First published on: November 2009

Delivering judgement in a 1984 anti-Sikh communal massacre case, a Delhi trial court observed, “After the assassination of late Prime Minister Mrs Indira Gandhi on October 31, 1984, anti-Sikh riots broke out in different areas of the capital, killing thousands of Sikhs. [The] law and order machinery was completely paralysed because of inaction/connivance of the police… In the name of investigation a farce was carried out… It seems the prosecution expected that the trial will be equally a farce and cases would be summarily disposed of thereby drawing a curtain on the legal drama.”1

Today we are confronted with a peculiar schism where the truth of who are the perpetrators and masterminds of the communal pogrom of 1984 is part of public knowledge but it invariably fails to translate into proof beyond reasonable doubt in courts of law.

In the aftermath of the anti-Sikh pogrom, victims have approached the criminal justice system, seeking punishment for the guilty. The consequent judicial verdicts demonstrate that wanton killings and looting in communal pogroms invariably end in acquittals, barring a few rare convictions.

Why this pattern of impunity

Beyond the lament of injustice, it is important to discern and identify the reasons why both the law and the judiciary fail to deliver justice to the victims of communal carnage. The present legal system has failed to award penalty for communal crimes, for these events overturn some fundamental premises on which the criminal justice system is based. The rubric of the Indian Penal Code (IPC), the Indian Evidence Act and the Code of Criminal Procedure (CrPC) is not designed to adjudicate and punish the perpetrators of a communal pogrom.

The violence unleashed against the Sikhs in Delhi in 1984, Muslims in Gujarat in 2002 and Christians in Orissa in 2008 is usually labelled ‘riots’. The term ‘riot’ as defined in Section 146 of the IPC or the commonly used phrase, ‘communal riot’, implies a violent clash between members of different religious communities, causing loss of life, limb and property to both. This phrase is inaccurate to describe the communal violence under discussion, which was a premeditated and organised targeting of the minority community, carried out with the explicit and/or implicit sanction and support of the state, its representatives and functionaries. The term ‘pogrom’ is more appropriate to describe the events of 1984.2

A corollary would be that the list of accused persons to be prosecuted must include not only those whose hands killed, sexually assaulted, looted and burnt but also the minds that planned, incited, abetted, conspired and provided financial and other resources as well as those who abandoned their constitutional duty to protect the people caught in the vortex of communal violence.

A successful prosecution hinges on professional investigation by the police. The Kusum Mittal report indicted 72 and recommended summary dismissal of six senior Delhi police officers for their culpability in the 1984 carnage. The executive exonerated them all. After the massacre, for the police the registration of crimes and investigation of offences are a matter of political expediency. In a case of 1984, a Delhi trial court stated, “After the rioters had done their job, the rest of the job to frustrate the investigation was done by the police.”3 The shoddy and partisan investigation conducted by the police undermines the very foundation of the prosecution.

The absence of an independent and effective investigating agency is felt most acutely when victims and survivors have to beseech the very police force that through myriad acts of omission and commission was complicit in the communal crimes. The directive of the Supreme Court in the Prakash Singh judgement is a beginning in the direction of a professional investigating agency but much more remains to be done.

Experiences from across the country indicate that the malaise runs much deeper. The police as a force have displayed an institutional bias against religious minority communities. A communalised police force, enjoying de facto and de jure immunity and subject to weak mechanisms of accountability, will only reinforce the already etched patterns of impunity for communal crimes. This deep sectarian institutional bias displayed by the police force against minority communities is further aggravated by the de facto and de jure immunity enjoyed by them. A serious hurdle in punishing public servants is the shield of legal immunity provided by Section 197 of the CrPC, which must be repealed.

The underlying premise, of the state as the parent and protector, stands completely distorted when the political executive dons the mantle of the mastermind and becomes an accomplice in communal crimes. The present legal apparatus requires the executive, which stands deeply implicated, to discharge the onerous task of prosecuting itself and its henchmen. In such a scenario, the filing of closure reports by the CBI against Congress leaders, or the Tehelka sting operation showing public prosecutors in Gujarat scheming to derail trials, should come as no surprise. For the prosecution of communal crimes, the law must grant the public prosecutor a measure of institutional autonomy and functional discretion.

Although the IPC defines murder, rioting, rape, it is insufficient for convicting either the mobs or the masterminds. The criminal provisions of conspiracy and abetment are also inadequate to nail the sponsors of communal crimes. Sections of the IPC simply list and describe the acts that are labelled crimes. The IPC does not envisage mass crimes where an entire community is systematically targeted by reason of their religious identity and this attack is carried out with the direct and/or indirect complicity of state institutions and agents. For the guilty to be nailed, the law will have to be amended to adopt a distinct typology of crimes akin to the ‘crimes of genocide’ and ‘crimes against humanity’ as codified in the statute of the International Criminal Court.

The CrPC prescribes the procedure for purposes of investigation and trial notwithstanding that during the pogrom the investigators and prosecutors were themselves complicit in the crimes and later obliterated traces of the same. The Indian Evidence Act too demands the same kind and degree of proof for communal crimes as otherwise. For instance, delay in lodging the FIR by a survivor, or absence of corroborative material evidence, or non-mention of names of accused in the statements recorded by the police, or absence of a medical report can lead the court to draw an adverse inference against the victim without taking cognisance of the difficult circumstances prevailing at the time. It is therefore critical to formulate new rules of procedure and evidence, sensitive to the context of communal violence.

Women whose bodies become sites of contestation and community ‘honour’ rarely get redress. The failure of the present law to even provide a definitional description of the brutality and scale of sexual violence suffered by women emboldens its denial.

The weakness of the law is most glaring in its abject and recurring failure to punish those who sponsor and profit from the carnage. To extend criminal liability beyond the actual perpetrator and affix culpability of political leaders and persons in positions of social, administrative, civil or military authority, the principle of command/superior responsibility must be incorporated. This would make the leaders criminally responsible for failing to take reasonable measures to prevent crimes committed by subordinates under their effective control and about which they can reasonably be presumed to have had knowledge. Thus the escape route deployed by political leaders, of ignorance and inaction, while their party men kill and burn, could be plugged. It is time to shift the burden of responsibility from the victim witness to those at the helm.

Clearly, the jurisprudential yardstick of ‘normal times’ cannot be indiscriminately applied to decide trials marked by an extraordinary collusion of state agencies and institutions. This challenge must be met not by whittling down the guarantees and rights of the accused but rather by exacting greater accountability from the state and empowering the victim.

As the home minister sagely advises us to ‘let the law take its own course’, it is pertinent to point out that the delay in punishing the guilty of 1984 for 25 years indicates an urgent need to forge new legal tools to alter this pattern of continuing injustice and rampant impunity. The UPA government has yet to fulfil its promise of introducing a comprehensive legislation against communal violence. A flawed beginning in this respect has been made by the government through the introduction of a bill that has been rejected outright by citizens’ groups. Criticising the same, a public statement stated, “What we have before us today is a dangerous piece of legislation called the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005, which will not only fail to secure justice for communal crimes but will actually strengthen the shield of protection enjoyed by the state, its political leaders and its officials for their acts of omission and commission in these crimes. It is a bill which conceives of communal violence as a ‘one-time’ event rather than as a long-term politically motivated process and seeks to prevent it only by giving greater powers to (often communally tainted) state governments. Further, it continues to perpetuate the silence around gender-based crimes.”4

Notes

1 ASJ OP Dwivedi, State vs Kishori & Ors, Karkardooma, Delhi, SC No. 53/95, FIR No. 426/84. p. 1.

2 Jyoti Grewal argues that the 1984 anti-Sikh violence was a pogrom in Betrayed by the State: The Anti-Sikh Pogrom of 1984, Penguin Books India, 2007, pp. 14.

3 ASJ SN Dhingra, State vs Kishori & Ors, Karkardooma, Delhi, SC No. 42/95, FIR No. 426/84, p. 9.

4 Public statement released at the National Consultation on the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005, June 16, 2007, New Delhi.

Archived from Communalism Combat, November 2009  Year 16    No.145, Cover Story 5

The post Regimes of impunity appeared first on SabrangIndia.

Role of Congress(I)

Escapees from the [Gandhi Nagar] area, whom we met at the Shakarpur relief camp on November 6, blamed the Congress(I) MP from the area, Mr HKL Bhagat, for having masterminded the riots. On November 1, Satbir Singh (Jat) a Youth Congress(I) leader brought buses filled with people from Ber Sarai to the Sri Guru Harkrishan Public School at Munirka and burnt the school building and buses and continued looting and assaults on Sikhs the whole night. Another group of miscreants led by Jagdish Tokas, a Congress(I) corporator, joined the above group in looting and assaults. In the Safdarjung-Kidwai Nagar area of South Delhi, eyewitness accounts by those who stood in front of the All India Medical Institute [All India Institute of Medical Sciences] from where Mrs Gandhi’s body was taken out in procession on the evening of October 31, confirmed the presence of the Congress(I) councillor of the area, Arjan Dass, at the time when attacks on Sikh pedestrians, bus-drivers and conductors began.

The allegations against these individuals, repeatedly voiced by the residents of the respective localities which we visited, cannot be dismissed as politically motivated propaganda since many among the Sikhs who accused them of complicity in the riots had traditionally been Congress(I) voters. Sufferers from Trilokpuri and Mangolpuri resettlement colonies whom we met looked dazed and uncomprehending when they said to us: “We were allotted these houses here by Indiraji. We have always voted for her party. Why were we attacked?”

Eyewitness accounts

Sudip Mazumdar, Journalist

The police commissioner, SC Tandon, was briefing the press (about 10 Indian reporters and five foreign journalists) in his office on November 6, at 5 p.m. A reporter asked him to comment on the large number of complaints about local Congress MPs and lightweights trying to pressure the police to get their men released. The police commissioner totally denied the allegation and when questioned further, he categorically stated that he had never received any calls or visits by any Congress or for that matter any political leader trying to influence him or his force. Just as he finished uttering these words, Jagdish Tytler, Congress MP from Sadar constituency, barged into the police commissioner’s office along with three other followers and at the top of his voice demanded of the police commissioner: “What is this Mr Tandon? You still have not done what I asked you to do?”

The reporters were amused, the police commissioner embarrassed. Tytler kept on shouting and a reporter asked the police commissioner to ask that ‘shouting man’ to wait outside since a press conference was on. Tytler shouted at the reporter: “This is more important!” However, the reporter told the police commissioner that if Tytler wanted to sit in the office, he would be welcome but a lot of questions regarding his involvement would also be asked and he was welcome to hear them. Tytler was fuming. Perhaps realising the faux pas, he sat down and said, “By holding my men you are hampering relief work.” Then he boasted to some foreign reporters that “There is not a single refugee in any camp in my constituency. I have made sure that they are given protection and sent back home.” However, the incident left the police commissioner speechless and the reporters convinced about the Congress(I)’s interference in police work.

Written complaint by journalist Rahul Bedi of The Indian Express against three senior Delhi police officers, dated November 5, 1984 and addressed to the police commissioner of Delhi (with a copy also being sent to the lieutenant governor)

Following our meeting in your room at the police headquarters on Sunday, November 4, I wish to register a complaint of criminal negligence against Mr HC Jatav, IPS, additional commissioner of police, Delhi, Mr Nikhil Kumar, IPS, additional commissioner of police, Delhi, and Mr Seva Das, IPS, deputy commissioner of police (DCP), East District, for being responsible through their apathy and severe dereliction of duty for the massacre in Trilokpuri where over 350 persons were slaughtered in a carnage lasting over 30 hours, ending on the evening of November 2. You agreed to look into the matter.

The official figure of the number of dead is 95 in Trilokpuri. The following are the details of the negligence:

1. On learning of the massacre on [the morning of] November 2, I along with Mr Joseph Maliakan, reporters, Indian Express newspaper, rushed to Trilokpuri at 2 p.m. Around 500 metres away from Block 32 we met a police rider and a constable coming from the block where the killings were still taking place.

Stopping the rider and asking him what was going on inside the block, he told us that the situation was quiet. Only two people had been killed, he said.

2. On going further, our car was blocked by an angry mob which stoned us and told us to leave or face the consequences. Block 32, they said, was out of bounds.

3. We went to the local Kalyanpuri police station, looking after Trilokpuri, and asked the subinspector on duty for help in getting into the beleaguered block around 3.30 p.m. The police officer said that all was quiet in Trilokpuri as his rider had reported the same to him. Besides, he said, he was short of men.

4. After seeking army patrols in vain, we arrived at the police headquarters at 5 p.m. Mr Nikhil Kumar, manning the telephones in your room, was told of the situation. He called the central control room, two floors above. Mr Nikhil Kumar did nothing to ensure that a force had been sent other than make the telephone call to the control room. He asked the control room to inform the captain on duty inside the control room.

5. On reaching Trilokpuri at 6.05 p.m., we found the Kalyanpuri station house officer (SHO), Mr SV Singh, accompanied by two constables, arriving in a Matador van. Mr SV Singh said that he had radioed his senior officers, specially his DCP, Seva Das. The DCP was nowhere in sight till after 7 p.m.

6. On returning to the police headquarters, we were told by Mr Nikhil Kumar that he had done his job by informing the control room.

Meanwhile, Mr Jatav, returning from a tour of the Trans-Jamuna areas, including Kalyanpuri police station area (which includes Trilokpuri), arrived in your room and declared that ‘calm’ prevailed in his area. His DCP, Seva Das, he said, confirmed this.

7. When we stressed the urgency of the situation, Mr Jatav inquired of Mr Nikhil Kumar as to why he had not been told of the emergency, as he was in his office, a floor above, at 5 p.m. when the latter had merely called the control room. Mr Nikhil Kumar had no answer other than parroting the fact that he had called the control room.

8. Mr Jatav arrived at the spot around 7.45 p.m., over 30 hours after the killing began on November 1, around 10 a.m.

I hope suitable action is taken against these police officers who through dereliction of duty became accessories to the butchering.

(Excerpted from ‘Who are the Guilty?’, Report of a joint inquiry into the causes and impact of the riots in Delhi from 31 October to 10 November 1984, PUCL-PUDR, Delhi, November 1984.)

Archived from Communalism Combat, November 2009 Year 16    No.145, Cover Story 6

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