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Colin Gonsalves,
Advocate, Supreme Court of India
The events unfolding in Gujarat and the
shameful role of the police force there once again bring into
focus the need for India to squarely confront the issue of
institutionalized communalism.
Commissions
From 1961, commission after commission has
indicted the police. The Justice Shrivastava Commission of
Inquiry Report of 1961 on the riots in Jabalpur, Sagar, Damoh and
Narasinghapur, found "the intelligence department...[was]
entirely inefficient and the law and order authorities were
responsible for a laxity in investigation and prosecution which
resulted in large [numbers of] acquittals".
The Justice Dayal Commission of Inquiry into
the riots in Ranchi, Solapur, Malegaon, Ahmednagar, Sursand,
Jaipur and Suchetpur in 1967 found "that either there was no
police force to deal with the mischief makers or it had no
directions to act".
The Justice Reddy Commission investigating the
Ahmedabad riots of 1969 found the law enforcement agencies
passive, even though they "could not but have known that the
communal atmosphere had become tense".
The Justice Madon Commission looking into the
distuburances at Bhiwandi, Jalgaon and Mahad in 1970 found that
policemen either did not prevent Hindu
rioters from indulging in rioting, looting and arson or
showed communal discrimination in dealing with the rioting
mobs, or gave incorrect information to the control rooms, or
lodged incorrect FIRs [First Information Reports]* in order
to make out that the persons who were responsible for looting
and arson were Muslims, not Hindus, or to assist Hindu
rioters in burning and looting Muslim properties... The
working of the Special Investigation Squad is a study in
communal discrimination. The officers of the squad
systematically set about implicating Muslims and exculpating
Hindus irrespective of whether they were innocent or guilty.
The Justice Vithyatlul Report of the Commission
of Inquiry into the Tellichery disturbances in 1971 set out the
evidence of the Deputy SP [Superintendent of Police] who said
that
he had to curb his rank and file who could
not restrain themselves when they met Muslims on the road...
many yelled at them to go to Pakistan... They were infected
by the virus of communalism.
The Justice Narain, Gliosh and Rizvi Commission
of Inquiry into the Jamshedpur riots in 1979 received wide
ranging complaints regarding the anti Muslim behaviour of the
Bihar Military Police.
The N C Saxena inquiry into the Meerut riots of
1982 summarized the orders of senior police officers in one
phrase: "Muslims must be taught a lesson." The police
and the PAC faithfully implemented this policy. Looting and arson
in this context was considered legitimate and necessary and was
therefore ignored.
The Sixth Report of the National Police
Commission, 1981 found several instances when policemen
have shown an unmistakable bias against a particular community
while dealing with communal situations.
The National Integration Council found that the
most disquieting feature in recent times is the loss of
credibility of the police in the effective tackling of communal
disturbances.
Delhi (1984)
Pioneering work has been done by Vrinda Grover,
an advocate from Delhi, on the precise role of the police during
the Sikh massacre of 1984. A similar study was done by Jyoti
Punwani and Shakil Ahmed in Bombay, on the massacre of Muslims in
1992.
The Justice Mishra Commission looking into the
Sikh massacre in 1984 censured the police for not only failing to
control the violence, but also in some instances instigating it,
creating conditions conducive for its spread and for botching
investigations afterwards. It noted that the police were actively
involved in the violence. It censured their actions in taking
away arms from Sikhs who were trying to defend themselves.
Allegations regarding police officers were dropped from the First
Information Reports (FIRs). The emergency police telephone number
remained non-responsive. The police were seen mingling and
marching with the mobs. FIRs were either not recorded, or wrongly
recorded, or vague omnibus types of FIRs were recorded. The
investigations were casual, perfunctory and faulty. Most
statements recorded would end with a declaration that the witness
was unable to identify any person among the mob. No attempts were
made to obtain corroboration. Accordingly, charge sheets were
filed with the complainant as the solitary witness.
After the Justice Mishra report, the Delhi
Administration appointed the Justice Kapur and K L Mittal
Committee. The latter in a detailed report identified officers
for good conduct, dismissal, departmental inquiries or further
investigations. The government did not release the report to the
public and took no action.
There was also evidence before the Commission
(including Police Commissioner Tandon's statement) which
showed that whenever the police took action, the situation did
not deteriorate.
Thereafter, the Jain-Aggarwal Committee report
expressed shock in finding lapses by the police at every stage of
the investigation. The Committee got the impression that senior
police officers abdicated their responsibilities:
"Investigation had abruptly stopped for no good
reason." Accused people, though named in the FIR, were left
out of the charge sheets without convincing grounds.
In his deposition before the Nanavati
Commission, Ram Jethmalani stated that when he called on the then
Home Minister P V Narasimha Rao to appraise him of the situation,
he found him "listless and unconcerned". Kushwant
Singh's deposition includes an account of a sub-inspector of
the Delhi Police who stood by watching the looting. Jaya Jaitley
deposed that the rioters "were not afraid of the police who
were standing by".
Observation by the courts
In State v. Abdul Azis, the sessions
court dealing with a Sikh massacre characterized the police
action as "grossly negligent and a grave dereliction of
duty". In a similar case, State v. Kanak Singh, the
Judge observed that "the police were not at all interested
in investigation but [were] interested in hushing up
things". In State v. Ashok, the court acquitted the
accused, noting that the police had not conducted the test
identification parade properly. In State v. Ram Pal
Saroj, the sessions court observed that in most cases
"in order to help the accused persons police had given wrong
facts." He then went on to say,
The criminal law system in this country has
totally failed. The manner in which the trial of the riot
cases proceeded [would be] unthinkable in any civilized
country. It amounts to [a] total wiping out of [the] rule of
law.
Mumbai (1992)
Justice B N Srikrishna's report found
specific police officers to be "utterly trigger happy",
"guilty of unnecessary and excessive firing resulting in the
deaths of innocent Muslims", "extremely communal"
and "guilty of inhuman and brutal behaviour". They had
been "responsible for allowing a violent mob to hack to
death one Abdul Razak, [and] actively aided and connived with the
mob". It accused them of going on a "rampage" and
"attempting to shield miscreants belonging to the Shiv
Sena", and "openly indulging in riots while carrying a
naked sword along with Shiv Sena activists". They had also
all but handed over one Babu Abdul Shaik to the mob
"resulting in his being hacked to death" and
"stood by... while assaults took place". Some of these
officers had "suppressed evidence", "mislead
senior police officers," "looted articles and
furniture" and "allowed kidnapping of an 18 year old
girl and brutal murder of a handicapped person". In short
they were "communally biased against Muslims."
Advocate Shakil Ahmad and Jyoti Punwani found,
on looking into the Action Taken Report of the Maharashtra
Government, that most of the officers against whom severe
strictures were passed by Justice Srikrishna were in fact
promoted. Many were granted anticipatory bail. All were released
on bail with the public prosecutor often not arguing for their
detention. Not a single policeman spent a single day in police
lock up or jail. In the few instances where the departmental
inquiries were completed the punishments imposed were farcical,
such as reduction in rank or cut in increments; a few were
compulsorily retired. Despite Justice Srikrishna's detailed
inquiry and strictures, most were exonerated departmentally. On
the criminal prosecution front it was the same dismal story. FIRs
were not registered in many cases. Charge sheets were not filed.
The outcome of the departmental inquiries and
criminal prosecutions was obvious. Most departmental inquiries
result in exoneration or minor punishments; all criminal
prosecutions result in acquittals.
Commissions ignored
The reports of the commissions of inquiry were
treated like waste paper. Though headed by senior judges of the
high courts or senior administrators, their meticulous findings
were ignored. The fact that under the Commissions of Inquiry Act
(1952) the reports are not binding was wrongly taken to mean that
governments could do as they like with the reports, rejecting
sound suggestions and findings. Not only the provisions of the
Commissions of Inquiry Act, but a higher power, Article 14 of the
Constitution, informs government action, requiring governments to
act rationally and not arbitrarily. The findings are indeed not
binding, but from there to the proposition that the government
can disregard commission reports at will is a long jump. What the
section means is that governments can depart from the Commission
findings, but only for good reason. Once the findings are
accepted by a government, and no good reason can be shown for
departure, going by Article 14 the government is bound to act in
accordance with the Commission's Report.
Article 311 (2)
This article of the Constitution confers an
extraordinary power on the government to dismiss a government
servant without a departmental inquiry where it is not reasonably
practicable to hold such an inquiry, or where the President or
Governor are satisfied that it is not expedient to hold such an
inquiry.
The time has come now to bring this article
into full play against police officers who engage in communal
crimes. On a commission of inquiry finding them guilty, they must
be dismissed forthwith and the charade of a departmental inquiry
should be dispensed with. In most cases commission reports come
at the end of a lengthy inquiry, where the policemen concerned
are also heard. After such a lapse of time it is futile to expect
witnesses to depose once again before a hostile police inquiry
officer. It is, therefore, not reasonably practicable to hold a
departmental inquiry.
In cases where departmental inquiries are to be
conducted, the government should not leave this task to the
delinquent's superior officer, but establish special and
autonomous disciplinary boards with senior police and non-police
personnel. The proceedings of such boards should be open to the
public. For the prosecution of police officers, the Central
Government should establish a special and autonomous cell of
senior police officers devoted exclusively to the prosecution of
policemen.
Conclusion
The seriousness of this crisis lies not just in
the fact that there has been a breakdown in the administration of
justice. More importantly, there has been a breakdown in the
constitutional machinery itself. The principal law enforcement
agency has emerged as the single biggest threat to democracy.
The time to act is now. The ball is in the
court of the judges. Only they, by judicial pronouncement, can
lay down a new law for the effective and immediate prosecution of
police officers who engage in communal crime.
This is edited text of an article originally
published in Combat Law: Human Rights Magazine, vol. 1,
no. 1, April-May 2002. Colin Gonsalves is also the editor of
that publication.
End Note
* First Information
Reports are covered by section 154 of the Code of Criminal
Procedure. The plain reading of the section is as follows:
Sec. 154. Information
in cognizable cases [where the police may arrest without warrant]
(1) Every information
relating to the commission of a cognizable offence, if given
orally to an officer in charge of a police station, shall be
reduced to writing by him or under his direction, and be read
over to the informant; and every such information, whether given
in writing or reduced to writing as aforesaid, shall be signed by
the person giving it, and the substance thereof shall be entered
in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf.
(2) A copy of the
information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant.
(3) Any person
aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in
sub-section (1) may send the substance of such information, in
writing and by post, to the Superintendent of Police concerned
who, if satisfied that such information discloses the commission
of a cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police
officer subordinate to him, in the manner provided by this code
and such officer shall have all the powers of an officer in of a
police station in relation to that offence.
An FIR should contain
the time of reporting, the police station, the relevant
provisions of the Penal Code under which the offences are
punishable, the address of the informant, that of the accused if
available, the crime number, date and all other elementary
details.
Various courts have
interpreted this section of the code time and again. Many matters
concern its effective utilization: information can be given over
telephone or even in reported speech; no person need personally
go to the police station to give this report. It can even be an
anonymous telephone call. Although a copy of the recorded version
is required, many times the police fail to do this so as to
facilitate their subsequent malpractices. In many cases, the
delay in filing the FIR is detrimental to the successful
prosecution of the case. However the courts have held, and it is
a settled position of law, that in cases of rape and the like
where the informant is reluctant to lodge a complaint, even a
delay of years could be excused given the situation and nature of
the offence reported.
(Grateful acknowledgement to Bijo Francis,
Advocate, Kerala, for additional comments in end notes to
articles on India in this edition.)
Posted on 2002-08-15
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