Just before the 2014 election, I had a haunting political conversation with a young student from Bihar. We were discussing politics, the future of secularism and the political fate of Bihar. Suddenly the student got animated and said that he could not care less about secularism. He did not much care about the way the Congress party trotted out Gandhi and Nehru to buttress their ideological pedigree. He was also deeply suspicious of the big ideological battles surrounding secularism. “They throw secularism at me like a stone,” he said at one point. He then asked pointedly, “Can any political party look me in the eye and answer this question. If there is a riot, terror attack or any violence, directed against any group in any state, will the state pursue the perpetrators impartially, without any consideration of caste, religious community or political affiliation? Will the real perpetrators be brought to justice? Second, as a young Muslim student, can anyone assure me that whenever there is a terror attack, the police will not round up innocent young Muslim men indiscriminately?” He had in mind the case of 70-odd young Muslim men in Andhra who were falsely accused, and then subsequently released. He was quite measured: The police has a difficult job to do. But our secularism breaks down the minute our institutions are put under pressure. This, he argued, was true, regardless of which political party was in power. Congress justice was no better than BJP justice, on these two questions at any rate.
These two powerful questions should haunt our political system. At one level, the questions were obvious. But what stood in this articulation was the search for a definition of secularism that was pointedly institutional. Secularism is not the proclamation of grand ideology, the noblesse oblige to protect minorities, or the invocation of historical pedigree. Its true meaning can be redeemed only in the day to day workings of our institutions, particularly police and the courts. It has to permeate through all the quotidian procedures by which truth is produced in a court of law: How we present narratives, treat witnesses, follow procedures and come to presumptive judgments about circumstantial evidence. No political party could look this student in the eye and assure him that our institutions were on firm ground.
The acquittals in the Delhi serial blasts case once again remind us of these questions. Mohd Hussain Fazli and Mohd Rafiq Shah are the latest in a line of dozens of youths who turned out to have been accused without plausible evidence, and whose lives have been devastated by our justice system. “Framed, Damned and Acquitted” was the apt title of a report on this subject published by the Jamia Teachers’ Association a few years ago. This report showed how this phenomenon occurred with numbing regularity: Young Muslim men being falsely accused and then acquitted years later. Justice Reetesh Singh’s order seems, on the face of it, a deep indictment of the police and its modus operandi. There are a few silver linings. At the level of individual adjudication, judges, by and large, still seem to be discharging their duty. There are also a few heroic lawyers who still doggedly manage to pierce the Kafkaesque world of our justice system. But overall, we are left numbed by these stories.
This is not the space to discuss institutional reforms that can address the crisis of the justice system. But it is worth asking why there is so little political discussion of these matters. First, there is discomfort raising possible issues of bias in policing. Admittedly, this is a complex issue: The low ratio of arrests to conviction more generally, the under-capacity of investigation agencies, the public pressure they are under, are all infirmities that will produce morally horrific outcomes. But the general dysfunction of the system allows us the perfect alibi for not confronting possible issues of bias. Second, when the issue enters politics, most parties want to use these cases for their symbolic ends. They all conspire to enhance the partisanship around these cases: My favourite innocents versus yours. They have no commitment to think institutionally. It is, let us face it, difficult to discuss these issues without risking more political polarisation. The impulse to throw cold water on a potentially inflammatory problem leads us to a taciturn restraint.
Third, the securitisation of the discourse around justice leads to a clamour for punitive outcomes, not forensic fact finding. But it is now time to reverse the relationship. Security does not require short cuts to justice. Rather, short cuts to justice are now jeopardising genuine security. If innocents are being possibly framed, and genuine perpetrators going scot free, then we are facing a security risk. But if justice is not being seen to be done, if most terror-related cases now appear to be politicised, and trust in the investigation and prosecution falls, we will have a deeper security problem. The credibility of the justice system is a bulwark against insecurity.
Fourth, we often misread the absence of visible protest in India on a range of issues. We think that it is a sign of legitimacy. But often lack of protest is a prudent response to a difficult situation: If the prospects of successful change are remote, why jeopardise whatever opportunities the current system affords? But resentments can simmer under the surface. Finally, there is a perennial problem of signalling. Small institutional reforms that could produce more checks and balances, better policing, investigation and prosecution simply do not fetch you any political capital. Even those committed to better law and justice want it to be seen that law and justice are acts of political noblesse oblige: They do not require us to do the hard labour of careful institutional building.
Mohammad Fazli, Rafiq Shah. The list of proper names now victimised by possible bias in our criminal justice system, over and beyond its usual pathologies, is growing. The prime minister has converted UP into a contest over secularism. His nauseatingly mischievous speech in UP on kabristans and shamshans, Holi and Eid, will be presented as a very innocent call for equal treatment of all communities. The form of the words presented that claim. The context, intent and rhetoric are nothing of the sort. It is a sly way of strengthening and tapping into the majority’s feigned persecution complex. In response, political parties will talk secularism to death. But none will rise up to the core challenge of secularism that my young Bihari interlocutor spelt out: When will we have a criminal justice system that is fair, just, impartial and efficient?
The writer is president, CPR Delhi and contributing editor, ‘The Indian Express’
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