A Special Injustice

In February 2020, northeast Delhi witnessed widespread communal violence and arson. Atleast 53 people were killed and hundreds injured.  On 2 May, the Indian Express reported that the Delhi Police planned to request the Delhi High Court to assign special courts to prosecute cases relating to the violence. On 15 June, the Delhi High Court designated certain courts to exclusively try cases arising out of the February violence, though it is not known whether this is in response to a police request. In the aftermath of several other pogroms, special courts have been recommended but often set up only years later. In three major instances of past communal violence—the 1984 anti-Sikh pogrom, the 1992-93 riots, and the 2002 Gujarat carnage—special courts were instituted to prosecute cases.

Similar to those cases, the special courts set up in the aftermath of the Delhi violence are simply existing courts that have been exclusively assigned “riot” cases, in order to ensure faster trials. These courts follow the same judicial processes as other ordinary courts. These “special” courts are thus merely an attempt to fast-track trials. They are different from other special courts such as those for the prosecution of sexual offences against children or for cases investigated by the National Investigation Agency, where the courts follow special procedures.

However, reports from previous incidents of mass violence and from Delhi this year highlight a more fundamental issue—the role of the state both during the violence and after. If the state is a passive onlooker or complicit in violence, it can hardly be expected to ensure an impartial investigation. Special courts will remain ineffective until this larger issue is addressed. As the track record of many of these past special courts shows, there was little that the courts could do about the gross failures in police investigations.

Immediately after the violence in Delhi, a number of reports indicated the participation of the state. Troubling news of police facilitation emerged, from survivors reporting that policemen had mercilessly beaten them and men in uniform had set fire to mosques, to account after account of unanswered police control room calls, and the police looking the other way as mobs looted shops, torched houses and beat up residents. Yet, in answering a Rajya Sabha question on identifying police officials who had participated in the Delhi violence, the ministry of home affairs—under which the Delhi Police operates—stated, “No policeman was identified who helped the violent mob to perpetrate violence in street.” Many residents, particularly Muslims, have reportedly refused to file complaints about destroyed houses, killings or missing persons out of a complete loss of trust in the police; and many who have gone to police stations to do so have said their complaints were received but no FIRs registered.