'As a nation we don't learn lessons from our past'

'Communal killings take place routinely in our country and yet we don't ever convict the offenders.'

'The riots of 1993 and 2002 would not have happened if justice was given to the 1984 Delhi riot victims.'

One of the longest legal trials extending over 27 years saw Additional Sessions Judge Sanjay Jindal of the Tees Hazari court in Delhi acquit the 16 surviving personnel of the Provincial Armed Constabulary accused of killing 42 Muslims in Hashimpura, Uttar Pradesh in May 1987.

Senior advocate Rebecca John has been associated with the case from 2004 along with advocate Vrinda Grover, and appeared on behalf of five Hashimpura survivors and the families of those killed. They were among the around 50 Muslim men rounded up on the night of May 22, 1987, allegedly by PAC personnel, and taken to the upper Ganga canal in Murad Nagar and the Hindon river to be shot and their bodies thrown into the canal.

It took a nine-year struggle for 19 PAC personnel to be chargesheeted by a Ghaziabad court in 1996. The court significantly listed 161 people as witnesses to this case.

In September 2002, on the initiative of the Supreme Court, the case was transferred to Delhi's Tees Hazari court following a petition by families of the victims and survivors.

Following Rebecca John and Vrinda Grover's intervention, the Delhi court framed charges against the 17 surviving accused in July 2006.

John conducted the final arguments in the case in mid-January 2015, having followed the case in its long and final struggle.

Speaking about the challenges she faced, John told Rashme Sehgal, "I had a chance to meet and interact with the incredible men and women of Hashimpura who reposed so much hope in the system. Though deeply disappointed with the judgment, they have decided to go in appeal."

"All I can say is that it has been an incredibly humbling experience for me. People lose so much and ask for so little in return, but we fail them again and again and again."

To put the Hashimpura massacre in perspective, were these killings a fallout of the riots that had taken place earlier in Meerut? Former chief information commissioner Wajahat Habibullah made some reference in the public deposition held recently in New Delhi that then prime minister Rajiv Gandhi visited Meerut following the riots there.

Yes, Meerut was in the grip of communal frenzy, which the state administration was unable to control. But what happened on the night of May 22, 1987, was a crime against humanity, when men in uniform proceeded to execute innocent citizens, in a premeditated and calculated manner without the slightest provocation on their part.

Why should it have taken 27 years for a judgment on such a crucial case?

The incident took place on May 22, 1987. The chargesheet in the case was filed in 1996. Had the accused been in custody, the law would have required the filing of the chargesheet within 90 days. The local police and the CB-CID (Crime Branch-Criminal Investigation Department) chose not to arrest the culprits, although within the department the identities of the accused were known.

After the chargesheet was filed, the 19 accused chose to ignore the summons as also the non-bailable warrants issued against them by the court in Ghaziabad, till 2000. They were all serving in the Uttar Pradesh police at the time.

The victims, seeing the lackadaisical pace of the trial, moved the Supreme Court and got the matter transferred to Delhi in 2003. The UP government appointed under-qualified special public prosecutors and they had to be removed as their appointments did not fulfil the mandatory requirements of the CrPC (Code of Criminal Procedure).

Finally, at the request of the victims, a qualified special public prosecutor was appointed in 2007-08.

Witnesses, other than the five survivors, failed to appear despite repeated summons from the court. The three investigating officers in the case died during the long trial of the case. Final arguments in the case commenced from the middle of 2014 and concluded in January 2015.

Trials like these take 28 years to conclude because the agencies entrusted with the investigation of the case have no interest in placing true and correct facts before any court.

They collude with the accused and ensure that the case dies a slow death. Delay ensures that prime witnesses die and the record of the case disintegrates.

How will you describe the judgment acquitting the PAC personnel in the massacre?

I will answer the question in two parts. One -- it is not the job of a judge to produce evidence. It is his job to examine the evidence placed before him. In that sense, the judge has marshalled the evidence and has come to a finding that, in his opinion, the evidence raises some suspicion, but suspicion not being a substitute for proof, cannot become the basis of conviction.

Two -- while doing that, the judgment could have listed the culpable failure of the investigating agency in not collecting material evidence. The judgment has not attempted to fix responsibility on any officer or officers for these failures.

The judgment failed to take note of criminal lapses on the part of the agencies investigating the case, it failed to record the finding that the accused were hand in glove with their investigating team and for these reasons a shocking case of custodial killings was going unpunished.

Sometimes it's important to record these findings and shame those responsible for the deliberate suppression of evidence. This judgment, sadly, failed to do that.

The judge cited 'lack of sufficient evidence regarding their identity' as being the ground to let the 19 PAC accused go scot free. But should not the evidence of the five survivors have been given more weightage?

The five survivors did not identify any of the accused men and they have given truthful and credible reasons why it was impossible for them to identify them.

These were not men previously known to them, they were in uniform, they were wearing helmets, the complainants were in a state of terror, it was the middle of the night, and hence they were in no condition to identify the accused.

Also, had the prosecution attempted to put them through a test identification parade in the summer of 1987, some identifications could have been made. That was not done.

The survivors saw the accused for the first time after the incident 20 years later, in court. It was humanly impossible to make identification then.

The firsthand account of the survivors has been further corroborated by the then superintendent of police Vibhuti Narain Rai who has also given a first hand account of the bodies he saw in the Upper Ganga Canal in Muradnagar. Why would this evidence also not have been given more weightage?

Please understand, the judge has completely believed the five survivors and has given a judicial finding that the incident of custodial abduction and murder took place in the manner in which they had testified.

But on the question of fixing criminal responsibility on the persons who committed this crime, the judge ruled that there was insufficient evidence to conclusively establish that these men were the same officers responsible for the crime.

V N Rai, who was the SP of the area, threw no light on the identity of the accused either.

On May 24, 2007, some 613 RTI applications were filed by members of the 43 affected Muslim families to find out if the accused PAC men had been suspended from service. The RTI results highlighted that no adverse comments had been made in their annual confidential report. Why was no departmental inquiry initiated against them?

No action was taken against the accused because they had the backing of successive governments. The political establishment and the police protected each other and as part of this quid pro quo arrangement, the men responsible for these heinous crimes were not vigorously prosecuted.

No departmental action was initiated because I believe it served the interests of the political class to bury the truth. It shows how deeply communal our system is because it is unthinkable that a crime of this nature could have escaped departmental action.

What kind of compensation has been given so far to the survivors as also to the families who lost their bread-earners?

The trial court has directed the payment of compensation to victims and their families under Sections 357 and 357A of the CrPc. The matter has been referred to the Delhi legal service authority to determine the quantum of compensation and the manner of its distribution. Some meagre compensation was given to the victims by the administration in 2007.

The Supreme Court has been looking at the entire issue of compensation in custodial killings.

As I have already stated, the court acted as per law and directed that compensation be paid to the victims. The subject of reparations is of critical importance to victims of crimes.

Do you think we as a nation have not given enough weightage to the kind of harm that custodial killings can do to the psyche of a democracy. If stricter action were taken by the State, we would not be doomed to repeat them.

We as a nation have not learnt any lessons from our past. Communal killings take place routinely in our country and yet we don't ever convict the offenders. The riots of 1993 (Mumbai) and 2002 (Gujarat) would not have happened if justice was given to the 1984 Delhi riot victims.

When we acquit, we send out a message that future offenders will also be protected.

The nexus between the State, its agencies and the accused is so strong in cases of communal crimes that investigations are thwarted at the very beginning. In all of this the politician and the law enforcement agencies act in unison.

In your experience fighting cases of victims from the minority community, do you feel that a lot of custodial killings continue to be directed at members of the minority community?

That is a sad reality of our times. It reflects very poorly on the system of checks and balances we claim to have established in our country.

All the survivors are planning to go into appeal to a higher court. What kind of timelines do you see such an action taking, given that it has taken them 27 years to receive this verdict?

We are planning to appeal to the Delhi high court. We are going into appeal not just to have this order overturned by a superior court but also because we believe that a superior court can examine the evidence and give findings that may have a direct bearing on other cases where the State and the police have acted with impunity.

Hashimpura is a rallying point for so many affected people. We believe it is a fit case for the introduction of guidelines to ensure that no police force is allowed to act in this manner in the future and no administration is allowed to protect its rogue officers from the law.

THE HASHIMPURA SERIES

• In Meerut, no cry of justice for Hashimpura victims
• To wait for justice for 28 years and to see them walk away
• The Trial to Nowhere
• The Good Samaritans of Hashimpura