//Judiciary and Communal Violence

Judiciary and Communal Violence

Asghar Ali Engineer (Secular Perspective May 1-15, 2004) www.csss-isla.com

Communal riots have been taking place in this country since early sixties when the first major riot took place in Jabalpur in M.P. in Madhya Pradesh in 1961. Since then hundreds of riots took place in India and innumerable people were killed. Hardly few people have been punished for killing and murdering in the riots. There are several reasons for this.

Those killed are generally poorest of the poor and those survive them hardly wield any clout. The police, also, therefore, show total indifference in investigation and filing charge sheets. The police has been communalised and distorts the case right at the stage of filing FIRs. In most of the cases investigation is closed after sometime saying further investigation not possible. Greater the communalisation of the police more of such closed cases. In Mumbai riots of 1992-93 too several cases were closed.

In many cases the police itself is the culprit in aiding and abetting the crime. In the Gujarat carnage of 2002 the police was openly helping the frenzied crowds and providing them protection. In many cases ministers were allegedly leading these crowds and so the police had all the reasons to either help the crowd or look the other way when murdering, looting and burning went on. How can then police investigate against itself. The only alternative for it is to close the cases.

And when it does investigate, it is half way house and charge sheets are filed in a way the accused may be discharged. The police even manipulate the case diaries. The Madon Commission appointed to inquire into the Bhivandi-Jalgaon riots of 1970 strongly reprimanded the police authorities for forging daily diaries and manipulating its contents. Thus with such half hearted investigations and biased role of the police the culprits can hardly be expected to be punished. They are more often than not, discharged by the courts. Thus there are very few instances of accused in communal riots being punished.

The judiciary at lower levels is not much different. It is also often biased. It grants bail to members of one community while refusing the same to the members of another community. Also, as it happened in Best Bakery case in Baroda, it hardly takes careful and critical view of the case and tends to discharge the accused. And it is not for the first time in Gujarat. Gujarat has witnessed several riots in the past and judiciary has hardly behaved differently. In that state even the high court does not have record to be very proud of.

Since 1960 riots of Ahmedabad Gujarat has very dubious record in this respect. The then Jana Sangh and then the BJP have systematically made efforts to communalise the society, the police, the administration and the judiciary. It is as a result of all this that the Gujarat is proudly referred by the Sangh Parivar as the ‘laboratory of Hindutva. In no other states one would find boards in village after village that "Panwad in Hindu Rashtra welcomes you". Is it against the Constitution? Who cares any way. It is after all laboratory of the Hindutva.

It is, therefore only higher judiciary, especially at the Supreme Court level that provides relief to the victims of the communal violence. The Supreme Court rightly ordered the Modern Bakery case to be tried outside Gujarat. In that state where all the organs of the state and civil society too has been communalised how can one hope for justice within the state? The state prosecutors are often members of VHP and more than prosecution lawyers they act as defence lawyers.

It was in the light of all this that the Supreme Court maintained "Justice should not only be done but be seen to be done". Keeping in view the peculiar circumstances of the case, the ample evidence demonstrating subversion of justice delivery system with no conducive atmosphere still prevailing, we direct the re-trial shall be done by a Court under the jurisdiction of Bombay HC.

The Supreme Court has come to the rescue of the victims of communal carnage in Gujarat. It is the higher judiciary, which provides hope to the helpless victims. But for the Supreme Court the victims would have had to reconcile itself with gross injustices in the land of Hindutva. The victims of communal carnage in Gujarat felt unsafe at every stage. The witnesses were threatened and the state administration took no step to protect them. The prosecutors provided by the state, as pointed out earlier, were VHP members. There was no other way for witnesses like Zahira Sheikh but to turn hostile.

The Judge concerned of the fast track court also did not make efforts to find out why the witness had turned hostile. He simply discharged the accused on that basis. It was gross abortion of justice. Even the High Court was no different. The Supreme Court took serious notice of role of the High Court in Gujarat. "The High Court", the Supreme Court observed, "made unwarranted reference to personalities and their legitimate moves before competent courts, despite knowing it could not deal with such matters. Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy."

The Supreme Court judges observed in their judgement "The modern day Neros were looking elsewhere when Best Bakery and innocent children and helpless women were being burnt and were probably deliberating how the perpetrators of the crime can be saved or protected." Even more forthrightly the learned judges of the Supreme Court observed, "Law and justice become flies in the hands of these wanton boys. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments."

The court referring to acquittal of the accused observed, such acquittals were "unmerited, based on tainted evidence, tailored investigation, unprincipled prosecution and perfunctory trial and evidence; and threatened or terrorised witnesses" The Court also observed that if these findings were accepted that would amount to " travesty of truth and a fraud on the legal process." In these few sentences the learned judges have described very succinctly the situation in Gujarat.

Thanks to the founding fathers of our Constitution that they thought of independence of judiciary and our judiciary at higher levels has been remarkably independent and this has given hope to the helpless victims of the executive organ. It clearly shows that only those who care for the weaker sections of society can be expected to maintain communal harmony.

The Indian intelligentsia should reflect deeply on the observations of the Supreme Court in the Best Bakery case and make all possible efforts to restore secular values of our democracy. Our democracy has been hijacked by communal and casteist forces laying political games. It is for the intelligentsia to rescue it from their clutches.

Posted on 2004-05-24