When Law Runs like a Refugee

The crisis in the Indian judicial system is self-evident. The fact that the Supreme Court is forced repeatedly to constitute Special Investigation Teams (SITs) is an admission by the court that the present machinary is complicit and essentially unaccountable. Transfering cases outside the concerned state is also a pointer that in fact it is the law which is running like a refugee, says Vrinda Grover while delivering the 3rd Prof. Iqbal Ansari Memorial Lecture on Communal Violence and the Question of Justice: Notes from the Field and the Courtroom.

[Following is the gist of the lecture. The full video will be uploaded soon.]

The victims of recent communal violence in Muzaffarnagar have only joined the victims of Delhi anti-Sikh massacres, Hashimpura, Maliana and Gujarat 2002 pogrom in waiting for the ‘due course of justice’ to prevail.

While the Indian Constitution is a watershed in upholding equality before law and justice to the victims of individual or collective violence, the Indian Penal Code (IPC), a colonial legacy, lags behind the spirit of the Constitution. While there are provisions against citizens if they turn against the state, the law does not really enivsage the state committing crime against its citizens. Public servants can be prosecuted for individual crimes or misconduct, but the state doesn’t lend itself to be questioned and prosecuted. This is evidently in discordance witrh the Article 3 of the Constitution which ensures fundamental rights against abuse of power. Therefore, the criminal legal system runs contrary to the kernel of the fundamental ethos of the Republic.

Seen in this light, the rampant impunity does not really come across as some surprise. Cases like that of Bilkis Bano [from Gujarat, which ended in conviction of the accused] are at best exceptions and not an example of best practices.It took many years of relentless efforts on part of the activists to ensure justice. So I don’t hail it as a success of the judical system.

The term ‘riot’ as defined in the IPC is grossly inaccurate and does not capture the premedidated and organised killing of the minority communities. A corollary to amending it would also be to include the abetment of such violence in its purview and bringing such culprits to the book. We need a new language to describe the nature of communal violence and its dynamics. One does not really need to invent such language. Some part of it is evolving in the expanding contours of the judiciary, but importantly, a lot has to be incorporated from the international conventions and understanding on the issue.

The crisis in the Indian judicial system is self-evident. The fact that the Supreme Court is forced repeatedly to constitute SITs is an admission by the court that the present machinary is complicit and essentially unaccountable. Transfering cases outside the concerned state is also a pointer that in fact it is the law which is running like a refugee. It is a recognition that the present mechanism is not working. The crisis is also manifested in the non-existence of an independent investigating agency. CBI is not such an independent body. I appeared in a 1984 case in karkardooma High Court some 3 years back, filed by a Sikh widow whose husband was killed by a mob being supervised allegedly by Jagdish Tytler himself. His name appeared in the CBI chargesheet in the column which indicates absence of evidence and hence non-feasibility of FIR. For every single witness in the case who says he saw Jagdish Tytler instigating violence or people being killed by his goons, there were three other witnesses saying they did not see, in the same chargesheet. The point is, it is anyways possible for 3 people in the event of a riot to narrate different versions even if they were at the same place and the CBI should have followed up on the line which pointed at active instigation and organised violence. I saw no such dilligence on part of the CBI in the case.

Institutional Bias of the Prosecuting agencies:

The burden of collecting and producing evidence falls in such cases squarely on the victims themselves. The power to do so lies with the CBI but is severely compromised. The recent letter by the Home Minister Sushil Shinde saying the Muslims should not be targeted might have been wrongly worded but it did reveal that there is an institutional bias against the minorities. JTSA has come up with empirical evidences of such bias in its reports. My plea to the National Commission on Minorities is that it should conduct independent research to bring out the truth of such systemic bias. Institutional bias emerged in England in Sir Mcpherson Commission appointed to deal with a black boy’s killing by a white boy. The parents insisted that it is not just an individual crime and reflects the systemic bias. In India, there is similar institutional bias against minorities, Adivasis, Dalits and poor. And this bias goes much beyond the police.

Unabated Impunity

The government officials cannot be prosecuted until the complainant succeeds in getting their seniors’ approval to do so. This is called ‘sanction for public servants’ which is only a continuation of the colonial vintage ‘sanctions for the servants of the crown’ with just the title changed. Why this legal impunity? Why the people who are running the system have no faith in judiciary that if they have done no crime they will come out unscathed?

The prosecutor does not have institutional or functional autonomy in India. In the Hashimpura case, we got a special public prosecutor after much travail. 90 families filed 600 RTIs demanding the Annual Confidential Reports of the accused police officials. There was no mention in the ACRs of any ongoing murder case against them. Why is the police entirely insulated from accountability? In fact it is the activists who have made great contribution in expanding the justice system. Accountability of the command and control system must also be ensured. The heads of the system should be held accountable if they indulge in or are unable to stop targeted violence.

In the Kandhamal incident, the rioting followed the map of procession that the Hindutva groups organised with the dead body of Swami Lakhananand. The local officials must have sensed that it would provoke further violence but still allowed it to happen. The law isn’t faulty just because of the bias, but also because of the structure. It is interesting to note that a student’s witness in the case was accepted by the court even after a long time had lapsed, as the lawyer said that the person studies sanskrit and sanskrit students have better memory! And most amazingly, this argument was accepted by the court.

The proposed Communal Violence Bill by the Congress party in 2004 has not been passed even in the UPA-II. The Bill creates ‘communaly disturbed areas’ much like the AFSPA and gives more power to the same state machinery which has been found to be institutionally biased and complicit. I personally think the goverment is not serious really about the Bill hence it has brought a version which they know will be opposed by the BJP. Instead of protecting the ‘minority group’, let the law protect just anybody. We are asking for accountability in the system and that aspect should be strengthened. A robust victim-witness protection is of more importance. The second pillar of the Bill is reparation where it again fails to address the grossly arbitrary system of state government deciding relief and compensation on its own whims. Even in a road accident, the compensation is fixed.

Chair’s Remarks:

In her chair’s remarks, Prof. Farida Abdullah Khan, someone who herself has engaged with communal violence issues for years, said that there was much for us to reflect upon on the issues raised by Adv Vrinda Grover, especially in the light of the developments following the Muzaffarnagar violence. She said that we must all dwell on the. These were questions linked findamentally to the future of democracy itself. Can the safety and security of Muslims be ensured only through Muslim police officers, and only in Muslim concentrated spaces.