Justice Delivery System and Indian Muslims

VISHAL ARORA says that the Muslims are grossly disadvantaged in getting benefits from the judiciary. He pleads that corrective steps should be taken up promptly.

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VISHAL ARORA says that the Muslims are grossly disadvantaged in getting benefits from the judiciary. He pleads that corrective steps should be taken up promptly.

The three most important factors on which the delivery of justice depends are: independence of judiciary, its accountability and the administration of police. Unfortunately, all the three areas are plagued with gross problems in India, paralysing the justice delivery system and making it out of the reach of weaker sections of society and religious minorities.
One may wonder why independence of judiciary is a problem in India when its judges function independent of the executive. For, according to the Indian Constitution, appointment of judges of high courts and the Supreme Court is not in the hands of the executive, and their removal is not possible except by an order of the President supported by a two-third majority in the Parliament on the ground of proved misbehaviour or incapacity. Besides, judges have fixed tenure and remuneration so that they can deliver justice without fear or favour.
As regards the separation of powers, there can be little doubt that judiciary and executive are independent of each other. However, in the functioning of the judiciary interference or subversion of justice by the executive is commonplace and can be observed in a crystal clear way.
Given the fact that it is the State that fights criminal cases on behalf of its citizens, the delivery of justice depends to a great extent on the police, who are responsible for investigation, and public prosecutors, who are supposed to present a victim’s case. Both police and public prosecutors report to their state governments. As regards the “independent” courts, they merely weigh the evidence collected by the police and presented by the public prosecutor.
Whether the agents of the state government discharge their duties depends on which party controls that government.
For instance, after the post-Godhra carnage in Gujarat in 2002, in which more than 2,000 Muslims were killed, the Bharatiya Janata Party (BJP)government dismissed more than 2,000 cases, a majority of which allegedly involved party workers and cadre of the Vishwa Hindu Parishad (VHP) and its youth wing Bajrang Dal. By not filing even first information reports (FIRs), the Gujarat police prevented these cases from reaching the judiciary.
Only a minority of cases related to the post-Godhra violence managed to reach the courts. However, even these cases were not investigated properly by the police. On the contrary, in February 2003, the authorities detained those accused of involvement in the killings of kar sevaks in Godhra under the draconian Prevention of Terrorism Act (POTA), following the confession of an accused who pointed to the involvement of Maulana Hassan Umarji, a local cleric, who, it was alleged, had planned the attack. No charges were framed under POTA for those accused of taking part in the subsequent communal violence.
In the light of the dubious role of the police and public prosecutors, the Supreme Court in 2004 ordered retrial of the Best Bakery case, in which the Vadodara fast-track court in June 2003 had acquitted all the accused due to a lack of evidence as a result of shoddy investigation, and the Bilkis Bano gang rape and murder case, which was initially closed by the police saying no evidence was found but later it came to light that the police had tried to destroy the evidence by burying the bodies with salt to make them decompose quickly. The apex court transferred these cases outside of Gujarat to Maharashtra.
Referring to the Best Bakery case, the Supreme Court on April 12, 2004 stated, “The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime”. The judgment also mentioned the “possibility of the investigating agency trying to shield the accused persons”, describing the act as “worse than that of a terrorist and more dangerous than an alien enemy.”
But, what happened after the unprecedented indictment of the Narendra Modi-government by the apex court? More than five years later, only a few culprits have been punished in connection with the 4,000 police cases filed after the 2002 carnage, thanks to the Gujarat police and public prosecutors, who seem to be hell bent on protecting the culprits.
The deplorable role of the police in subverting justice in cases related to communal crimes, the brunt of which is born by members of the Muslim community, brings us face to face with a need to reform the police system, without which the justice delivery system cannot function properly.
It is extremely unfortunate that the police, who are supposed to protect all citizens from criminal assaults, are often found to be conniving with the executive to organise communal riots for narrow gains of their political bosses. Numerous investigation reports have indicated connivance of the police in communal violence. The Ahmedabad riots of 1969; the Bhiwandi, Jalgaon, and Mahad riots of 1970; the Tellicherry riots of 1971; the anti-Sikh riots of 1984; the Mumbai riots of 1992-93; and the post-Godhra carnage of 2002, have been a few such cases.
Given that the police force continues to be governed by the Police Act of 1861, which was established after the Indian Mutiny in 1857 with intent to preserve the British Empire by curbing any uprising for freedom, it is understandable why the men in khaki remain anti-people and acquiescent to ruling parties. The anti-people attitude of the police can be ascribed to the values rooted in the 1861 Act, which calls for irrelevant role, duties, powers and responsibilities though the requirements of India 60 years after its Independence are completely different. Similarly, the police’s shameful submission to their political bosses can be attributed to the way the Act was drafted to keep the whole police department under the control of the British Raj, as the constabulary at the time was mainly Indian, whom the Raj would not trust.
The state home ministry alone controls all the matters related to transfer, suspension, or promotion of high police officials, without having to consult anyone. Home ministers take full advantage of this fact, as there is no fixed tenure for police chiefs. If the top cops refuse to obey the orders of their bosses, they will be promptly transferred. This is what happened in Gujarat after the 2002 carnage. All the police officials who sincerely tried to prevent riots from taking place were transferred.
The first report of the National Police Commission (NPC) released in 1979 pointed out, “The basic and fundamental problem regarding the police today is how to make them function as an efficient and impartial law enforcement agency fully motivated and guided by the objectives of service to the public at large, upholding the Constitutional rights and liberty of the people”. The situation has not changed in 2007 – even 28 years later.
The NPC submitted as many as eight reports till 1981 with numerous recommendations. Similarly, the Rebeiro Committee, the Padmanabhaiah Committee on Police Reforms, the National Human Rights Commission, the Commonwealth Human Rights Initiative, and many other commissions have also called for reforms. Besides, the Supreme Court has also ordered the Central government to ask all the states to reform their police administrations, but the court’s order is yet to be implemented.
Justice V.D. Tulzapurkar’s remarks on judiciary’s independence made a few years ago are apt in the context of delivery of justice in the cases related to the Post-Godhra killing: “If an independent judiciary is regarded as the heart of a republic, then the Indian republic is at present suffering from serious heart ailment.” And, today, this trend has reached a stage where we can say the judiciary is “on the verge of collapse”.
As regards the accountability of the judiciary, the recent arrest of Mid Day journalists for making allegation of judicial impropriety against Justice Sabharwal, former Chief Justice of India, has brought to light once again the need to judge the judges. The Central government has proposed to set up a judicial council to deal with complaints against judges, but rights activists say unless the council is given the power to impeach, such an exercise will be nothing more than tokenism. Besides, it is common knowledge that corruption plagues especially the lower courts, but the people have virtually no forum to address their grievances against the judges. The lack of judicial accountability robs mainly weaker sections of society of their confidence in the courts.
Now comes the most important part of the issue of the justice delivery system and Indian Muslims. How to respond to the tragic fact that Muslims face gross discrimination in how the cases in which they are victims are handled by the agents of the State? Scholarship and active participation in the ongoing advocacy and lobbying efforts along with the civil society – something that Shabnam Hashmi and Teesta Seetalvad are already doing.
Besides, the evil of communalism must not be viewed in isolation. The growth of communalism depends on various factors, such as the problems of unemployment, corruption, illiteracy, lack of proper education, election laws, and so on. Therefore, an overall development should be sought along with the call to end discrimination and atrocities particularly against Muslims and other minorities.
Last but not the least, one must try not to become a doomsayer, but rather strive to see positive developments, of which there is no dearth. For instance, police reforms will happen sooner or later, given the Supreme Court order. As regards communal politics, this too is likely to be contained, as coalition politics is becoming a reality in the Indian politics, and as the voters are taking more interest in development issues, as was visible in the 2004 general election. In addition, the Indian media is fairly free and has a great potential to fight communalism.