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Making the environment conducive for justice

A Sashastra Seema Bal (SSB) soldier at Gokalpuri market in northeast Delhi earlier this month.

A Sashastra Seema Bal (SSB) soldier at Gokalpuri market in northeast Delhi earlier this month.  

In riot situations requiring urgent action, proactive intervention by the judiciary can prevent a slide into chaos

Some of the areas affected by the recent riots in Delhi that I visited resemble a battlefield — burnt shops and buildings dot virtually every street in the area. It’s terrible, but property can eventually be restored. Can life be restored? More than 50 people have died in the riots, virtually for no reason at all, except generated hate. Children have been traumatised for what their parents believe — right or wrong. Is this justice or injustice? Is monetary compensation good enough to alleviate the pain and suffering that many children and parents have gone through? Is that all that can be offered? These are questions that went through my mind when I saw the carnage in Shiv Vihar and a couple of other areas.

A visit to the Idgah presented a depressing picture. It had doubled up as a relief camp and I was told of the presence of about a thousand persons residing there. Well-intentioned groups and individuals had donated matting and blankets, food, medicines and provided comfort to many. A ‘media section’ had several individuals recording the statement of riot victims. Hopefully, these statements will be used by investigators as soon as the establishment gets its act together, if at all. Whatever little assistance could be given to victims by way of rehabilitation was being provided by NGOs and well-meaning individuals, little by a welfare state.

 

But, the blame game for the riots has already begun and will continue even after investigations are over or a commission of inquiry gives its report. One conclusion is inevitable – if someone in the executive had an idea of good governance and if the establishment had taken prompt action, many lives could have been saved and damage to property could have been avoided. The bureaucratic ineptitude of the authorities coupled with authoritarian ineptitude led to the bloodbath, which was not over in a day but went on for three days. It seems that the establishment consisting of the police and the Executive suffered a mild attack of ‘Kumbhkaranitis’, and at what cost. Whose job is it to wake up a sleeping guard?

No coherent response

As a lifelong student of law, I was appalled at the virtual absence of any coherent response from the justice system. The law entitles every victim of a mass disaster or ethnic violence to legal services for filing a case, such as one for compensation. Under a law enacted by Parliament, the Delhi State Legal Services Authority (DLSA) ought to have swung into action to assist the victims, but where was it? Access to justice is an objective and not a mere slogan. DLSA did set up five ‘helpdesks’ about a week after the mayhem, but the lawyers at two ‘helpdesks’ that I visited themselves needed help and had no clue about their active responsibilities. I do not wish to belittle the efforts of these well-meaning lawyers, but I am sure the Annual Report of DLSA will highlight what it believes was a tremendous effort put in for the benefit of riot victims. Let’s be real.

However, the Delhi High Court acted immediately when approached for relief. It held a late night hearing and provided the necessary relief to victims and asked accountability questions of the establishment. However, the next day — remember, tomorrow is another day — the sentinel on the qui vive found the environment not conducive to registration of a First Information Report (FIR) and adjourned the case hearing by six weeks. Imagine a victim of domestic violence or of sexual assault going to a police station to lodge an FIR and being told by the Station House Officer (SHO) that the environment is not conducive since the victim might again face domestic violence or sexual assault. Amazing, isn’t it! It has taken the Supreme Court to request the Delhi High Court to show urgency in the hearing. How many can afford going to the Supreme Court?

 

The registration of an FIR results in investigations into the commission of an alleged offence. Conversely, if there is no FIR, there cannot be an investigation into anything. There are any number of decided cases where the courts have asked questions about the delay by the victim in lodging an FIR. In many cases, the delay has been adequately explained, but in many, it has not been, thereby leading to an acquittal; such is the importance given to an FIR. Perhaps the most important feature of an investigation is the collection of evidence, and if it is more than likely to be tampered with or if the witnesses to a crime are sought to be influenced, an accused person may even be arrested by the investigating officer. Therefore, if consideration for registering an FIR is delayed by four weeks, as per the Delhi High Court, a smart accused can manoeuvre to have the delayed investigation scuttled through destruction of crucial evidence and witnesses compromised through inducements or threats, eventually leading to the police filing a no offence report and closing the sordid chapter. Would this be classified as justice or injustice?

Judiciary’s moral authority

The role of the judiciary in riot situations is extremely important, in that it could prevent a slide into chaos. The judiciary does not wield a sword nor does it control the purse strings of the state. But it is possessed of a more powerful alloy — moral authority, public trust and confidence. What the judiciary says or does has tremendous influence and it should never forget that, regardless of who wields the sword or controls the purse strings. Therefore, in such situations requiring urgent action, the judiciary cannot be expected to grant adjournments on the asking and for what it believes is an environment that is not conducive. Intervention by the court can, more often than not, make the environment conducive on occasions where all wings of the state, particularly the police, need whatever muscle is given to them in the Constitution and the law. The colonial belief that courts should be reactive should be forgotten and substituted by the public interest belief that courts should be proactive. If that is not appreciated, the decision of the Supreme Court in ADM Jabalpur will resurface from ten fathoms deep and continue to haunt us.

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Prosecutions form the last chapter of criminal justice. Recent events have clearly suggested that the police all over has completely mixed up and mangled freedom of speech and hate speech. Inflammatory statements and induced sloganeering by the powerful in Delhi, which may or may not be seditious but can certainly be categorised as ‘hate speech’, are left untouched. On the other hand, the weak are put behind bars for sedition for something that does not even cause a ripple, let alone ‘bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards the government established by law’, proving Bruce Lee’s famous “boards don’t hit back” jibe at O’Hara. So the question, blame games apart, is: will those guilty for the Delhi riots ever be identified and booked and, if they are, will they ever be punished? It took our justice delivery system 35 years to find Sajjan Kumar guilty of offences in the 1984 riots in Delhi. When will the system find and punish the guilty for the recent riots but who cares, by the way?

Final thoughts — let’s read the Preamble to our glorious Constitution and appreciate four crucial words — justice, liberty, equality and fraternity. Are we making sense of all of them or some or none?

Justice (retd.) Madan B. Lokur is a former Supreme Court judge

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Printable version | Apr 2, 2020 3:33:29 AM | https://www.thehindu.com/opinion/lead/making-the-environment-conducive-for-justice/article31003766.ece

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