The Delhi High Court judges had to give an inclusive interpretation drawn from Supreme Court judgments to the term “custody”, to describe the killing of 37 Muslims in Hashimpura by policemen as custodial deaths. But in the urbs prima of the country, a textbook case of custodial death remains unpunished for the last 15 years. The reason? The state dismissed its own prosecutor — only because he was determined to nail the policemen who tortured the victim to death.
As in Hashimpura, in Mumbai too, the state’s support to the policemen accused of killing 27-year-old software engineer Khwaja Yunus in 2003, was evident from the start. It took an eight-year-long legal fight against the state to get charges framed against only four of the 14 policemen named by a court-ordered CID inquiry. (In Hashimpura, it took 19 years.) The trial actually began almost seven years after that.
Yet, after this interminable wait, the state took just three months to bring the proceedings to a standstill. On January 17 this year, the main witness named the four policemen he had seen beating Yunus inside a police station till he vomited blood and collapsed. On April 17, the special public prosecutor (PP) was sacked. His fault? He urged the court to add the four cops named by the eyewitness as accused. Doing so did not need state sanction, he argued, because their actions, as described by the eyewitness, did not fall under the definition of duty.
The Maharashtra government cared nothing about what message was sent by the sacking of its special PP, nor by the manner of his sacking. The PP only realised he was no longer needed when his replacement walked in to oppose his application to make the four policemen named by the witness additional accused. The new PP told the court, in so many words, that his predecessor was sacked because he had not consulted the government before filing this application.
There is a lesson to be learnt from these two cases of custodial killings. When policemen, somehow, despite all the obstacles created by the government, end up being chargesheeted for crimes against innocents, the state tries every trick in its book to protect them. The most effective is delaying legal proceedings, in an effort to wear down the survivors. An entire generation came of age in the Hashimpura victims’ families before the killer policemen were convicted. Yunus’ mother has waited 15 years after her son “disappeared” — the police claimed he “escaped”. His parents never got to see his body; his father, a retired government employee, survived for just a year after this shock. The witness who named the policemen has also waited 15 years to make his testimony a permanent part of the court record.
The state knows not everyone has this kind of forbearance. What helped the families in Hashimpura as in Yunus’ case, has the good fortune to find dedicated lawyers, the kind who don’t tire, no matter how long it takes — a rare breed. Apart from those who represented the victims, both cases have seen exceptional public prosecutors. Satish Tamta, the special PP appointed for the trial court in the Hashimpura case, carried on fighting for eight years despite not being paid his paltry remuneration by the UP government after the first two years. Interestingly, the special PP sacked by the Maharashtra government, isn’t particularly known as a human rights crusader. What Dhiraj Mirajkar is famous for among his peers is his professionalism. That’s why he was chosen by Yunus’ family after two special PPs resigned. And that’s what cost him his job.
The Maharashtra government has told the high court it will not re-appoint him. Naturally. Look at its choice of counsel in the Supreme Court to counter Yunus’ mother’s plea to include as accused the remaining 10 cops named by the CID. It has appointed as its lawyer the same man chosen by the policemen to defend them. Simply put, two parties which should be opposing each other — policemen accused of custodial murder by a state investigation agency, and the state which is duty bound to prosecute them — have the same man defending their interests. Could the nexus get any clearer?
That’s not the only factor which must make the Yunus’s 71-year-old mother doubt her status in this country. Even in a state which has, for the last three years, topped the country in custodial deaths, the Khwaja Yunus case stands out. Like Hashimpura’s victims, Yunus also landed in police custody only because he was Muslim. The young man had come home to Parbhani on holiday from Dubai, where he worked. He was picked up for bomb blasts that had taken place three weeks earlier in Mumbai. Within a fortnight, he was dead. In the next three years, all those arrested with him were discharged or acquitted. This was just one of the many cases where Muslims were wrongfully arrested for terrorist acts they never committed.
Yet, at the end of Khwaja Yunus’ bleak story, the sentencing to life of 16 policemen in faraway Hashimpura, for one of the worst cases of custodial death, also one of the worst cases of innocent Muslims being killed by the police, must give us hope. Because what else can?