As Mark Helprin said, “Justice can sleep for years and awaken when it is least expected.”
Faizan’s death during the 2020 Northeast Delhi riots, now an infamous case, had been termed an outcome of a hate crime. On 23 July, the Delhi High Court allowed his mother Kismatun’s petition seeking a CBI probe into his son’s death. The 23-year-old was allegedly killed by men in uniform and his mother moved to court, seeking justice for her son. A single judge bench of Justice Anup Jairam Bhambhani allowed the petition and rapped the alleged perpetrators, saying “the case presents allegations of gross violation of human rights, as the unlawful actions of the policemen, who are yet to be identified, were motivated and driven by religious bigotry and therefore would amount to a hate-crime.”
The court held that the Delhi Police's investigation into the death of Faizan has been insufficient. Justice Anup Jairam Bhambhani said that the investigation has been “conveniently sparing” of the persons suspected to be involved in “brutally assaulting” Faizan. The court came down heavily on the policemen who were involved in the case and expressed its concern over the fact that the police authorities have not been able to find the men in uniform who were assaulting Faizan and other young men on the site of the incident.
“It must be understood that mob vigilantism and mob violence do not cease to be so merely because these are perpetrated, not by ordinary citizens, but by policemen themselves. If anything, the element of abomination gets aggravated if hate crime is committed by persons in uniform. In the present case, apart from the fact that the custodians of the law are themselves accused of having committed its breach, the perpetrators of the offence are themselves members of the agency that is investigating them. This situation does not inspire confidence. To add to this are the various anomalies and aberrations noticed in the investigation carried out by Delhi Police so far, some of which have been highlighted above.” said Justice Bhambhani.
In India, we don’t have a specific law for mob lynching and there have been many bills, discussions and agitations to push the government to table a law in this regard. We currently have the Indian Penal Code, 1860 and BNS, which govern the criminal procedure across the country. Time and again, courts have dealt with cases where mob violence is the central theme. Most importantly, in the case of Tehseen S Poonawalla vs Union of India & Ors, the Supreme Court has reiterated the meaning and articulated the horrendous nature of hate crimes – particularly, in the context of mob vigilantism and mob violence. It is pertinent to refer to Para 20 of Tehseen S Poonawalla (Supra):
“20. Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror. Extra-judicial elements and non-state actors cannot be allowed to take the place of law or the law-enforcing agency. A fabricated identity with a bigoted approach sans acceptance of plurality and diversity results in provocative sentiments and display of reactionary retributive attitude transforming itself into dehumanisation of human beings.”
Faizan’s case was no less than a mob lynching—the allegations are inhumane and horrifying. He was forced to sing the National Anthem by one of the policemen before they assaulted him. As a matter of fact, in Tehseen S Poonawalla (Supra), the Supreme Court has laid down detailed guidelines as preventative measures against mob violence. Not surprisingly, the measures include placing additional responsibility on the police to ensure expeditious investigation followed by fast-tracking trials by courts in cases involving mob violence and mob lynching. The SC has also directed strict disciplinary action against police officials who fail to prevent such incidents.
Para 29 of the judgment observed as follows:
“However, far from preventing incidents of hate crime, in the present case, admittedly some policemen are found to have indulged in mob violence and mob vigilantism inter-alia against the petitioner’s son.”
In Faizan’s case, there were two sets of video footage: one which shows him alone being encircled and beaten mercilessly by policemen; and the second, which shows several young men, including Faizan, lying in an injured state on the road, being surrounded and brutally assaulted by policemen.
In this regard, the court observed that “even if it is assumed that Faizan and/or the other young men had sustained some injuries earlier on during rioting, several policemen present at the spot are clearly seen surrounding dragging, kicking and striking blows on Faizan and the other young men with batons/lathis; abusing them; and ordering them to sing the National Anthem while they are lying seriously injured and helpless on the roadside. All this has admittedly happened on 24.02.2020. However, the Crime Branch of Delhi Police examined the petitioner for the first time only on 18.03.2020. More than 4½ years have elapsed since. However, not even one of the policemen involved in the abuse and assault has been conclusively identified in the course of the investigation so far.”
The court was informed that after all this time, the Investigation Officer had only now identified a head constable and a constable who were present at the spot, as possible suspects.
Faizan, who was brought to Lok Nayak Hospital on 26 February 2020 and succumbed the following day, reveals serious lapses in police conduct and investigation. Despite being assaulted and in dire need of medical care, as indicated by severe injuries noted at Lok Nayak Hospital and GTB Hospital's earlier advisement for further neurosurgical assessment, Faizan was inexplicably taken to Jyoti Nagar Police Station instead of receiving necessary medical attention.
The police's claim that Faizan requested to be kept at the station for his safety is undermined by his critical condition upon release to his family. Furthermore, no investigation into Faizan's treatment at the police station has been conducted, and all CCTV cameras were reportedly non-functional during the relevant period. This suggests a significant lapse in the investigation and mishandling of Faizan's need for urgent medical care.
Another important aspect was the CCTV camera footage near the area where the incident took place. Questions were raised about the seriousness of the investigation because the police stated that no CCTV or private cameras were found installed on the night of 24 February 2020 and ‘all CCTV cameras’ installed at the Jyoti Nagar Police Station were not functioning.
In response to this, the advocate appearing for Faizan’s mother submitted the following before the court:
“Counsel submits that thereafter the police carried Faizan and other injured young men from the 66-foota road near Mohalla Clinic in Kardampuri to GTB Hospital in a white police Gypsy via a route littered with several commercial establishments, petrol pumps, DMRC metro stations and various other buildings, many of which would have had CCTV cameras, but despite that, in status report/reply dated 22.07.2020 filed before the learned CMM, the police have asserted that there were no such cameras installed en-route in the entire area. This, counsel contends, raises series doubts about the fairness and objectivity of the investigation.”
The court criticised the claim that all CCTV cameras at the police station were malfunctioning during the crucial period, noting that the lack of footage from inside the station undermines confidence in this explanation.
“The CCTV footage that would have been conclusive evidence to show what transpired at the police station at that time, is stated to be simply not available, presenting a fait-accompli to that extent. Not to mention, that it is the mandate of the Supreme Court in Paramvir Singh Saini (supra) case,” the court added.
In Paramvir Singh Saini vs Baljit Singh, the SC mandated the installation of CCTVs in police stations and offices of investigative agencies; especially where the allegation pertains to the case of custodial violence. Thus it was held as follows:
“14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the SHO concerned shall inform the DLOC of the arrest/interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the SHO concerned has reported malfunctioning or nonfunctioning of CCTVs of a particular police station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.
“16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every police station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a police station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandahs/outhouses, Inspector's room; Sub-Inspector's room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer's room; back part of the police station, etc.”
As quoted above, justice can sleep for years and awaken when least expected. This statement also reflects that courts nationwide have recently been reclaiming constitutional principles. The latest example is the Sheikh Javed judgment passed by the Supreme Court, which held that bail can also be granted in cases where UAPA is invoked if there is a delay in the trial. If one goes back in time, a comparison can be drawn to the late 1980s, when the Judiciary was active and people-oriented.
In another case, Parvinder Singh Khurana, an accused in a money laundering case, had approached the Supreme Court after the Delhi High Court paused the bail granted him by the trial court. The Supreme Court held that bail orders should not be stayed. Setting aside an order of the Delhi High Court, the court stated that bail orders can be stayed only in exceptional circumstances. This development can be read in the light of Arvind Kejriwal’s case, where the Trial Court had granted him bail, but the same was stayed by the Delhi High Court.
With Faizan’s case, we can draw a conclusion that justice might be delayed, but never buried. Let us hope that concerned agencies will take the allegations seriously and punish the culprits involved in his murder. In conclusion, it would be relevant to pose a question that was asked by Justice Krishna Iyer: “Who will police the police?” In the case of Prem Chand vs Union of India, Justice Iyer while speaking for the bench, observed:
“Who will police the police? Is freedom of movements unreasonably fettered if policemen are given power of externment for public peace? These twin problems of disturbing import, thrown up by this bizarre case, deserve serious examination. by the petitioner, if true, deserves strong disapproval and constitutional counteraction by this Court. But before committing ourselves to any course, we must set out the factual matrix from which the present case springs.”
(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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