Uniform injustice

What does it take to get a policeman to face trial? What is it about policemen that governments go out of their way to see that they escape prosecution?

Prosecuting policemen is not easy. You need government permission; you need to counter the bogey of ‘police demoralisation’; and you need lawyers who can overcome the loopholes left by the investigating agencies to allow their colleagues to escape.

It took years of struggle to overcome these hurdles and start the process of prosecuting just eight of the 31 policemen indicted by the Srikrishna Commission Report into the 1992-93 riots in Mumbai. But of the eight charged with murder, five were acquitted. The CBI investigation into one has been stayed by the Supreme Court and the senior most among them has just had his discharge upheld by the Bombay High Court.

The first time RD Tyagi was discharged from the case of murder filed against him by the Special Task Force set up to implement the Commission Report, the government played a very specific role. The STF simply did not inform Pheroze Vakil, the special public prosecutor (PP)appointed to handle Tyagi’s case, about Tyagi’s discharge application.
By letting the regular PP argue against it, the STF effectively blunted the prosecution case.

The STF, then home minister Chhagan Bhujbal’s baby, could not have taken this step without instructions from him. The case against Tyagi had been the Congress-NCP government’s showpiece, the basis on which they went around declaring that they’d implemented the Srikrishna Commission Report. Yet, when Tyagi walked free without even facing a trial, the government did not appeal. That was left to a victim of Tyagi’s raid on the Suleman Usman Bakery.

Now will the same madrasa teacher — who still bears the scars of that raid — have to chase Tyagi to the Supreme Court? Because for sure, the State of Maharashtra will not. (Interestingly, while this victim is a living testimony to the assault by Tyagi’s men, the STF did not even include “assault’’ in the charges against them, though its own chargesheet has detailed descriptions of these beatings. That was the reason the policemen who did not fire inside the bakery walked free.)

Not that this government hasn’t rushed to the Supreme Court in matters relating to the Srikrishna Commission. Last December, the Mumbai High Court, on a petition filed by Farooq Mapkar, ordered a reluctant CBI to take over the Hari Masjid case, in which then PSI Nikhil Kapse had been indicted for unprovoked firing. Mapkar was a victim of the firing. By July this year, the Maharashtra government had surreptitiously moved the SC for a stay on the CBI inquiry. It was again left to Mapkar, a bank peon, to rush to Delhi to oppose the stay granted last month. The Hari Masjid firing left six innocents dead. Justice Srikrishna described Kapse’s conduct as “condemnable, brutal and inhuman.’’

About the Suleman Usman Bakery raid, in which eight innocents were killed, he wrote: “The police acted in a manner not befitting the police force of a civilised, democratic state.’’ Before reaching these conclusions, the Commission gave the police every chance to defend themselves. A battery of senior counsel cross-examined the mostly poor and illiterate victims who testified against these policemen.

Yet, the government of Maharashtra has repeatedly chosen to throw its weight behind these men, sending a clear message to the victims: your tormentors were right, Justice Srikrishna was wrong.

It would be tempting to conclude that this has happened because the victims are Muslims. But when it came to prosecuting SRPF inspector Manohar Kadam, indicted by the Gundewar Commission for ordering the firing that left 10 Dalits dead in Ramabai Nagar in 1997, the Maharashtra government acted only after a petition filed by activist Shakil Ahmed. When the high court suspended Kadam’s life sentence, the government’s last-minute, poorly-drafted appeal was rejected by the apex court. Kadam walked free.

Two lessons can be drawn from these cases. One, the government cares a fig about judicial commissions. That however, does not mean they have no value. They serve not only as a catharsis for the victims who testify in them, but also, in most cases, as the most authentic account of contentious violent incidents. The second lesson is that you don’t need a Disturbed Areas Act for policemen to enjoy impunity. No government will prosecute policemen who act against minorities, Dalits, Adivasis, peasants and labourers.

From Punjab to Maliana, Nandigram to Gurgaon — policemen have got away with shooting and assaulting unarmed masses belonging to these categories.  But can victims and activists stop trying to get these policemen punished? That would mean conceding that might is right, that some Indians have less human rights than others.