Terming the 1984 anti-Sikh pogrom as a “genocide”, the Delhi High Court on November 28 convicted 89 arsonists and rioters who took part in a carnage in Delhi’s Trilokpuri, 34 years after the incident and 22 years after the trial court verdict.

In his 79 page judgement, Justice Gauba said that the protracted process for securing justice and closure was a “sordid experiment in the name of criminal process”, and wondered aloud if the judicial process is equipped enough to deal with crimes of such magnitude, and termed the final determination of guilt a mere academic exercise.

Besides hauling up the police and prosecution for multiple determined attempts at tardy progress of trial and obfuscation of facts and obstruction of justice, Justice Gauba also suggested a slew of measures which should be taken to deal with incidents of communal violence such as this, in which more than a 100 people had been affected and for which a total of 107 persons were booked for serious offences. The judge took into account the victims’ allegations that not only was the police a mute spectator, but they also provided direct and indirect assistance to the accused in order to ensure they were not brought to book, even if brought to trial.

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Police, Prosecution Complicity

The 120 witnesses who went to the police reported looting, arson and killing of people by setting them ablaze. However, the police did not register charges of murder, registering offences only under sections 147, 148, 149, 436, 429, 304 (Culpable homicide) and 323 of the Indian Penal Code.

The SHO (Station House Officer) of Kalyanpuri police station, under whose jurisdiction Trilokpuri falls, even filed two chargesheets for the same incident, and this was deprecated by the high court- stating that the very filing of two initial chargesheets in December 1985 “shows the questionable quality of legal assistance availed by the State”.

Although, the chargesheets made out a case for murder under Section 302 of the IPC, they were so weak and unconvincing that the court dropped the charge. The high court noted that “there is no clarity in the trial court proceedings as to why the charges for murder or attempt to murder were not taken on board.”

Out of the total of 120, eventually the prosecution examined only eleven witnesses and thus, a large part of the evidence was kept out, the high court regrettably noted in the judgement.

Moreover, many of the accused failed to appear, and it was an uphill task to secure the attendance of those obdurate persons, especially with the police displaying its laxity and the prosecution not being forceful enough, thus dragging on the trial for many years.

Genocide and Rules of Evidence

There has been a consistent and forceful debate about whether to use the term “genocide” for the 1984 pogrom, as has been said about what happened in Gujarat in 2002, and it is a contested domain, a fractured and rugged terrain. However, in paragraph 101 of his ruling, Justice Gauba unhesitatingly used the term genocide to describe the spate of violence and killings, and said that in adjudicating such a case, the “ordinary rules of appreciation of evidence cannot serve the cause of justice, especially in view of the extraordinary circumstances that prevailed,” relying on the Supreme Court’s 2011 decision in the case of Prithipal Singh v State of Punjab.

Therefore, even with the scant and patchy evidence on record, he had to convict the accused, because of the overwhelming political powers they used to cover up their crimes.

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Suggestions for Legislators

At paragraph 122, Justice Gauba noted – “the case at hand may be treated as a paradigm which ought not to be followed in cases of such nature.” The response of the law has been tardy, ineffective and highly unsatisfactory, he noted, and mooted the idea that the task of collecting and preserving evidence could be entrusted to human rights commissions because of the statutory and non-partisan status that they enjoy, so that they are free from being influenced by vested interests bent upon defeating the rule of law.

“The general criminal law is provenly ill-equipped to deal with the challenge of such crimes of mammoth proportion, particularly when they are invariably perceived to be engineered by those holding control over certain central powers”, Justice Gauba stated in his judgement, and gave some suggestions for the Parliament, based on his experience in the present case.

They are:

– Suitable amendments be brought to the Commissions of Inquiry Act, 1952, and the Protection of Human Rights Act, 1993, to entrust the responsibility of taking note of the cognisable offences committed in communal riots and their investigation through SITs (Special Investigation Team) and Special Public Prosecutor(s).

– Such Commissions would have their own investigative machinery to probe in an effective manner. Such Commissions might avail the assistance of Legal Service Authority and the judicial magistracy to make the effort more comprehensive and effective.

– This neutral agency would ensure that no charge-sheet is brought to the criminal court for taking of cognisance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.

– Special Courts dedicated to the subject of communal riots be established with suitable amendments to the general criminal law procedure as indeed the rules of evidence.

– Press reports, supported by photographic material or video footages put in public domain, be considered as evidence in trials of criminal cases arising out of communal riots.

– An exception be carved out to permit the absence of accused from the court hearings to tackle one of the major causes for delay in the judicial process. Such rule of procedure in cases of trial in communal cases involving a large number of accused would have a salutary effect.

Justice Gauba ended his ruling with this dire warning about the case being forgotten:

“The manner of prosecution of the case at hand would undoubtedly go-down in judicial history of this country as an example of criminal law process that must never be emulated. From this perspective, and in the expectation that those at the helm draw lessons from here, one hopes that this case is never forgotten.”

Saurav is an independent journalist based out of Delhi, and specialises in reporting on legal, human rights and gender issues. He earlier used to teach media law and jurisprudence in Bombay and Pune. He tweets @SauravDatta29.