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 whenpolicemen 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.)
