FAWAZ SHAHEEN dwells upon how the saga of denying justice without delay is continuing and how the Faridabad Additional Sessions Judge Y S Rathore’s upholding of the law in the Junaid Khan case in the face of brazen violation by the state is a welcome sign.
Additional Advocate General Naveen Kaushik of the State of Haryana tendered his resignation last week from the government’s panel of advocates after being accused of wrongfully providing assistance for the defence counsel representing the accused in Junaid Khan’s killing. Fifteen-year-old Junaid Khan, his brother and two cousins were attacked by a mob inside a train near Faridabad in June, a few days before the Muslim festival of Eid al-Fitr. The case is currently being tried at Sessions Court, Faridabad.
A few days ago news outlets reported that in an interim order dated October 25 the Judge trying the case, Y S Rathore, said that Additional Advocate General Naveen Kaushik was assisting the defence counsel of the main accused during cross-examination proceedings on October 24 and 25. The judge noted that it was against legal ethics for a Law Officer of the state prosecuting a case to assist a person accused in the matter, and recommended that appropriate action should be taken against him by the High Court and the State Bar Council. The judge also noted that this will send a “wrong signal” to the victim’s family and hinder the court’s attempt to “conduct a free and fair trial”.
While an advocate on the government’s panel is not barred from accepting private cases, it is illegal for him to appear privately in a case where the state itself is a party, including all criminal cases.
These developments come in the backdrop of Junaid’s family moving a petition in the Punjab and Haryana High Court seeking to get the case transferred to an impartial agency. The family has alleged that the Haryana police have not conducted a fair investigation and that they have diluted the charges against the accused.
In its reply, the Haryana government has denied any wrong-doing and instead claimed that Junaid Khan’s family is looking to “compromise” in the case and is seeking two crore rupees and three acres of land as compensation from the accused. Junaid’s family has denied these allegations and claimed that this was another attempt to pressurise them into dropping the case. According to news reports, Junaid’s village panchayat recently tried to convince his father to settle the matter out of court with the accused in lieu of monetary compensation, but the offer was rejected by the family.
The state government’s claim in Court that Junaid’s family is seeking money and land as the price for reaching a ‘compromise’ with their son’s killers is both startling and sinister at the same time. It must be borne in mind that even if the victim’s family was asking for compensation or looking to compromise, it should have no impact on the criminal case as such.
In all cases where a criminal offence is reported to have been committed, and especially in serious cases like murder and grievous injury, it is the state’s responsibility to investigate and then prosecute the offence. Even if – with if being the operative word – the family ‘settles’ with the perpetrators and reaches a ‘compromise’, all they can do is withdraw their complaint. But this would not ameliorate the state’s responsibility to prosecute the offence and seek to obtain a conviction.
However, the tone and tenor of the Haryana government’s affidavit clearly reflects that their responsibility towards ensuring justice is the last thing in its mind as far as the Junaid Khan case is concerned. Instead, the state government seems more interested in cultivating an image of the victim’s family as publicity mongers who are out to exploit the interest which has been created around their son’s killing. The killing itself seems to have been relegated to the background, the real crime in the state’s eyes seems to be the family’s insistence on pursuing the case and seeking justice.
This is not merely an attempt to cover up a bureaucratic lapse or negligence, this is a clear assertion that the state does not consider the family’s complaints to be truly legitimate, that the brutal killing of Junaid Khan in its eyes is somehow something less than a heinous crime.
What is happening in the Junaid Khan case is part of a larger trend across states in cases related to ‘mob violence’ against individuals belonging to minorities and marginalised sections. Most cases of such so-called ‘mob violence’ involve organised local groups whose members are often also reported to have been associated with the BJP or other Hindutva groups like Bajrang Dal or RSS. And these politically powerful local groups operate with the implicit support of local police and enforcement agencies.
In a recent report on lynching cases in India (“Lynching Without End”, published by Citizens Against Hate) it was pointed out that the police’s indirect culpability in such cases is reflected in three important ways: (1) the inaction and laxity in responding to requests for protection, (2) clear bias against victims seeking justice and (3) omissions in conducting a thorough investigation, including unnecessary delays in lodging FIRs, failure to record key evidences and testimonies and dilution of charges against the accused. This is apart from the cases where police officers are directly involved, either through staged ‘encounters’, lynching or the many cases of related harassment.
All of this has contributed to a growing pattern of low-intensity, systematic and organised violence targeted against minorities and marginalised sections. The same report notes:
The impact this has on the minds of the Muslims and other religious minorities is immense, and of a very enhanced scale compared to that of mass violence. In the latter, the shock was intense, but there was also healing and a process of getting back to normality, of closure – if not through delivery of justice and reparation, then through the passage of time. With lynchings without end, there is no closure. There is no start and end date to these, making fear infinite, ever happening, everywhere.
Junaid Khan’s case stands as a stark indictment of an entire system seeking to terrorise, demonise and exclude entire communities from the guarantee of equal citizenship. It is now only in courts of law that the remaining strength of our Constitution will be tested against this unending and organised hate. The Faridabad Additional Sessions Judge Y S Rathore’s upholding of the law in the face of brazen violation by the state is a welcome sign, we can only hope it will not be the last.
[FAWAZ SHAHEEN is a Research Fellow at Quill Foundation and can be reached at [email protected]]