criminal justice aftermath of caste and communal conflicts | G Mohan Gopal

Frontline

CRIMINAL JUSTICE - Caste and carnage

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The series of five cases of mass murder from Bihar must wake India up to the need to strengthen its capacity to deal with the criminal justice aftermath of caste and communal conflicts. By G. MOHAN GOPAL

DOES the caste of the victim or the accused play a role in the operation of our criminal justice system? Is our criminal justice system casteist? These deeply troubling questions have been brought back to the front line of national debate by the acquittal of 26 persons, all belonging to privileged castes, of the charge of murder of 53 Dalits and five poor boatmen belonging to disadvantaged castes (15 men, 27 women and 16 children) in Laxmanpur Bathe in Bihar on December 1, 1997. Many have received the decision with great consternation.

That the perpetrators of the massacre are yet to be brought to justice 16 years after the crime is unforgivable. It is also a matter of deep shame that no one is being held accountable for the failure to find and bring to justice the killers of the innocent Dalit villagers.

The October 9 decision of the Patna High Court is not an isolated one—it was in fact the fourth in a series of similar decisions by the High Court since 2012. In each of them, persons belonging to privileged castes were acquitted of the charges of murdering Dalits. In April 2012, the High Court acquitted 23 persons belonging to privileged castes accused of perpetrating the notorious massacre of 21 Dalits at Bathani Tola in Bhojpur district in 1996. In March 2013, the High Court acquitted 11 persons belonging to privileged castes accused in the horrific Nagari Bazar carnage case involving the killing of 11 Dalits in 1997. In July 2013, the High Court acquitted nine of 10 accused in the Miyapur massacre where 32 Dalits were killed in 2000. All these killings are attributed to the Ranvir Sena, the private army of landlords belonging to privileged castes.

Were the accused acquitted because they belonged to privileged castes?

The High Court’s decision to acquit in the Laxmanpur Bathe case is justified in meticulous detail. After analysing the evidence of each witness, the High Court concludes that “prosecution witnesses are unreliable”. The judgment shows how the police investigation was irreparably botched. There was considerable delay in the dispatch of the first information report (FIR). Evidence was given years after the event. When the police first arrived on the scene of the carnage, they saw overwhelming evidence that a group of 100-150 persons had come to the village from across the river, carried out the massacre and returned across the river after killing five boatmen to prevent them from identifying them.

The evidence of the arrival and departure of the mob included footprints and blood marks on both sides of the river, as well as blood in the boat that was left on the northern side of the river along with the corpses of the five murdered boatmen, three on the southern side of the river and two on the northern side. For the first several hours, the police focus was on catching the assailants from the adjoining areas on the northern side of the river. Police officers on the northern side of the river were duly informed.

When the political pressure mounted with the visit of the then Chief Minister, the police had to “produce” the murderers. The attention suddenly turned to a much easier target—local villagers of the privileged caste. The trail on the northern side of the river was quickly dropped and forgotten. Within about a week of the tragedy, the initial investigating officer was replaced because of concerns about the quality of the investigation.

The High Court judgment says that “the prosecution had no clue about the identity of the [accused] until 3 December 1997 5 p.m. as by then the investigation had not begun as per the evidence of prosecution witness.

The investigation began only after arrival of the Chief Minister on 3 December 1997 at 5 p.m. From the evidence of the [investigating officer] it appears that the first arrest was made at 5-25pm…”. The police had cracked the case within 25 minutes of the arrival of the then Chief Minister!

It appears that it would have been a travesty of justice to convict and sentence the accused to death when there are serious doubts about the evidence against them. It is precisely such a travesty that has befallen Krishna Mochi and three other Dalits (Dharmendra Singh aka Dharu Singh, Nanhe Lal Mochi and Bir Kuer Paswan), now on death row awaiting the outcome of a mercy plea to the President. They were convicted and sentenced to death in 2001 for the 1991 massacre of some 35 persons belonging to privileged castes in Bara, Gaya district. The Supreme Court upheld the conviction and the death sentence imposed on them by the TADA—Terrorist and Disruptive Activities (Prevention) Act—court in 2002 by a majority decision of two judges to one. The senior judge in the three-judge Bench, Justice M.B. Shah, dissented. He said:

“…[T]his case illustrates how faulty, delayed, casual, unscientific investigation and lapse of long period in trial affects the administration of justice, which in turn certainly shakes the public confidence in the system. Is it not possible for the authorities to find out ways and means for speedy, efficient, scientific investigation in at least heinous brutal carnage and for trying the case within few months of occurrence? If this is not done, it is of no use to complain that accused are not punished in such cases. In any case, for deciding such criminal case, it is the bounden duty of the court to appreciate the evidence brought on record, as it is, in accordance with established law without being influenced by the allegations levelled by the prosecuting agency or by the incident.”

There is no material to suggest that the accused in the Laxmanpur Bathe case were acquitted because of their caste. The opposite appears to be the case—they may have been framed because of their caste. Under the circumstances, any call for conviction and execution of the accused in Laxmanpur Bathe notwithstanding the weak evidence against them will unwittingly justify the conviction and death sentence imposed on the Dalit accused in the Krishna Mochi case based on equally weak evidence.

The Laxmanpur Bathe judgment suggests that the real culprits—the privileged in society who were behind the massacre and their henchmen who carried it out—have escaped with impunity. They have been able to escape because of their power and influence. Equally, those who were killed and those who were incarcerated and later acquitted have suffered because of their powerlessness. The power—and the powerlessness—come from the inextricably intertwined sources of caste and class. To that extent, caste certainly has an influence on the operation of the criminal justice system. The main focus of the operation of the power of class and caste is the investigative process. Once that is compromised or customised, the leeway for the court is quite limited.

Judges, prosecutors and the police cannot but be influenced subconsciously by the attitudes and beliefs that they come to acquire as members of society. Justice Benjamin N. Cardozo, the renowned American judge and jurist, famously wrote on this issue:

“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognise and cannot name have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs.... In this mental background every problem finds it setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own” (The Nature of the Judicial Process, 1921, pages 12-13).

The extra vehemence in the language of a judgment when privileged caste members are attacked may well point to subconscious differences in attitudes towards attacks on Dalits as well as on privileged castes. In the Krishna Mochi case, the Supreme Court says, “The crime in the present case is not only ghastly, but also enormous in proportion as 35 persons, all of whom belonged to one community, were massacred. Thus, after taking into consideration the balance sheet of aggravating and mitigating circumstances, in which 35 persons have been deprived of their lives by the accused persons who were thirsty of their blood, I have no doubt in holding that culpability of the accused persons assumes the proportion of extreme depravity that a special reason can legitimately be said to exist within the meaning of Section 354(3) of the Code of Criminal Procedure [CrPC] in the case on hand and it would be mockery of justice if extreme penalty of death is not imposed.”

The Dalit accused may also be suffering the consequences of a new criminal jurisprudence that has emerged in India that extols the interests of the community and the victim, emphasises the importance of convicting and punishing the accused, and decries strict protection of the rights of the accused. Reflecting this new jurisprudence, the majority judgment in the Krishna Mochi case justifies the conviction of and death sentence against Krishna Mochi and four other Dalits in spite of the serious lacunae in the evidence on the following grounds:

“…. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.…[The Court]… has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on the one hand, no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free.”

A similar sentiment has been expressed in a large number of judgments of the Supreme Court and High Courts. In August, 2012, for example, the Supreme Court of India said inDayal Singh & Ors vs State Of Uttaranchal: “Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge.”

What is not clear is, logically and legally, how can a person be acquitted in the judicial process (and “escape”), but still be considered “guilty” by the judge? In such a situation, under what law and according to what standards has the judge found him/her “guilty” if he/she is acquitted under the law? Is there then a “trial within the trial” going on in our courts—with determination of guilt by the judge according to his or her own personal judgment independent of the law as one trial, and the second trial being under the law by the court?

The new pro-conviction philosophy adversely affects marginalised sections because they do not have the capacity to engage lawyers qualified to defend their interests.

This new philosophy runs counter to the stated goals of the law. The first objective of the criminal justice system (as set out in the statement of objects and reasons of the first CrPC enacted by independent India (1973)) is that “an accused person should get a fair trial in accordance with accepted principles of natural justice”. The third objective is to “ensure fair deal to the poorer sections of the community” (sic).

We need to develop a dedicated institutional framework to deal quickly and in a sensitive manner with justice in the context of social struggles and other complex criminal cases. A special agency for investigation of these cases is urgently needed.

The series of five cases of mass murder from Bihar must wake India up to the need to strengthen its capacity to effectively deal with the criminal justice aftermath of social conflict across caste and communal lines.

Professor G. Mohan Gopal is former Director, National Judicial Academy, Bhopal, and former Director, National Law School of India University, Bangalore.