Why this pattern of impunity
Beyond the lament of injustice, it is important to discern
and identify the reasons why both the law and the judiciary fail to
deliver justice to the victims of communal carnage. The present legal
system has failed to award penalty for communal crimes, for these events
overturn some fundamental premises on which the criminal justice system is
based. The rubric of the Indian Penal Code (IPC), the Indian Evidence Act
and the Code of Criminal Procedure (CrPC) is not designed to adjudicate
and punish the perpetrators of a communal pogrom.
The violence unleashed against the Sikhs in Delhi in 1984,
Muslims in Gujarat in 2002 and Christians in Orissa in 2008 is usually
labelled ‘riots’. The term ‘riot’ as defined in Section 146 of the IPC or
the commonly used phrase, ‘communal riot’, implies a violent clash between
members of different religious communities, causing loss of life, limb and
property to both. This phrase is inaccurate to describe the communal
violence under discussion, which was a premeditated and organised
targeting of the minority community, carried out with the explicit and/or
implicit sanction and support of the state, its representatives and
functionaries. The term ‘pogrom’ is more appropriate to describe the
events of 1984.2
A corollary would be that the list of accused persons to
be prosecuted must include not only those whose hands killed, sexually
assaulted, looted and burnt but also the minds that planned, incited,
abetted, conspired and provided financial and other resources as well as
those who abandoned their constitutional duty to protect the people caught
in the vortex of communal violence.
A successful prosecution hinges on professional
investigation by the police. The Kusum Mittal report indicted 72 and
recommended summary dismissal of six senior Delhi police officers for
their culpability in the 1984 carnage. The executive exonerated them all.
After the massacre, for the police the registration of crimes and
investigation of offences are a matter of political expediency. In a case
of 1984, a Delhi trial court stated, "After the rioters had done their
job, the rest of the job to frustrate the investigation was done by the
police."3 The shoddy and partisan investigation conducted by the police
undermines the very foundation of the prosecution.
The absence of an independent and effective investigating
agency is felt most acutely when victims and survivors have to beseech the
very police force that through myriad acts of omission and commission was
complicit in the communal crimes. The directive of the Supreme Court in
the Prakash Singh judgement is a beginning in the direction of a
professional investigating agency but much more remains to be done.
Experiences from across the country indicate that the
malaise runs much deeper. The police as a force have displayed an
institutional bias against religious minority communities. A communalised
police force, enjoying de facto and de jure immunity and subject to weak
mechanisms of accountability, will only reinforce the already etched
patterns of impunity for communal crimes. This deep sectarian
institutional bias displayed by the police force against minority
communities is further aggravated by the de facto and de jure immunity
enjoyed by them. A serious hurdle in punishing public servants is the
shield of legal immunity provided by Section 197 of the CrPC, which must
be repealed.
The underlying premise, of the state as the parent and
protector, stands completely distorted when the political executive dons
the mantle of the mastermind and becomes an accomplice in communal crimes.
The present legal apparatus requires the executive, which stands deeply
implicated, to discharge the onerous task of prosecuting itself and its
henchmen. In such a scenario, the filing of closure reports by the CBI
against Congress leaders, or the Tehelka sting operation showing
public prosecutors in Gujarat scheming to derail trials, should come as no
surprise. For the prosecution of communal crimes, the law must grant the
public prosecutor a measure of institutional autonomy and functional
discretion.
Although the IPC defines murder, rioting, rape, it is
insufficient for convicting either the mobs or the masterminds. The
criminal provisions of conspiracy and abetment are also inadequate to nail
the sponsors of communal crimes. Sections of the IPC simply list and
describe the acts that are labelled crimes. The IPC does not envisage mass
crimes where an entire community is systematically targeted by reason of
their religious identity and this attack is carried out with the direct
and/or indirect complicity of state institutions and agents. For the
guilty to be nailed, the law will have to be amended to adopt a distinct
typology of crimes akin to the ‘crimes of genocide’ and ‘crimes against
humanity’ as codified in the statute of the International Criminal Court.
The CrPC prescribes the procedure for purposes of
investigation and trial notwithstanding that during the pogrom the
investigators and prosecutors were themselves complicit in the crimes and
later obliterated traces of the same. The Indian Evidence Act too demands
the same kind and degree of proof for communal crimes as otherwise. For
instance, delay in lodging the FIR by a survivor, or absence of
corroborative material evidence, or non-mention of names of accused in the
statements recorded by the police, or absence of a medical report can lead
the court to draw an adverse inference against the victim without taking
cognisance of the difficult circumstances prevailing at the time. It is
therefore critical to formulate new rules of procedure and evidence,
sensitive to the context of communal violence.
Women whose bodies become sites of contestation and
community ‘honour’ rarely get redress. The failure of the present law to
even provide a definitional description of the brutality and scale of
sexual violence suffered by women emboldens its denial.
The weakness of the law is most glaring in its abject and
recurring failure to punish those who sponsor and profit from the carnage.
To extend criminal liability beyond the actual perpetrator and affix
culpability of political leaders and persons in positions of social,
administrative, civil or military authority, the principle of
command/superior responsibility must be incorporated. This would make the
leaders criminally responsible for failing to take reasonable measures to
prevent crimes committed by subordinates under their effective control and
about which they can reasonably be presumed to have had knowledge. Thus
the escape route deployed by political leaders, of ignorance and inaction,
while their party men kill and burn, could be plugged. It is time to shift
the burden of responsibility from the victim witness to those at the helm.
Clearly, the jurisprudential yardstick of ‘normal times’
cannot be indiscriminately applied to decide trials marked by an
extraordinary collusion of state agencies and institutions. This challenge
must be met not by whittling down the guarantees and rights of the accused
but rather by exacting greater accountability from the state and
empowering the victim.
As the home minister sagely advises us to ‘let the law
take its own course’, it is pertinent to point out that the delay in
punishing the guilty of 1984 for 25 years indicates an urgent need to
forge new legal tools to alter this pattern of continuing injustice and
rampant impunity. The UPA government has yet to fulfil its promise of
introducing a comprehensive legislation against communal violence. A
flawed beginning in this respect has been made by the government through
the introduction of a bill that has been rejected outright by citizens’
groups. Criticising the same, a public statement stated, "What we have
before us today is a dangerous piece of legislation called the Communal
Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005,
which will not only fail to secure justice for communal crimes but will
actually strengthen the shield of protection enjoyed by the state, its
political leaders and its officials for their acts of omission and
commission in these crimes. It is a bill which conceives of communal
violence as a ‘one-time’ event rather than as a long-term politically
motivated process and seeks to prevent it only by giving greater powers to
(often communally tainted) state governments. Further, it continues to
perpetuate the silence around gender-based crimes."4
Notes
1 ASJ OP Dwivedi, State vs Kishori & Ors,
Karkardooma, Delhi, SC No. 53/95, FIR No. 426/84. p. 1.
2 Jyoti Grewal argues that the 1984 anti-Sikh violence was
a pogrom in Betrayed by the State: The Anti-Sikh Pogrom of 1984,
Penguin Books India, 2007, pp. 14.
3 ASJ SN Dhingra, State vs Kishori & Ors,
Karkardooma, Delhi, SC No. 42/95, FIR No. 426/84, p. 9.
4 Public statement released at the National Consultation
on the Communal Violence (Prevention, Control and Rehabilitation of
Victims) Bill 2005, June 16, 2007, New Delhi.