BY BRINDA GROVER IN INDIAN EXPRESS
On February 8, the Delhi high court directed all trial courts to conclude cases pertaining to the 1984 anti-Sikh pogrom within six months. Will this welcome directive shake the 25-year-old inertia of the judicial system? Has mere“delay” been the malady or is delay merely a symptom of a deeper malaise? Can speedy trial alone, at this belated stage, deliver justice or do mass crimes need a different legal regime?
Let us look at two other scenarios. Nineteen policemen of UP’s Provincial Armed Constabulary, charged with killing 43 Muslims of Hashimpura in 1987, have been able to prolong the trial for 22 years. Time has taken its toll, witnesses are dead or untraceable, original documents destroyed, case property misplaced and memories blurred — all crippling the prosecution’s endeavour. In Kandhamal, Orissa, within a year of the anti-Christian violence many accused have been acquitted by fast-track courts, even before the victim-witnesses could recover from the devastation or resist the inevitable threats and intimidation.
The Delhi high court has correctly castigated the CBI for treating the 1984 trials as “routine and ordinary”. More than 25 years ago some 3000 Sikhs were brutally murdered by mobs believed to be led by local leaders, under instructions from high-level political leaders. The complicity of the state was an open secret. Witnesses have deposed before two commissions of inquiry and numerous committees; filed affidavits and given statements to the police. They have named, among others, powerful politicians Jagdish Tytler and Sajjan Kumar. It is the extraordinary determination of the victimised community that has compelled the state to resurrect cases against them despite the machinations of the accused. Why are persons in positions of power so rarely arraigned before the courts? Why are they not punished for masterminding massacres? Do mass crimes require a different kind of intervention for justice to be delivered to their victims?
The shoddy and partisan police investigation into the 1984 killings has undermined the very foundations of the prosecution. As a trial court observed, “After the rioters had done their job, the rest of the job to frustrate the investigation was done by the police.” Amid allegations of bias, special public prosecutors have now been appointed. In an ongoing case, the CBI has meticulously recorded witnesses to discredit two eyewitnesses to Tytler’s incitement of the murderous mob; relied on CDs produced by the accused as an alibi, and on this basis filed a closure report on the prosecution of Tytler. It appears as though the public prosecutor does not enjoy the autonomy or discretion to prosecute a deeply implicated executive.
The Indian Penal Code, Evidence Act and Code of Criminal Procedure are not designed to adjudicate mass crimes wherein an entire community is targeted. The jurisprudential yardstick of “normal times” cannot be indiscriminately applied to trials marked by an extraordinary collapse of state agencies and institutions. In response to the need for new legal tools, the government has proposed to enact the Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill 2005. Ironically, this bill gives greater power to the state. Is it anyone’s case that communal massacres have taken place because the state was powerless to halt the carnage? Is it not apparent, rather, that these point to dereliction of duty by officials and/ or deliberate instigation of crimes by politicians?
A glaring lacuna in the Communal Violence Bill is its refusal to extend criminal liability to those who sponsor and profit from the carnage. To affix the culpability of persons in social, administrative or political authority, the legal doctrine of command/ superior responsibility, a key principle of international criminal law, needs to be incorporated. This would hold leaders criminally responsible for failing to take appropriate measures to prevent crimes committed by subordinates under their effective control and about which they can be reasonably presumed to have had knowledge. It would render useless the escape route deployed by political leaders, of concocted alibis, ignorance or inaction, while their partymen kill and burn. The penal provisions of criminal conspiracy and abetment are ill-equipped to expose this nexus. This bill in no way vindicates the UPA’s promise to enact a legislation to punish communal crimes and will not challenge the entrenched regimes of impunity.
The crisis of the criminal justice is not about the pendency of cases but the arrears of justice that it owes to its citizens.
The writer is a Delhi-based lawyer