Equality Before Law

If at all there is any Commission whose Report calls for implementation. It is Sri Krishna Commission's Report on Mumbai riots. The Commission was set up because of the brutality that was unleashed and there was a public demand for a proper enquiry into the communal carnage. On account of its total lack of detachment and disinterested zeal on the part of the ordinary investigating agency, the government appointed an independent Inquiry Commission to investigate into the crimes with a view to assure the people that they will reduce, if not rid them of the crime from their midst.

The Commission was appointed on Jan 25 1993. The Commission was scrapped on Jan 23 1996; May 28, 1996 the Commission was re-established; Feb 16, 1998 the Commission submitted the Report; The Report was tabled the Report on Aug 1998; the Commission examined 502 witnesses. The hearings were in public view and the findings were placed before the State Legislature. The Commission indicted Sri Bal Thackeray, among others. The Ruling Democratic Front as part of the action taken on the Report decided to prosecute the indicted.

That Mr. Bal Thackeray is one of them should not really matter. But Mr. Bal Thackeray grew up on un-investigated criminality to his present stature and he has become an exception to the Rule of Law the country boasts of in international seminars. Sri Ram Jethamalani has always been its principal and its most vociferous preacher. The headlines in the print media and the special publicity given to this news in the electronic media makes us all feel that we are about to do some foul deed of which we should be ashamed of. That is how the government is responding. The State Government asks for a three thousand strong police force from the center. The central government declares its poverty of armed forces. The people are warned of this untoward step. The metropolis is warned of yet another carnage. In short signals are sent from all sides that the state will be held to ransom and that the NDA at the centre will collapse if the Sainiks withdraw their support to the government at the centre.

If governance under the Constitution simply means a circus of balancing political forces operating the system, we can find reasons for exonerating Mr. Bal Thackeray and his men, but as a mark of respect for the views of Mr. Bal Thackeray on the Constitution and Rule of Law we may also announce a general withdrawal of all investigation into crime. This option is not open to the Government, if people are to continue their faith in political processes and their promised goals under a Constitution whether reviewed or otherwise.

We should pause here and think about what we have done to the system of administration and the system of justice we have inherited from the British. We continued to wallow in the colonial legacy and distanced governance from the people and their aspirations as provided by the Constitution. We have abused the electoral processes almost to the breaking point and produced what can be called a Gangster Democracy. Having reached this position we have been bending law and authority to subserve individual requirements of almost every brigand who manages to occupy positions of power. If an individual bends the entire system to serve his/her whims we call it tyranny. If every group managing to occupy political power abuses the system it can only be described as gangster democracy. In such a system to prosecute a crime one would be hesitant, particularly when the offender happens to be a political colleague or an ally. Let us not forget that the Rath Yatra and Ayodhya's aftermath is Bal Thackeray's Carnage. The indictment of the Commission cannot be examined with clinical detachment only by looking at events that followed as a consequence. The Government naturally is embarrassed and is unable to give an unequivocal reply. Criminal consciences sympathetically vibrate. So the debate has commenced in all seriousness without realising the signals that are sent out by these equivocations, these debates and these prevarications. The Crimes for which these persons stand indicted are not just crimes defined by the Indian Penal Code. The collective crime that these groups organised led to, not just break down of law and order but the total collapse of the system and all its institutions. Attacking a targeted group, whether the victims be religious or political cannot be equated to individual crimes. A group may plan and attack a targeted group at various places and in different localities. The apparent simultaneity of occurrences do not any longer delude us into thinking that these are unconnected offences committed by offenders unconnected to each other. Macaulay's Indian Penal Code insufficiently describes these offences and are therefore totally ineffective in dealing with these crimes. The subsequent amendments did not anticipate the chilling manner in which these crimes will be planned and executed. All of us are more communal now than we were prior to the nineties of the last century and this adds to our inability to take effective preventive measures.

It is not always necessary to bring in a fresh amendment or enact a new penal code. What is necessary is to redefine existing provisions to bring it in line with the up-to-date trends in criminality. Offences seldom change, but the manner of committing changes. The manner of committing an offence may be relevant for the imposition of punishment but it does not become a new offence. Report of stray incidents of its occurrence before a communal riot actually spreads, over awes a vast section of the people and therefore should qualify to be a terrorist act. But it is not, for the very untenable reason that the they use only knives and kerosene. The whole community lives in terror and this state of fear is intended and is not merely a consequence. But yet the legally sponsored definition is tailored only to apply to minorities and not the members of the majority community. The Law Commission dealing with the necessity of a terrorist law permanently on the statute book examines the events from Coimbatore bomb explosion and not from Ayodhya Rath Yathra which brought on to the agenda communal violence as a major factor in the country's politics. Atleast in formulating a penal law one should maintain a secular approach, for it is always the penal law and the adjudicatory process that is set up to deal with these crimes which informs an observer of the nature and character of our polity. Had the Law Commission looked at the existing law it would have atleast thought of enhancing punishments provided for by sections 153A 153B of the Penal Code. I am not to be understood that I am in favour an Act like the Proposed Terrorist Act. I am only pointing out the bias in law making despite Art 14, and the very eloquent expressions in the Preamble. Though sections 153A and 153B contain the rudiments of 'genocide' as defined by the International Criminal Code (and prior to this formulation the comity of nations recognised targeting
such groups as genocide) we look at the findings given by the Commission as an unimportant issue and that the crimes committed by the persons indicted are time barred. Look at the death toll of the riot. Dead: 900. Among these 575 were Muslims and 275 were Hindus Injured: 2000. Among the injured 1,105 are Muslims and 803 are Hindus Property damaged was more than four thousand crores and more than one thousand rendered homeless.

The Commission found that the immediate cause for communal riots was the destruction of the Babri Masjid. But this was not organised but was a spontaneous out burst. But the Commission found that the riot that took place from 8 Jan 1993 was organised by Shiv Sena whose leaders by their speeches and writings in communal news papers like Samna and Navakal. The Commission named Bal Thackeray, Sirpotdar, and Manohar Joshi. It is indeed a divisible human rights perception to say the indictment is time barred when the riots that took place was a concerted overt attack on the society and a challenge to the system as a whole. The insult is compounded by permitting Bal Thackeray to participate in the political processes successfully and yet defy its institutions and claim a transcendent status over the Constitution, the law and its duly authorised institutions. To prosecute Bal Thackeray and his band of men is not equivalent to punishing them. That is a long way off and many a legal hurdle spanning the entire hierarchy of courts will have to be overcome before the trial is commenced. The commencement of the trial and its continuance will depend on the courage and confidence the court and the prosecution inspire in the witnesses. What people expect is the return to the portals of justice, the principle that similarly placed individuals, not withstanding differences in status, wealth, stature and the clout one commands, political or otherwise. A craving for the desired result has never been part of either the objective of the prosecution or the philosophy of justice. To try to stall the prosecution on grounds of delay is to indulge in vacuous legality, which can never be a valid argument when such issues are debated. For capital crimes, crimes against a targeted group, racial, religious or ethnic or otherwise, there has never been a limitation for initiating a prosecution. Law, more particularly criminal law has been absent from amongst us for a very long time and it is time to allow Law to return from its exile and resume its duty and there is a necessity to end all febrile and politically enervating debates and discourses on how wrong and unconstitutional it is to prosecute to Bal Thackeray.

The provisions 153A and 153B have a genocidal content and should be read as such. The Punishment provided may not be deterrent but the prosecution of a person who always thought that he was above law and is armed with tremendous proclivities to unleash disorder is bound to have deterrent effect.

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(PUCL Bulletin, August 2000)