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04 Dec 2018

On November 20, 2018, a Delhi Sessions Court awarded death penalty to Yashpal Singh and life imprisonment to Naresh Kumar for their role in murder and arson in Mahipalpur on November 1, 1984 which caused the death of two persons and injuries to three others. A week later, the Delhi High Court upheld the conviction of 70 persons who had been awarded five-year prison sentences by a Sessions Court in 1996 for their role in rioting, looting and burning in Trilokpuri, between October 31 and November 3, 1984. In all, 89 had been sentenced by the trial court, but sixteen died and three others remained absconding in the intervening period of twenty-two years.

Even while it is commonly accepted that justice delayed is justice denied, these recent convictions have raised hopes of reinvestigation of cases which had been summarily closed by the police, supposedly for want of evidence. The decision of the apex court to scrutinize the NDA appointed Special Investigation Team’s (SIT) summary closure of 241 cases and institution of a new SIT in January 2018 to probe 186 cases, acquires importance. The renewed attention given to the languishing cases involving Congress politicians Sajjan Kumar and Jagdish Tytler, is much needed. The PUDR-PUCL report, Who are the Guilty? had named 16 MPs, corporators and youth leaders of the Congress Party, 13 policemen and 196 others.

However, it cannot be forgotten that in these thirty-four years there have been as many as 13 committees, commissions and SITs. Despite such attention, not a single politician has been convicted; neither has the police been indicted for its role in active aiding and abetting of the rioting mobs. The Kusum Mittal (1987) and Jain-Aggarwal (1990) committees had indicted a total of 147 policemen. Till date, not a single policeman has been seriously punished. The political hues of the aftermath was evident from the fate of Marwah Commission (1984-1985), the first commission appointed to probe the role of the police and which was hastily wound up after it was known that the Commission had gathered evidence that clearly indicted the police.

But there are other questions, besides the lack of conviction of politicians and policemen. While upholding the trial court judgment on the role that the 70 had played in Trilokpuri, Justice RK Gauba observed that the entire exercise of ascertaining the role of the arsonists thirty-four years after the events and twenty-two years after the trial court had sentenced, was an academic one. The judgment noted how, despite the shocking nature of the incident, no case was made for murder either at the time of ‘taking cognizance’ or at the time of framing charges. Worse, while the concerned FIR had noted 95 dead, 22 of them had never been identified. The judgment rightly observes that “it is likely that twenty-two homicidal deaths may not have seen any criminal action initiated against anyone till date”. The judgment makes for very sober reading regarding the systemic failures in the functioning of the criminal justice system as far as deliverance of justice is concerned.

In this context, the issue of death penalty needs to be scrutinized especially since politicization of the 1984 riots has conveniently drawn a veil over the bogus investigation and tardy trials which have left the survivors without any meaningful justice, other than compensation. If the exercise is to move beyond the academic, then it should be recognized that the death penalty awarded to Yashpal Singh by the sessions court is an arbitrary one. The ethical arguments against death penalty are well-established but it is necessary to also examine the inherent arbitrary nature of capital punishment as exemplified in this case. The first FIR was filed on November 1, 1984 and it named a Congress leader, JP Singh, who was acquitted in 1986. Importantly, the state never appealed against his acquittal and the case was closed by the police in 1994 and it was selected by the 2015 SIT for reinvestigation. To award death penalty twenty-four years after the case was closed and after it is known that the main accused was let off within two years of the riots, is an arbitrary one.

The two convictions raise fundamental issues about the aftermath of investigation into the riots. The Trilokpuri case exemplifies what the Justice Gauba’s judgment says, the “sordid experiment in the name of criminal law process”; the Mahipalpur case illustrates the ease with which death penalty can be pronounced, a point reiterated in Justice Kurien Joseph’s judgment on November 28, 2018 about how death penalty is “arbitrarily and freakishly imposed”. Undoubtedly, the history of the 1984 riots has foregrounded the necessity of justice; but belated justice can be effective only when the “academic” exercise of determining guilt is transformed into a meaningful act of inquiry.

Shahana Bhattacharya, Sharmila Purkayastha

Secretaries, PUDR,