A Special Injustice Special courts will fall short until there is impartial investigation into Delhi violence

Similar to those cases, the special courts set up in the aftermath of the Delhi violence are simply existing courts that have been exclusively assigned “riot” cases, in order to ensure faster trials. These courts follow the same judicial processes as other ordinary courts. These “special” courts are thus merely an attempt to fast track trials. They are different from other special courts such as those for the prosecution of sexual offences against children or for cases investigated by the National Investigation Agency, where the courts follow special procedures.

However, reports from previous incidents of mass violence and from Delhi this year highlight a more fundamental issue—the role of the state both during the violence and after. If the state is a passive onlooker or complicit in violence, it can hardly be expected to ensure an impartial investigation. Special courts will remain ineffective until this larger issue is addressed. As the track record of many of these past special court judgments show, there was little that the courts could do about the gross failures in police investigations.

Immediately after the violence in Delhi, a number of reports indicated the participation of the state. Troubling news of police facilitation emerged, from survivors reporting that policemen had mercilessly beaten them and men in uniform had set fire to mosques, to account after account of unanswered police control room calls, and the police looking the other way as mobs looted shops, torched houses and beat up residents. Yet, in answering a Rajya Sabha question on identifying police officials who had participated in the Delhi violence, the ministry of home affairs—under which the Delhi Police operates—stated, “No policeman was identified who helped the violent mob to perpetrate violence in street.” Many residents, particularly Muslims, have reportedly refused to file complaints about destroyed houses, killings or missing persons out of a complete loss of trust in the police; and many who have gone to the police stations to do so have said their complaints were received but no FIRs registered.

As judicial commissions have documented, this has also been true of several earlier instances of mass communal violence such as the 1984 anti-Sikh pogrom in Delhi and the 1992-93 Bombay riots. In 1989, five years after the anti-Sikh pogrom, when the ruling party changed from the Congress to a Janata Dal government led by VP Singh, all cases were transferred to three special courts. One of the decisions of the 1984 special courts, passed by the additional sessions judge OP Dwivedi, noted that the “law and order machinery was completely paralysed because of inaction/connivance of the police.” Another decision by additional sessions judge SN Dhingra similarly noted, “While in November 1984 democratic values were slaughtered and soul of Indian constitution was burned daylight by the rioters, what happened after the riots was still worse and the justice itself has been slaughtered by sheer non-investigation and total absence of concern. In the name of investigation only an eye wash has been done.” Adjudication of cases by a special court comes only after the police investigation is complete. As these judgments reflect, special courts themselves could do little to fix the problems with investigation that they pointed out.

Initially, the Delhi Police had registered and investigated cases arising out of the 1984 pogrom. Sixteen years later, in 2000, the National Democratic Alliance government appointed a judicial commission headed by Justice GT Nanavati to inquire into the anti-Sikh violence. In its report in 2005, the Nanavati Commission highlighted the complicity and negligence of the police in the 1984 pogrom. It was only after the Nanavati Commission’s report that some cases were transferred to the Central Bureau of Investigation for further inquiry. One of them ultimately led to the Delhi High Court conviction in December 2018 of the Congress leader Sajjan Kumar, for his role in the killing of five Sikh individuals and the burning of a gurudwara in Raj Nagar.

In the case of the 2002 Gujarat pogrom, special courts were appointed seven years later on the orders of the Supreme Court, after it issued directions that a special investigation team monitor the probe in some specific cases. A 2003 petition filed by the National Human Rights Commission asked the Supreme Court to determine if in certain cases representative of the troubling scale of violence in the 2002 carnage, the state police had carried out a proper investigation. In light of the “sensitive nature” of the cases, it responded by constituting a SIT, on 26 March 2008, comprising a former central bureau of investigation director, a former Uttar Pradesh director general of police and three police officers from Gujarat of the rank of inspector general, for further investigation into the cases. A year later, the Supreme Court directed that six special courts be set up in five districts of Gujarat to ensure comprehensive and fast-track prosecution in day-to-day trials of the SIT cases.

One of these special courts, which tried a massacre in Ahmedabad’s Naroda Patiya where 97 Muslims were killed, observed that the accused Maya Kodnani, a member of the legislative assembly from the Bharatiya Janata Party at the time, “was tremendously favoured” by the Gujarat Police. The special court observed, “All care, at the cost of the duty of I.O. and even the interest of the victims of crime, was taken to see to it that the involvement of [Kodnani] does not come on the books.” However, it found sufficient evidence to convict her as a result of the material collected by the SIT. Four years before it had constituted the SIT, the Supreme Court transferred one of the most horrifying incidents from the carnage, the Best Bakery case, in which a mob burnt a bakery in Vadodra and killed 14 people, outside the state. It ordered a retrial in a court in Maharashtra—the Supreme Court described the trial in Gujarat as a “fraud on legal process,” based on “tainted evidence” and “a tailored investigation.”

In the case of the Bombay violence in 1992-93, four special courts were set up in 2007, fourteen years later. One of these courts was the first to convict three members of the Shiv Sena. The Srikrishna Commission, a commission of inquiry set up in 1993 under Justice BN Srikrishna, had also held Shiv Sena members responsible for leading the attacks on Muslims “with military precision,” and both triggering and escalating violence through “communally inciting propaganda.” But there was little any court could have done in light of investigative failings, recorded in damning detail by the commission in its report released in 1998.

The commission concluded,  “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 on-lookers on occasions, and finally, in their lack of enthusiasm in registering offences against Hindus even when the accused were clearly identified.” The commission further described how “even the registered riot-related offences were most unsatisfactorily investigated. The investigations showed lack of enthusiasm, lackadaisical approach and utter cynicism. 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.”

In the above instances, the setting up of special courts—on higher court orders, changes in the ruling party or concerted demands by civil society after massive delays in investigations and trials—seemed to signal a commitment towards securing justice. But as judicial commissions and courts themselves repeatedly highlighted, given state complicity, there was little political commitment at the crucial stage of investigation, and special courts were rendered largely powerless in the face of compromised investigations.

Besides flaws with investigations, police complicity in episodes of violence and impunity thereafter has hindered achieving any semblance of justice. While convicting Kumar for his role in the 1984 pogrom, the Delhi High Court in December 2018 recognised that India has not built systems to address such crimes against humanity, stating:

There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in UP in 2013 to name a few. Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system.

As part of the investigations into violence in Maharashtra, Gujarat, and now in Delhi, the police appears to have used the logic that anyone who is injured must have participated in a riot. In one of the most infamous cases from the Bombay violence in 1992-93, the police arrested 54 Muslim men for rioting outside the Hari Masjid, all of whom were later acquitted. Those arrested included Farook Mapkar, a man who was injured in what the Srikrishna Committee concluded was “unjustified firing” by the police at the masjid. Six Muslim men who had gathered to offer namaz were killed.

This compounding of tragedies, in surviving violence targeted at one’s community and then being implicated for it, is a fear that loomed large after the violence in Bombay and Gujarat. For instance, after the 2002 violence, the Prevention of Terrorism Act, 2002 was invoked only against Muslims for the train-burning at Godhra and not against anyone for the violence that followed. This led to widespread fear among Muslims engaged in relief work in Godhra. POTA’s present-day successor is the reworked Unlawful Activities Prevention Act, 1967. Both laws allow the state to detain individuals for six months without a chargesheet, doubling the ordinary period of pre-trial detention. They also make it near impossible to get bail.

The same fear is palpable in many Muslim neighbourhoods of northeast Delhi, with reports of the police arresting injured persons, including those with bullet injuries. In bail orders in the Delhi violence cases, multiple people have submitted that they were  falsely implicated though they themselves had been victims of assault and arson. As with previous pogroms, reports have that indicated the same community targeted in the violence is also being targeted in the investigation and arrests. Though the police has claimed that it has arrested an equal number of Hindus and Muslims, this ignores the fact that 38 of the 53 deceased are from the Muslim community.

Further, no action seems to have been taken against the BJP leader Kapil Mishra, who had announced on 23 February that if the Jaffrabad road, the site of an anti-CAA protest, was not cleared within three days, he would take matters into his own hands. Ved Prakash Surya, the deputy commissioner of police for northeast Delhi, stood beside Mishra as he made these remarks. These facts pose a complex challenge to addressing concerns of justice and reparations in the aftermath of such large-scale violence. In the demand for special courts for all “riot-related” cases, who is going to be prosecuted, and for what crimes?

Every pogrom has demonstrated that ordinary criminal processes are incapable of even remotely approaching justice. Independent judicial commissions of inquiry and constitutional court-monitored SITs have been needed to even unearth and document gruesome incidents in pogroms, and perhaps come close to scattered justice in a few cases.

However, even judicial commissions cannot substitute for an independent investigation. Under the Commissions of Inquiry Act, 1952, such commissions can call for records and witnesses, but are not equipped to take over all investigating duties, such as preserving evidence from the spot of the crime or sending samples for analysis. Commissions of inquiry fundamentally operate as a fact-finding instituted by state or central governments into any incident of public importance and run parallelly, and in addition to, the ordinary criminal justice system, which comprises investigation by the police and adjudication by courts. These commissions cannot convict individuals, and can merely issue recommendations to the government, with no power to enforce them. Nothing compels courts or investigating agencies to act on what a commission finds and the materials it relies on, though the exercise is useful in creating public pressure and documenting evidence that can be taken up by the actual agency in charge of investigation.

In response to an appeal related to the killings in Block 32 in Delhi’s Trilokpuri area during the 1984 pogrom, the Delhi High Court in November 2018 expressed that in context of such communal violence, the possibility of entrusting investigative and prosecutorial tasks entirely to authorities other than normal agencies of the state police needs to be explored. The Delhi High Court recommended that human-rights commissions should be entrusted with the responsibility of “taking note of the cognizable offences committed in communal riots.” It added that consequently the commissions be given additional investigative powers, which would be crucial to immediately preserve evidence in such cases.

The high court further recommended that the powers of commissions of inquiry be amended in such a way that judicial commissions take on a larger task of complete investigation, with further responsibility to oversee the prosecution of cases. The court recognised that the agency tasked with maintaining law and order during mass violence should not be investigating the same mass violence—a re-imagination of the criminal justice system would be needed to offer any kind of justice to survivors of pogroms.

In Delhi, entrusting investigation to an independent agency is made doubly difficult by the fact that the state police and central investigating agencies such as the CBI or the NIA all function under the administrative control of the central government. The Delhi Police had reportedly set up SITs soon after the February pogrom but these comprised Delhi Police officers themselves.

The only statutory authority thus far to set up a fact-finding panel has been the Delhi Minorities Commission, on 9 March. Invoking its statutory powers to requisition records from government offices, the DMC asked the police for all FIRs lodged after the violence, as well as all complaints that have not been converted into FIRs—crucial questions since most of the hundreds of FIRs apparently registered have not been made publicly available. The DMC had also written to the chief justice of India about 87 instances of police brutality at sites of anti-CAA protests across India, including Delhi, and had been  taking note of police excesses. Meanwhile, in May 2020, a sedition case was filed against Zafarul Islam Khan, the DMC chairperson, for a social media post. The fact-finding panel he set up is currently the only statutory body with the ability to evaluate the role of the Delhi Police in the violence, a task that in the case of other pogroms, has usually been taken up by judicial commissions set up in their aftermath.

The Delhi High Court, in the Block 32 Trilokpuri appeal arising out of the 1984 pogrom, also recognised that victims of or witnesses to such violence are generally petrified, or silenced by intimidatory tactics, and consequently feel disinclined to come forward with their complaints or testimonies till they are afforded some protection. The  court recommended that statements of victims and witnesses may be collected as direct statements on oath given to magistrates, as opposed to statements given to police officers, to offer them greater security and comfort. The high court even suggested departing from ordinary rules of evidence to consider photographic material or video footage in the public domain in criminal trials of riot cases, since such footage often specifically depicts individuals who were rioting, or leading or provoking mobs. The court recommended special courts to try cases of communal violence only in addition to all its other recommendations.

In the absence of other mechanisms to promise a meaningful and fair investigation, trying to fast-track cases through special courts will unlikely serve the victims of the violence. In Gujarat, the Best Bakery trial was completed in a relatively swift fifteen months, but the Supreme Court still described the case as a “subversion of  justice delivery system.” In the same pogrom, with the Supreme Court maintaining oversight over a relatively more independent SIT that it set up, the ability of the special court to conduct a comprehensive trial was strengthened, even though their decisions came many years too late, and offered but paltry redress compared to the scale of what had taken place. Evidently, setting up special courts, without a parallel commitment to constituting an independent investigation, is akin to putting a band-aid on a gunshot wound.