These immortal words of Charles Dickens have never felt truer in India than now. In the last 6 days, the national capital of India, Delhi, has been engulfed in a worst communal pogrom in North East Delhi targeting the Muslim community, which has already caused deaths of 42 persons, injured more than 300 people, and loss of property amounting to crores of rupees. On 23rd February, 2020, Kapil Mishra from BJP gave a highly communally polarising speech at Chandbagh, in front of a high-ranking police official, exhorting his supports to empty the protests by Muslim women at the nearby Jaffrabad metro station, and also threatened the police that he and his supporters would not even listen to the police and take the law into their own hands, if the protestors were not removed from Jaffrabad.

It is this speech that became the trigger for the subsequent targeted violence against the Muslim persons in North East area wherein mobs of 300-400 persons (mostly outsiders) specifically went on killing, looting, burning shops, mosques, and houses of Muslim persons in Hindu majority areas, and Hindus also got killed in the cauldron. Similar to Sikh pogrom in Delhi in 1984, and Gujarat genocide in 2002, the role of Delhi police in Delhi pogrom is particularly abhorrent, wherein the police either remained passive and not protected the victims, or even aided the goons to kill and loot persons and houses. According to reports, the police received more than 13,000 distress calls from various riot affected areas, but failed to come to rescue or assist most of the victims.

In this context, the civil society activists had no option, but to approach the High Court for urgent directions for rescue and relief of persons in North East Delhi. On 25th February, 2020, after realising that even ambulances were unable to reach riot affected areas like Mustafabad, Bhajanpura, etc, after waiting for hours for Delhi police to assist, the lawyers knocked the doors of the High Court, and Justice Muralidhar, and Justice Anup Bhambani passed an order at 12.45am directing the Delhi Police to provide safe passage to ambulances, and immediately rescue the injured victims, and provide them with immediate medical facilities. The Court, in fact, spoke to the doctors at Al-Hind hospital at Mustafabad who was battling hundreds of injured victims with limited facilities, and needed to transport these injured persons to better and bigger hospitals.

On 26th February, 2020, the High Court gave a series of directions to the Delhi Government, and Delhi Police in Rahul Roy v. NCT of Delhi [Writ Petition (Crl.) No. 566 of 2020 to facilitate immediate and urgent rescue and relief work in the riot affected areas, including the following:

i. Riot affected displaced/homeless people to be provided with immediate shelter at Rainbaseras/community centres, and be given all basic facilities, without much documentation.

ii. Night Magistrates be appointed in all the affected districts for a period of two weeks to cater to any needs of the riot victims or their families.

iii. Police to ensure safe and secure passage to ambulances (including private ones) and fire tenders in coordination with government agencies.

iv. District Legal Services Authorities (‘DLSAs’) to ensure that their helplines work 24/7 for the next two weeks, and have adequate advocates to cater to the legal aid needs of the victims.

v. Ensure adequate number of helplines and helpdesks be available to respond to distress calls from the violence affected areas.

vi. Director, IBHAS to provide medical professionals in Government hospitals for counseling the riot affected victims.

vii. Ms. Zubeda Begum, Advocate, appointed as Amicus Curiae (‘AC’) to act as nodal officer of the Court to coordinate between the victims and the Government agencies for prompt and effective action.

viii. Medico-legal certificates and post-mortem reports to be given swiftly, and without delay to the injured victims or to the deceased’s family.

ix. Safe passage for the deceased bodies and to ensure their burial/cremation happens with utmost dignity, with necessary security and without hassle.

On the same day, i.e., 26th February, 2020, the High Court took up another petition filed by Harsh Mander seeking registration of FIRs against BJP leaders, Kapil Mishra, Anurag Thakur, and Parvesh Verma, who had made hate speeches instigating the crowds, which had resulted in the pogrom in North East Delhi. The hearing that followed was straight out of a kafkaesque trial, wherein the Solicitor General of India (‘SG’), Tushar Mehta, kept on asking the judge to delay the hearing by one day. Besides the propriety of SG appearing for Delhi Police when it is the Delhi Government’s counsel, Rahul Mehra, who is mandated to appear for Delhi Police, the Union of India actually argued that there was no urgency to file FIRs against the BJP leaders, and FIRs would be filed at an ‘appropriate’ time.

The Court was aghast and anguished about the complete lacklustre attitude of the police, and the Union to bring the situation under control, and to restore peace. Though the Court was merely performing its duty as a Constitutional Court to protect the life and liberty of citizens, the fact that this had become such a rare occurrence, amongst the recent spate of judicial inaction in cases of Kashmir, Jamia, JNU, CAA, etc that Justice Muralidhar’s expression of anguish acted as a soothing balm on the victims’ injuries and scars. The Court noted that “an FIR is first and foremost an acknowledgement of the commission of a crime. The police should be guided by the judgment of the Constitution Bench of the Supreme Court in Lalita Kumari v. Govt. of Uttar Pradesh (2014) 2 SCC 1 and go strictly by the mandate of the law. It should seriously consider the consequences that would ensue with everyday’s delay in registering FIRs not only on the basis of the video clips that have been played in Court, but all other video clips of speeches/actions by anyone, whosoever it may be, which disclose ex facie the commission of an offence, bearing in mind that the rule of law is supreme and that noone is above the law.” [[Harsh Mander v. Union of India, Writ Petition (Crl.) No. 565 of 2020]

The Court then directed the police official present to sit with the Commissioner of Police, and take a ‘conscious’ decision on the need to file FIRs against the leaders giving hate speeches, and posted the matter for 27th February, 2020. As expected, the midnight transfer order of Justice S. Muralidhar came, i.e., at 11pm on 26.02.2020, the Central Government issued a notification transferring Justice Muralidhar to the High Court of Punjab & Haryana with immediate effect. Of course, one may argue that the Supreme Court collegium had already taken the decision to transfer him on 12th February, 2020, which was also widely criticised by the Delhi bar, but to transfer a Judge in the middle of a hearing where the police and Central Government’s role is implicated leaves no doubt about the malafide and perverse nature of the order.

On 27th February, 2020, the script unfolded in the usual fashion. The matter was listed before Chief Justice’ bench who showed no urgency in the case, and gave four weeks to the Union of India to ‘consider’ whether to register a FIR against the three BJP leaders, and other people who gave hate speeches instigating the riots. The Constitutional Court acted like a rubber stamp of the Executive, and pretended to live in a world devoid of empathy, compassion, and rule of law. The contrast between the two benches could not have been more stark, and it is our collective misfortune and shame that Judges like Justice Muralidhar are in such miniscule number.

Sadly, the journey from compromised to committed judiciary is almost complete in India, except few High Courts or few individual judges on the Supreme Court. At the same time, Justice Muralidhar showed us what is the impact of an ethical and upright judge, wherein the directions in Rahul Roy’s case would go a long way in ameliorating the conditions of riot affected victims in Delhi. (IPA Service)