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Published in the 16-31 May 2004 print edition of MG; send me the print edition

Judiciary and communal violence
By Asghar Ali Engineer

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 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 have 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.

It is total lack of confidence in the judicial system in Gujarat. The BJP, which talks of ‘good-governance’ has to do serious introspection. What kind of governance it is providing in a state, which is governed solely by BJP? What will happen to the judiciary in the country if ever the BJP comes to the power at the Centre. In M. P. and Rajasthan where it has come to power of its own saffronisation is going on apace and one shudders to think what will happen to judiciary there in times to come.

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.”
This admonition by the highest court in the land should be enough for any sensitive judge of the Gujarat High Court but one wonders if it would have intended effect on the Gujarat judiciary. The Supreme Court in its remarks even reminded the people of “modern day Neors”. It is very apt reference to Nero though it is not clear who the highest court has referred to as Nero. Nero was one who sent several Christians to death and was condemned to death by the Roman senate in 68 A.D. 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. 
Such strong remarks from the highest court in the land warranted immediate resignation of the Chief Minister but in the rule book of the ‘good governance of the BJP no such action was necessary as all this was done deliberately to teach Muslims a lesson'. It is ironical that the same party is asking for the Muslim votes in the Lok Sabha elections taking place in the country and some opportunistic Muslims have rushed to the rescue of the beleaguered party. However it is a different story we are not concerned with here.

India is a biggest democracy in the world and we all are justly proud of the same. However, the politicians hungry for power have robbed our democracy of all its worth and used communal and casteist discourse for easy way to power. It is judiciary at higher echelons, which comes to the rescue of helpless victims of the executive organ. 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.

The politicians with secular ideology also proved not very different and encouraged casteism and communalism for clinging to power. Only those politicians who are committed to left ideology have shown sincere commitment to secularism and communal harmony in the country. It clearly shows that only those who care for the weaker sections of society can be expected to maintain communal harmony. But among non-left secular forces there have been very few who showed sincere commitment to secular values except as public rhetoric.

If there has been such failure on the part of secular forces what of the BJP with its professed ideology of Hindutva? Can it ever be expected to care for rights of minorities and their securities? Certainly it is asking for the impossible. One should not be taken in by their election rhetoric of secularism and rush to elect them. They swore by ‘secularism’ on Father of Nation’s Samadhi and began to use stark communal discourse within a year thereof.

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.

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