Miscarriage of Justice in Hashimpura

One of the most famous lines on the official All India Radio news bulletins during communal disturbances used to be ‘Sthiti tanavpurn lekin niyantran me hain (the situation is tense but under control)’ and police and paramilitary forces have been deployed in the ‘sensitive’ areas. It was well known to us as what ‘samvedansheel kshetra’ or ‘sensitive areas’ meant. Most of these ‘sensitive areas’ were the Muslim localities in the walled cities, almost ghettoised in the aftermath of each ‘riot’ much to the comfort of the fanatics on both the sides who wanted to see such polarisation to happen. The ‘sensitive areas’ terminology reflected the mindset of the administration, police and media in indepen-dent India where Muslims are treated as ‘problem-makers’ and ‘obstacles’. During the ‘communal disturbances’, the police ‘round off’ these ‘problem-makers’ and ‘obstacles’ as routine exercise to bring ‘peace’. Once when I questioned these things during a visit, in the early 1990s, to Meerut on a fact-finding mission, a very senior Professor in the Meerut University blamed me of promoting ‘Pakistanis’ in India and asked me to stay away from the ‘mini-Pakistan’ which was the walled city of Meerut. His argument was that Muslims are criminals and that is why they constitute the largest group in Indian jails. I liked him because this professor did not display any hypocrisy and he spoke from his ‘heart’ that mirrored the reality of the middle classes belonging to the upper-caste Hindus in India at least at the moment.

The release of 16 accused policemen of the Provincial Armed Constabulary (PAC) in the Hashimpura violence case by a Delhi court has brought back the issue of the Communal Violence Bill that was being drafted during the UPA regime but because of the lack of will on the part of the previous government, it could not be passed. Hashimpura is not the first and last case of judicial failure; several years ago the Supreme Court itself had expressed pain and anguish over delays in the trial and the Allahabad High Court’s judge had termed the PAC as ‘criminals in uniform’.

Report after report suggested how the PAC goons arrested innocent Muslims and later picked young boys to be killed later on with their bodies floating in the canal near Murad-nagar. Haven’t we seen pictures of gun-trotting policemen in the Muslim localities herding together men, young boys and children and threatening to push the trigger if they protest? Riot after riot such scenes are often repeated and the police go unpunished. They enjoy protection and the atmosphere in all the towns and cities where Muslim presence is nearly 30 per cent is polarised.

 When the state has abdicated its responsi-bility in such a way that justice is not just denied but miscarried, then it is time to think seriously as to what ails the system. Before we come to analyse the entire incident, let us not forget that the People’s Union for Civil Liberties had brought out a detailed report on the Hashimpura massacre in 1987 in which it had put serious doubts on the administration. The PUCL team which went on a fact-finding mission to Hashimpura and other areas included Justice Rajindar Sachar, Inder Kumar Gujral, Prof A.M. Khusru, Prof Dilip Swamy and others; hence it is important for us to understand what they said on this. As the court of law has found no evidence, the following report was filed not only by eminent persons but one of them was a former Chief Justice of the Delhi High Court.

“One of the most shameful chapters of human callousness was enacted in the Hashimpura area. It would appear by then that sufficient contingents of police and PAC had been inducted into Meerut. It was not clear but it seems that some decision was taken to really spread terror in the Hashimpura area. Pursuant to this on May 22 Hashimpura was surrounded by the PAC. The PAC then forced all residents out of their houses to the main road. Then a house-to-house search was conducted. The residents complained that several houses were looted by the PAC.

“All residents of Hashimpura were lined up on the main road, segregated, and one person in Burkha identified 42 young men, who were asked to board a police lorry. Another group of 324 was arrested and taken by other police vehicles.

“What the police did in Hashimpura is something which can never be lived down and the shame of this will continue to haunt any civilised government. We talked to old persons whose sons and grandsons were taken away by the police. We met young women whose husbands were taken away and later on they were either missing or their dead bodies were found. The way the residents of Hashimpura were treated was shameful. We were told that hundreds of people were taken out from the locality and asked to sit on the road. One Army person asked people over 50 years and less than 10-12 years to stand on one side and all the others were dumped into waiting trucks. We were told by one Ahmed, who had got away on the excuse that he had his MA examination that morning, that three of his colleagues, namely, Kamaludin S/o Jamaludin, Sarajudin S/o Sabarudin, Nasim S/o Nasim Ahmed, had been taken away in the trucks. These three had not come back thereafter and the father Jamaludin corroborated this version.

“Out of 42 only six persons are traceable, others have just disappeared. There is no record of these persons with the police. Abdul Bhai, the grandfather of Zulfikar, said that Arif and Karimuddin were also with his grandson. They were arrested together and taken in a truck to Muradnagar and when the truck reached a canal Zulfikar saw Karimuddin being shot by the PAC and thrown into the canal. More than 20 bodies have in fact been found floating in the Ganga Canal.”

 (Excerpts of the PUCL report on Hashimpura published in PUCL Bulletin)

The Delhi trial court where the case had come up for hearing actually released all the ‘accused’ in the absence of ‘eye-witnesses’ and their identifications by the ‘victims’. The problem is how are the victims of mass violence, mass rapes and social ostracisation going to identify people in the court where the agencies supposed to protect the people have been charged with conniving and protecting the miscreants? This is not the first case of its kind where the acused have been released due to the callousness of the courts but it also reflects the political scenario of the country and how the judicial system is being influenced by it. You do not need to be a law ‘expert’ to understand the whole issue and how it has been handled. If a scrutiny of judgments on mass killings or communal riots is done, the judiciary in India would disappoint you. I have not heard a single case where culprits of communal or caste violence have been sentenced or their political future is in peril. Incidents of killings in Nelli in Assam in 1983, Bhagalpur in Bihar, Meerut in Uttar Pradesh in 1987, Mumbai in 1992-93, Gujarat in 2002, Delhi in 1984, Muzaffarnagar in 2013 have never reached any conclusion. Yes, those who instigated violence and polarised the voters were able to win power. In the ‘First-Past-The-Post’ system, the biggest danger is of inciting hatred towards minorities for political gains and parties and leaders succeeded in it. That is why there is a much bigger danger of such experiments. In 1984 the polarisation helped the Congress party to win an election with a massive mandate while after 2002, Narendra Modi continued with his winning spree in Gujarat. Once political parties understand that such polarisation helps, they would continue with this. The State level experiences of extremist stand helped political parties to gain power everywhere, including the BJP in UP, Shiv Sena in Maharastra. In fact, the success of the experiments forced the Hindutva ‘programmers’ to go for it on a bigger scale before the general elections last year and Muzaffarnagar was actually part of that ‘programme’.

Many points emerge out of these criminal acquittals and these happen because of the political environment of the country and none can say that the judiciary is not influenced by it particularly at the lower level. Have we not seen acquittal of all the accused in the Gujarat violence in 2002, particularly those who were in ‘responsible’ positions? Right from Best Bakery to Hashimpura, it is the people seeking justice who are being penalised. The case of Teesta Setalvad is exactly the same: that those who fight for the rights of the people and take on the state will face prosecutions. During the Emergency, we could trust a few in the media but today it is becoming difficult as the media has become a bigger propaganda machinery of the political elite of the country.

 It is not for nothing that this year we have seen the release of all the accused in the Shankar-bigaha massacre of Dalits. Later, in Lakshman-pur Bathe, Bathani Tola and Tsundur, the accused were honourably acquitted by various courts. Practically no case of communal violence or mass murders of Dalits, Muslims or Christians have reached any logical conclusion. Most of the time the courts have ‘blamed’ it on to the investigating agencies for the failure of providing the ‘eye-witnesses’. It is another matter that the same courts have released honourably the other accused the CBI had chargesheeted in some of these cases.

It is not for nothing that hatemongers are roaming free and taking the law into their hands. The threat of the law is actually being applied on those who can’t really afford to have an efficient lawyer. India is fast moving towards a class-conscious system; hence even the human rights defenders, who have a ‘background’, would not be able to save themselves. After all, not everyone is a Teesta or a Greenpeace activist who can afford to hire the best legal brains and organisations to defend them. Most of the cases where the state is needed to be proactive actually end up in miscarriage of justice because of the official antipathy towards the people of a particular caste or religion. Definitely, the bureaucratic and administrative prejudices against Muslims in the Indian system are currently at the peak level and need serious relook by the government and judiciary.

 The demand that Muslims and other marginalised segments of society must have fair representations at all levels in our bureau-cracy, military and police essentially comes in the backdrop of such happenings and need serious consideration. Such a demand is opposed by the Hindutva and other Rightwing groups under the pretext that calling for reservation for Muslims is a communal demand and will divide the nation. One does not know why a citizen of this country should be deprived of a genuine demand which will have far-reaching effect on the working of the police and administration.

As long as we do not have a mechanism to fix accountability on the officials engaged in the districts or cities during the ‘so-called’ communal ‘riots’, things will not move. A senior officer once wrote that any communal disturbance can easily be controlled by the administration in the first 12 hours and if violence continues even after that it must be assumed that ‘authorities’ and ‘politicians’ are hand in glove with the rioters. How can ‘pogroms’ be called ‘riots’ where the police and administration have to be impartial?

 You do not need to imagine too much about what happens during these ‘riots’ as pictures speak volumes. The horrific pictures of Hashim-pura, which have been published by Indian Express on March 25, show how the people have been treated by the gun-trotting policemen holding their hands up in the sky in the form of surrender. Haven’t we seen how a poor helpless Muslim tailor in Ahmedabad was seeking protection with folded hands from the authorities? The tales are endless and people have been left to fend for themselves. In fact, those few who try to fight for them also end up becoming victims. Daily stories of pains, sorrows and betrayal lead us to further depression.

 It is these developments which make people wary of even the human rights defenders. What is in their hands? After all, we can only express our solidarity and share their concern and be part of the struggle. The result is not in our hands but then these assurances or uncertainties do not bother the people who are victims as they want results so that they can lead their normal lives. Such a feeling is detrimental to the struggle for human rights and justice and is used very well by those who violate them. In the past few years we have seen differences being made between the victims of Delhi’s violence in 1984 and Gujarat 2002 ignoring the fact that in both the cases the Indian state failed to protect its citizens.

 The Rajiv Gandhi Government at the Centre and the Vir Bahadur Singh at the State level actually took a lesson from 1984 when they tried to use the state machinery in favour of majority communalism. The PAC has become notorious in Uttar Pradesh and no government has so far dared to either disband it or change its colour. The Hashimpura case clearly shows how the administration, when communalised, view Muslims as ‘troublemakers’ who need to be ‘taught’ a lesson. And the administration and police do not become communalised suddenly but through a process. Over these years, the Congress party did not really try to honestly inculcate a secular spirit in the country and internally promoted this soft Hindutva approach in the party. 1984 was the worst period for the Congress. It was the defeat of what Nehru had thought of the Congress, a secular socialist party inclusive for all. The attempt to ‘teach’ the minorities a lesson and a feeling as if they were the trouble-makers ultimately helped the Sangh Parivar to gain ground. That was the period of the opening of the lock of the Babri Masjid by a man called Arun Nehru.

 The Congress of 2004 and 2012 was much different from the one of 1984 when it was arrogant in Brahmanical wisdom appeasing the caste Hindus and targeting minorities for political gains. The phenomenon continues to grow albeit the beneficiary of this phenomenon today is not the Congress but the Hindutva party.

 The UPA Government last time made loud noises of bringing the Communal Violence Bill but did not have the courage to do so like it did in the case of other Bills. A broad and inclusive Communal Violence Bill is needed to include the caste-related violence too. The government must decide on it; otherwise the alienation of the minorities will prove too dangerous as in the absence of justice as well as leadership there is the threat of growth of fringe elements. Muslims are facing it valiantly even when most of the political parties have exploited their vulnerabilities in the name of both secularism and Hindutva. As a citizen of India, they deserve all rights as anybody else and need justice and protection. It is a shame that a community which has given so much to India’s culture and heritage is today feeling dejected, isolated and left out. These are no good signs of‘achche din’ for all Indian citizens irrespective of their caste, class, religion and region; they deserve state protection and ‘achche din’.

Hashimpura reminds us that the state of India has neglected the Dalits and minorities in absolute terms. While we can understand that the court’s procedures are delayed, and we do understand that there is a problem in identifying the witnesses, one point is clear and unambi-guous: 42 citizens of this country were killed on May 22, 1987 in police custody. There is no denial of the fact that Muslims of Maliana and Hashimpura were at the receiving end. Many lost their parents, their fathers, husbands and sons. I have only a few questions: How many of the political leaders visited them? What was the compensation package? Why has it not been given? Why doesn’t the government take the responsibility to honourably rebuild their lives? Who stops them? But then the political class use their vulnerabilities and is also charged with ‘appeasing’ the Muslims. Is denial of justice appeasement of Muslims? When we know who have carried out the crime, then where is the problem?

 But the governments which live on the police, and use them as a tool for their own purposes, will never have the courage to act against them. That is the reality of Hashimpura and elsewhere. In no communal, caste conflict have we reached any conclusion because the deaths and killings of the victims have become the biggest issue to polarise the atmosphere. This country fears justice to polarisation. It does not bother that two communities are being dragged into politics and that one is not getting justice. It is most unfortunate that after 1989, Uttar Pradesh did not see any Congress Government but those of socialists, Bahujans, Hindutva protagonists and every other shade but none of them bothered to visit these people, meet them and share their agony and pain. We can blame the Congress for all its sins but what about those who claim to be ‘bigger’ ‘secular’ elements than the Congress party?

 It is therefore essential that Muslims use all the legal tools and also question the political parties on these counts. They cannot take them for granted. It is time the Indian state shows signs of accountability to Muslims and not push them to the wall to force them to go and approach international courts of justice. We hope the Supreme Court will be keeping a watch on it and we need special courts under the superivision of the Supreme Court to have day-to-day hearings on these issues. Unless justice is provided to the people of Hashimpura and many others like them, such acquittals will continue to constitute dark chapters in the history of Indian judiciary.