About a thousand days after the police violence in Aligarh Muslim University (AMU) made headlines, the Allahabad high court has finally disposed of a writ petition seeking remedies against the police and paramilitary forces. The high court noted that nothing had survived in the petition, remarking that students should not “fall in the trap of unscrupulous persons operating outside the University to disturb peace there”.
This order comes after the Uttar Pradesh state government filed an affidavit stating that it had complied with the directions previously issued to it by the high court based on the report produced by the National Human Rights Commission (NHRC).
However, this order does gross injustice to the students of AMU who had suffered extreme human rights violations at the hands of the UP police and paramilitary forces that were deployed at the repeated requests by the Registrar, Aligarh Muslim University to the District Magistrate in order to “prevent any untoward incident”. The brutality was such that the whole incident was termed by a fact-finding report as a ‘siege’ of the university.
Thereafter, a writ petition was filed by a lawyer Aman Khan before the Allahabad HC, praying for a set of remedies, which included the formation of a Special Investigation Team (SIT) to conduct an inquiry into the human rights violations by the state agencies, the initiation of criminal proceedings against the police/paramilitary officials involved in the said incident, and award of compensation to those injured by the police violence. Over the course of hearings, although the high court declined to constitute an SIT, it did direct the NHRC to conduct an inquiry and furnish a report. Subsequently the NHRC came out with its findings. The NHRC report also made six recommendations, which have been summarised here:
- Directions to the UP government to provide compensation to the grievously injured students.
- Directions to the UP Police and Paramilitary forces to be ‘sensitised’ and that professionalism be inculcated in them. A direction was also given that ‘a suitable action’ may be taken against police officers who were involved in ‘stray incidents of damaging motorcycles and caning’.
- Directions to the UP Police to ensure that an SIT set up by the DGP should consider all relevant facts on merit.
- Directions to the UP Police to improve its intelligence gathering mechanisms, and directions to the Vice-Chancellor to improve its communication channels with students.
When this report was furnished before the Allahabad HC, the high court accepted all the recommendations made by the NHRC, and directions were given to all relevant parties to comply with the said recommendations. This could have been seen as a victory for human rights in general and students of the AMU in particular. This was in February 2020. However, since then, the status of compliance has been hopelessly abysmal. No substantial order was passed by the High Court until the final order passed in September 2022.
The final order, dated September 8, 2022, which is in the form of a short two-page order, disposed of the writ petition finally. The remark that “nothing had survived in the petition” was apparently based upon the high sourt’s satisfaction that the state government had complied with all previous directions.
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Now, there are glaring problems around the 994 days-long journey of this writ petition. There are two facets of the issue – problems attributable to the high court, and problems attributable to the NHRC – as well as with overarching systemic and sociological problems.
The high court’s dismissal of the petition
The final order of the high court, as mentioned above, disposed of the writ petition upon being satisfied that the State had complied with the directions/recommendations made by the NHRC (and endorsed by the high court).
It must be noted that the final order does not record the basis of its satisfaction in detail. In fact, it is a mere two-page order containing six paragraphs. It merely refers to the submission of the State in its counter affidavit that it has complied with the said directions.
The question here is: Should the high court have based its satisfaction merely on the word of the State? Is it in the interests of justice to not venture into the details of how exactly the State has followed the said direction? It is to be noted that this is in a case where gross violation of human rights by State agencies has been alleged and proved to some extent by the NHRC report.
Moreover, the judiciary is entrusted with the responsibility of guaranteeing fundamental rights to citizens. In this case, the fundamental rights of freedom and (dignified) life of students under Articles 19 and 21 were seriously violated. The petitioner had invoked the writ jurisdiction of the high court.
However, it is a very unfortunate observation that the High Court seems to forget the power it exercises — and the responsibility it shoulders — under the writ jurisdiction. In the Sunil Batra case of 1980, it was held by the Supreme Court that,
“Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the court to intervene and relieve, this Court will be a functional futility as a constitutional instrumentality if its guns do not go into action until the wrong is righted. … We hold that the court can issue writs to meet the new challenges.”
Far from exercising its ‘guns’ to ensure that the wrong has been righted, there seems to be a lack of willingness to take the matter seriously.
Initially, the high court did show a certain degree of alacrity in directing the NHRC to conduct an inquiry. However, later on, as the files of the writ petition gathered dust – with no hearing for 895 days between March 2020 and August 2022 – it seems that the high court too lost interest in pursuing the case of human rights violations with the same initial zeal.
In February 2020, the Allahabad HC had noted that, “The RAF, a specialised force set up to deal with riots and handle law and order situations, should show utmost professionalism in such crisis situations, while respecting the human rights of civilians.”
However, by September 2022, the same court casually dismissed the issue with a single-line remark: “We have no doubt that our paramilitary forces are well equipped to deal with such situations and are being regularly updated.”
Not just this, where the court on one hand did not feel the need to pass a detailed order, it did feel the need to berate and moral-police the victim students by assigning “equal responsibility” to the students.
The NHRC report
The NHRC report has already been critiqued on the ground that it ended up victim-blaming and assigning responsibility to the students. The report merely criticised the police and the paramilitary forces for their “unprofessional behaviour”. This term was used to refer to the caning of students and damage to property such as motorbikes. As has been previously said about the report, it ignored the cruel, inhumane, and degrading treatment of students, and viewed it with purely technical lenses of crowd control.
The report completely failed to take into account the Islamophobic slurs that were hurled at students. And this is merely one instance of what the NHRC failed to count while coming up with the report. It is also not clear whether the NHRC, while examining the facts of the events that transpired on December 15, 2019, took into account the two different fact-finding reports and analysis by Citizens Against Hate and Indian Cultural Forum.
Upon reading both of these reports, it is clear that had the NHRC considered them (or if considered, given them more credence), it would have resulted in the assignment of more liability to the police and paramilitary forces.
However, when speaking of the problems attributable to the NHRC, it may be noted that besides just the objectionable report furnished by the NHRC in this case, there exists the larger problem of the independence of the NHRC.
A lot of human rights violations that are reported to the NHRC relate to police excesses. In fact, according to a statistic released by the NHRC, more than one in four complaints were labelled ‘police’. However, it may be noted that a considerable number of posts in the NHRC are filled with police officials. Right from the post of the Director General of Investigations to lower-level positions in the NHRC, we find police officers everywhere. This is in serious conflict with the natural justice principle of ‘Nemo iudex in causa sua’— no one should be a judge in his own case. In fact, even this particular NHRC investigation of police brutality in AMU was headed by Manzil Saini, an IPS officer.
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Having pointed out these two facets of the issue, it cannot be missed that beyond a lack of judicial zeal and systemic problems, there looms an even larger problem of deeply ingrained Islamophobia.
And in such a scenario, where it is becoming increasingly difficult to exist as a minority in this country, the courts of law must share the responsibility of undoing the harms that are the results of deep-seated Islamophobia manifesting itself using the vehicles of judicial laxity and systemic loopholes post communal executive action. Of course, the principle of separation of powers is at the core of the constitutional framework of this country, and the judiciary cannot venture into legislative and/or executive functions, but it should nevertheless do its part by expressing zealousness in dealing with human rights violations such as the one discussed in this article.
However, when we see judgements such as these, it is only natural to feel that the judiciary is sluggish in its role as the custodian of basic human and constitutional rights. And if this feeling translates into an actual judicial reality, then the apprehension that the secular, democratic republic of India is doomed shall not be ill-founded.
Taha Bin Tasneem is a fourth-year law student at the Faculty of Law, Aligarh Muslim University.