Read these and one wonders how Sir William Macpherson would have characterised the police outrages. A wood of fearsome depth emerges as one proceeds past tree after tree.
On September 26, 2012, a Bench of the Supreme Court, comprising Justices H.L. Dattu and C.K. Dattu, acquitted 11 Muslims convicted under the Terrorist and Disruptive Activities (Prevention) Act, or TADA, and warned the Inspector-Generals of Police (IGPs) and Superintendents of Police (SPs) against its abuse. They must “ensure that no innocent person has the feeling of suffering only because ‘My name is Khan’, but I am not a terrorist’” ( The Hindu , September 27, 2012).
On May 16, 2014, another Bench comprising Justice A.K. Patnaik and Justice V. Gopala Gowda set aside concurrent convictions and sentences against six Muslims by the Special Court under the Prevention of Terrorism Act (which replaced TADA) as well as the High Court in the case of a terrorist attack on the Akshardham temple in Gandhinagar, Gujarat, on September 24, 2002. The court observed: “We are of the view that the judgment and order of the Special Court (POTA) in POTA Case No. 16 of 2003 dated 1.7.2006 and the impugned judgment and order dated 1.6.2010 of the High Court of Gujarat at Ahmedabad in State of Gujarat v. Adambhai Sulemanbhai Ajmeri are liable to be set aside. Consequently, the sentence of death awarded to A-2, A-4 and A-6, life imprisonment awarded to A-3, 10 years of rigorous imprisonment awarded to A-5 are set aside. Since we are acquitting all the accused in appeal before us for the reasons mentioned in this judgment and also, since A-1 was convicted and sentenced on the basis of the same evidence which we have already rejected, we also acquit A-1 who is not in appeal before us, of the conviction and sentence of 5 years’ rigorous imprisonment awarded to him by the courts below, exercising the power of this Court under Article 142 of the Constitution and hold him not guilty of the charges framed against him. We are aware that he has already served his sentence. However, we intend to absolve him of the stigma he is carrying of that of a convict, wrongly held guilty of offences of terror so that he is able to return to his family and society, free from any suspicion.
“Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing” ( Adambhai Sulemanbhai Ajmeri vs. State of Gujarat (2014) S.C.C. 716 at pp. 831-2).
Muslims and Dalits as victims The Bombay High Court had occasion to remark, on July 31, 2014, that the victims of custodial deaths in Maharashtra appeared to be only those from the minority community (read Muslims) and Dalits. Justices V.M. Kanade and P.D. Kode said this after appointing Yug Chaudhry as amicus curiae . He said, “I have done my research and it shows that the cases are mostly of Muslims and Dalits. The court asked why such cases happen in Maharashtra. The case before it was not reported as a custodial death but a natural death. Therefore the actual number of custodial death cases may be unknown” ( The Times of India , August 1, 2014).
The Nationalist Congress Party (NCP) leader Sharad Pawar expressed anguish in Pune on August 10, 2013, about two high-profile cases, the Ishrat Jahan case in Gujarat and the Malegaon bomb blasts. He asserted that she had been falsely implicated and the police story about the blasts was simply not true. “An innocent girl [Ishrat Jahan] studying in a college became a terrorist? Today, all those officers who were involved (in that encounter) had to go to jail. The court has monitored the case because of which the truth came out. But what of the family? The whole family might suffer if such injustice happens to their child and seeing this, if some person from other family gets angry, then you can’t hold that person guilty.”
He said that it was his suspicion that led to the arrest of Abhinav Bharat activists in the Malegaon blast case. “Three or four years ago in a speech, I had publicly told R.R. Patil [Maharashtra’s Home Minister] that I couldn’t believe that on a Friday, Muslims would place a bomb in a Masjid. I told him that the police’s line of investigation was wrong. Mr Patil then sent Hemant Karkare to meet me and I told him about my suspicions.” For three years, nine innocent Muslims were jailed in this case. Several families were destroyed in these two incidents. “How will they see this country as their own country? If due to such treatment he commits one mistake, then should we tag the whole community as anti-national?” ( Asian Age , August 11, 2013).
In a series of three documented reports, Muzamil Jaleel exposed the patently ridiculous evidence on which Students’ Islamic Movement of India (SIMI) members were targeted ( The Indian Express , September 25, 26 and 28, 2012). The “evidence” could be just anything—a children’s magazine, Urdu poetry, a newspaper, just anything could land the person targeted by the police in jail. Iftikhar Gilani was put in prison and tortured for being in possession of literature in the public domain.
A police force which itself marginalises Muslims in its composition fosters prejudice institutionally. The Sachar Committee Report submitted in 2006 pointed to the poor representation of Muslims in the police force. The situation did not improve. It got worse, as Zeeshar Sheikh reported ( Indian Express, August 6, 2013). Of the 3.26 lakh policemen added to the police force across all the States in the five years between 2007 and 2012, only 7,132, or 2.18 per cent, were Muslims.
The police have begun to accept the trust deficit with the Muslims who see the police as “communal, biased and insensitive…, ill-informed, corrupt and lacking professionalism”. A report entitled “Strategy for making police forces more sensitive towards minority sections” was prepared by three Directors General of Police—Sanjeev Dayal of Maharashtra, Deoraj Nagar of Uttar Pradesh and K. Ramanujam of Tamil Nadu. It concluded: “Poor representation of the minorities in the police forces has contributed to this distrust and suspicion” (Smita Nair, The Indian Express , July 17, 2014).
Classic on hostile discrimination The judiciary has time and again stepped in to redress the wrongs. But how often can it intervene and how many cases reach the courts anyway? It is the police force that the citizen has to reckon with and it is its mindset and actions that have a direct, immediate impact. The classic on hostile discrimination by the state is a case decided by the United States Supreme Court in 1886 ( Yick Wo vs. Hopkins 118 US. 356).
Yick Wo, an emigrant from China, ran a laundry in San Francisco. A city ordinance required laundry owners to obtain a licence if the building was constructed of wood. Of the 320 laundries in the city, 240 were owned by persons of Chinese origin. Three hundred and ten were constructed of wood as, indeed, were nine-tenths of the houses in San Francisco. Yet, all applications for a licence by Chinese laundrymen were refused. Applications by all others, bar one, were granted. About 150 Chinese laundrymen were arrested for violating the ordinance.
The Supreme Court of California rejected Yick Wo’s petition for habeas corpus . An appeal to the Federal Circuit Court was also unsuccessful. The petitioner took his case to the United States Supreme Court and made legal history.
The court spoke of “an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States.”
The Supreme Court then uttered these ringing words: “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by a public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” This is the test—“an evil eye and an unequal hand”.
Abuse of TADA The Minorities Commission adopted a resolution on June 6, 1994, after a “visit of the Chairman and Members of the Commission to some of the States”. They found “a large degree of truth in” the general perception “that there is considerable degree of misuse and abuse of TADA”. It had been brought to the notice of the commission that TADA was “also very often being used as a weapon against the minorities. It is alleged that even women and children have been picked up under TADA and this has consequently led to grave apprehension and disquietude in the minds of minorities.”
According to the Chairman of the Uttar Pradesh Minorities Commission, Ahmed Hasan, most of the 1,200 people detained in the State under TADA during the 17-month Bharatiya Janata Party (BJP) regime were Muslims and Sikhs.
We have the admission by the Minister of State for Internal Security, Rajesh Pilot, on August 21, 1994, in Mumbai, that TADA “has been misused extensively against Muslims”.
That was over 10 years before the Malegaon blast. The Justice Madon report on the Bhiwandi riots remains unrecalled in its thoroughness, fairness and boldness.
Inquiry commission reports It is during communal riots that the sheer antipathy which large sections of the police bear towards Muslims emerges in bold relief. Reports of commissions of inquiry have not always been fair. But they revealed a lot more than what some of the judges intended. This brief resume reveals how skewed the ratio between arrests and deaths was. More Muslims were arrested; yet more of them were killed and injured, as this brief resume bears out.
1. Justice Raghubar Dayal, a former Supreme Court judge, revealed a lot about his own outlook when he opined: “The root cause of the breaking out of serious disturbances as a result of any minor incident has been found to be the mistrust existing between the two communities since 1947 when the partition of the country took place. All efforts have to be made to remove this mistrust. What the efforts should be is for the political and social parties to evolve. Genuine improvement of the relation between the two countries—Pakistan and India—may go a long way in allaying the apprehensions born out of mistrust and ultimately in removing the mistrust” (Report of the Commission of Inquiry on Communal Disturbances, Ranchi-Hatia (August 22-29, 1967; 101).
“[A small number of] Hindus and 594 Muslims were arrested for violating the curfew orders between 22-27 August.” On August 22, four Hindus and 61 Muslims were arrested. Seven Hindu and 19 Muslim houses were searched. Hundred and eighty four people were killed in the riots—19 Hindus and 164 Muslims, one was not verified. During investigations, 49 Hindus and 102 Muslims were arrested. No cross-examination was allowed. The proceedings were held behind closed doors.
2. The massive report of the inquiry into the communal disturbances at Ahmedabad and other places in Gujarat on and after September 18, 1969, is a veritable classic. It was set up, not by the State government, but by the Central government. Its Chairman was one of the first judges who served on the Supreme Court, Justice P. Jaganmohan Reddy. Its members were two judges of the Gujarat High Court, Justices Nusserwanji K. Vakil and Akbar S. Sarela. It noted attempts by the government and the police to suppress the evidences (pages 216-218), especially on the active participation of some leaders of the Jana Sangh, the BJP’s ancestor, and the Rashtriya Swayamsewak Sangh (RSS). Official figures of damage to property were Rs.75,85,845 for Hindus and Rs.3,47,38,224 for Muslims; 232 Hindus and 329 Muslims were injured; 24 Hindus, 430 Muslims and 58 others were killed.
3. The report of the Commission of Inquiry on the Tellicherry disturbances in 1971 is also a very revealing document. The commission comprised Justice Joseph Vithayathil, a former judge of the Travancore-Cochin High Court. Five hundred and sixty nine communal incidents took place during the riots. Hindus were victims in 89 incidents, Muslims in 480; 72 shops and four homes belonging to Hindus were looted and three places of worship were damaged; 247 homes of Muslims were looted, 147 shops were damaged and 63 mosques and madrasas were damaged (page 66). The judge found that “the rank and file of the police had been affected by the political tension”. The police stood by while the rioting proceeded apace. “They were infected with the virus of communalism.”
4. The Report of the Commission of Inquiry into the Communal Disturbances at Bhiwandi, Jalgaon and Mahad in May 1970 runs into seven volumes. Justice D.P. Madon of the Bombay High Court, later a judge of the Supreme Court, sat on the Commission. Few judges toiled as hard as he did. It is a shame that little notice has been taken of two grotesque but very revealing episodes exposed by Justice Madon.
First, the sad statistics: 17 Hindus and 59 Muslims lost their lives in the Bhiwandi riots. Yet, 21 Hindus and 901 Muslims were arrested in cognisable cases, while 323 Hindus and 1,282 Muslims were arrested for violating the curfew. The report records how some of the arrested Muslims were beaten and “there was discrimination practised both in the distribution of food and water and in allowing prisoners to go up to the water taps to drink water”. The report held that an organisation had provoked the disturbances in Bhiwandi. The majority of its members belonged to the Jana Sangh and the Shiv Sena.
Charge against an entire community Now the two startling exposes. Volume I of the report refers to a printed booklet entitled “Guidelines for Dealing with Communal Disturbances”. It figured as Exhibit G 39, was issued by the Home Department of the Maharashtra government in August 1969, and was marked “SECRET for official use only”. Let the report speak for itself: “This booklet was circulated to all DMs, Commissioners of Police, SSP., Divisional Commissioners with extra copies for distribution to each Assistant Commissioner, and the I.G.P. with extra copies for distribution to the DIGs and AIGPs. On transfer the holder of the booklet was required to hand it over to his successor with other secret documents and it was not intended to be handed over by any officer to whom it was distributed to any other person except his successor in office nor was the general public allowed access to it. Strangely enough, the existence of this booklet was first mentioned before the Commission by Mr Ram Jethmalani, learned counsel for the Jana Sangh, and it was produced in evidence and exhibited during Mr Jethmalani’s cross-examination of the Home Secretary. So much for the secrecy of government documents marked ‘Secret’!... The “Guide Lines” set out, inter alia, the background of the communal situation in the country with particular reference to the State of Maharashtra.
“Though the ‘Guide Lines’ refers in general terms to communal organisations and their activities, the only communal organisations named in the ‘Guide Lines’ are the Muslim communal organisations. Home Secretary Rajwade expressed his inability to explain why Ex. G 39 did not refer to communal activities of the Jana Sangh, the RSS or the Shiv Sena.”
The other exposure in Chapter 50 (“The Conspiracy”) in Volume 3 is even more shocking. The Special Investigation Team set up by the Maharashtra government filed “the Bhiwandi Conspiracy Case” in an amalgam of 10 cases. The charge, patently false though it was, deserved national attention and concern. It was a national scandal and bears recalling today. The police charged: “The further detailed investigation of this offence had surprisingly disclosed that the local Muslims had conspired together since April 1970, to bring about communal riots all over Bhiwandi Town simultaneously and exactly at 17.30 hrs. It was not their conspiracy merely to attack on Shiv Jayanti procession and create a terror in Hindu community, but it was their primary and deliberate conspiracy to start communal riots all over the town to cause the total destruction of Hindu community and their property in the town. With this end in view 37 Muslim leaders and members of the Peace Committee of Bhiwandi had submitted a memorandum to the Chairman, Peace Committee, on 18th April 1970, as they disagreed with the authorities and the Hindus about the conduct and the deliberations of the Shiv Jayanti procession. This is the base and the root of the conspiracy, and since then the Muslims continuously made efforts to effectively bring about the conspiracy on 7th May 1970, as they found that Shiv Jayanti procession was a good opportunity for them. The 37 signatories are the leaders of the conspiracy and the entire Muslim community of Bhiwandi responded to their appeal—open and secret —to bring about the communal riots.”
One has heard of a representative civil suit, not of a representative criminal case. “The entire Muslim community of Bhiwandi” was charged with conspiracy against “all the Hindus in the town”. This writer appeared as counsel before the Commission and still recalls a stunning revelation one afternoon. The criminal case had proceeded simultaneously with the proceedings of the Commission. That afternoon of July 6, 1971, a senior police officer mentioned the charge. Justice Madon was quick to ask why the state had laid no evidence about the conspiracy before the Commission since the “causes” of the riots fell precisely within its remit. He demanded that the evidence be produced before him. Two hundred and twenty-three Muslims stood charged in the case, of whom 16 were alleged to be conspirators. One of them, incredibly, was a local Communist Party of India (Marxist) leader, Ibrahim Maddu. The Commission adjourned for a fortnight to enable the government to lead the evidence since the State was the prosecutor in the case. Its counsel, Rajni Patel, led the evidence. After the evidence of seven witnesses was recorded, over 12 days, he asked for an adjournment “to consider the position”. Each had collapsed in the cross-examination. Two days later, he told the Commission that the criminal case was being withdrawn. But for the Commission’s intervention, 223 innocent persons might well have been convicted and sent to prison on tutored evidence (pages 127-288).
SIT’s bias The Commission’s censures were damning. “The evidence led before the Commission has clearly established the following facts:
(1) The working of the Special Investigation squad, Bhiwandi, is a study in communal discrimination.
(2) The officers of the Squad systematically set about implicating as many Muslims and exculpating as many Hindus as possible, irrespective of whether they were innocent or guilty.
(3) In order to enable them to achieve their aforesaid object, the officers of the Squad asked the Bhiwandi Town Police Station not to enter the C.R. numbers in the Muddemal Registers but leave it to them to enter subsequently the C.R. numbers they wanted.
(4) The complaints filed at the Bhiwandi Town Police Station and the Bhiwandi Taluka Police Station in respect of offences committed during the disturbances were classified and grouped in such manner that in the case of some localities, the complaint of a Hindu was taken as the F.I.R. and the complaints of Muslims were taken as the police statements recorded in that case and thus remained uninvestigated.”
It concluded: “The evidence led before the Commission has conclusively established that there was no conspiracy entered into by any Muslims as alleged by the Squad and the Hindu parties. However, the very evidence relied upon by the Squad and the Hindu parties and the other evidence before the Commission gives rise to a strong inference that a conspiracy had in fact been entered into. It was a conspiracy entered into, not prior to the disturbances, but after the disturbances. It was a conspiracy entered into, not by the Muslims, but by Dy. S.P., Saraf, D.I., Lankar, some of their superior officers and some of the officers of the Special Investigation Squad, Bhiwandi, and some of the local leaders of the Bhiwandi Branch of the Jan Sangh, the Bhiwandi Branch of the Shiv Sena and some of the leaders and workers of the R.U.M. (Rashtriya Utsav Mandal; i.e. Shiv Sena and Jan Sangh) and of the Nagarik Hitarakshak Mandal with whom Dy. S.P. Saraf held private conferences and discussions.” This conspiracy was to get up and fabricate a false case of conspiracy against the Muslims; namely the Bhiwandi Conspiracy Case.”
But then a conspiracy case cannot be launched without the approval and sanction of the State government, which is why Rajni Patel proceeded with it against his own judgment and instincts. The Maharashtra government relented only when its witnesses collapsed and egg lay smattered over its face.
Mumbai riots case None of the officers indicted was punished; nor did the censures change the situation even 20 years later as Justice B. N. Srikrishna’s report on the Mumbai riots in 1992-93 proves. (The two volumes are published in full in Damning Verdict , Sabrang Communications and Publishing Pvt. Ltd., Juhu, Mumbai 400 049). Chapter IV of Vol. 1, devoted to the “Role of the Police”, says: “The response of police to appeals from desperate victims, particularly Muslims, was cynical and utterly indifferent. On occasions, the response was that they were unable to leave the appointed post; on others, the attitude was that one Muslim killed, was one Muslim less. … Several arson incidents, stabbing and violence occurred within the eyesight and earshot of the police pickets without any action by them. …
“Police officers and men, particularly at the junior level, appeared to have an in-built bias against the Muslims which was evident in their treatment of the suspected Muslims and Muslim victims of riots. The treatment given was harsh and brutal and, on occasions, bordering on inhuman, hardly doing credit to the police. The bias of policemen was seen in the active connivance of police constables with the rioting Hindu mobs on occasions, with their adopting the role of passive onlookers on occasions, and finally, in their lack of enthusiasm in registering offences against Hindus even when the accused were clearly identified. …
“Despite clear clues the miscreants were not pursued, arrested and interrogated, particularly when the suspected accused happened to be Hindus with connections to Shiv Sena or were Shiv Sainiks. This general apathy appears to be the outcome of the built-in prejudice in the mind of an average policeman that every Muslim is prone to crime.”
It is unfortunate that Justice Srikrishna did not reproduce the abusive terms used by policemen on wireless in reference to Muslims. They were all published in the media. He censured senior police officers. We owe to the intrepid and dedicated Jyoti Punwani a thorough exposure of the Maharashtra government’s deliberate inaction on the report. It censured 31 policemen. Eight were prosecuted for murder, five were acquitted. One was discharged. Chhagan Bhujbal was Home Minister ( DNA , October 27, 2009). After the Mumbai blasts on July 11, 2006, the police went berserk, targeting innocent Muslims, mostly poor (Jyoti Punwani; “Denial of Constitutional Rights”, Economic & Political Weekly ; September 9, 2006, and in the same issue, “A Correspondent” on the indiscriminate arrest of Muslims).
Two social scientists at the Tata Institute of Social Sciences, Mumbai, Vijay Raghavan and Roshini Nair, documented the “Over-representation of Muslims” in the prisons of Maharashtra in a study conducted at the instance of the State’s Minorities Commission. Rich in tables of statistics and other data, the study concludes “the malaise runs much deeper. It points to the larger issue of social exclusion and marginalisation of communities which suffer from structural and systematic exclusion” ( EPW ; March 16, 2013).
The infamous pac Maharashtra’s “record” is beaten by Uttar Pradesh and its Provincial
Armed Constabulary (PAC). Two contributors to the volume Paul Brass edited, Riots and Pogroms (1996), who are anything but sympathetic to Muslims, record: “The authors have been told by police officials that, outside his uniform, the PAC constable is a Hindu first and last. He belongs squarely in the traditional, folk culture of rural India. The constable’s training seeks to instil in him some degree of professionalism, but it leaves untouched his hard-core Hindu identity. In times of crisis, his Hindu identity has the better of his professional identity as an impersonal instrument of the secular state.” K.F. Rustamji, a senior police administrator and member of the National Police Commission, sadly reflected, “I have watched with dismay during the year 1992 the conversion of the UP PAC from a model force I worked with in the fifties to a unit which is feted by the Hindus and hated by the Muslims” (page 191).
A remarkable feature of the major riots which erupted in Uttar Pradesh in 1972-73 was that they were not conflicts between the communities but cases of the PAC assaulting the Muslims. Three of the riots—in Aligarh, Ferozabad and Varanasi during June 1972—were due entirely to Muslim protests on the AMU Amendment Act. In the Lok Sabha on August 9, 1973, M.R. Dandavate reported, after a visit to Ferozabad, on the PAC’s misbehaviour against Muslims.
Unchecked, the riots spread. In Nonari, 72 Muslim homes were burnt down on November 15, 1972; in Sajni, on December 12, about 100 Muslim homes were looted and 43 burnt. Riots followed in Ranimau, Durgajot, Gonda and Basti.
In May 1973, there were communal riots in Delhi itself, in Sadar Bazaar. Some of the worst riots in Uttar Pradesh took place in 1972 when Prime Minister Indira Gandhi held the Home portfolio.
The memoirs of Madhav Godbole, who served as Union Home Secretary (1991-93), provide a grim picture. While discussing the pre-demolition phase of the Ayodhya dispute, he makes the following observations: “The U.P. police in general and the U.P. Provincial Armed Constabulary (UPPAC), in particular, had the reputation of being communal and biased. This was one of our worries. According to some reports, the U.P. police deployed in Ayodhya had developed close links with certain sections of the VHP [Vishwa Hindu Parishad] and local BJP workers.”
Amnesty International published a report on the extrajudicial killings by the PAC in and around Meerut on May 22-23, 1987. It called the PAC “a mainly Hindu paramilitary force of whom only about 2 per cent are Muslims”. The report recorded: “On 22 May several hundred men from the Hashimpura area of Meerut were seen being taken away in several trucks by PAC members. Witnesses said most were taken to local police stations but several dozen in the first two or three trucks were reportedly taken to the banks of the Upper Ganga canal near Muradnagar, shot and their bodies thrown in the water. By the last week of May, over 50 bodies had reportedly been found in the canal. Eighteen more were officially admitted to have been recovered from the nearby Hindon canal at Ghaziabad, although Indian journalists visiting Muradnagar and neighbouring places said that at least twice that number had been recovered; eyewitnesses said the bodies had been thrown in the canal by armed men in uniform. Two of the five survivors of the incident have testified that they were taken to the canal at Muradnagar by uniformed men who they identified as the PAC, who shot them and threw them in the canal. It is now believed that all the bodies found in the water were of men taken away from Hashimpura although initial reports had indicated the bodies found in the Hindon canal were of victims of the killings which subsequently took place in Maliana.
“On the afternoon of 23 May in the village of Maliana, some 10 kms from Meerut, the PAC allegedly went on the rampage setting fire to houses and shooting apparently unarmed civilians, killing men, women and children. Sixteen charred bodies were found in the village and several others were found in a well, although the official number of dead is 15. Amnesty International believes that at least 30 people have died in Maliana, and has 29 names. There are conflicting reports about dozens of others still reported missing from Maliana and neighbouring localities. Villagers believe they were killed by the PAC and their bodies burned or taken away and disposed of in secret.”
“According to The Statesman (May 26, 1973), ‘here was every evidence that the PAC started and instigated the carnage in Maliana. Such allegations have reportedly been confirmed by a senior army officer who visited the spot. He did not want to be identified but is reported to have said he would seek to ensure that the guilty would be punished.’ The Telegraph also quoted an unidentified army official as saying: ‘From what we have seen and heard, the PAC did it on purpose. Doing such things is not unusual for them.’”
Over a dozen died while in police custody (see Siddharth Narain’s excellent article in Frontline of May 20, 2005. It was entitled “Justice out of sight: Trial in the Hashimpura massacre case, in which personnel of the Provincial Armed Constabulary in Uttar Pradesh allegedly shot dead 42 Muslims in 1987, is yet to begin in earnest.”)
Bihar not far behind Bihar’s claims must not be overlooked. Justice Jitendra Narain gave a report on the Jamshedpur riots in April 1979. The Bhagalpur Riots (1989) Inquiry Commission was split. The Chairman and two members, Justices Sinha and Shamsul Hasan, disagreed (See Warisha Farasat’s article “The state did it”, The Indian Express , November 12, 2014; and this writer’s article “Riots and Processions: Lessons from the Bhagalpur report”, Frontline , October 20, 1995).
A thousand lives were lost; 900 of them were Muslims. Justices Sinha and Shamsul Hasan record: “It is evident from the evidence that whenever a village was attacked and Muslims were subjected to attack and brutality by the mob consisting of thousands, though in some cases firing was resorted to, not a single person was killed or arrested except in one case of Dumrama. The members of the mob disappeared like phantoms and if a thorough search had been made a lot of arrests could have taken place and many lives saved, but probably the District Administration from the top to bottom was so inhibited by communal bias and so totally oblivious of their professional responsibility that they were not interested in even performing their required duty. A chart has been filed before us by Amar Kant Jha which gives the list of the houses of the Muslims that were searched by the police. If Hindu houses, mohallas, and villages had been searched, a similar list of arrested Hindus would also be forthcoming. Absence of such list relating to Hindus indicates close collaboration between the police and Hindu communal group. While 900 and odd Muslims were arrested, only a meagre number of Hindus were arrested.”
The report remarks: “This is a strange ratio between the killing and the arrest which indicates how biased and thus indisciplined were the police authority. Admittedly, hordes of the Hindus, the number going to thousands, attacked the localities and villages of Muslim inhabitants, but nobody was arrested while in the process of attacking an area. Nobody cared to enquire from where these massacring invaders descended upon Bhagalpur and the villages. The figures expose the group and the individuals who were responsible for preplanning and how successful it was with the able assistance of the district administration, particularly the police. The Muslims of Bhagalpur and the surrounding areas were inflicted by divine wrath through marauding mobs in close alliance of the district police. This is manifest by over 900 corpses with injuries and also over 900 individuals in handcuffs and manacled individuals.”
Police partiality accounts no less for the very origin of communal riots. They are triggered off by small incidents because the atmosphere had been fouled, for which Commissions of Inquiry have indicted the RSS, the Shiv Sena and the Jana Sangh. Varun Gandhi’s infamous hate speech against Muslims in Lucknow on March 27, 2009, was telecast live on TV channels for all the world to see and hear. In a meticulously documented article (“Spew Venom, Enjoy Life”) Subhash Gatade exposed how and who scripted his acquittal in court ( Kashmir Times , March 8, 2013).
Hate culture and judicial apathy Dilip D’Souza, an engineer and human rights activist, has documented a similar fiasco in his essay “Hate Speech Crime and Punishment” in the compilation Communal Riots: The State and the Law in India edited by Iqbal A. Ansari, Institute of Objective Studies, New Delhi. In late September 1994, Justices M.L. Dudhat and G.R. Majithia of the Bombay High Court heard a public interest petition that had been struggling to be heard for nearly two years.
It urged the court to direct the government to prosecute Bal Thackeray under Sections 153A and 153B of the I.P.C. for his editorials in the Shiv Sena mouthpiece, Saamna , during the riots. They dismissed the petition. None of the editorials, they said, violated Sections 153A and 153B of the Indian Penal Code.
Dilip D’Souza writes: “Before we go further, here’s a small sample of what those editorials contained: 5 December, 1992: ‘Which is this minority community? The Muslim traitors who partitioned the country and haven’t allowed us to breathe ever since.’ 8 December, 1992: ‘Muslims should draw a lesson from the demolition of Babri Masjid, otherwise they will meet the same fate as Babri Masjid. Muslims who criticise the demolition are without religion, without a nation.’ 9 December, 1992: ‘Pakistan need not cross the borders and attack India. 25 crore Muslims in India will stage an armed insurrection. They form one of Pakistan’s seven atomic bombs.’ 9 January, 1993: ‘Muslims of Bhendi Bazar, Null Bazar, Dongri and Pydhonie, the areas we call Mini Pakistan …, must be shot on the spot.”
The petition appealed to the Supreme Court. A special leave petition for this was heard on January 6, 1995, by Justices M.M. Punchi and Jaychandra Reddy. It was swiftly dismissed. The main thrust of the dismissal was that since the High Court had declined to take action, it was not wise or in the public interest for the Supreme Court to do so. The judges also observed that, as the police had argued during the hearing of the case in Bombay, cases had been filed against Thackeray for some other writings, and therefore punitive action was indeed being taken. There was no need for the Supreme Court to intervene. “Nearly a year later, is it really necessary to point out that not a single one of those cases has made any progress at all?” D’Souza asks. Well-known legal lawyers reacted with shock and dismay to both the High Court judgment and the Supreme Court’s refusal to consider an appeal.
The judiciary’s apathy even on a long-festering disease, which it can easily and effectively eradicate, is depressing. Here again, the police enforce the law with “an evil eye and an unequal hand”. Muslim politicians are very readily prosecuted and also prohibited from entering cities to address public meetings even during elections.
It is truly an “institutional prejudice”. It shows little sign of abating, let alone vanishing. It has resided at the apex of the polity; in some Prime Ministers, Ministers, bureaucrats and the police. Why, even some judges of the Supreme Court betrayed strong communal bias. Morarji Desai became Prime Minister a little over a decade after his tirade against Muslims. Atal Bihari Vajpayee’s is, happily, a rare case in the wide world of a Prime Minister denouncing a section of his own people in public.
Refreshing contrast Note a refreshing contrast. West Bengal was once rocked by communal riots. They vanished once Jyoti Basu became Chief Minister in 1977. The police take the cue from the politicians in office. A brave and upright Chief Justice of India Justice V.N. Khare’s judgment in the Best Bakery case, arising out of the Gujarat pogrom, is a landmark. It was delivered on April 12, 2004 ( Zahira Habibullah H. Sheikh vs State of Gujarat and Ors . (2004) 4 SCC 158). The implications of the court’s observations were so far-reaching that the Gujarat government applied for their expunction and failed. This is what the court said:
“The role of the State government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assailing the trial court’s judgment. …
“Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. … The modern-day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. 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.”
No prizes for guessing the identity of that Nero. The application for expunction revealed an awareness that the cap fitted him disturbingly well. During the hearings, the Chief Justice of India, Justice V.N. Khare said, “I have no faith left in the Gujarat government.”
Postscript: It only remains to add that justice caught up with the accused eventually. Almost 20 years after the crime, two men were convicted and sentenced to life terms in jail for murdering Stephen Lawrence.
Will the victims of the Delhi and Gujarat pogroms and their families ever receive justice? Not likely.