In school, when the whole class was being detained for some mischief caused by a few, there would usually be that one boy who would snitch. “It wasn’t me, Sir,” he would sniffle, “they did it...” And he would rattle off all the names and details of how they did what they did, who helped, and how, and please could he go home now? I was reminded of those detentions today, reading about the Gujarat high court’s observation on rioting. All members of a mob involved in rioting would be held responsible for crimes committed by any one of them, said the court. It was hearing a 2003 case of rioting in Ahmedabad. “Riots, resulting in serious injuries or even death, are of frequent occurrence in this state and cases relating to such riots require careful handling,” said Justice K.S. Jhaveri and Justice G.B. Shah.
Of course, there is no comparison between school kids booby-trapping the teacher’s chair with ink and weapon-wielding rioters hacking to death innocent people. And the basic principle of innocent till proven guilty cannot be set aside. Nor can we justify randomly punishing people in the hope that someone will squeal. That is exactly what our police does, continuing a horrible tradition of custodial torture and custody deaths. No, school kids detained for silly pranks cannot be compared to mass murderers let off for lack of evidence and political will. Except for the anonymity factor.
The anonymity of the mob protects even mass murderers. It is difficult to establish culpability of every individual accused in a riot. So the guilty get away. But clearly, these two judges had had enough. And were determined to end this impunity. The law is clear, they said, “That if an offence is committed by any member of an unlawful assembly in furtherance of the common object of that assembly, every member of that unlawful assembly is guilty of that offence.”
There was no need to go into the individual role of each member of the mob. The “common object” is what binds the individuals together and makes it a mob. And makes them all responsible for the acts of that mob. But can we justify pronouncing someone guilty by association? Civil society has been opposing the dangerous tendency of the state to bring charges of sedition against inconvenient people like Binayak Sen or Kanhaiya Kumar based only on the crime of association. Never mind whether they themselves did anything seditious, they were seen with people who were “acting against the interest of the nation”. However, there is a fundamental difference between a riot mob and an association of people, even if unlawful: the “common object” and the resulting violence makes it a riot.
Riots fuel Indian politics. They create fear, polarise people, make vote banks and establish power. In our multicultural, multi-religious, multi-lingual, pluralistic country, politicians use sectarian riots as a potent tool and get away with it largely because of the impunity that a faceless mob has. Even when a mob is reported to have a face — like that of H.K.L. Bhagat, Sajjan Kumar or Jagdish Tytler in the 1984 massacre of Sikhs in Delhi — they get away with murder. And only partly because it’s so difficult to establish individual culpability in a chaotic riot situation. And even when the impossible happens — like putting away powerful political leaders like Maya Kodnani or Babu Bajrangi, responsible for the Naroda Patiya murders in Gujarat — they are soon out on bail.
And the judge who has the guts to deliver justice going against political pressure is hounded and threatened. Right now, as West Bengal goes to the polls, the Malda riots of January are being milked by all political parties. In preparation for next year’s state elections, in Uttar Pradesh the Bahujan Samaj Party has started accusing the Bharatiya Janata Party and the Samajwadi Party of inciting more than 300 riots in the state for political gain. But we can be sure that once the elections are over, the new state government will not try to bring the accused to book in either West Bengal or Uttar Pradesh.
Just as the Congress, while in power in Maharashtra, never brought to book Shiv Sena leaders accused in the 1993 Bombay riots. Or the BJP while ruling Delhi did not seriously pursue the cases against Congress leaders accused in the 1984 Delhi massacre of Sikhs. Or nobody has been punished for the 1983 Nellie massacre in Assam where more than 2,200 Muslims were butchered. Riots are too precious a political tool to be sacrificed at the alter of justice.
But this observation of the Gujarat high court gives us hope. In the interest of justice, we need to target impunity. And we could take a careful look at the laws that the British left behind, and perhaps reinterpret or update some of them. Not just Section 377 or the sedition laws, but laws that control our everyday lives.
Laws that allow rioters to get away need a re-look. Because when we act as a herd, we act without individual accountability, we cast ethics to the wind and join the dance of the lawless. But every individual must be held responsible for his contribution to the bigger crime. Absolving all because you cannot prove who did what exactly in a crazy riot situation works against the principle of justice.
And we need to fix accountability on everyone responsible — not just the mobsters at the spot, but also the politicians who encourage or instigate the riots. Apart from Congress, Shiv Sena and BJP leaders responsible for the sectarian massacres of 1984, 1993 and 2002, senior BJP leaders photographed and televised encouraging the demolition of the Babri Masjid in 1992 spring to mind as well.
The police who do not stop riots are guilty too. Just today we learnt from Jhajjar deputy commissioner Anita Yadav how the policemen and Army stood by as the Jat reservation riots raged in Haryana in February, killing 30 and wounding hundreds. The police accused in the Bombay, Gujarat or Delhi “riots” have not been punished either. Besides, there are bureaucrats. Those who make the politicians’ dreams come true, who hand over detailed lists of minority neighbourhoods to mobs readying for a rampage and who let riots happen and help protect the powerful. They need to be held accountable too. And finally we need to fix responsibility on those who instigate and incite from afar, through social media. For only when we have accountability for all can we have justice for all.
