Three former SC judges visit Delhi violence areas, say confidence-building measures needed

“The situation on the ground is really pathetic,” Kurian Joseph, a former Supreme Court judge, said as he walked out of a government-run relief camp run at the Eidgah grounds, in Mustafabad, for families affected by the violence that swept northeast Delhi in the last week of February. “We need to build confidence among the people so that they can still go back and have a normal life.” For three hours on the evening of 5 March, Joseph and two other former Supreme Court judges, Vikramjit Sen and AK Patnaik, made a surprise visit to the violence-affected areas in Shiv Vihar and then to the Mustafabad relief camp. “The most important” aspect of the rehabilitation process, Joseph said, was to “address the question of rebuilding confidence in the people. That something unfortunate happened, that it will never happen in the history of the country.”

The former judges said they were visiting out of “personal concern” for the victims, noting that they would not be making any “assessment” of the loss of lives or property due to the violence. They interacted with residents of the areas and the displaced residents at the relief camp that had been set up at Mustafabad’s Eidgah—an open ground used for Eid prayers and religious gatherings. While the former judges did not make any collective statement, at both Shiv Vihar and Mustafabad, they faced multiple questions from journalists on the ground about the judiciary’s response to the Citizenship (Amendment) Act of 2019 and the subsequent violence. Lawyers who were present in the area to assist the victims file police complaints and seek compensation, also conversed with the former judges and expressed their frustration over the judiciary’s conduct.

According to Patnaik, the judges wanted to have a first-hand account of what had happened in the violence because everything that they had seen so far was through the media. When questioned about the lack of public trust in the Supreme Court, Joseph said that the apex court alone should not be blamed for failing the Indian public and it should be the “collective effort” of the government and the judiciary to rehabilitate the victims. All of them spoke of the extensive scale of losses they had witnessed. “There is so much damage,” Patnaik noted.

At 5.30 pm that day, the judges made the first stop of their visit, at a house that had been burned and looted, situated near Auliya Masjid in Mustafabad. Outside the house, one of the nearby residents informed Patnaik that he returned to his house only on 29 February, four days after his neighbourhood came under attack during the violence. The resident said he was still scared because the police stationed there did not instill any confidence in him that violence would not break out again in Mustafabad again. Patnaik asked whether the rioters were outsiders or locals, and the resident responded that they were all “local Hindus.” He added that he could identify the rioters but he needed the protection of the police. “If the police or the administration put some pressure on them, then I can name all of them,” the resident said.

As Patnaik was returning to his car, after patiently hearing the residents and inspecting other houses with the two other former judges, a journalist sought his opinion about the judiciary’s response to the CAA. In January this year, the Supreme Court held its first hearing on a batch of 143 petitions challenging the CAA and seeking an interim stay on the operation of the law. But the Supreme Court refused to issue the stay and granted the central government four weeks to respond, failing to show any urgency. The decision had come in the backdrop of a growing spate of protests against the law across the country, which witnessed tens of thousands of people come out on the streets, and a brutal police crackdown against them.

Patnaik did not, however, discuss the CAA petitions, and spoke of the court’s response to the violence. “The Supreme Court does not have first-hand information of what has been happening here,” Patnaik said, in response to the journalist’s question. “The facts have to be assessed first, to find out what has really happened. The Supreme Court is too far away from what is happening on the ground.” I asked Patnaik what the court should be doing in that case. “First thing is somebody should come with facts what really has happened,” he responded. “All the facts that have come before the court are somebody else’s perception.”

After this conversation, the judges sat in their car and drove towards the relief camp. The motorable road ended about three hundred metres away from the Eidgaah, on Brijpuri road. The judges alighted from their car and walked through the bustling street of Old Mustafabad, which had small restaurants and shops that were open at the time. The judges entered through a tiny gate into the Eidgah, where around one thousand people were given shelter in the relief camp.

The camp had a designated space for lawyers. As soon as the judges entered, around half a dozen lawyers surrounded Sen, while Joseph and Patnaik inspected the facilities. One of the lawyers told Sen that the police had not listed the names of accused individuals in the first information reports registered by Muslim victims even though the complaints identified them by name. “All these things, you should bring out” before the Delhi High Court, Sen told the lawyer. Another lawyer who was practicing in the Supreme Court responded to Sen, “No, I can't, you know how things are going on in the Supreme Court!”

The lawyers refused to disclose their identities, stating that they feared facing contempt proceedings for criticising the Supreme Court, particularly considering the observations against the social activist Harsh Mander. On 4 March, Mander had moved the Supreme Court seeking the immediate registration of FIRs against hate speeches made ahead of the Delhi violence, including those by the Bharatiya Janata Party leaders Kapil Mishra and Anurag Thakur. During the hearing, the solicitor general, Tushar Mehta, submitted that the Delhi Police was in possession of a video in which Mander stated that he had “no faith” in the judiciary. In response, Sharad Arvind Bobde, the chief justice of India, who was presiding over the bench, stated, “If this is what you feel about the Supreme Court, then we have to decide what to do with you.”

The court took cognisance of Mehta’s argument and stated that it would not hear Mander’s appeal until the allegations against him were heard. The Supreme Court also noted that it would not hear the case because similar petitions were pending before the Delhi High Court, which had listed the cases for hearing on 13 April. The Supreme Court then directed the high court to list the petitions concerning the hate speeches for hearing on 6 March. On that date, the high court directed all the parties to file their responses and listed the cases for 12 March.

Another lawyer cited a different instance to express his concern about the manner in which the higher judiciary had dealt with cases related to the CAA and the protests against it. The lawyer was among several petitioners who had moved the Delhi High Court seeking an order preventing the police from arresting any students of Jamia Milia Islamia. In December 2019, soon after the parliament enacted the law, the Delhi police had brutally cracked down on the university’s students during anti-CAA protests inside the campus. The lawyer told Sen that the court declined to grant any such protection without even asking the government to respond to their pleas. Sen responded, “It's very easy for me to say but you just have to keep fighting.”

One day before the former judges’ visit, the US Commission on the International Religious Freedom, an independent bipartisan federal body that works on issues concerning the universal freedom of religion, held a hearing on “Citizenship Laws and Religious Freedom,” with focus on the CAA. The submissions presented to the commission included a statement that there was a growing belief among Indian intellectuals that the Supreme Court is failing its people. At the relief camp, I asked all three judges about the hearing and the comments made about the highest court of the country.

“This is only a phase,” Patnaik answered. “Now institutions there functioning should be seen over decades. There are certain periods when it looks like the judiciary has failed. In America also, the US federal Supreme Court, has ups and downs, ups and downs—that’s the people’s perception. Ultimately, the judiciary has to stand by the Constitution and by the laws.”