constitution. It is discretionary jurisdiction. The SC is not bound to interfere with every erroneous order of the High Court, nor does its interference tantamount to an affirmation of the order.

All this is trite law, but then, there are cases and cases. The judgement of the division bench of the Bombay High Court in ‘J.B. D’Souza versus state of Maharashtra’ is one which compelled comment – affirmative or negative – by the highest Court: if only for the reason that it interpreted sections 153A and 153B of the Penal Code (in my opinion wrongly) and held that the offending newspaper articles did not come within the “mischief” of these sections (again in my opinion, in error).

One must first become acquainted with the history of the sections to appreciate the “mischief” they sought to prevent. Sections 153A and 153B were enacted in 1898 as an addition to the Penal Code for the greater protection of public tranquility in a pluralistic society, the members of which professed different religions and faiths.

When in the United Kingdom more than a century ago, Lord Macaulay had protested in British Parliament against the way the blasphemy laws were then administered, he had added: “If I were a Judge in India I would have no scruple about punishing a Christian who should pollute a mosque.”

When Macaulay became a legislator in India, he saw to it (by provisions made in the Penal Code) that the law protected the religious feelings of all – in Chapter XV (Offences Relating to Religion). These provisions were inadequate to deal with riots and civil strife, and the Penal Code was amended to include Sections 153A and 153B.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

Today we are an explosively plural society, and desperately need sections 153A and 153B – but we need to use them as well. They remain on our statue book to give assurance to the people of India that promoting enmity between different groups on grounds of religion will not be tolerated and will be visited with penal sanctions; to guarantee to the minorities that secularism is a basic feature of our laws, an affirmation made so very recently, and in such eloquent terms, by a bench of nine justices of the Supreme Court (in Bommai’s case – March 1994). It is this assurance that was denied to the people of Maharashtra, especially to the minorities in the state, by the High Court of Bombay.

And it was for this reason that the discretionary jurisdiction of the Supreme Court was invoked, but without success. The ratio of the judgement of the High Court ought not to have been permitted to stand, and made non-vulnerable only because of the rhetoric expressed at the end. The judges of the High Court felt (and said so in one of the last paragraphs of the judgement) that launching a prosecution now would be futile since “a lot of time has elapsed and peace, tranquility and communal harmony, of which Bombay city is historically proud of, is restored.” A moment’s reflection would (and should) have convinced the justices that it was inflammatory articles such as those cited in D’Souza’s writ petition that had aggravated (if not contributed to) the violent disturbances that shook Bombay in January 1993; and that if such-like articles were repeated the already fragile edifice of “communal harmony” (dear to the hearts of the judges) would collapse.

There is something more. Nowhere in its 57-page judgement does the High Court express any displeasure at the tone and content of the offending articles. There is no expression of censure, no record of any expression on the part of the offending newspaper of contrite grief; for religious feelings which may have been hurt.

When judges speak, what they say (and significantly, what they do not say) sends down strong signals. People listen, and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate word against a particular community likely to cause disharmony will now not only go unpunished, but will not even suffer a judicial rebuke. This is the single most sinister, most deplorable fall-out of the judgement of the justices Majithia and Dudhat.

That all this should not have been seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked, prompts only a plaintive prayer, “Where then, O Lord, shall we turn, for the redressal of palpable wrongs?”
 

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“To all minorities in India, the Bombay High Court and Supreme Court have by their conduct, denied any guarantee that secularism is the basic feature of Indian laws.”

The same Bombay High Court, through several judgements delivered in the past eight years (including one delivered by me) has set aside the election of several Shiv Sena MLAs on grounds of Sections 123(3) and 123(3)(a) of the Representation of People's Act (RPA). These petitions, among other evidence, relied upon the speeches made by Bal Thackeray during electioneering, raving about "anti-national Muslims". Then the High Court saw fit to set aside the election invoking these sections.

Section 123(3) (a) of the RPA coincides exactly with Section 153(a) of the Indian Penal Code. This special leave petition by D'Souza has also cited editorials from Saamna that clearly violate this section. Why has the High Court deviated from a line of thinking adopted consistently earlier? And the Supreme Court going along with this? I find it particularly disturbing because one can notice a trend — the majority judgement in the Ayodhya case that was blatantly perverse, now this.   
 

The post ‘SC ruling is absolutely shocking’ appeared first on SabrangIndia.

It is extremely unfortunate that the judiciary has not intervened in this case where the law has been openly flouted and communal hatred spread by Bal Thackeray through his mouthpiece, the Saamna.

History teaches us that unless these pernicious tendencies are scotched they grow to become unmanageable monsters later on. The argument that a prosecution of persons responsible for spewing hatred would rake up past events is totally misconceived because there has been no re-thinking or regret by the authors of the writings and every likelihood of such actions being repeated.
 

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Nani Palkhiwala

I am deeply distressed that even the Court did not give priority of priorities to the cause of amity and national solidarity. On a perusal of the papers, in my view the dispassionate conclusion is as follows.

(1)  The High Court was in error in not allowing the petition to compel the government to sanction a criminal prosecution under Section 153A and Section 153B of the Indian Penal Code, because there is clearly a prima facie case that the Sections had been violated.

(2)  It is true that the Supreme Court is over–burdened with more than two lakh cases pending, but it should have granted special leave to appeal against the High Court’s judgement rejecting the petition. After all, what is involved in this case is the entire future of India and the type of journalism which the state is willing to countenance or condone.

(3)  The basic principle of democracy is that no one is above the law. If any government flouts this principle for reasons of political expediency, it is doing irreparable damage to the democratic fabric of the national polity. The Maharashtra government did do that irreparable damage, and that is why public-spirited citizens moved the Court in the matter.            

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