The Hashimpura case is far beyond a travesty of justice; it represents a failure of India's criminal justice system
Twenty-eight years is a long time. Long enough for a generation to be replaced by another, for a country to change in unimaginable ways. But not, as it turns out in Hashimpura in Uttar Pradesh, for justice to be done.
On 22 May 1987, 42 unarmed men were killed in cold blood in Hashimpura by members of Uttar Pradesh’s Provincial Armed Constabulary (PAC). The killing was followed by a criminal investigation, a commission of inquiry, court hearings in two states and depositions by scores of people, including five survivors who were thrown into a river and left for dead. For nearly 28 years, the victims and survivors of Hashimpura waited. Only to hear on 21 March from a Delhi trial court that nobody could be punished.
The Delhi trial court, while acquitting the 16 accused PAC personnel, said, “It is very painful to observe that several innocent persons have been traumatized and their lives have been taken by the state agency but the investigating agency as well as the prosecution have failed to bring on record the reliable material to establish the identity of culprits."
“The accused person cannot be convicted," the court said, “on the basis of scanty, unreliable and faulty investigation which has gaps and holes."
What happened in the Hashimpura case is far beyond a travesty of justice. It represents a failure of India’s criminal justice system. From incompetent investigators to callous and possibly complicit governments to an achingly slow judiciary, the Hashimpura acquittal shows how impunity can flourish, and how the rights of victims to justice can be brazenly violated in today’s India.
First, the delays. In the 28 years, the Uttar Pradesh government ordered two probes in 1988. A Criminal Investigation Department (CID) probe, and a commission of inquiry to look into the massacre and rehabilitation and compensation for the survivors.
It took the CID six years to submit its report to the state government. Two years followed before a chargesheet was filed. The first witness testimony in the case was only recorded in 2006, 19 years after the killings. In 2002, the Supreme Court transferred the case to Delhi following petitions by families of the survivors. But the Uttar Pradesh government took four years to appoint a government advocate to the case. Charges were finally framed by the Delhi court against the 16 accused PAC personnel only in 2006.
Second, the investigations. In the chargesheet filed by the crime branch of the CID in 1996, only 19 low-ranking policemen of the 66 were named. The inquiry report was never made public.
There were goof-ups too many to mention. One of the two original first information reports was destroyed. The weapons used to kill the victims were returned to the PAC, and continued to be used. The Delhi court observed: “The rifles have been produced in unsealed conditions during trial. Further so many fires have been allegedly made but not even a single empty cartridge has been recovered or proved on record."
Evidence was neglected, important witnesses were left unquestioned, and an investigation was slowly allowed to decay. Survivors of the killings have made several efforts to access the Gyan Prakash inquiry commission report, which was submitted in 1994, but successive state governments have not placed the report before the legislative assembly. What possible reason could there be for the Uttar Pradesh government to refuse to release such an important report?
Third, the shielding of the accused. Between 1997 and 2000, the accused policemen ignored 23 warrants issued to compel them to appear in court. Would they have been able to ignore these court orders without support from superior officiers?
In May 2000, 16 accused policemen gave themselves up, and were almost immediately released on bail. They were suspended from service briefly, but then reinstated. Right to information applications revealed in 2007 that the annual confidential reports (ACR) of the accused policemen did not mention the murder charges against them. No senior official was ever booked. Ten of the accused PAC personnel are still in service.
Under Indian and international human rights standards, in cases of extrajudicial executions, the government must carry out an independent investigation. Where an investigation is not independent, the government must set up alternative mechanisms, whose recommendations it is obligated to follow.
The United Nations Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and Summary Executions says the fundamental principles of a viable investigation are “competence, thoroughness, promptness and impartiality." On every one of these counts, the Indian criminal justice system appears to have failed the victims and survivors of Hashimpura.
Justice occupies pride of place in the preamble to the constitution of India. The right to remedy, covering truth, justice and reparation is recognized under international law. But in Hashimpura, the actions of politicians, the police, and to some measure, the courts, have ensured that justice has been denied. Families continue to wait for adequate compensation, rehabilitation, truth and closure.
The abject failure of the criminal justice system in Hashimpura must not remain a failure of Indian democracy. If authorities are unable to guarantee accountability for the events of 28 years ago, we will be setting another dangerous precedent.
G. Ananthapadmanabhan is chief executive of Amnesty International India. Comments are welcome at firstname.lastname@example.org
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