IPT 1.1 | september 2022 | Section 7
Most abuses and discriminations reported here remain unaddressed by authorities.
To date, no independent investigation has been conducted of the extrajudicial killings in Uttar Pradesh or other states including Assam, nor any official held to account. Custodial deaths are passed off as due to illness or suicide, and no justice provided to survivors. Families are also denied the right to bury their sons killed by state forces on accusation of being armed rebels, as was Latif Magrey denied his son’s body for burial, when the Supreme Court turned down his appeal. And rather than prosecute perpetrators, victims of lynchings killed by vigilante gangs, on the pretext of transporting cows, have criminal cases registered against them for illegal transport.
Lack of redress for the most serious violence took a particularly vicious form when on 15 August 2022, eleven men convicted in 2008 for the gang-rape of Bilkis Bano and the murder of 14 of her family members, including her 3 year old daughter, during the anti-Muslim pogroms in the state of Gujarat in 2002, had their sentence remitted by the BJP-ruled Gujarat government. Appeal against the move in the Supreme Court have not yielded any results yet. Bano and her family are now fearful for their lives and security, with no protection being provided by the state. The release has also spread fear amongst the Muslim community with residents of the village where the incident took place leaving the village to take shelter in relief colonies.
Indeed recent action by the judiciary in India risks taking away entirely, the victims’ rights to seek justice. The Indian Supreme Court, whilst dismissing on 24 June 2022 a plea by Zakia Jafri, wife of former parliamentarian, Ehsan Jafri, murdered along with 69 others he was trying to protect from Hindu mobs in the Gujarat 2002 pogroms, asking for a wider probe into the role of Narendra Modi, then Chief Minister of Gujarat, into the mass violence, also accused the petitioner and HRDs supporting her, of a “devious stratagem” to keep the “pot boiling”, and noted that those involved in such “abuse of process need to be in the dock and proceeded with in accordance with law.” Retired judges and legal experts have criticised the judgement for giving immunity to the state, and demonstrating executive capture of key institutions.
Victims of arbitrary detention too have little recourse. Siddique Kappan, journalist who was arrested by authorities in Uttar Pradesh on 5 October 2020 when traveling to cover the gang rape and murder of a dalit teenager in Hathras district, was on 9 September 2022 released on bail on the orders of the Supreme Court. Police invoked India’s anti-terror law, Unlawful Activities Prevention Act 1987 to detain Kappan. Despite being in custody for almost two years, no charges were framed by the prosecution. And yet the Supreme Court, whilst allowing only ‘temporary’ bail to Kappan, failed to proceed against police authorities as well as courts of law for enabling Kappan’s prolonged arbitrary detention, for only performing his job. The SC order also does not mention any reparation to Kappan for the abuse of his rights.
Kappan was fortunate to have been granted his freedom back. Student leaders and HRDs detained by Uttar Pradesh and Delhi governments for protesting against the CAA, continue to remain in custody for almost three years. Politicians, HRDs, NGOs and journalists in Kashmir detained under PSA and UAPA, suffer the same fate, without redress. According to a recent report, of the 585 habeas corpus petitions filed in the first seven months of 2022, the J&K High Court has only been able to dispose of a total of 14 petitions.
Accountability for inciteful speech is non-existent. Hindu religious leaders accused of making public speeches calling for mass murder of Muslims and rape of Muslim women on several occasions in December 2021 and early part of 2022, in a series of Dharam Sansads (Hindu religious parliaments), continue not to face the law. The main figures were never investigated. A writ in the Supreme Court demanding action by authorities against them drags on, without any action by state authorities or by the court, suffering the same fate as writs against BJP politicians accused of inciting violence against Muslims in February 2022.
Violations of freedom of religion, including criminalising of religious practice, destruction of religious sites and community institutions, as well as attacks against livelihoods and housing rights of Muslims are seldom investigated and prosecuted. Most appeals made to higher courts against action of executive or lower courts, or those seeking the direct intervention of the higher courts, for redress, when they are admitted, drag on for long periods, without definitive outcomes. This is, as the victims continue to suffer as a result of the violations.
An example is the writs in the Supreme Court (15 March 2022) against the ruling of the Karnataka High Court upholding the Karnataka government order (of 5 February 2022) banning students from wearing the hijab (Islamic headscarf). The order which came in for criticism from international human rights experts, affects large number of Muslims girl students that wear the hijab, forcing them to choose between hijab and education, with attendant negative consequences. SC refused to list the matter for urgent hearing, despite the urging of the petitioners. Hearing in the matter is underway now.
Challenges in the Supreme Court to some of the most controversial recent legislations affecting Muslims and other minorities, suffer a similar fate. The over 150 writs against the Citizenship Amendment Act, filed in December 2019 have never been given a substantive hearing yet. Hearing in the over 25 challenges to the abrogation of Art 370 and 35A and the arbitrary bifurcation of the state, taking away Jammu & Kashmir’s autonomous status, have similarly not been held by the court, over three years after the challenges were filed. In either case, the court refused to stay the laws. Challenges to anti-conversion laws in Uttar Pradesh, Uttarakhand, Himachal Pradesh, and Madhya Pradesh have similarly been pending before the Supreme Court since February 2021. Clearly a pattern is evident, of the highest court of the land, delaying justice.