Justice is no half-way house

Convictions for the 1993 Mumbai bombings have deepened Muslim despondency about securing justice for the victims of the far worse riots that preceded them.

Justice B.N. Srikrishna.

JUDGE P.D. Kode of the Mumbai Special Court under the Terrorist and Disruptive Activities Act has become a hero to large numbers of middle-class people. He appeared to represent a refreshing exception to their negative impression of the justice delivery system by virtue of his image of being bold, upright, impartial and, above all, tough in sentencing a hundred people for planning, causing and abetting the March 1993 Mumbai bomb blasts. But his judgment has polarised opini on as never before and created new insecurities among Muslims.

This polarisation poses a serious challenge to the entire Indian political system and the credibility of its pluralist-secular claims. This challenge must be faced squarely if the publics faith in the possibility of securing justice for all citizens is to be restored. The task of mending and reinforcing Indias secular fabric, which has frayed over the past two decades or more, can no longer be postponed.

The polarising impact of Justice Kodes verdict was magnified because of the unprecedented months-long period over which the sentencing process was spread, the dramatic suspense over Sanjay Dutts fate until July 31, and because of the judges personal remarks Im only taking six years from your life, which he hoped would be a hundred years long which were considered by many to be out of order.

Another factor that amplified the effect was the coincidence of the trials last few days with the drama in Australia involving Mohammed Haneef, which exposed his unfair detention and the presumption of his guilt by association, and finally his release and return to India. This highlighted the commonness of the discrimination Muslims face in different countries.

A lot of questions are likely to be raised about the pardon Justice Kode granted two crucial witnesses, Badshah Khan and Murad Shah (both pseudonyms), whose testimony was central to the conviction of the more than 30 accused persons, including 11 of the 12 bombers sentenced to death.

Khan was part of the bomb blast conspiracy and a member of the Tiger Memon gang. By his own account, he was recruited to execute the plot and was involved in all three parts of the conspiracy: arms training in Pakistan (in mid-February 1993), smuggling of arms and explosive material into India, and loading and deploying vehicles carrying the bombs. Dutt was convicted on a far lesser charge but sentenced to six years, while Khan was let off. Similarly, all those connected with Yakub Memon were given harsh sentences.

Justice Kode acquitted Khan and Shah under Section 306 of the Criminal Procedure Code, which empowers the courts to pardon anyone who makes a full and true disclosure of all the circumstances within his knowledge relative to the offences. It is not clear why the same criterion was not applied to some of the others.

As for Yakub Memon, several reports suggest that the Central Bureau of Investigation tricked him and his family (barring Tiger) into returning to India by assuring them that if they were truly innocent (as they believed they were), their rights would be protected in a fair trial in democratic India and they would be exonerated (for a vivid account of Yakubs story, see Will someone shed a tear for Yakub Memon? by Maseeh Rahman in T he Sunday Express, August 5). Yakub was sentenced to death not for directly planting bombs or killing anyone but for organising the money to buy the vehicles used in the blasts.

None of this speaks highly of the trial or, more broadly, of Indias justice delivery system. But what rankles even more is the failure of the government to bring to book the culprits of the December 1992-January 1993 communal riots in Mumbai following the razing of the Babri Masjid. About 900 people were killed in these more than three times the number who perished in the March 12 bombings. Nearly two-thirds of those killed were Muslims. They became targets of a most pernicious form of collusion between communal Shiv Sena and Bharatiya Janata Party (BJP) leaders and the Congress-led government, in particular its police.

As Justice B.N. Srikrishna, who inquired into the violence, concluded, there was a cause-and-effect relationship between the riots and the bomb blasts that followed. After a painstaking inquiry and analysis of the testimonies of 502 witnesses, 2,903 documents, and depositions running into 9,655 pages, the judge presented a thoughtful 700-page report in 1998.

The report rejected the lame official argument that the January 1993 riots were a Hindu backlash against the Radhabai Chawl incident in which a Hindu family was burnt alive. Rather, it established that after January 8, the Shiv Sena seized the lead in organising attacks on Muslims with the help of the police. Through its editorials, the Shiv Sena daily Saamna literally directed the rampaging mobs day after day to attack specific Muslim bastis.

The Srikrishna Report indicted 31 policemen; the effete political leadership of the ruling Congress, which failed to prevent, stop or control the violence; and Hindu communal leaders including Bal Thackeray, Gopinath Munde, Madhukar Sarpotdar and Ram Naik for inciting mobs and even the police to violence. (More than 350 Muslims died in police firings.)

The list of indicted police personnel runs all the way from deputy commissioner to constable. The commissions report found them utterly trigger-happy, guilty of unnecessary and excessive firing resulting in the deaths of innocent Muslims, extremely communal and guilty of inhuman and brutal behaviour. They were responsible for allowing a violent mob to hack Muslims to death and of actively conniving with communally charged rioters.

The commission accused the police of going on a rampage and attempting to shield miscreants belonging to the Shiv Sena and openly indulging in riots while carrying naked swords. Some of these officers, it said, suppressed evidence, misled senior police officers, looted articles and furniture and allowed the kidnapping of an 18-year-old girl and the brutal murder of a handicapped person.

The commission recommended strict action against these culprits and said their lapses in investigations were not merely cases of negligence but deliberate attempts to suppress material evidence and sabotage the process. The Sena-BJP government, which came to power after Srikrishna submitted his report, shelved it. But the Congress-Nationalist Congress Party government, which followed, promised to take the actions recommended by the commission. The governments performance on this score has been abysmal. Most of the 31 indicted policemen were promoted, including Joint Commissioner R.D. Tyagi. All were released on bail, and not one policeman spent a single day in a police lock-up. A majority escaped criminal prosecution because no charge sheets were filed.

The governments response to the recommendation to prosecute Sarpotdar, a Member of Parliament, was equally supine. On January 11, 1993, Sarpotdar and six others were found travelling in a jeep, with three guns, two of them unlicensed, and other weapons. They were allegedly directing armed mobs to kill Muslims.

Sarpotdar was arrested, but let off. He was later twice detained under the National Security Act, but his detention was lifted on flimsy technical grounds. Within four years, he was back carrying out his communal antics as during the installation of a Ganesh idol in Mumbais western suburbs. Yet, no action has been taken against him and no prosecution launched. The same applies to Thackeray, who never disowned the Saamna editorials that incited and directed his supporters to lynch Muslims. Yet, the Bombay High Court refused to issue a writ to the government to prosecute him.

Nearly 15 years on, this pattern of unequal, discriminatory treatment of different groups of offenders is sending an unmistakable message to millions of Indians not just Muslims but secular citizens belonging to all faiths: namely, the Indian police and justice delivery systems have a majoritarian bias.

This is simply incompatible with the minimal requirements of an inclusive society and a secular political order that aspires to any legitimacy. Unless we want to foment alienation among our minorities and create deep social rifts, we must take corrective action now by implementing the Srikrishna Commissions recommendations and through other steps. Or else, it could soon be too late.