The Supreme Court’s brief order of 28 July in the context of the recently concluded nationwide protests against educational malpractices [“the CJP protests,” after the Cockroach Janta Party] is no doubt the prelude to a more protracted set of judicial proceedings, especially around allegations of violent policing at various sites, including the use of spiked sticks (lathis), pellet guns and – in one instance in Bihar – an AK-47 rifle. The 28 July order sets out these allegations, counter-allegations of violence upon the police, indicates the need for a “fair and impartial probe” (with the agreement of the State), and passes certain interim directions regarding further coercive action or custody of the protesters. Brief though it is, the order raises two questions that need to be considered.
First, as part of its interim orders, the Court directs that with respect to the FIRs registered by the police during the protest, no coercive action may be taken against protesters except those with “criminal antecedents”, and that all minors who have been detained are to be released forthwith, except those with criminal antecedents. To start with, this order is in the nature of a general amnesty, which is in the nature of a political settlement, not a judicial decree. The Court’s order – to a partial degree – tracks an unwritten political commitment made by the central government to the Cockroach Janta Party as part of fulfilling the latter’s conditions for withdrawing the protest, but that is exactly the point: amnesties following protests and agitations are common, both in India and elsewhere, but they are the product of political negotiations between the contending parties. If, for example, the Juvenile Justice Act has specific provisions with respect to the custody of minors, it is unclear how those provisions can be overridden through blanket judicial decree.
Relatedly – and equally importantly – the Court divides both protesters and minors into two categories, based on “criminal antecedents.” While the term “criminal antecedents” has no definition in Indian criminal law, in judicial parlance it is taken to refer to the entire gamut of potential criminal proceedings, starting with the registration of an FIR. If you read that into the interim directions, sub-paragraph 4 will now state as follows:
The NCT of Delhi and other States may proceed with the investigation of the FIRs registered; however, no coercive measures shall be taken against the protesting students. Such protection, nonetheless, shall not be extended to the persons
with criminal antecedentsagainst whom there are FIRs.
Even as a general amnesty, this would appear to dilute the force of much of what is stated before; it is also important to remember that the FIR itself – as a “First Information Report” – precedes even the filing of a chargesheet (which is when threshold evidence exists against a person). The “criminal antecedents” carve-out, therefore is questionable.
Secondly, with respect to the fair and impartial probe, there are questions about the nature, shape, and form that such a probe might take. Based on past history, one would expect that this would be a SIT [“Special Investigation Team”] probe that would be headed by a retired judge, and which would periodically report to the Court. Historically, SIT proceedings – that are by way of executive investigation albeit under judicial supervision – have been in camera, and reports often submitted in sealed covers. What happens, however, in a case which is of a distinctively adverserial nature – that is, where individuals have accused State functionaries (in this case, the police) of violating their rights, accusations that are naturally denied by the State functionaries? An adverserial system has certain methods of arriving at the truth by testing these competing claims against each other through a rigorous set of processes including cross-examination of witnesses and open hearings. These recourses are not available to an SIT, so in such a situation, how will these considerations feature in the structure of the probe? One hesitates to second-guess too much, as the Court still awaits the counter-affidavits of the union and state governments, but some of these issues – it is respectfully submitted – merit further analysis.
