NEW DELHI — The Delhi High Court on Wednesday upheld the conviction and punishment of 88 people in the 1984 anti-Sikh riots case. While lamenting the long delay witnessed in the case, noting that 34 years have passed since the incident, and 22 years had elapsed since the trial court verdict, Justice RK Gauba suggested some legal measures to ensure speedy and fair trial in communal riots cases.
“There is no contest to the case for prosecution that the crimes alleged here were actually committed. Thirty four long years have passed after the crimes were committed and, yet, the victims await justice and closure. Is this what we call a potent and effective criminal justice system? Is our judicial apparatus at all equipped to deal with the crimes of such magnitude? Do we have lessons to be learnt from this sordid experiment in the name of criminal law process? It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence– of various kind,” wrote Justice Gauba in his 79-page judgement.
Justice Gauba suggested some measures “to be considered for inclusion in the reforms in the criminal law response to deal with such cases.”
Justice Gauba suggested: Amendments in the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993; Formation of SITs to probe such cases; Establishment of special courts for trial of these cases; and Utilization of media reports carrying photos and videos of the incidents as evidence.
Suggestions by Delhi HC to Deal with Communal Riots Cases:
(i) “Suitable amendments (with necessary subordinate legislation) to the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993 may be considered to entrust the responsibility of taking note of the cognizable offences committed in communal riots and for investigation in accordance with law thereinto may be through SITs specially constituted under their respective control with further responsibility to oversee the prosecution in the wake of such investigation through Special Public Prosecutor(s) (SPP) to be engaged by them.
(ii) Though the Commissions referred to above would have their own investigative machinery to carry out the necessary probe in an effective manner, they might need to avail of the assistance of Legal Service Authority (LSA) for reaching out to the victims (or witnesses), and for instilling a sense of trust and confidence, coupled with such witness-protection measures as may be deemed proper for the given situation, and also of the judicial magistracy for mandatory recording of statements of such victims, or witnesses, under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would make the effort more comprehensive and effective.
(iii) The neutral agency of the Commissions, entrusted with the added responsibility of taking such case(s) to prosecution would ensure that no charge-sheet is brought to the criminal court for taking of cognizance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.
(iv) The law on the subject of communal riots cannot be a complete answer to the challenge unless it also establishes special courts with suitable amendments to the general criminal law procedure as indeed the rules of evidence.
(v) Given the technological advancements that have been made and the rise of media – print and electronic – as an effective fourth pillar of the democracy, there is a strong case for utilizing as evidence the press reports, supported by photographic material or video footages put in public domain in trials of criminal cases arising out of communal riots. Such material or video coverage are generally seen to be depicting the specific role of various individuals who form part of the riotous assembly as indeed those leading or provoking such mobs. Time has come for availing of the same, may be in corroboration of oral evidence, in criminal trial process. For this, the law must mandatorily require media persons or houses to share the product of their efforts with the investigating agency in all cases of communal riots, it being also their bounden duty thereafter to prove such material at the trial.
(vi) As has been highlighted in this judgment, frequent absences from the court hearings on the part of accused persons has been one of the major causes for delay in the judicial process. There is no reason why general law of criminal trial being held in the presence of the accused be permitted to be abused. For purposes of trial, particularly at the stage of recording of evidence, in cases under Prevention of Corruption Act, 1988, there is an exception carved out by Section 22© which permits such witnesses as are in attendance to be examined even if the accused is absent subject, of course, to his right to seek recall for cross-examination once he re-appears. Similar rule of procedure in cases of trial in communal cases involving large number of accused would have a salutary effect.”