THE newly appointed Chief Justice of India (CJI) A.S. Bobde began his tenure by turning a Nelson’s eye to the outrages perpetrated on those protesting the Modi regime’s brazenly communal Citizenship Amendment Act.

On Dec 16, senior counsel sought a court-ordered inquiry into allegations of police excesses at Jamia Millia Islamia, Aligarh Muslim University (AMU) and elsewhere. Heading the bench, the CJI said, “We will not hear the matter if the protest, violence, destruction of public property doesn’t stop,” adding that that the issue would be decided in a “cool atmosphere” and that “we are not going to be bullied”. The court was informed that injured students were not being given medical aid. A counsel who had visited the spot said that police beat students in the JMI library, forcing them to hide in the toilets. The CJI was unmoved.

The next day, the supreme court refused to set up an inquiry committee but directed the petitioners to approach the high courts. CJI Bobde said, “We are not a trial court. We cannot assume jurisdiction for whatever is happening all over the country.” He asked, “Why don’t you go to high courts? The protests have occurred in different places, and each has different consequences … We cannot go into all facts...”

On Dec 19, responsible dailies carried reports of police brutality on the students of AMU. In glaring contrast to CJI Bobde’s remarks were those made by Chief Justice of Allahabad High Court Govind Mathur. “You have made it a war-like situation,” he told counsel for the state.

The protesting students were not armed; the police were.

This was not a vindication of the supreme court but an indication of two diametrically opposite approaches. The high court did not shirk its duty under Article 226 to enforce fundamental rights. CJI Bobde did, and on specious grounds. Article 32 itself embodies a distinct fundamental right — the right to move the supreme court, no less, for the enforcement of fundamental rights. In the present case, the rights to life and personal liberty, to freedom of speech and expression and to assemble peaceably were all directly involved. The students were not armed. The police were, and felt free to enter the campuses and even violate the quiet and privacy of the JMI library.

On Dec 20, a team of the National Human Rights Commission visited JMI to inquire into charges of violations of human rights; a case of a body set up by a statute discharging the duties which the apex court, an institution established by the supreme law of the land — the constitution — refused to do. The team’s remit was to inquire into “whether incidents in JMI involved violations of human rights”.

On Dec 24 came the report of a fact-finding team headed by the highly respected former civil servant Harsh Mander. It found that police used stun grenades, “usually used in war-like situations or terror operations”, against AMU students. Based on testimonies of students, teachers and others present on the campus during the incident, the report concluded that there were “unbridled human rights violations” and that AMU’s administration failed in their “duty to protect the campus and its residents against brutality by Uttar Pradesh Police”.

The report said: “Students spoke of soldiers and police persons raising chilling slogans like ‘Jai Shri Ram’ while attacking the students and setting ablaze their scooters and vehicle”. It also mentions alleged use of religiously charged terms such as ‘aatankvadi’ (terrorist) by the police and alleges that while the “vice chancellor claims to have invited the forces into the university, it is unclear why the RAF soldiers then broke down the gates”.

This is in line with the fine tradition of citizens’ inquiries set during the freedom movement. The British government set up the Hunter Commi­ssion on the Jallianwala Bagh massacre. It split along racial lines. The Congress set up its own inquiry, whose report was far more candid. The Muslim League set up the Pirpur Committee on the conduct of Congress ministries in the provinces. The cake goes to the inquiry committee report on the communal tension in Kanpur in 1931. The British government banned it and confiscated its copies. In 1976, Prof M. Gerald Barrier retrieved the report from the archives and published it, aptly entitled Roots of Communal Politics; so wide-ranging and insightful is the document.

After independence, the tradition was continued; most notably in citizens’ inquiries into the anti-Sikh pogrom of 1984 in Delhi and the anti-Muslim pogrom in Gujarat in 2002. The Mander Report is in that fine tradition.

On Feb 6, 1991, the master of rolls Lord Donaldson remarked in the UK’s court of appeal that British justice had not become the first casualty of combat. He was referring to the war in Iraq and the petitioners were foreigners — Iraqi and Palestinian detainees. CJI Bobde might remember these words next time a case like the one of the AMU and JMI students comes up before him.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, December 28th, 2019