6th October 2013
Hypothesis why Congress governments in the centre have failed to act against Modi
A person whom I met earlier this year in India has sent me a highly detailed note that outlines matters which the higher courts can directly act upon. I'm extracting key points, including his hypothesis why Congress is shielding Modi (since similar cases will then be registered against its functionaries for the 1984 riots). Worth a read.
(3)- The entire matter of justice for the victims of Gujarat massacre 2002 can broadly be divided in three categories based on the fundamental distinction that in category (1) & (2), no evidence is needed from the victims of this massacre and Higher Judiciary of its own should have imparted justice long back, based upon government records only. Whereas evidence is needed from the victims for the category (3) only, where Higher (subordinate) Judiciary is dependent on the evidences from the victims in various cases pending in courts :-
Category (1)- Events from 28/2/2002 to mainly 3/3/2002, concerning Gujarat Government :-
(4)- People in large numbers came on streets all over riot affected Gujarat due to call for State-wise 'Bandh' (illegal, as in view of emotionally charged atmosphere due to Godhra incidence there was no permission from authorities of Gujarat for this State-wise Bandh) given by Vishwa Hindu Parishad (VHP) and supported by its traditional allies / associates like BJP, RSS, Bajrang Dal, Shiv Sena etc. Despite no permission for Bandh thousands of Bandh observing people under the 'office bearers' of these Hindutva out-fits came on streets and indulged in heinous crimes of murder, rape, assault, arson, loot, criminal trespass etc.
(5)- Police of Gujarat (right from SHO of police stations of riot effected areas to their superiors up-to S.P., Commissioner, IG, DGP etc including intelligence, jointly responsible under section 36 of CrPC) and the then Home Minister and the then Chief Minister and their Secretaries and Executive Magistrates of areas were under legal obligation to arrest / get arrested these 'office bearers' of VHP, BJP, RSS, Bajarang Dal, Shiv Sena etc. not only for carrying out illegal Bandh but, under section 34 and 120-B, 511 IPC, also for their complicity in / responsibility of heinous crimes of rioters, including crimes of murder, rape, assault, arson, loot, criminal trespass etc.
(6)- But on the contrary, the vice-president of Vishwa Hindu Parishad (VHP) Acharya Giriraj Kishore could address press during riots (as was reported by entire media) and office bearers of VHP along with its allies / associates BJP, RSS, Bajarang Dal, Shiv Sena etc. could get away during these 2002 riots without getting arrested and prosecuted for these heinous crimes of murder, rape, assault, arson, loot, criminal trespass etc.
(7)- Higher judiciary does not need any evidence from the victims of Gujarat riots 2002 (A)- for prosecuting at-least these perpetrators (the 'office bearers' of VHP along with its allies / associates BJP, RSS, Bajarang Dal, Shiv Sena etc.) who committed these heinous crimes by their ‘acts of commission’ and (B)- for prosecuting public servants (right from SHO of police stations of riot effected areas to their superiors up-to S.P., Commissioner, IG, DGP etc including intelligence, jointly responsible under section 36 of CrPC) and the then Home Minister and the then Chief Minister and their Secretaries and Executive Magistrates – who by their ‘acts of omission’ allowed these rioters on street (despite no permission for Bandh) to commit these heinous crimes with impunity.
(8)- Here it is needless to say that once Higher Judiciary ensures the sanction for prosecution of said public servants and prosecution of all these criminal (who by their acts of omission and commission respectively, are responsible for these heinous crimes) then the entire out-come of the category (3) too would be immensely impacted in the interest of justice.
Category (2)- Events from 28/2/2002 to mainly 3/3/2002, concerning Central Government :-
(9)- Whether the police force needed, for the dispersal of unlawful assembly, under section 129 CrPC was provided to Executive Magistrates by Gujarat Government adequately or not – may be decided by Court hence it needs no mention here. But here what is important is to go into provisions of section 130 and 131 of CrPC, which are related to use of armed forces (military) to disperse such assembly / rioters and power of certain armed force officers to disperse this assembly / rioters, respectively.
(10)- As per section 130 CrPc when such assembly cannot be dispersed by police force, then the Executive Magistrate is to get it dispersed by the armed forces. So when rioters could not be dispersed during 2002 riots by police force then concerned Executive Magistrates in all the riots affected areas of Gujarat were legally expected to call armed forces to disperse the rioters. No body else (including Ministers or Chief Minister) is legally expected to call the armed forces. It is only Executive Magistrate on the spot who has to call the army in such scenario and while in office, he is under legal obligation to keep himself informed that from which nearest pace (and not from distant India's capital Delhi) he will get military for this purpose of dispersing such assembly / rioters. The calling of army in 2002 by Chief Minister (or by any other authority) and that too from distant Delhi was against section 130 CrPC. The then Union Home Minister was legally expected to move the competent authority for the dismissal of the then Government of Gujarat (under Article 356 of the Constitution) due to breakdown of rule of law, where Executive Magistrates of various districts were not calling Army from nearest places in Gujarat to curb the rioting in Gujarat.
(11)- But what is more legally objectionable is the act of omission of the then Prime Minister and Defense Ministers and their secretaries in Union Government which caused these heinous crimes of rioters at such large scale. As per section 131 CrPC once military is in the area where rioting is going on then prior permission of / requisitioning by Executive Magistrate is not required. Army officers at site are legally expected to curb the rioting with the use of force, whatever force reasonably required, and by keeping Executive Magistrate informed to the extent possible.
(12)- In a nutshell, once army is deputed in the rioting area then it is not the State Government but the Union Government (under which Army is), which is primarily responsible for mobilizing adequate armed forces for effectively curbing the riots. Hence for this acts of omission, the Army officer in rioting areas (and their senior officers in command and control), the then Defense Minister, the then Home Minister and the then Prime Minister and their Secretaries deserve to be prosecuted.
(13)- In this matter of filing proper Court cases, the Muslims are not getting any help from Congress (the ruling party at Centre and opposition party in Gujarat) because of (i)- 1984 massacre where thousands of Sikhs (another minority community in India) were butchered and there too sections 129, 130 and 131 CrPC would come into play (and that too in Delhi where there has been huge presence of Military) and which would embarrass Congress which was in power at Delhi in 1984 and (ii)- Unwillingness of political class in general to make military the ultimate hope (though it is legally expected under Sections 130 and 131 CrPC ) for the threatened victims of any riot / massacre.