Mobocracy And The Rule Of Law
By R.B.Sreekumar
18 September, 2012
Countercurrents.org
Multi-faceted imbalances and contradictions in India generate numerous clashes of interests and confrontations. Often citizens misguided by self-seeking leaders indulge in suicidal pursuits injurious to their own intrinsic needs, debilitating unity and integrity of our motherland and requirements of The Rule of Law. The protracted communal clashes in Gujarat in the year 2002 were motivated by religio-centric electoral opportunism of Bharatiya Janata Party to transform the remorse and agony of majority community over the ghastly Godhra Train Fire incident (59 dead) into political capital and votes. The man made and State facilitated tragedy of riots, having ingredients of a genocide, as defined in the UN Covenant on genocide 1948, left nearly 1500 persons killed, millions of worth of property destroyed and elimination of centuries old symbols of Islamic heritage, architecture, art, education and religion. The collateral damage of loss in image and blot on India’s symbiotic syncretic traditions are unredeemable.
In the context of the recent epoch making judgment by Judge Dr.Jyotsna Yagnik, on the gravest of massacre incidents in 2002 riots in Naroda Patia (Ahmedabad City) – 97 killed, a critical appraisal of both constitutional and informal Institutions, viz, the Legislature, the Executive, the Judiciary, the Media and the Civil Society, is appropriate for drawing due lessons to ward off future disasters.
Citizens had expected a healthy, sober and active response from the Legislators- MLA, MP, - in the Post-Godhra-Train-Fire period, like, their tours in the constituencies and areas of influence, pacification of the people in order to stop ignition and conflagration of hatred and belligerency against the minority community to which the perpetrators of Godhra Train Fire killings belonged to. Unfortunately except in certain areas of Saurashtra and South Gujarat elected representatives not only remained lethargic but many aligned to the Sangh Parivar had planned, instigated, prepared and committed gruesome anti minority atrocities. Conviction of Mayaben Kodnani, the then MLA, for her culpable role in the riots is illustrative of villainous part taken by legislators from BJP and not an exception.
True to the spirit of Hindu communalism, and the avowed political ideology of BJP, vast majority of its elected leaders had abetted and remote controlled the anti-minority pogrom. However, the Police and the Executive Magistracy, (the Collector and his Staff) avoided documentation of data on their complicity in the riots in most violence-affected areas. Significantly, those BJP leaders who remained neutral or tried to ensure amity and order, viz Kashiram Rana in Surat, Vallabh Katharia in Rajkot and Suresh Mehta in Kutchch had to face the wrath of Narendra Modi and since 2002 they had to sink themselves into political oblivion.
Amazingly even legislators from secular parties, except a few, had played safe and did little to counter the steady rise and spread of communal hatred and frenzy in their constituencies. The people’s representatives’ riposte to the situation had ranged from escapism, desertion and inaction to incitement and infliction of terrifying violence on minority community. Most of the ruling party legislators, who associated and aided the rioters, were reelected in the subsequent election to the Assembly and Lok Sabha, thanks to the magic of communal indoctrination, inadequacy of vision and political maturity among the voters. Now, let us hope that judicial verdicts would go a long way to discipline legislators and their supporters. They should absorb the fine print of Naroda Patia judgment.
During 2002 riots the three main components of the Executive- the Police, the Executive Magistracy, and the Auxillary services - tasked to maintain law and order, an imperative of the Rule of Law, became promoters of statelessness and mobocracy, by intentionally creating an ambience facilitating extensive anti minority crimes and subversion of the Criminal Justice System (CJS), through micro level manipulation of the Station House Officers and Investigating Officers of riot related cases. In nearly 2/3rd of the State area, police functionaries willfully did ignore the legal and administrative architecture structured in the Standard Operational Procedure (SOP), enshrined in the Criminal Procedure Code (Cr.PC), the compilations like (a) Communal peace, (b) Communal riots (strategy and approach), (c) Riot Schemes, (d) Gujarat Police Manual, (e) Police Acts, (f) Recommendations of Justice Reddy and Justice Dave Commissions on 1969 and 1984 – 85 riots respectively and so on. All those responsible for acts of omission and commission are culpable under Sections 166, 186, 217, and 218 Indian Penal Code of 1860. But, both Gujarat Police and the Special Investigation Team (SIT) headed by Dr.R.K.Raghavan had turned a Nelson’s Eye to practically all acts of grave criminal negligence by the Officers in the ranks of DySP to DGP. So far, only two Police Inspectors were arrested for genocidal crimes and one Head Constable was convicted in Bilkis Banu mass rape case.
Why the SIT did not find anything abnormal in the inaction of the police in Naroda Patia Muslim habitats, where the marauding Hindu crowds indulged in violence from 8.30 am to 7.00 pm on 28/02/2002, as acknowledged by the Court verdict? Why the Ahmedabad City Police Leadership had failed to rush adequate police staff for initiating decisive interventionist action to contain violence? In fact, indications are that Ahmedabad city police had acted as facilitators and enablers for the rioters, still none had taken cognizance of this sinful delinquency. This was the story, more or less, in all locations of major mass violence – Gulbarg Society, Sardarpura, Kiliad, Ode, Dipala Darwaza and so on.
Reportedly, Modi Government has three plans/ strategy to neutralise any damage to the planners and executers of riots. Plan-I, is aimed at saving all collaborators in the riots, from the Government side – the Constable to the Chief Minister by crafty use of stick and carrot policy. Gujarat Government servants are brought under the mode of this defence device. The result was that from the stage of lodging of F.I.R to disposal of cases investigated by Gujarat police, practically none from the Government Service were found to be negligent of duties. The closing of thousands of cases without arrest of accused, acquittals due to professional lapses of police, release of accused on bail for want of proper arguments by the Public Prosecutors, non-recovery of any incriminating evidence and looted property from even a few accused taken on police remand, many accused remaining as absconders etcetera- are the net result of Plan-I. Pertinently, a few Officers who remained away from this strategy were victimised, misusing the coercive administrative powers of the Government.
Nevertheless, S.I.T though had totally dependent upon on Gujarat police personnel in the Investigation of nine major carnage cases and Mrs.Zakia Jafri’s petition against Narendra Modi, could not toe the line of giving clean chit to all Government functionaries, by accepting Plan-I, because of constant monitoring of S.I.T investigation by the Apex Court. So, S.I.T seems to have accepted Plan-II, which had aimed at keeping the complicity level of Government Officials as low as a position in the administrative hierarchy. S.I.T had arrested the foot soldiers among rioters, but, had ensured exoneration of higher officers from DySP upwards. S.I.T did not lay hand on evidence incriminating against Senior Officers, lest, this will in the long run would damage political and personnel interests of Narendra Modi and his collaborators in the riots. No move was made by S.I.T to proceed against Ahmedabad City Police Officers like, M.K.Tandon, P.B.Gondia, K.K.Mysorewala, in whose jurisdiction high voltage bestiality was enacted. This would testify to the adherence of S.I.T to Plan-II.
By avoiding arrest and persecution of officers in the rank of DySP upwards S.I.T had supported the oft-repeated version of State Government that riots were outcome of spontaneous reaction against Godhra Train Fire incident, without any incitement and mobilisation by the Sangh Parivar and that intentionally no senior level Government officer did anything towards collaboration with and abetment to rioters. The argument of State Minister Jay Narayan Vyas, on 29/08/2012, commenting on the conviction of Mayaben Kodnani, the former State Minister, was that she was not a part of State Government when she joined the rioters, as she was an MLA and not a Minister in 2002. The thrust is that the Government functionaries had no role in riots, a point emphatically asserted by S.I.T, in its Final ‘Closure Report’ on Mrs.Zakia Jafri petition.
Significantly, S.I.T had ignored evidence like, (1). The failure of the Government to initiate the remedial measures to remove the anti-minority bias of the police, though this fact was reported to the Government by the State Intelligence Department. (Please note that the Apex Court in 2002 observed that the Gujarat Police acted like modern Neros.). (2) Narendra Modi’s direction to police to go slow on Hindu rioters in the meeting held on 27 February 2002, (3). Delay in imposition of curfew in Ahmedabad city, (4). Slackness in enforcement of curfew in Vadodara city resulting in violent mobs moving freely during curfew hours and attacking the minorities (Best Bakery Killings), (5). Non-enforcement of statutory riot control regulations, (6). Devaluation of inputs emanating from the Operation Kalank by Tehelka magazine, (this was accepted as evidence by Judge Dr.Jyotsna Yagnik in Naroda Patia Case.) (7). Accepting the version of the authors of anti-minority violence pertaining to voluminous evidence about their criminal role in the riots, as trustworthy without conducting ground level inquiries or procuring collateral and corroborative evidence. (8). Not taking cognizance of multiple failure of Government to take follow up action on Intelligence Reports from the State and Central Agencies, as this major omission had promoted the cause of rioters. (9). Reluctance to record evidence of the Central Para-military Forces (CPMF) and Army who assisted Gujarat administration in maintenance of Law and Order during the riots, (10). Refusal to get input from UP Police and Central IB whose staff or agents were witness to the Godhra Train Fire incident, lest such evidence may upset the conspiracy theory projected by Modi Government and so on. These professional lapses had only helped those responsible for the anti-minority crimes in Government and outside.
Plan-III was for those who were keen to project the self-righteous image of impartiality and integrity but willing to make one major compromise- ‘save just the CM Narendra Modi’ from any kind of indictment and legal action but could freely implicate and prosecute any other person. (1). Action of certain activists to over emphasis on incriminating evidence against Senior Bharatiya Janata Party leaders like Govardhan Jhadophia, the then Minister of State for Home, by ignoring information against Narendra Modi. (2). Reluctance to do analysis of Phone-Data linking Narendra Modi and rioters on the ground (3). The Investigation on the complicity of crimes relating to fake encounters stopping at the level of Minister of State of Home Amit Shah (though it is well-known that no major police action is possible without clearance from the CM Narendra Modi). (4). Reluctance to unearth clinching evidence relating to the persons who conceived, designed and planned extensive anti-minority genocide and so on – are demonstrative actions by those who had accepted the Plan-III. This brilliant strategy can save the image of investigators, largely serve the imperatives of the justice delivery but simultaneously it can keep the primary author of 2002 Gujarat riots, insulated from the clutches of law. A section of secularists and pragmatic political leaders, who are not sure about the fall out of arrest of Narendra Modi do not find anything abnormal in Investigating Officers fulfilling the Plan-III.
Criminology asserts that sequential convergence of five category of offenders is essential for commission of mass crimes – 1) Planners, 2) Organisers, 3) Mobilisers at grass root level, 4) Facilitators and enablers and 5) Perpetrators or foot soldiers. SIT in Naroda Patia massacre case had arrested, besides the foot soldiers, organizers (Maya Ben Kodnani) and ground level mobilisers (Babu Bajrangi - VHP Leader), unlike in any other riot cases. But Gujarat police, CBI and SIT – the investigators of 2002 Gujarat riot cases, so far, did not venture to collect evidence to arrest and prosecute criminals in the grade of planners – the CM Narendra Modi and senior politicians – and the facilitators and enablers – the police officers in the rank of Dy. SP to DGP. Judicial intervention is the only hope for the rectification of this major lapse in the investigation process of 2002 Gujarat riots.
In contrast, to the performance of those in the Legislature and the Executive segments of the Government, is the awe-inspiring role of the Judiciary. With certain exceptions in the lower judiciary in Gujarat, which had reportedly sanctioned Final Reports in the 2000 odd cases under Section №-173 of CR.P.C., without issuing the statutory notice to the complainants of the riot cases, other judicial functionaries have repeatedly alerted the Investigating Agencies – Gujarat Police, CBI, and S.I.T about the direction of probe on riot cases to be pursued and, professional lapses and steady decline in the faith of the riot victim survivors on the CJS. The State Government was often reminded of its constitutional responsibilities to maintain public order, uphold the Rule of Law, and protect the symbols of culture and religion forming part of heritage of India by higher Judiciary. Action of the higher Judiciary, i.e. (1). Transfer of trail of two cases (Bilkis Banu and Best Bakery) to Maharashtra (2). Entrusting the case of Bilkis Banu and certain encounter cases to CBI (3). Reopening of 2000 odd riot related cases arbitrarily closed by the Gujarat Police and lower Judiciary. (4). Appointment of S.I.T to probe nine major riot cases, and Mrs.Zakia Jafri’s complaint against the CM Narendra Modi and (5). Appointment of a Special Task Force under Justice Bedi to probe into 17 alleged fake encounter cases, had amply established the concern and commitment of judiciary about the threat to the basic foundations of Indian Constitution, posed by the exclusivist, sectarian and divisive communal forces of both Hindu and Islamic flavour.
It was the State Government being arrogantly audacious about its ill-conceived strength and power from electoral victory, had allegedly constantly misguided and influenced the Investigation Agencies to deviate from the straight and narrow path for securing the political interests of the Government. An ambience of Modiphobia is created in the minds of officers through effective use of coercive instruments of reward and punishment powers of the Government. To illustrate, though for the last two years four posts of DGP, are kept vacant by the Government, neither the I.P.S Association nor the affected officers are mustering courage to approach the Central Government or Judiciary for redressal of their legitimate grievances.
Media equipped with modern communication gadgets had succeeded to counter efforts of the authors of anti-minority bloodshed to portray the riots as a natural reaction to Godhra Train Fire incident and to under play the deliberate nonperformance of duties by police, Public Prosecutors, Executive Magistracy, and Auxillary Services like Fire Department, Medical Services, rehabilitation and resettlement Authorities. Subtle tactics of Modi Government to project false claims of achievements in Social Sector as an outcome of Gujarat becoming a laboratory of Hindutva was well neutralised. Blind pursuit of the interests of Big Capitalists and Corporate world at the cost of distributive justice, neglect of Social Sector, and acceleration in marginalisation of deprived sections in Gujarat were uncovered by Media adequately. Media also ensured the trend of retention in memory of bitter truths about the ruthlessness of violence inflicted largely by programmed robots of Hindutva on the minority community. This agile memory was a factor behind the remarkable consistency and tenacity of purpose displayed by a vast majority of riot victim survivors and key witnesses resulting in marshalling of the relevant evidence in major manslaughter cases. Encouragingly a large chunk of witnesses who are not sure about their next meal did not succumb to temptation of bribes and incentives offered to them by their tormentors drawn from richer sections with political patronage. Truthful Media coverage was a force multiplier invigorating the riot affected and those helping them.
Malicious persecution of a few officers who spoke truth about the riots to the judicial bodies were emphatically projected by the Media and this had acted as a limited deterrence against the Government to plan further unwarranted acts of victimisation against upright officers.
Volume of extra judicial confession by those who inflicted heinous atrocities on hapless people, tutored witnesses and those engaged in blocking flow of information to the judicial bodies, in the Operation Kalank, were unique and unprecedented. This had enabled Judiciary to uncover the organic link between the planners and executors of anti-minority crimes. While police deliberately avoided Video recording of riots, despite Departmental regulations, electronic data gathered by the Media was a boon to all struggling for justice.
Many NGOs and individuals had also contributed their might in getting justice for the riot affected. The reputed exponent of Indian culture and dance, Mallika Sarabhai was the First Petitioner who approached the Apex Court praying for CBI investigation of all riot cases. But the crowning success in the legal battle was achieved by the NGO, the Citizens for Justice and Peace (CJP) headed by Ms.Teesta Setalvad, an indefatigable champion of secularism and Rule of Law. (1). Convictions in 5 major massacre cases, (2). Award of life imprisonment to the most of the offenders (111), (3). Judicial acceptance of the element of pre-planned conspiracy involving the politicians behind the actualisation of riots, and (4). Release of higher quantum of compensation to the riot victims, are among achievements of CJP. These decisions have no precedents in judicial history of India. The complaint of Mrs.Zakia Jafri, widow of former Congress MP brutally burnt to death by the rioters, to the Apex Court, was supported by CJP. Premeditation and preparation behind riots by the State Authority and enactment of anti-minority carnage achieved through an informal parallel system of command and control and verbal orders have been presented graphically in Mrs.Zakia Jafri’s complaint. Data on a series of chain of circumstances and creation of conditions enabling the rioters to carry out the brutalities on the targeted people by the Authorities responsible for the enforcement of The Rule of Law and instances of the subversion of CJS narrated in Mrs.Zakia Jafri’s petition would go a long way in penalising the real prime movers of the 2002 riots in Gujarat. The outcome of this complaint would inaugurate new vistas in criminal jurisprudence on justice delivery relating to mass crimes in India.
Communal riots have a long term, short term, and immediate gestation process and unless the Law penalises the brains behind the whole phenomenon, communal disturbances could not be contained even through professionally skilled, competent and well equipped Security forces. All patriots are eagerly awaiting the Final judicial verdict on the petition by Mrs.Zakia Jafri and Ms.Teesta Setalvad.
Deviant posture of legislators in a disturbed situation can be corrected by enlightened electorate and Judiciary. Transformation in the administrative ethos of personal in the Executive can be achieved through the reforms. Implementation of reforms proposed by the Supreme Court in the Prakash Singh Case and recommendations of Administrative Reforms Commission is the need of the hour.
Democracy is yet to take deeper roots in India. The voters are not always conscious enough to see through the unscrupulous games of political parties practicing mobocracy, mafiacracy and money-o-cracy as tools in the electoral competition. Gujarat riots are an instance of democratically elected Government practicing mobocracy by playing upon emotions of the people. Manipulation of the CJS was achieved through a mafia of Government Servants enjoying extra-hierarchical accessibility and proximity to the political leadership of the Government. Cases of the alleged fake encounters are illustrative of mafiacracy in Gujarat police. Extensively money is used to neutralise the witnesses and consequently vast majority of cases investigated by Gujarat police failed to get the offenders punished- illustrative of money-o-cracy. Citizens can be, however, optimistic about efficacy and health of The Rule of Law in India, thanks to the Judiciary, Human Rights Activists and Common man’s astute will power to resist temptation, as exemplified by witnesses from BPL section in the case of Naroda Patia massacre. All religious scriptures exhort: “cases should be decided according to law, bereft of anger and greed.” – “Dharmashastranusaarena krodhalobhavivarjitah”
R.B.Sreekumar, I.P.S, (Retd), is a Former DGP. Gujarat.
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