Adv. Ghiasuddin | Clarion India
ON March 18, the Fact-Finding Committee (FFC) constituted by the Delhi Minorities Commission (DMC) submitted its report on Delhi riots of February 2020. A riot is an identity-based violence which is a by-product of rage in identity politics. It has a rueful impact on the lives and livelihoods of people, almost as though war between the two hostile nations.
Several incidents highlighted by the report conclusively state that there was a systematic and targeted violence against a specific community. Shops with specific names in Bhajanpura Market and Nawaral Market were targeted as part of identity-based violence.
The attacks on 17 mosques and unfurling of a saffron flag on Allah Wali Mosque in Karawal and Maula Baksh Mosque in Ashoka Nagar are gory reminiscence of the medieval era, where the victorious either trampled down the sacred sites of the defeated, or changed its nature, as an ultimate sign of subjugation and humiliation of the opposite party.
Desecrations of the mosques during these riots were to humiliate the identity of the so-called ‘defeated’. As mentioned in the report, the riots were in retaliation to the Anti-CAA protests. It is, indeed, unfortunate that in the world’s largest democracy, citizens are being punished for availing their democratic right to a peaceful protest.
Legal impunity as immunity
Politics aside, it is important to note how these incidents are connected with legal impunity and affect the administration of justice. Just like common citizens are bound by the law, and any unlawful act done by them will jeopardise their liberty, the public officers and servants, similarly, are bound by law to protect the life, property, and liberty of citizens, and maintain peace and tranquillity in society. If the public officials fail to perform their duties, they can be punished but a ‘Government-Political’ sanction under Section 197 of Criminal Procedure Code (Cr.P.C) is required to start investigation or they are admonished or reduced in their rank under All India Service Rules.
However, no such permission is required to start investigation against the common man. The legislative intent behind Section 197 of Cr.P.C is to protect public servants and officers from frivolous prosecution for an act done in the course of their employment. The power to give the green signal for investigation against the officials is usually subject to the whims and fancies of the ruling party.
Law presumes that he/she acts in the interest of State in the course of their employment. By no stretch of imagination, their non-performance of duty in tumult and fury of identity-based violence can be an act in the interest of the nation. However, for investigating their role in failing to prevent or control the targeted violence, this provision acts as a legal impediment in administration of justice to the victims of violence.
Delay by police
DMC’s FFC states that the violence escalated in the days following BJP leader Kapil Mishra’s speech. The High Court of Delhi on 26 February, while hearing a petition seeking the registration of a First Information Report against BJP leaders Kapil Mishra, Anurag Thakur and Parvesh Verma for their speeches that led to incitement of violence among other prayers, asked the Delhi police to take a conscious decision to register an FIR in 24 hours. Justice Muralidhar expressed anguish that the city was burning and questioned the Delhi police on the delay and its lack of acknowledgment of the speeches themselves as crimes.
The anguish expressed by Justice Muralidhar on delay to file an FIR in cases of communal violence is not the first of its kind. In the village of Login, of Bhagalpur Massacre-1989, the FIR was lodged against the perpetrators only after the intervention of DIG Ajit Dutta almost more than a month after the massacre. Every Commission of Inquiry on communal incidents post-independence, such as Tewary Commission of Nellie Massacre-1983, GT Nanavati Commission of 1984 Delhi Riots, raised the issue of dereliction of duty by public servants, thereby aggravating the suffering of victims. Hence the issue of dereliction needs policy approach beyond political lines.
Now, on July 14, the Delhi police states in an affidavit that there is no prima facie evidence against Kapil Mishra and others to register an FIR. Well, one only hopes this will not be considered as an act of dereliction in the future.
Shoddy investigation and forms of dereliction
Dereliction by the police is not limited to acts of delay in deployment of armed forces in rush hours of riots. But the anonymous, unnamed, omnibus references as well as delay in FIR during investigation i.e., post-riots, are the perfect legal pitfall that makes the conviction of real perpetrators almost difficult.
The incidents of violence and reaction of the police have been clearly documented in the report–the police force finally came at around 6.30 pm on 23 February. A police officer aimed his gun at the attackers but someone from within the police force, may be a daroga, stopped the policeman, saying ‘do not stop them (attackers)’. The police officers then stopped, which intensified the loot and arson. The omission of a police officer is an offence under Section 119 as an abetment of offence.
Another incident of Faruqiya Masjid near Brijpuri and its aftermath reveals the scheme to derail the administration of justice.
Says the Fact-Finding Committee report, “Delhi Police personnel personally visited him (complainant) and conveyed to him a message to compromise with the named persons or write a new complaint without naming the persons in his complaint.”
The act of police personnel forcing the complainant not to disclose the names of perpetrators is one of essentials for the offence under Section 166 and 166A of IPC. Under Section 166 and 166A, whoever being a public servant ‘knowingly disobey, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, shall be punished for not less than six months but which may be extend to two years’.
Sanction is a prerequisite for the investigation under Section 119 of IPC but under Section 166 and 166A, it is not required. Yet, the role of sanction which is political in nature plays a pivotal role in the administration of justice against the public servants.
Identity-based violence and criminalisation of slur
The FFC report further documents the slurs such as ‘kaat do in Mullon ko’ (cut these Mullas into pieces). In present times, the words ‘Mulla’ and ‘kut-mulla’ are slurs associated with Muslims in North-India. It is a vocabulary to express a sense of animosity and inferiority against them. The legislation like ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989’ has criminalised the caste-specific slur associated with Schedule Castes and Schedule Tribes and this has helped reduce the caste-specific crimes in India. There is a need to recognise and criminalise the religion-identity based slurs that instigate violence on par with the above-mentioned legislation. If these slurs are not criminalised, religious identity-based violence could very well blow into genocide.
Further, the FFC of DMC conclusively states that the Delhi riots were identity-based violence and when this identity transcends from ‘Non-State actors’ to ‘State actors’, the very notions of rule of law and justice are limited to the privileged identity.
For the non-occurrence of such riots in the future or to mitigate the chance of occurrence or loss of life, it is imperative that the command responsibility is introduced in the Indian criminal law. As recommended in the FFC report, command responsibility will make the higher officials responsible for their failure to command the subordinates to act. It encompasses the failure to take reasonable steps to prevent crimes, as well as the failure to punish crimes that have occurred and outlaw the practice of sanction as a prerequisite for the investigation of public officers/servants in incidents of such identity-based violence