The Uttar Pradesh government has begun the process to withdraw ‘in the public interest’ 131 criminal cases involving roughly 800 accused persons in several hundred crimes during the communal carnage in many villages of Muzaffarnagar and Shamli of September 2013, which left at least 62 people dead and around one lakh people homeless.

Chief Minister Yogi Adityanath, Law Minister Brajesh Pathak and local MP and former Union Minister Sanjeev Balyan have variously described these cases as ‘non-serious’, ‘old’, ‘false’ and ‘politically motivated’ (clarifying helpfully that the latter does not mean only cases against politicians).

The Indian Express reports that the state government took this decision after a delegation of khap leaders from Muzaffarnagar and Shamli, including BJP MP Sanjiv Balyan and the party’s Budhana MLA Umesh Malik, met Chief Minister Adityanath. ‘We would withdraw cases that are politically motivated’, explained law minister Pathak, ‘but these would not include cases of serious crimes like murder. These would be cases that were lodged just out of political vendetta.’

However, the report confirms that these 131 cases do involve as many as 13 cases of murder under Section 302 of the Indian Penal Code, 11 involving attempt to murder under Section 307, 85 of ‘mischief’ by fire or explosive substances under Section 436, 55 of dacoity under Section 395, 2 of kidnapping under Section 364 of the Indian Penal Code, 16 under Section 153A of promoting enmity on religious grounds, and 2 under Section 295A for deliberate and malicious acts intended to insult a religion or religious beliefs.

Every episode of communal violence in India has been characterised by the phenomenon which we call impunity, which is profoundly pernicious to democracy and the rule of law. Impunity means an assurance that the perpetrators of the mass crimes would be assured that they would not be punished. There are no exceptions to this rule of general impunity, in thousands of episodes of communal violence that have transpired over the last seven decades under various state governments.

This unwavering record of impunity lays bare a long almost unbroken tradition of communal, and more specifically majoritarian prejudice, of India’s criminal justice system. We call this majoritarian, because the overwhelmingly majority of accused persons for crimes of communal violence are from the majority Hindu community. Contrast how the criminal justice system treats terror crimes.

Often on less than robust evidence, accused people are held for many years without bail or even one day’s parole, and if convinced even of abetting the crime in any way, the death penalty is certain, upheld at every level of appeal. Juxtapose this with those very few persons convicted of murder during communal upheavals, and the fact that in all these years not a single person among these has been awarded the death penalty for crimes in communal violence. We do not support the death penalty, but the starkly different standards in two kinds of hate crimes is conspicuous.

In one kind of mass hate crime, in which it is assumed that most of the accused would be Hindu and the victims Muslim (or sometimes Christian or Sikh), then the system works to do all it can to secure ultimately the impunity of the accused.

In the other, where the assumption is that the accused is Muslim and most of the victims Hindu, the system does just the opposite, to ensure that the accused is not allowed even bail or parole, is ultimately punished even on the basis of circumstantial evidence, that is awarded the death penalty, and that this punishment is executed in the shortest possible time.

Impunity after communal crimes is secured by following deeply entrenched and established unwritten processes across very different episodes, widely separated by geography and time. The Centre for Equity Studies, with which we are associated, used the right to information to extract documents related to four major communal massacres – Nellie in 1983, Delhi in 1984, Bhagalpur in 1989 and Gujarat in 2002. It was striking to find the same patterns followed to assist the accused to escape criminal culpability and punishment in all these episodes.

We find that Muzaffarnagar followed the same pattern of ensuring impunity of the accused, even when the supposedly ‘pro-Muslim’ Samajwadi Party was in power in the state government. This begins with no empathetic support by the police administration to reach out to the battered victims, mostly living in relief camps, to assist and support them to file accurate and detailed police complaints. Many complaints are filed instead by the police. The police complaints typically are vague, speaking of anonymous mob attacks, and most importantly deliberately not naming the accused persons, even when they are well-known to the victim survivors. The attackers are mostly their own neighbours, even erstwhile friends, therefore if this is just an innocent oversight by the police, it could be corrected by them during their investigations, by accurately recording the statements of the victim survivors. This, however, is not done.

The result is that within a year, of the 534 criminal cases that were registered after the carnage, more than 250 were closed without even submitting these to trial, with the police claiming that despite its best efforts, they could not identify the accused persons, therefore could not take the case to trial. Only the remaining cases, about half of the total that were initially registered, went to court. In courts, we observed that public prosecutors as well as magistrates often displayed majoritarian prejudices in dealing with the victims as well as the evidence before them.

All of this follows the same pattern that we have observed and established for all major communal violence episodes that we studied. But the Muzaffarnagar carnage carries this process of assisting and enabling the impunity of persons accused of communal crimes even further in two ways.

Firstly, even in the limited cases which were charge-sheeted, for many months very few arrests occurred of the men accused in police complains and charge-sheets. The police claimed that they were unable to arrest the accused persons because whenever they went to villages to arrest them, hordes of women would block their pathways. The strange, disgraceful spectacle of a police force seemingly helpless even to apprehend men charged with grave crimes of murder, rape and arson, did not deter the former state government from soft-peddling the arrests for as long as it could. When finally they were arrested, most were discharged on bail without much delay.

And now the spectacle of the state government itself initiating the withdrawal of this large number of criminal cases connected with the communal carnage. It began in January 2018 with initiating the withdrawal of nine cases, in which leading political representatives of the accused were charged with crimes, including assisting village women in blocking the process of justice by preventing the arrest of the accused persons. And now the withdrawal of 131 cases, including of murder, attempt to murder, arson and dacoity.

With this even the pretence of a separation of powers between the executive and the judiciary has been abandoned. It is true that the law does not permit the state government to withdraw criminal cases. The proposals are initiated by the Law Department of the state government. These will be considered by the District Magistrates and Superintendents of Police to conclude whether withdrawing the cases would be in the ‘public interest’.

It is highly unlikely that the district officers would exercise their independent judgment and conscience in these matters, over-ruling the express wishes of their Chief Minister. Once cleared by the District Magistrates and Superintendents of Police, the proposals will go to the trial courts. Given their track record so far, we can expect few judicial officers to assert themselves for justice. We can only hope that some magistrates, somewhere, prove us wrong.

The news of this latest move to withdraw cases has cast a pall of intense despondency among the survivors in the two districts with who we work. One of the writers (Akram Akhtar Chaudhary) lives in Shamli, and supports many survivors on a daily basis in their legal struggles, as well as in rebuilding their homes in new settlements.

They said to us – Justice was in any case lost when most of the cases were closed even without going to court. Even among the cases that went to court, we have seen acquittals of both murder and rape cases, among several others. Among these 131 cases were some on which we had pinned our last hopes for justice. These cases were so strong, the witnesses brave and firm, that we had hoped that they may end in conviction. Now even these hopes have been dashed.

The journey since the autumn of 2013 of the Muslim residents of Muzaffarnagar and Shamli has been tragic and dismal, of fleeing from their neighbours who suddenly fell upon them with hate, of leaving behind forever their homes and fields, of living in relief camps for months and years, of resettling in small plots of land in Muslim ghettoes, with education and livelihoods fractured, broken.

All of this, and more, they have endured. But this latest decision of the state administration confirms even more firmly their descent into second class citizenship in their own land, the land they love.