National

Separate law needed for organized violence

By M R Shamshad

One of the chapters of our Constitution makes certain duties “obligatory” and “fundamental”. These duties have put the citizens under certain obligations towards the Nation and Society. These duties include: duty to develop scientific temper, protect rich heritage and composite culture, environment, National Flag etc. This is different from the Chapter of Fundamental Rights wherein the citizens could claim rights against the State.

Like the “fundamental” rights of a citizen, the “fundamental” duties can be said to have same significance to strengthen the composite society by placing citizens under obligation to undertake this exercise. One such fundamental duty is “to safeguard public property and to ‘abjure violence’”.

Recently the Supreme Court invoked the principle of scientific temperament and has stopped the 450-years-old game called “Jallikattu”, an organized “Bull Fight” in Tamil Nadu and “Bullock Cart Racing” in Maharashtra.

For a citizen to understand the responsibility with penal consequences, special laws have been passed qua environmental protection, National Flag, Ancient Monuments, for various scientific developments, emergency provisions to protect sovereignty and integrity of the Nation etc. However, one of the important aspects of fundamental duties to “abjuring violence’’ has seen unrealistic phase on the part of the obligated class. Though belatedly, an special legislation was passed in 2005 to control violence but it was kept confined to “domestic violence” subjected to a woman but a very serious type of violence on communal basis is still being tried under the general criminal law, i.e., Indian Penal Code (IPC) which is meant for the crime of general nature.

From time to time, we have realized the need to curb specialized crimes and we made special laws like TADA, UAPA, NDPS, prevention from atrocities of SC/ST, food adulteration, cruelty against animals, and transplantation of human organs etc.

An effective legal process to deal with the perpetrators of communal violence is still a subject matter of political quandary.

In 2008, a Supreme Court Judge (H.S.Bedi) took a dissenting view (from the other judge) while dealing with the criminal case arising out of communal violence. After referring to various reports relating to communal violence, he raised the question as to whether a “murder committed during a communal riot” can be equated with the murder in “normal course”. By holding that the two circumstances are different, the evidence of the defence in communal violence cases needed to be examined differently. However, the larger bench took a different view, making the view taken by Bedi J ineffective.

The indications are very clear that the general Criminal Law to deal with the circumstances in communal violence is not sufficient and the accused takes the benefit of lacunae in the criminal law. The low rate of final convictions in such cases proves this.

From 1969 onwards, various commissions of enquiry have reported as to how the local police behave during the communal violence. Victims’ complaints are not registered, evidence is destroyed or not taken into consideration, and a particular community is implicated in the violence.

Ranganath Mishra Commission (1984), reported that “the riots occurred broadly on account of the total passivity, callousness and indifference of police in the matter and controlling the situation and protecting the people of Sikh community” and the police wanted withdrawal of cases against the perpetrators of violence.

Thereafter, in the preliminary report on Mumbai Riots of 1993, Srikrishna Commision reported that “police officers and men, particularly at junior level, appeared to have an inbuilt bias against Muslims which was evident in their treatment of the suspected Muslims and Muslim victims of riots”.

If that be so, how the investigation process and the enquiry on complaints would proceed, is the matter of serious concern. The amount of reluctance in lodging an FIR in a normal case is known in our system.

Given the situation reflected in the reports, the police has unlimited discretion to frustrate the efforts to lodge FIRs against the violence until lives have been lost and the pressure of senior officials, and now media, works. Upon the limited FIRs in serious matters, the police is the sole authority to collect, ignore and discard material evidence against the offenders and file or not to file the charge sheet at their whim and fancy and that is the time when loopholes are provided with intention of providing a means of acquittal to the accused. Even when the charge sheets are filed in certain cases, whether ultimately the charges would be sustained after the judicial scrutiny or not, the police is not affected.  

The low rate of convictions in the communal violence case, due to limited registration of FIRs, has not been discussed to make our police system accountable to its citizen.

The role of public prosecutors prosecuting the offence is also equally important. How generally cases of communal violence have been dealt to close them by the prosecutors in 2002 Gujarat cases have recently been exposed in the sting operation of Ashish Khaitan.  The effect of all this is no registration of FIRs and/or no conviction after the chargesheets or very very low convictions. In Gujarat riots cases, the conviction is stated to be 5 percent in cases where the prosecution was in the hands of the state (Police) and 39 percent where the Supreme Court intervened and kept watch on the proceedings.

In the recent violence in Muzaffarnagar, a total 566 FIRs had been lodged naming about 6403 persons. Out of the FIRs, 59 FIRs related to murder cases. During the investigation, the police decided that 48 FIRs were falsely registered, 549 persons (516 Hindus & 33 Muslims) were falsely implicated, 3803 persons were implicated in more than two FIRs and hence dropped. Finally the scope of further investigation had to be confined with only 984 accused. The arrest and surrender of the accused is stated to be continuing. Under these circumstances, the view of the police, which acts by applying a general criminal law on the issue of removal of names of the accused from FIRs, dropping of FIRs or stating that FIRs had to be dropped because one person is involved in more than one FIR etc, goes unchecked. One person could certainly be involved in more than one offence during the same violence but why should he face only one FIR or only one criminal trial?  Very few cases have been able to reach the higher courts when proper cognizance has been taken to such lapses.

Why can’t our representatives move a little ahead from the thought process which enables the sate functionaries to ignore the issue which ultimately infringes upon the most valuable right to life guaranteed under Article 21 of the Constitution? We cannot move on with this administrative callousness on the issue of security to life. The need of the hour is for the political class to realize its fundamental duty to the citizens. We have passed legislations for the SCs/STs and dowry prohibition etc where the onus of proving innocence has been put on the accused. In organized violence, we still depend upon the legislation where the evidence has to undergo serious scrutiny and the presumption of innocence is carried by the accused till the conclusion of trial. What would be the rate of conviction in the trial of Muzaffarnagar riots case? 5 percent or 39 percent is a matter for us to wait and watch.      

The author is Advocate-on-Record,
Supreme Court of India

This article appeared in The Milli Gazette print issue of 16-31 July 2014 on page no. 6

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