Punish the guilty, compensate the victims
After seventeen years of the ghastly incident of the cold blooded massacre of 42 Muslims of Hashimpura (Meerut) by the PAC motivated by hate and revenge, the framing of charges against the 18 PAC men accused of murder and conspiracy is yet to begin. When two years ago the Supreme Court transferred the case from Ghaziabad to Delhi, for those who are not so well versed in the labyrinthine and crooked course of law in India, the transfer engendered a sense of being out of the tunnel. But soon it got established that the course of law is not straight or certain.
|Bodies of Meerut victims being fished out of Hindon canal
The massacre was inquired into by the CBC ID of the State of U.P. which submitted its report in 1994. A writ Petition (No. 1379 of 1995 MIB) was filed on 15 February 1995 by Jamaluddin and others of Merrut before the Lucknow Bench of the Allahabad High Court praying for making the CBCID report public and the trial of the indicted PAC personal and payment of adequate compensation to the victims. The Government of Uttar Pradesh sanctioned prosecution on 1st June 1995 and filed charge sheet against 19 of the indicted PAC men in the Court of CJM Ghaziabad on 20 May 1996.
The callous disregard of people's right to justice by the successive Governments in Uttar Pradesh from 1996 to 2000 is obvious from the fact that the accused PAC men were never arrested and produced before the court, though bailable and non-bailable warrants were periodically issued 23 times against them between January 1997 and April 2000 by the CJM, Ghaziabad. The PAC men were in service and their posting and residential addresses were there in the file. In the counter-affidavit filed by the CBCID before the Lucknow Bench on 13 March 1997 the fact that the PAC personal unlawfully kidnapped innocent people from their houses and shot them dead has been admitted.
When the ghastly incident had occurred, leading political leaders, intellectuals, media persons and human rights organizations had condemned the incident as a Nazi pogrom to terrorise Muslims and given a call for special trial for treason. However it was only after the publication of the story by Siddharth Varadarajan in the Times of India on May 17, 2000 that the accused surrendered in May-June 2000 and were released on bail. The case continued to be adjourned in the trial court Ghaziabad on one ground or the other.
The Minorities Council, assisted by the PUCL, approached the Supreme Court for transfer of the case from the State of U.P on the ground that the sequence of the case and factual circumstances demonstrate not only deliberate delay but apparent collusion between the prosecution and the accused.
The apex court acknowledged this and in the interest of justice passed order on September 27, 2002 transferring the case from ADJ-IV, Ghaziabad to the sessions court Delhi. The District Judge assigned the case to the Tees Hazari Court of ADJ Shri RK Jain, where the 17 of the 19 accused appeared on October 30, 2002 - one was reported dead and one was absent. Since then the matter has come up before the learned court on seventeen dates between Nov.26, 2002 and September 17, 2004. On some earlier dates the matter was adjourned in view of the fact that the Public Prosecutor (PP) reported that the appointment of Special Public Prosecutor (S.P.P) was under consideration by the Government of Delhi Administration. On March 17, 2003 it was noted that no P P had been appointed by the Govt. of U.P. However the order sheet shows further noting on April 10 and July 5, 2003 regarding expected appointment of S.P.P. by the Delhi Administration. On January 3, 2004, the order sheet notes that the case is lingering for want of Public Prosecutor on behalf of the State of U.P. and a letter was to be written to the District Judge in this regard.
On the next date i.e. February 3, 2004 taking a serious view of the non-appointment of the PP by the State of U.P. the DGP and Chief Secretary of U.P. were summoned for explanation.
On March 20, 2004 Shri Ashish S. Kulshreshtha appeared as SPP on behalf of the State of U.P. After three adjournments for various reasons, on September 17, 2004 the objection of Vrinda Grover, Advocate for the complaints that Shri Kulshreshtha, who did not have ten years experience of legal practice, could not be appointed S.P.P. as required under Section 24(8) of the Cr.P.C., was accepted by the Court and orders have been issued for fresh appointment of a duly qualified S.P.P by the State of U.P. The matter will come up before the court on October 14, 2004.
In view of the facts and circumstances, of the case, is it rational and fair to vest the Government of the State of U.P. with the authority for appointment of an independent and competent prosecutor who can do justice to the case? It should be kept in view that it is a case where 19 PAC men are accused of conspiracy and murder, which involves senior PAC officers under whose command these men were functioning. Generally the governments at the Centre as well as the States in independent India have exerted their utmost to see to it that police and security personnel are not punished, as these forces are considered the props of their power - and any punishment to them will cause, in their view, their demoralization.
In view of this, and in view of the fact that the case is 17 years old which involves extensive and intensive research on the part of the prosecutor, justice can only be done to the case by a thoroughly competent team of independent prosecutors, assisted by researchers. If the existing jurisprudence does not provide for dealing with such situations, there is a need to take recourse to special procedure, as recommended by the National Police Commission's Report VI on Communal Riots (1981).
How the existing laws or absence of effective laws have caused denial of justice to victims and made the guilty enjoy impunity is best illustrated by the other dimension of the case i.e. compensation to victims. The Government of U.P. paid rupees forty thousand as relief to the next of those killed in two instalments, which, according to its counter affidavit filed before the Lucknow Bench on March 13, 1997 is adequate amount in accordance with law as directed by the apex court.
The issue of adequate compensation raised in the writ petition by Jamaluddin and others of Hashimpura (Meerut) lay buried in the file before the Honourable High Court since 1995. It came up for hearing for the first time on 27 August 2004 when it was adjourned. It is to come up now on 28 September 2004.
The account given above exposes the insensitivity and lack of concern for justice of not only the political establishment but also of the justice delivery system and the inability of existing procedural laws to effectively deal with such hate mass crimes, especially those committed by the police & security personnel.
It should also remind us -- especially people of high moral sensitivity like Chandra Shekhar, IK Gujral, Rajinder Sachar, Kuldip Nayar, and many others who spoke out at the time against this Nazi progrom and called for special trial for treason -- that rhetoric is not enough. We failed to show any perseverance in pursuing Hashimpura case, as is now happily being done in the Best Bakery and other cases in Gujrat 2002. We should not forget that the Hashimpura cold blooded killings of 42 Muslims by the PAC is the worst ever crime against humanity motivated by religious hate and revenge in Independent India. It deserves urgent attention of all statutory Commissions and human rights groups.
Iqbal A. Ansari
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