When we look back at the Northeast Delhi riots of 24-26 February, one question that will continue to be asked is - could the judiciary have intervened?
As things stand today, Muslim victims are finding it difficult even to get FIRs registered, or to avail the compensation that is due to them. Victims are being intimidated and BJP leaders being left out of the investigation altogether. Given these circumstances, could the court have been more proactive and handled matters differently?
This article will examine this question by looking into past precedents while also taking stock of how the probe into the violence has proceeded so far.
What Could the Court Have Done?
After the 2013 Muzaffarnagar riots, the Supreme Court had promptly started hearing matters and the government of Uttar Pradesh was asked to file status reports. Within three months, the Supreme Court had secured all the details of investigation, compensation, rehabilitation, damage to the properties etc.
The Muzaffarnagar riots were no doubt unfortunate but steps taken by the government were effective. They organised 58 relief camps, medical facilities, drinking water, tents, fodder for cattle etc. Each of the deceased was compensated with an amount of Rs 15 lakh and government employment for the dependent. All this was possible because of prodding by the Supreme Court.
Like in the case of the Delhi violence, the police had registered hundreds of FIRs in Muzaffarnagar as well. But the Supreme Court was pro-active and directed the investigators to eschew communal bias and take steps to arrest culprits.
But in the Delhi violence, the criminal justice system seems to have let people down. Despite petitions, there was no intervention by the court. The only exception was a spirited midnight order of the Delhi High Court to rescue seriously injured persons for medical help.
Many victims are still waiting for inquiry on their damaged properties for the determination and payment of compensation. Dead persons have been paid Rs 10 lakh without any social security for their dependents. In court, the police has taken a stand that the FIRs connected with the riots and list of arrested persons are sensitive information and cannot disclosed in public.
These are all matters in which the courts could have intervened. It could have pushed the police to act on all of these issues.
When it comes to riot cases, there are some positive judicial precedents.
In case of the Muzaffarnagar riots, the Supreme Court prima facie held the state government responsible for being negligent. In the Hashimpura case, the Delhi High Court has stated that the violence ‘was a case of targeted killing revealing an institutional bias within the law enforcement agents’.
Again, in relation to 1984 anti-Sikh riots, the Delhi High Court noted that ‘the mass killings of Sikhs between 1 and 4 November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of ‘crimes against humanity’. The court also stated that there was an abject failure by the police to investigate the violence.
Activists have gone to court but investigating agencies have refused even to disclose the FIRs and names of arrested persons. It is high time that the courts start asking for status reports on all the cases registered of rioting, arson, loot and destruction of properties, injuries and murder.
But instead of a thorough, court-monitored probe, what we have is an investigation based on a one-sided premise.
The Premise and the Reality
The Delhi Police has filed a series of charge sheets in connection with the Northeast Delhi riots, attributing much of the blame to an alleged “conspiracy” by CAA protesters.
This theory doesn’t hold water. Let me point out how.
Out of the 53 killed, 38 were Muslims. A vast majority of shops and houses destroyed belonged to Muslims.
Data provided by the police suggests that 12 Muslim places of worship and two Hindu places of worship were destroyed during the riots. During the fact-finding for the report by the Delhi Minorities Commission, we found out that the number of masjids, graveyards and madrasas damaged is as high as 22.
We also received reports of sexual violence against Muslim women.
There is ample evidence of targetted violence. For instance, in a lane of 44 shops in Bhajanpura’s Dilli Durbar Market, only two belonging to Muslims were looted and burned and no other shop, including an ATM was touched there.
Where Is the Probe Headed?
It's not just the violence, but even the probe has been lopsided in its approach.
Muslim complainants have found it difficult to get FIRs registered. In some cases where FIRs were registered, the name of the accused was left out or made irrelevant by being clubbed with a general FIR.
Out of 751 registered cases, about 700 cases are likely to be for acts such as arson, looting and destruction of houses, shops and religious places and injuries sustained by the victims etc.
Even if Muslim victims’ FIRs get registered, it is really doubtful whether they will get witnesses to support their cases.
Most of the victims, their families and potential witnesses are poor people who have invested their life savings to make a small home. Many of these people also live in areas where they are in a minority.
Many of them fear that if they speak up against the perpetrators, it would become difficult to live in the area and their homes would be in danger. There have already been several cases of complainants and witnesses being intimidated.
These complainants are scared to even go to the police stations because they have seen several people from their area being arrested.
Take the case of 60-year-old Hashim, whose house in Shiv Vihar was attacked during the violence. He named three persons in his complaint, which was clubbed with a general FIR in which Hashim himself was arrested!
The police arrested him and kept him in custody for 43 days, until he was released on bail. No one else has been named in the case as yet.
As per procedure, investigation should be done after registration of FIR. But in the case of complaints filed against BJP leaders, the police said that no actionable evidence has surfaced indicating that they had a role to play.
So does that mean the police conducted an investigation before registering all the 751 FIRs?
The Supreme Court guidelines on this issue are that the police is under obligation to register an FIR. Neither does the police think before violating it are the courts taking any action on such matters.
In sharp contrast to this is the promptness with which the police has gone about collecting evidence against CAA protesters.
Immediately after the Delhi riots, I spoke with elderly Muslim gentlemen about the prevailing situation in the violence-affected areas. He responded with an Urdu couplet:
‘Usika shahr, wahi muddayi, wahi munsif; hamein yaqeen tha, hamaara qusoor niklega [It’s his city, he’s himself the petitioner and himself the judge I was sure, I will be held guilty].
This reflects despair and dejection.
In a book on Gujarat Riots of 2002, Ward Berenschot writes that ‘despite the persistent and brave pressure from the riot victims and various activists, the courts in Gujarat have been very reluctant to sentence riot perpetrators’.
(The author is an advocate, Supreme Court of India and acted as the Chairperson of the Fact Finding Committee on Delhi Riots Constituted by the Delhi Minorities Commission. This is an opinion piece and the views expressed in this article are that of the writer’s own. The Quint neither endorses nor is responsible for the same.)