August 09, 2020

Delhi Violence: Subverting the Processes of Justice

Brinda Karat

THE Delhi Lt Governor’s recent intervention to overturn the order of the Delhi government regarding the panel of lawyers in cases related to the communal violence in Delhi raises several questions.
This team appointed by the LG which had been earlier suggested by the Delhi police themselves consists of senior standing counsel of the central government led by the most trusted law officer of the central ruling regime, the solicitor general Tushar Mehta. Such an appointment is way beyond the reach of the Delhi police or the LG. This is straight from the top, from the home minister Amit Shah, showing the high stakes in ensuring that the judicial process goes the way the ruling regime would like it to.

The LG has referred the “difference of opinion” with the state government to the president of India under Sec 239 AA (4) of the constitution of India.

This section reads “Provided that in the case of difference of opinion between the lieutenant governor and his ministers on any matter, the lieutenant governor shall refer it to the president for decision and act according to the decision given thereon by the president and pending such decision it shall be competent for the lieutenant governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”

The crucial words here are “is so urgent” for him to take immediate action. What is the urgency? As details of chargesheets filed come into the public domain, questions are being raised about the sequence of events narrated by the Delhi police and the inconsistencies, the self contradictions in the narration. Statements made by witnesses quoted by the police to strengthen their case often reveal the utter failure of the police to intervene in time to prevent the violence. In addition, courts are also hearing public interest litigations which quote details of the participation of sections of the Delhi police either as direct participants in the violence or as giving encouragement to one side. Videos and photographs have been annexed with many of the petitions which provide incontrovertible evidence. Thus the police or more correctly the forces behind the Delhi police require a guarantee of a team of lawyers who are committed not necessarily to uncovering the truth or to serve the interests of justice but to protect the tales being spun to conceal the truth. Most importantly, the composition of the panel is required to send a strong message to the courts of the direct involvement and interest of the home ministry in this entire process.

On February 26 a petition was heard by the Delhi High Court to direct the police to file an FIR against Kapil Mishra and other BJP leaders for incitement to violence and hate speeches. It was the solicitor general who argued against it saying that the time was not right “the police will file FIRs at the appropriate time.” The court rejected his plea and directed the police to file an FIR within 24 hours. The next day the judge who gave these orders was transferred ostensibly on a pending order earlier made. One can only conjecture as to the impact this may have on the courts hearing similar petitions. These are some of the probable reasons for the “urgency” clause invoked by the LG to ensure that it is the SG and his team who should represent police in 84 of such cases.

This happens in the wake of another development which is the submission of the report of the Delhi Minority Commission. This is the only report from an officially recognised agency. Their report strongly indicts the Delhi police and leaders of the central ruling regime like Kapil Mishra. It is also the first official report that names Amit Shah as one of those who had made communally provocative speeches during the Delhi elections. The chairman of the DMC is facing a case and threat of arrest on entirely flimsy grounds. But the report produced is an important document that challenges the official narrative. The commission recommends the setting up of an independent probe which has been supported by citizens across the city in a letter to the chief minister. This report challenges the narrative of the Delhi police.

It is true that both communities suffered in the violence. Any life lost is a tragedy and condemnable. There are armed criminals on both sides. Those guilty must be punished. But let us not lose sight of the fact that the brunt of the violence was borne by one community. In the omnibus response to many of the petitions, the Delhi police itself has provided official statistics as on July 13 of the deaths and damage during the violence. Many of these are given community wise. There were 53 deaths of which 40 were Muslims and 13 were Hindus. Of the 473 civilians injured, 288 were Muslims and 185 were Hindus. Of shops damaged, 173 belonged to Muslims and 42 to Hindus. 13 mosques and six mandirs were damaged. There are 751 FIRs filed. The total arrests are 1,430 as on July 13. Earlier giving the breakup of 1,340 of those arrested, the Delhi Police PRO had stated that 700 Muslims and 630 Hindus had been arrested. He quoted these figures to show that the police was being “even handed.” But a simple question: if the majority of victims are Muslims, how is it that the number of arrests are more from that community? But who will answer these questions?

A perusal of the chargesheets also shows a clear bias. In cases where Muslims have been murdered, the invariable defence given by the police is that the violence which led to their murders by  “Hindu mobs” was “retaliatory” in nature. For example in the chargesheet on the murders of two brothers Hashim and Amir, the police identified members of a 125 member WhatsApp group called Kattar Hindu Ekta who were sending the most communally incendiary messages to each other.  Only 12 of them have been charged with the murders. In the chargesheet, the police virtually justify the actions of this gang of communal criminals. “(they) were annoyed with Muslim community due to riots in Delhi... seething with anger as many stories of Hindus being attacked by Muslims... they wanted to teach a lesson to Muslims.”

In this chargesheet, the role of the police is also inadvertently exposed. The police did nothing while crowds of men from February 24, roamed the area around Johripur pulia stopping people and checking if they were Muslim. If they were, they were beaten mercilessly. From the evening of February 24, chargesheet quotes the most important witness in the case, a Hindu who was stopped on his way home on February 24 by mobs shouting Jai Shri Ram. He fell and when he got up his motorbike was missing. He rushed to the police station to file a report. They asked him to come the following day. He told the police about the mobs in the area but the police did not act.  Between 4.00 pm on February 25 to 10.30 pm on the 26th, as many as nine Muslim men were killed in the same place. In fact another truth emerges. If the army had been called out on the 24th, the violence and loss of lives would have been avoided. The home minister is directly responsible for this.

There are no charges against the policemen responsible who refused to prevent the Johripur pulia killings. The SITs set up for the investigation are headed by men of the same force. They have told the courts that they have no evidence so far of the police role. Not just the police, but the toxic communal campaign of the BJP leaders and individual leaders directly responsible for inciting the violence find no place in a single FIR or charge sheet.

The choice of the prosecution panel also makes it clear enough that top law officers of the country are going to be defending the indefensible. The prosecution has been chosen to defend the police, to defend the BJP leaders and sangh parivar gangs, to present the entirely manufactured narrative which demonises the anti-CAA protests and blames the violence on a so-called national conspiracy of jihadis, urban naxals and so on, branding all anti-CAA protests as being anti-national. Activists from JNU, Jamia and others have been arrested under the draconian UAPA to deny them bail. All have been charged with conspiracy.

For the BJP and the RSS, democratic protest and solidarity is conspiracy. Common slogans, common aims and common actions to prevent the NPR and NRC can only occur if there is a foreign funded conspiracy. Only the RSS or the BJP have the right for coordinated countrywide actions such as they organised for decades in the name of the Ram Mandir. Women who were in the forefront of the historic anti-CAA agitation, have in the eyes of those ruling India, no independent agency, no ability to think and act on their own. The days and months the women in the anti- CAA protests sat in the cold, with the constitution in their hands, the national flag as their symbol, totally peaceful, was in the narration of the Delhi police all stage managed, they were nothing but puppets being strung up by these groups of conspirators. Nothing can be further from the truth, nothing can be more insulting to the women who have fought to save India’s secular basis for citizenship than to call them puppets. One may have differences, and we do, with some of the groups who joined the protests and advocated calls of action which were inappropriate, but to brand such actions as anti- national is nothing but politically motivated to conceal the role of ruling party leaders. It should also be remembered that more than ten state governments and also allies of the BJP had opposed the NRC. According to the Delhi police version, they are all anti- national.

The Delhi police have in their chargesheets assumed a political role – deeming every protest against the CAA as anti- national, deeming all opposition to the CAA as “misleading the Muslim community”. The police does not have the right, the mandate or the jurisdiction to declare that the CAA does not affect the citizenship rights of minority communities. This is a political question. They can say that protestors violated this or that law or restriction, they have no right to comment on anything else. If we accept that police have the right to dictate whether the politics behind a peaceful protest is right or wrong, we might as well declare India a police State.

The demonisation of the anti-CAA protests is to ensure that no one dares to protest again against the CAA, the NRC and the NPR. The clashes and violence in north east Delhi were a result of a conspiracy, it is true, but the conspiracy was to avenge the defeat of the BJP in the Delhi elections; it was to disrupt and demoralise the most effective mass protest against the NDA-2 government, which had national reach and ramifications; it was to silence critics and dissenters; it was to hollow out the constitution; it was in the main a most cynical conspiracy to push the politics of communal hatred, division and polarisation. The LG’s intervention is linked to these aims.