Three years have passed since the communal riots in northeast Delhi.
At this stage, it hardly matters why and how the riots took place. What matters is whether the police, investigation, administration and the courts have performed their obligations.
Has somebody been held accountable for the non-conclusion of investigation of cases, non-prosecution of cases at the desired pace, acquittal of innocent people charged under drastic provisions of criminal law and the courts taking slow action in some cases and in some cases moving really fast?
All these questions must be asked of the system.
Immediately after the violence, I had visited the riot affected areas, and later on I was asked by the Delhi Minorities Commission to head a fact-finding committee. In view of the raging COVID-19 pandemic, we gave a short report to the Delhi Minorities Commission reflecting various aspects, including resistance of police in registration of crucial FIRs, tagging of serious complaints with inconsequential FIRs, not starting the investigation in a time bound manner, and so on.
After three years, the courts have given their mind to some matters. Let me refer to a few.
One and a half years since the incident, in September 2021, while dealing with one of the cases, a Sessions Court remarked:
“When history will look back at the worst communal riots since Partition in Delhi, it is the failure of investigating agency to conduct proper investigation by using latest scientific methods, will surely torment the sentinels of democracy.”
The court further stated that it cannot permit such open-and-shut cases to meander mindlessly in the corridors of the judicial system, sweeping away precious judicial time of the court.
Prior to this observation of the court, in another case, a Sessions Court had noted its pain, stating that in a large number of cases “the standard of investigation” was very poor. The judge recorded that after “filing of chargesheet in the Court, neither the IO nor the SHO nor the aforesaid supervising officers bother to see as to what other material is required to be collected from the appropriate authority in the matters and what steps are required to be taken to take the investigation to a logical end.”
“It is noticed that after filing the half-baked chargesheets in court, the police hardly bothers about taking the investigation to a logical end. The accused persons, who have been roped in in multiple cases continue to languish in jails as a consequence thereof.”
These remarks are not case specific but came after the special court assigned to deal with the riots cases considered the status of different cases being heard by it. In one of the cases, the judge found on October 5, 2021, that the police witness had been prima facie lying on oath. For whatever reason, this designated Additional Session Judge was abruptly transferred on October 6, 2021. The successor judge subsequently held that the finding of “lying on oath” was not correct.
One stage below in the hierarchy of courts, the Chief Judicial Magistrate while dealing with the riots had recorded that
“…[L]ackadaisical approach on the part of the prosecution as well as the Investigating Agency in riots cases has been repeatedly brought to the notice of not only the DCP North East and Joint CP Eastern Range but has also been brought to the notice of the Commissioner of Police, Delhi. However, no steps for proper prosecution of the cases seem to have been taken by either of them and if taken, have not yet been brought to the notice of this Court.”
The said Magistrate, after 18 months of the riots, hearing another case, recorded that
“…The prosecution is still not sure as to how it should go about further investigation/prosecution in the present case and the only purpose for seeking permission for further investigation is to derail the further proceedings in the present case.”
Most recently, in January 2023, a Session Court recorded the fact that
“…IO is still in doldrum as to in which particular FIR of this complaint is to be investigated…”
These are the very few instances where the courts have made some observations. In most cases, the cause of the criminal justice system became victim of statutory complexities.
However, few these instances may be but all these reflect pitiable aspects of the function of police. Strangely, this does not surprise me and many like me because these issues were flagged by members of the civil society in advance.
Even today, in many cases, the victims are protesting in the courts that the charges are insufficient given the gravity of the offences that were committed against them.
In the cases of attacks on religious places of Muslims, it is unknown whether any progress has taken place. For instance; in the case of Madina Masjid, no arrest has taken place, no charge sheet is filed till date. The Magistrate directed the registration of an FIR on a complaint of the managing committee which named the accused. The police appealed this order and during the pendency of the appeal, for the first time, after one year, it produced an unnamed FIR which police claimed was not in their knowledge till that date.
On this forceful plea that the police had suddenly found an unnamed FIR, the appellate court found it appropriate to close the case and leave it to the discretion of the Magistrate who also closed the case, leaving the issue at the mercy of the police. Even after three years, no progress has taken place in the said case despite the complainants knocking the door of the police station on a regular basis.
On the aspect of compensation, after paying meagre amounts to few victims in March 2020, the state has adopted a ‘do nothing’ approach as the Delhi high court had pointed out in 1996 in relation to the victims of the 1984 anti-Sikh riots. The government took the stand that a Claims Commissioner was appointed on March 18, 2020, by the Delhi high court to determine compensation. Even after three years, this Commission has done nothing except collect complaints and conduct ‘verification’.
These commissions are not there to work at leisure. There may not be a time schedule fixed by law but the approach of functioning of the Commission is ornamental rather than substantive. Be it court or arbitration, even commercial disputes have some timeline to complete a resolution in a time-bound manner but it is unimaginable that the issues concerning the fundamental rights of citizens will have such a fate.
Many of the victims who made the applications were migrants from other states, and had taken the premises on rent for residential and commercial purposes. After three years the task to find the actually affected persons so that they can receive compensation has grown all the more difficult. This was not the purpose of the scheme which the Supreme Court mandated in 2009, leading to the appointment of Claims Commissioner in such cases.
The victims of communal violence have always been vulnerable in our country. However, in the present era when most of the things are recorded, and visualised through different means by the citizens, one did not expect that nobody will be held accountable for non-prosecution of criminal cases and the delayed determination of Claim Compensation which is bound to fail.
It is also not correct to say that the system does not work. It works very well when it wants to work. In many cases, within a short span of time appropriate action is taken and within reasonable time the matters are taken to its logical end. We see that all the organs of state are working there. At the same time, there are a set of cases which do not move from the beginning despite people knocking the door of institutions. It is a case of unequal treatment of citizens and class of citizens.
Enforcement of fundamental rights and rule of law, as it appears, is being used as a special benefit to a class of people.
The institutions must realise that equal treatment of citizens is reflected from their functioning. One small fact in a matter should not be blown out of proportion to deny relief in one set of matters and then conveniently ignored in another set of matters.
We have seen these creative distinctions in police charge sheets, granting and rejecting of bails, administrative and judicial treatment of protests relating to the Citizenship Amendment Act and the farmers’ agitation.
M.R. Shamshad is an advocate, Supreme Court of India.