 Good evening, everyone. I'm Scott Newton. I'm the chair of the Inception Lecture this year. And I'm delighted to welcome you all on behalf of the School of Law and of our esteemed head, Carol Tan. So as colleagues, and I use that in the widest possible sense, so past, current, and prospective students and teachers, and a special shout out to any prospective foundation students here tonight. I welcome you all. I'm really pleased and honored that Brenda Grover has accepted our invitation to deliver the sixth Inception Lecture entitled, Reaching for the Horizon, Narratives of Immunity and Impunity. You should know that the SOAS School of Law launched this series to put before its students, or its colleagues in the widest possible sense, but especially its entering students as model and as inspiration someone of significant achievements in the legal field and someone with a SOAS connection. Brenda Grover certainly meets those qualifications. She did her basic law degree at Delhi University and her LLM at NYU, but was awarded an honorary Doctor of Laws from SOAS last year. And so I think we can safely claim her academically as one of our own. But I think her most significant SOAS connection is more ethical and spiritual than anything else. She's already engaged extensively with SOAS students in her visits last year and then again this, and I hope with some of you here tonight. She's based in New Delhi, but active across the subcontinent and globally as courtroom and out-of-courtroom advocate, researcher, drafting expert, activist, teacher, trainer, and speaker. She's been at the forefront of struggles for justice on behalf of victims and survivors of sexual assault and sexual harassment, communal conflict, extrajudicial executions, enforced disappearances, custodial torture, and targeted attacks on human rights defenders. She has appeared before the Indian Supreme Court and other courts in the Sonisori rape torture case, the 1984 anti-seek riots, the 1987 Hashim Pura police killings, the 2004 Ishrat Jahn case, and the 2008 anti-Christian riots in Kandamal. She is without doubt one of the most influential and effective human rights advocates at work today, a tireless champion and defender of the marginalized and oppressed, the violated, and the rights deprived. Now, I'm expecting to be stopped here because you will have no doubt detected and reacted against the dubious language of chivalry, of champions, and struggles of protectors and those in need of protection. As most of us are aware, human rights has become a very charged and contentious field in which advocacy and commitment on the one side are often ranged against analysis and challenge on the other. And to bring this home to the lawyers in training assembled here, for whom this inception lecture is after all designed, what has resulted is a kind of professional split or bifurcation. You do human rights, or you study and increasingly challenge human rights for the advocates, technique, for the scholars critique. Our speaker tonight is an embodied and lived refutation of this split. Her critique is as incisive as her technique. She knows full well the limitations of the master's tools, that justice processes and procedures often are kind of court washing undertaken to afford immunity and ensure impunity, to frustrate rather than to secure justice. Those processes and procedures are structurally and intersectionally defective, encoding or inscribing gender, racial, social, cultural bias, and practicing and maintaining it. They are tools forged by the master to begin with and then wielded and manipulated by the master's agents. But Rinda uses those tools nonetheless as a means of exposing their limitations, even whilst seeking to overcome them. She reminds us that for advocates, unlike the violated themselves, struggles are a matter of perspective and engagement, not predicament or geography, of choice, not fate. Part of your education as lawyers is learning to see the struggles in the first place, spot the issues, spot the struggles, to see the world as multiple sites for struggling, sites not in the sense of physical geography, but power geography, sites of experience and sites of politics. And Rinda's sites vary, but they are always sites of injustice, inequality, and power disparity, historical and continuing. In all her work, she has remained victim centered, and her advocacy and her critique are to the same degree a matter of fidelity to the experiences of those she represents. So bear in mind as you listen to Rinda tonight and through Rinda to those on behalf of whom she has advocated so tenaciously that the best kind of advice for future lawyers contemplating careers is seeing how committed and courageous and critically minded and creative lawyers have molded theirs. Thank you, thank you, Professor Scott, for your very kind words. It's a pleasure to be back in SOAS and I thank the faculty at the law school for the opportunity to speak with you all this evening. My talk today is titled, Reaching for the Horizon, Narratives of Immunity and Impunity. As was said in the introduction by Professor Scott, I will draw upon cases that I'm litigating or have litigated before the trial courts and the appellate courts, including the Supreme Court of India. And one thing we learn very quickly as lawyers, you are lucky if the case finishes in your lifetime and you're not passing it on to the next generation. What I'm going to try and do here is to explore the sociological, the legal, and the jurisprudential underpinnings of the culture of impunity that marks ordinary and extraordinary times, both within and beyond what the Italian philosopher a government describes as the state of exception. I will specifically probe the legacy of the colonial legacy of statutory immunities that protect and privilege men in uniform, the nature of evidence that is available for such custodial crimes, and the state's power to present or suppress or conceal or destroy the evidence and the consequent uninterrupted impunity for state violence. I will also engage and I think Professor Tan mentioned just before the lecture began that we need hope. I don't think I come from the land where there is much hope presently, but I think speaking about all this is also today an act of resistance and in that perhaps lies hope and more importantly, hope lies in looking at the lives of those who are the victims, whether it's the families or the communities who are carrying forward these struggles and these struggles are not carried forward by legal systems or by lawyers. The burden of ensuring that rule of law survives, that there is hope to achieve justice is actually carried perhaps by the most frail but the most determined shoulders of the victim families and the victim communities. I will delve into a few cases which have been mentioned in the introduction. The Hashimpura custodial communal killings of over 43 Muslim men in May 1987 by the provincial armed constabulary in the northern state of Uttar Pradesh. The fake and stage encounter killing of Ishrat Jaha 19 year old Muslim college going girl and three others abducted illegally confined and killed along with three men in June 2004 by members of the Gujarat police and others. The enforced disappearance of the 19 year old son of Parvina Ahungar by the Indian security forces in February 1991 in Kashmir. So what are the common threats that run through this? Are the legal immunity provisions that require prior sanction for prosecution of a public servant introduced during colonial rule to protect servants of the crown presently codified under section 197 of the code of criminal procedure as well as laws like the armed forces special powers act in dissonance with India's constitutional commitment to uphold and protect the right to life and right to justice. What is the role of the state where police and security forces are the direct perpetrators? In all cases, the victims of the violence are in first instance classified and registered by the state as accused for crimes such as breach of communal peace conspiring to attack the chief executive of a state. What is the nature of evidence available? And is all the evidence, the material evidence available within the control and custody of the state and its agents? Eurasia is a legal strategy being deployed to rewrite the legal record to sanitize the official archive and the register of crimes. This pattern is confirmed by the recently released data of the National Crime Record Bureau of 2017 where data on lynching, mob lynching, which is a form of targeted violence through which the mob attacks and kills persons who are identified on the basis of various features. Whether that kind of eurasia by not providing figures also introducing a new category called anti-national in the crime data record, a term that finds no corresponding entry in the Indian Penal Code or any other penal statute and which is inherently subjective. The bodies and corpses which are the bearers of evidence which are either cremated or burnt or buried in haste. The extrajudicial killings called encounters in India rewritten as murders in self-defense by the police. FIRs or the first information reports lodge for attempt to murder against the deceased victims gunned down by the police and the cases closed since the victims are dead. Who carries the burden of justice? Who wages these battles for decades? While criminal law prescribes that all crimes are crimes against society and will be investigated and prosecuted by the state, in practice the state works not as an inefficient disinterested bystander. Rather it covertly and insidiously undermines efforts to bring the state agents to justice. The disproportionate burden falls on the frail but determined shoulders of the victim's mother, the family, the community to wait the long and lonely struggles for accountability. How do these experiences inform our understanding of victim's rights? Is this reflected in the development of jurisprudence on victim rights? We often hear the government or the media or the courts positing rights of the accused against those of the victims in a specious argument to erode fair trial rights. The scenario is far more complex as in the emasculation of the rights of the accused and the victims only strengthen straight power. What does this determination and conviction of the victim's family or the community tell us? Are they keeping alive the rule of law? Is it their arduous journey that keeps faith in the legal system? Is this where hope is buried and perhaps needs to be exhumed? The right to know the truth, a right considered under international human rights law and recognized, has grudgingly been acknowledged by a few recent judgements of the Indian courts. I will also be showing some slides alongside and this is really a statutory warning. The slides are grim and they are grisly and they deal with the manner in which people are killed and murdered. So if anybody is feeling any discomfort, I am just giving you a heads up on that. I'm not sure how this works though. If Raksha could please help us in starting this and I'll carry on. So I'm going to first look at... I think you need to start the other one. We start with Hashimpura, a small nondescript locality about a three-hour drive from Delhi, populated painfully by Muslim families and migrant workers, coming there in 1987 to earn a livelihood by working on palooms. The dispute over the Babri Masjid which was destroyed and the claims that it was... There was a Ram Mandir which continues to haunt India and the Indian legal system even today was even at that time the cause of a communal riot that broke out in Hashimpura. And as a standard operating procedure when there is communal violence, the police and the army rounds up over 640 Muslim men and packs them away to jails in trucks. One truck, however, does not go to the jail. It consists of about 40 odd, nobody knows the exact number, and till date we don't know whether all those who were killed that night, their families know how they died because many of them were migrant workers whose identities were never known. About 40 of these Abel Babri Masjid young men are put into a truck and that truck is driven by members of a battalion not to the prison, but they are taken to the Upper Ganga Canal. These are pictures and these pictures form part of the court record and where you see the red circle is actually where during the trial witnesses were identifying members of their family that yes these people were picked up that day. These are people being brought out of the mohalla and being made to sit outside the colony before they are taken away in trucks. This is the faithful truck in which 40 odd men were randomly boarded a truck that did not go in the direction of the prison but rather went in the direction of a canal. They were stopped at the canal taken down one by one short dead and the bodies thrown into the canal. While this was going on there is another vehicle that crosses by so the truck is quickly moved to another site where the remaining members are killed and short dead. We are talking of a pre 24-hour media, internet time where you can actually commit a crime and hope that nobody will know how this crime was committed. However, five men emerge alive from the waters having escaped the bullets or receiving bullet injuries but still survived in the trial. Of course the tale gets told in court only about 30 odd years later. The case gets handed over to a more specialized agency than the police. It takes the specialized agency six years to file the basic charge sheet for a trial to commence in the court. The trial however does not commence in the state of Uttar Pradesh because the accused are all members of the armed police force of that very state and the case has to be transferred to Delhi by the Supreme Court. The case then carries on from 1996 when the charge sheet gets filed to 2002 when the trial is transferred by the Supreme Court to Delhi and in May 2015 the trial court pronounces the verdict in which it claims that everybody has been acquitted as there is nothing to show that these particular men who were arraigned as accused and these are 19 policemen an entire a platoon of a battalion that they have committed the crime. The person you see here was received two in two bullet wounds and is now a fruit vendor because he could no longer after that work on the palm of the hand workers who is showing you the spot where he was thrown next to the canal through this window you see two other men who survived and were witnesses this man was the first informant to the police and these were the people who eventually became witnesses so five eyewitnesses depose but of course they cannot identify the men these are men in uniform who precisely would have killed them these are the women this particular picture is very poignant because this young girl was born on the very night that her father was killed by the police and these are the women who have then waged this long battle for justice for their families the acquittal takes place because the court says yes deaths have taken place but we cannot say and of course in criminal law you must prove beyond reasonable doubt and there is no quarrel with that standard having been maintained and have to be satisfied before I come to what happens in the appellate court where another verdict is pronounced in October of 2018 what is the delay of 30 years what is the toll that a delay of 30 years takes and are we to understand this as an administrative issue of an overburdened criminal justice system which is not able to provide occasions for cases to be concluded or is there more to it and is it correct to say that this kind of delay can actually be orchestrated and this kind of delay will frustrate those with less means and will eventually favour the more powerful the trial court while acquitting all the accused men says that the present case relates to a horrific incident of targeted abduction and killing of around 42 persons by officers of the PAC a reserve police force on the night of 225 1987 since there is lack of direct evidence against the accused persons and hand has virtually converted into a case of circumstantial evidence against the accused persons facing trial despite the fact that there are several eye witnesses to the whole incident most of the basic facts except the identity of the culprits have been duly proved and established on record as discussed above but the evidence required to connect the accused persons with the crime is actually missing virtually there is no clenching evidence on record without infirmities on the circumstances relating to the identity of the truck and accused persons the accused persons cannot be convicted on the basis of scanty unreliable and faulty investigation which has gaps and holds so who is there to collect this evidence which is the agency that will marshal the evidence that will examine the evidence in this particular case it is actually if you go back to this picture of the truck we are going forward the truck where you see a hole which is a hole caused because there was mass indiscriminate shooting taking place in which during which even the truck body was there was a bullet that pierced this particular truck gets seized and sent to the forensic laboratory in 1998 the incident takes place in 1987 it was during the course of the trial that I recall one day we suddenly remarked to the judge that where are the guns why are the guns not being produced in evidence and the officer of the PAC said oh we needed the guns we had seized them at that time but we just returned them to the force because the force needed to use the guns so what is the sanctity of the evidence who is in charge of collecting the evidence the bodies were never returned to the families because the bodies through post mortem and other means could have provided some evidence of the nature of the bullet wound of the weapon used for the killing and therefore those bodies were and knowingfully well that they were Muslim men the bodies were nonetheless cremated so that there could be no access to those bodies by anybody in future when the eyewitnesses stepped out forward and they gave the evidence in court I will just read out a little bit to say how real true and accurate their descriptions were on 22 5 1987 it was Jumma Friday I was reciting Namaz in the evening at about 6 p.m. on the roof of my house when few military persons came to my house the said military persons took myself my father my two uncles and my grandfather outside our house in the street on the road the said military persons made us sit on the said road were already about 400 to 500 persons were sitting persons of our mohalla thus collected were sitting on both sides of the road I saw a big force of military and P.A.C. deployed there and then he goes on to describe how everybody was forced to get into the trucks I do not know as to where my father and uncles were taken away in a P.A.C. truck to the group of elderly people and children left at the spot P.A.C. officials gave directions to maintain peace and go to their respective houses the P.A.C. officials took out of them the able-bodied persons and boys of my age this was about 40 to 45 people were scrutinized and made to sit on the only truck left at the spot P.A.C. was written on the truck I was in the said group it was about 8pm the said truck was yellow in color and it bore the writing in white paint P.A.C. P.A.C. officials after making us sit in the truck gave us directions to keep our head down and not to raise it there were 18 to 20 officials of P.A.C. the said P.A.C. officials were carrying rifles they were also wearing black iron helmets on their heads a yellow uniform the truck reached Delhi road all of us were asked not to raise our heads while sitting in the truck the truck reached near Ganga canal and came to a halt at a place which was 2km inside from the road the lights of the truck were switched off it might have been 9.30 or 9.45pm at that time P.A.C. Dewan sitting in the cabin of the truck came down and surrounded the back of the truck of a circle they first brought down Mr. Yaseen and shot 3 bullets in his head I heard the sound of the said 3 bullet shots after catching hold of his legs and arms he was thrown into the canal they then brought down another boy from the truck who was thrown into the canal after being shot similar treatment was given to another boy we shouted for help and it goes on in this vein with a very explicit and clear narrative and description of what happened the court was puzzled because the court said nobody is identifying the accused and nobody is linking this particular truck because they said we don't know the truck number appeals were filed immediately after the acquittal of all the police officers before the Delhi High Court an important intervention at that stage gets made on behalf of the National Human Rights Commission because there is a few roar and an uproar that how did these people get acquitted when the narrative of the witnesses is so clear the NHRC moves an application saying that there must be and I think when we talk of colonial legacies and while there could be provisions in the statutes which provide immunity one of the colonial legacies there is that in every police station there will be extensive documentation done if there is a police battalion which will leave the police station there is a record maintained in the register who is leaving at what time it will be recorded in which vehicle it will be recorded how many arms and ammunitions are being carried every single detail will be recorded that particular document can only be in the custody as a state the state did not put that document on record instead it placed on record a document which showed that in this particular there were 89 people now those 89 were not in accused and there was nothing to show why we have identified 19 out of them out of those 89 so the whole process of law with the suppression of one vital piece of document can actually be overturned through the high court the NHRC and I was representing the NHRC in the high court we kept seeking these documents and they kept obfuscating and denying its presence it was only when it became impossible for them to deny because the photocopy of that particular document was very much on record however we did not have the original and you cannot prove a case in a court of law on the basis of a photocopy it's a secondary piece of evidence it requires another legal regime to be made admissible the original was finally unearthed in 2018 by the CBCID and presented to us and the case remanded for fresh recording of evidence what does this particular document show it is simply a general diary register of the most innocuous documents that you will find at a police station which says this vehicle with this battalion names all of them with this many guns this much ammunition this man is the driver leaves on riot duty to go to this particular place and that document named each one of them it was on the basis of that particular document that these were the men who were in this truck and this particular platoon had committed this crime in order to secure this document however it took nothing less than 30 odd years actually 31 years to get this document to be placed on record the Delhi High Court convicts all of them for mass murder and I think what is important in the judgment and I want to read out parts of it is that it actually creates and opens new vistas of jurisprudence for targeted crime by recognizing this as a targeted crime one of the reasons for instance when the trial court had acquitted them it was to say but what would be the motive why would a random platoon of policemen go around shooting some people pick up some people take them to the canal and shoot where is the motive so how do you understand motive when the nature of the crime is not understood in the correct context and with the evolution of international law which recognizes genocide which recognizes enforced disappearances which places crimes of murder crimes of forms of killing and violence in a particular context that filter which the law needs to apply to understand a particular crime was perhaps what the Delhi High Court then does and the High Court writes it required an application by the NHRC in orders of the court to get access to these documents persistent efforts first by the NHRC and then the court to unearth evidence which could prove the culpability of the accused unfortunately for this court the injured eyewitnesses have spoken in one voice and although they have not been able to identify the accused they have spoken clearly about how the incident occurred but the additional evidence as well which unmistakably points to the guilt of each of the accused persons in this context the court does not accept the plea of the accused and the person who came to prove this document because as we know a document needs somebody either the author or the person who signs it or who maintains the record must step into the witness box in a criminal trial and say this is my handwriting or this is a record that was prepared under my supervision the witness was 80 years old a few years longer and we would not have been even if he had secured this document and the original there was no way anyone could have proved this document and everybody else in the police force connected with this case by then had passed on in fact it has supplied the vital links in the chain of circumstances which were not available earlier when the matter was in the trial court and then they discuss this particular entry the court then says although the victims were not taken to an enclosed place by the police unlawfully detained kept in a truck and taken to two places and asked to keep their head down and not allowed to move this leads this court to conclude that they were kept in unlawful custody by the accused purporting to discharge their unlawful functions when they were in fact clearly acting illegally one of the issues for instance the legal issues that arose in the appellate court was is this a case of custodial killing would custodial killing be recognized only if a person is in a prison or is kept in legal detention or can a truck in which you have been detained you have been put in there and your movement has been circumscribed because that is what arrest means it is meant to detain and restrain your movement would it then account for a custody and the court said yes this particular truck would be tantamount to a custodial killing the present case is yet another instance of custodial killing where the legal system has been unable to effectively prosecute the perpetrators of gross human rights abuses the prolongation of the trial for over two decades compounded by the endemic systemic delays have frustrated the attempts at securing effective justice for the victims the manner in which the law enforcement officials have frustrated the cause of justice by weeding out important records and not gathering evidence in good time in the present case raises considerable doubt about the ability of a law enforcement agency to carry out an impartial and independent investigation when the persons accused of the crime are members of the agency itself another important advance that the court made in this particular case and this was one of the earliest that we have seen by an Indian court is to identify this as a targeted killing a disturbing aspect of the present case is the targeted killing of persons belonging to one minority community it was submitted on behalf of the accused that the prosecution in the present case has not proved motive for the commission of the crime and since the 42 persons allegedly abducted were total strangers the accused had no grudge or animosity against them and further that no sane and prudent person much less members of the disciplined force like the accused would commit such gruesome crime what the above submission overlooks is the fact that all the victims belong to a minority community this was a case of a targeted killing revealing an institutional bias within the law enforcement agents in this case and then the court cites a particular study that has recently been done to show the existence of partisanship and bias in the police force the present case involved the abduction of 42 to 45 persons belonging to the minority community and killing them soon after the incident of riots and it points to the disproportionate reaction by the police in targeting members of the minority community the court is therefore unable to accept the submission on behalf of the accused that the motive for the commission of crime was not proved it's interesting also to mention here that actually the high court and in the submissions that I made on behalf of the NHRC we actually relied upon Lord McPherson's report on looking at institutional racism post the Stephen Lawrence King Stephen Lawrence murder in the UK and where they probed and came to the conclusion and gave a definition of what is institutional racism within the police force and that particular concept and thinking was relied upon in order to understand and look at institutional bias within the Indian police force the Delhi High Court further refers to right to know the truth and this is again a new jurisprudential concept which increasingly courts are referring to in India to understand and to validate the efforts made by the victims in order to know what has happened to the victims of crime the right to know the truth to be known as an integral facet of the right to justice which is recognized by the UN working group and enforced to involuntary disappearances and the court says each victim has the right to know the truth regarding the circumstances of the death of their persons in the present case the relatives of the victim who died as a result of the brutal and bone chilling action of the PAC remained in the dark about not only the fate of the victims themselves but also about the steps taken to investigate the case and unearth the truth indeed their 31 years of waiting for justice may have eroded their faith in the state machinery the court then goes on to say how their right to have their loved one return and their in death to follow their customs etc which was not done in this particular case another aspect of the case which helps us understand how do you view the role of the state in a crime of this nature where agents of the state are the accused is that all the accused remained in service as armed police force even as they were being prosecuted for almost 30 years as for mass targeted killing in fact there are some pictures here which I'll just refer to if you see these pictures these are pictures of marking the 20th anniversary of Hashimpura killings the victim families and myself we went to the capital of the state of UP Lucknow and through the right to information law which is a very powerful law to secure information that the state would not like to share with people we filed over 400 over 600 RTI applications asking for individual information about the accused and what kind of service record they have because all persons who are in government service will have what is called the annual confidential record these are this is the public meeting that was held in Lucknow through the annual confidential records if you were to look at the official archive and this is why I refer repeatedly to the erasure that the state does if you were to read only the official archive which is available with us now through the RTI there is not a whisper that these men are even being prosecuted or are facing a trial for murder all it talks about in fact one of them says that he is very good at wrestling another one is very good in the march past what are their achievements and medals that they have won for the force in the field of sports and those are all recorded in the official record that exists within the police force so if the judgment was not to come we would not have any way of saying that these people ever faced a trial if you were to look only at the internal records of the police and this was the public meetings being held where former judges were supporting the victims in order to secure this relief of course as we speak the accused are finally all in prison and now their bail petitions and appeal are to come up in the supreme court I'll move quickly to another case again which was referred in the introduction a case which where similarly the victims mother has waged a very long difficult battle the case refers to the abduction confinement illegal detention and finally the murder of a young college going woman a Muslim young college going woman who was described by Indian media as being the first woman Fidain who had come in in 2004 to attack the then chief minister of kuchirat once again pictures of this kind were flashed across national media I'm sorry they are very they are difficult scenes but this is the kind of media coverage that is used for us not to ask questions for us not to ask that how did this encounter take place and how did these killings take place and I think therefore we need to confront these kind of images because it is it's hoped that we would not ask questions when we see these kind of images and these I would want you to see very carefully because you see police officers hard at work actually doing what would one would imagine is forensic investigation where they are seeing who was who has been killed what is another all manner of investigation is being carried out right there and there then all the three men that you see here were are now accused in this case the media informed us that there was yet another attempt to kill the then CM in June 2004 of Gujarat and for the first time a female Fidain had come from a terrorist organization the mother of this young woman a very impoverished family within a month files a petition before the Gujarat High Court saying I know that my daughter is not a terrorist and I want an investigation into this because under Indian law once the police announced through the media that this is an encounter which actually is an extrajudicial killing no investigation takes place there is a first information report which is lodged against the deceased for attempt to kill the police officer the police is supposed to have retaliated in self defense and the case closes there and no questions are asked in 2004 the mother files a written petition seeking investigation in 2011 after many rounds between the High Court and the Supreme Court in 2011 the Gujarat High Court through a probe by a special investigating team announces that this was a fake staged encounter this woman and the other men were actually abducted much earlier kept in illegal custody and thereafter brought to that road shot dead and it was then proclaimed as an act of self defense the division bench of the Gujarat High Court appointed a special investigating team what is a special investigating team it has no rep place in any statute or court of criminal procedure what it actually indicates is that when the court itself is convinced that the regular police machinery is not going to be able to find out the truth because perhaps the truth is so murky that the police will not probe it that a special investigating team which is monitored by the court reports of which are given only to the court is then informed the court that yes this was a staged fake encounter the reason why I am marking some of these flagging some of these aspects because when we want to talk about the criminal justice system we see repeatedly the criminal justice system actually admitting and acknowledging how dysfunctional it has become and how the conventional wisdom of the state being the neutral arbiter which will therefore resolve and prosecute and investigate against the accused perhaps no longer holds good in most jurisdictions post this announcement by the Gujarat High Court the Gujarat High Courts asked the Central Bureau of Investigation to lodge to file a charge sheet they lodge an FIR an investigation they come to the conclusion that a very large number of Gujarat police officers were part of a criminal conspiracy to say that these people were terrorists some of the men perhaps do have some terror links it is not known but there is evidence to that effect I am only here speaking about the young woman whose mother I have represented there was no terror link whatsoever found to her name and the CBI files a charge sheet in 2013 and again some intelligence bureau officials in 2014 the coming back to the issue of erasure the supplementary charge sheet that was filed against the IB officials the IB in India operates without any civil oversight or any statute the supplementary charge sheet is no longer accessible as the council for the victim I have a right to court documents we have applied to every court and every court has informed us that the charge sheet is not available this is perhaps the first time at least in my 30 years of legal practice that I have been informed by a court that a legal document has gone missing and nobody knows where it is and neither through RTI nor through any other means including a petition in the high court are we able to secure which brings me back to saying that official archives are today being sanitized in a manner that when the record will be read by legal historians or by researchers in the future some documents will never be found again post the filing of the charge sheet commences the trial and here I want to refer to a particular provision of the law which is a colonial legacy and I don't know whether it exists any longer under British law for the prosecution of any public servant the law requires that sanction must be secured from the executive or the appointing authority the when the arguments took place in the Gujarat CBI special court we argued on behalf of the mother of the accused obviously sought discharge and we argued against it and before I come to what actually happened in the case I just want to refer to another aspect which finds similarity along the in the case of Hashem Pura as these accused persons were enlarged on bail and were reinstated by the Gujarat police some of them were then given special positions post retirement those were challenged by public spirited persons or retired police officials before the high court the high court refused to entertain those petitions in the supreme court when we challenged the appointment of men who were facing quadruple murder the court made it clear to them that the court would be forced to pass an order against them at which point the state withdrew their appointments and asked them and asked them to resign from those positions what kind of state are we looking at when people in men in uniform who are actually facing prosecution are also being reinstated by the state in senior positions and are these concerns that should be be of concern not just to the police or to lawyers or to the victims but perhaps to people in any democracy and to citizens as to what is the nature of good governance here that we are talking about section 197 of the court of criminal procedure which as I mentioned is a colonial wastage in our law it was initially called was titled servants of the crown post independence the only amendment that we made was to call it public servants the immunity, the powers and the privileges that it accrues to the public servant have remained untouched the CBI in this case is the investigating and the prosecuting agency it was the CBI's official position that this is not a killing that is done in the discharge of official duty any action done in the discharge of official duty of course receives the protection of law but they said this is not a killing done in the discharge of official duty and therefore there was no question of the CBI seeking sanction from the state of kujrat a snapshot of the origins and evolution of the legal provision of statutory immunity explains why impunity is a necessary corollary of this form of opaque statutory immunity prior to independence indemnity for past acts was provided to servants of the crown under the government of India Act 1935 section 2271 of the government of India act placed the statutory protection on a constitutional footing by disallowing any bill that seeks to abolish the protection conferred on servants of the crown it extended the power of immunity provision to cover against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the crown a survey of case law shows that from the privy council to the supreme court of India this jurisprudence of statutory immunity that buffers public servants including members of the armed or security forces from criminal prosecution has continued without interruption from British colonial rule to constitutional democratic governance in the Indian Republic the purpose of emphasizing the vintage of these statutes is not merely to locate the historicity but to underscore the political impulse that led to the passage of these laws and the colonial continuities underlying the same even after the juridical identity of the Indian transformed from a subject to a free citizen the jurisprudential continuity with regard to the protection of public servants through statutory immunities is evident the legal device of statutory immunity allows the executive to reserve for itself the power to determine whether a public servant including a security officer will face criminal prosecution for an offence by allowing or denying prior prosecution in the course of seeking the prosecution and framing of charge the court asked the CBI what is its position in terms of prior sanction and the CBI said this is not an act in discharge of official duty so we don't need to go into their domain of sanction but the court insisted that they must inquire from the government what is the government's position so the CBI goes to the government of Gujarat the very government against whose head these people are supposed to have come to kill and the government issues two documents which are identical in language saying that they are denying sanction for prosecution these documents when they were presented in court and I was challenging them if you see them carefully you can see them clearly if you were to see them very carefully there is absolutely no distinction between them and therefore it would not be wrong to say that this was a these were psychostyle documents no application of mind mechanically produced what was very puzzling when these documents were given that actually one of them was a national para and one had a smaller para since I was given these documents only in court it was one was quickly struggling to read to see what was the difference between the two only to realize that in one clerically they had wrongly numbered the paras otherwise they were two identical psychostyle orders on the basis of which the police officers were discharged by the special CBI court the case as it stands today and I am sorry Professor Tan but this case does not end with the story of hope the case as it stands today is that the mother of Isha Jahan has actually written a letter to the court and to the CBI in which he has said that my spirit is broken and I'll just read out a para or two from her letter so that we understand what it means to wage these battles she sent this letter on 18 September 2019 to the CBI and to the CBI court that I know the truth about my daughter Isha Jahan and I was unable to bear the web of lies that was spun about her as I knew that my 19 year old college going daughter had nothing to do with any terror organization or terrorist activity in order to establish my daughter's innocence and to dispel the terrorist label within two months of the murder of my daughter I filed a writ petition and then she gives the details of that that I come from a very humble background where particularly after the sudden demise of my husband I was left with the responsibility of bringing up seven children my life and the life of my children revolved around making our ends meet even as I tried to provide an opportunity for my children to secure education Ishwet being my second eldest daughter was my pillar of support and shared the responsibility of contributing to the family's needs in addition to attending college Ishwet would take tuitions to supplement the meager income of our family that I had never imagined that seeking truth and justice could be such an uphill arduous, life-consuming and almost an impossible task the writ petition filed by me in 2004 lay dormant and no hearing took place for almost six years that in my struggle for justice for my daughter I found myself seeking the prosecution and punishment of some very powerful police officers of the state of Gujarat who were in service and enjoyed the patronage of the state in fact the state of Gujarat was on record as having supported the encounter killing of my daughter for more than 15 years now my children and I have lived with the sorrow and anguish of the fact that Ishwet was snatched away from us by a horrific criminal conspiracy and design because she was a Muslim girl and it served political interest to project her as a dreaded terrorist because of this my life and the lives of my children were forever jeopardized in the quest for justice few human rights lawyers stepped forward and represented my case because they believed in the rule of law and have a firm commitment to the constitutional ideals of justice equality and accountability from 2004 onwards I have been contesting and partaking in every case petition, application other legal proceeding that after this prolonged fight for justice I now feel hopeless and helpless more than 15 years have passed all the accused including the police officials are on bail some have been reinstated even as they face prosecution for the murder of my daughter after 15 years the trial has barely begun I have been informed that the state of Gujarat has now submitted to the court that they are not granting sanction for prosecution of the accused police officers the state of Gujarat has declined the case where the CBI the premier investigative agency of this country has stated on record that Ishrat Jahan was killed in a pre-meditated manner after being illegally abducted and confined and then killed in cold blood in stage fake encounter I am heart broken and my spirit shattered and the perpetuation of this culture at the perpetuation of this culture of impunity I have instructed my council that presently I have lost my will to fight and can no longer participate in the proceedings before the court the long drawn and labyrinthine judicial process has exhausted and frustrated me it is the job of the CBI to prosecute the 11 accused police officials and others I know my daughter was innocent I know my daughter was murdered I know that my daughter deserves justice and this culture of impunity needs to be eradicated to protect the lives of many innocent citizens this however cannot be my battle alone it is now up to the CBI to see that the guilty are prosecuted and punished I am told that the Indian judicial system provides justice to all irrespective of their status and stature I am waiting for justice to be done to me as a mother who lost her young daughter to a stage encounter orchestrated by the police at the behest of others I call upon the CBI and the state to secure the conviction of the accused police officers and other guilty persons the need for transparency accountability and an end to impunity by men in uniform has never been more how much time do I have? I just want to quickly say these are not stories or narratives or incidents or cases that are peculiar to these times as you know the Hashimpura cases from the 80s this particular case is now and the cases that have been going on in Kashmir and Kashmir has been in the news recently and many of you would have read and heard as to what are the constitutional changes that are taking place against what backdrop are these changes taking place? BBC has about a fortnight ago in its announcement of 100 most inspiring women of 2019 named Parvina Ahungar as one of the most inspiring women Parvina Ahungar is also called the Iron Lady of Kashmir. Who is Parvina? Who is Shamima? Who are the victim families of Hashimpura? These are not people who set out like you and me to do certain things because we wanted to become a lawyer or become a human rights defender Parvina's young son was picked up by the armed forces in August 1990 and never returned home. She filed a habeas corpus petition before the JNK High Court the High Court ordered an inquiry the sessions judge conducts an inquiry and returns a finding that yes three persons and they are named because there are eyewitnesses when he is arrested and there is an eyewitness who sees him in custody being tortured and beaten and they name men of the National Security Guard which is a kind of paramilitary force that we have in India and the High Court says that lodge an FIR and prosecute these people in order to prosecute them they need to secure sanction for the prosecution of these men and the request for sanction goes from the police to the Ministry of Defense in New Delhi and the request is declined this takes place in 1995 Parvina turns her anguish into a movement where all parents particularly mothers of disappeared persons form an organization seeking answers seeking accountability the Armed Forces Special Powers Act reinforces the statutory immunity that is provided under the ordinary criminal law to say that no proceeding can be filed at all leave aside prosecuting someone through a right to information application that I file in 2011 I had asked four questions from 1989 to 2011 how many requests for sanction for prosecution were received how many were accepted how many were rejected and how many are still pending this data as I mentioned pertains to 2011 there is now updated data but it's that data is not mine and therefore I'm not showing it here there are questions that were sent and here are the answers number of applications received for sanction of armed forces men for human rights violations or commission of crime are 44 see the number of applications rejected are 33 4 D says number of applications pending are 11 the diabolical arithmetic is that till 2011 not a single sanction for prosecution was granted to prosecute any member of the armed forces for commission of any human right violation or crime and I think it's important to understand Kashmir in the backdrop of the long history of human rights violations and abuses that we see and not if we have to locate what is happening today in the past and it cannot be understood if we don't do that I will end here only by saying that these struggles for justice which have been waged are in many many ways heroic and in many ways very they are a huge lesson for all of us and the despair that we hear from Shamima or the despair that we hear in the voice of Parveena Ahungar as she waits and does monthly sit-ins of course no longer you cannot do a sit-in in Kashmir since August 5th we know that there continues to be a communication lockdown which EU members I'm told have been allowed to visit many of us are not able to visit and go and see for ourselves what is the nature of violations or infringements or curtailments of freedoms that are taking place the question that I want to ask myself and all of you is that can this kind of impunity can the Indian democracy survive this form of impunity and do democratic nations need justice in order to remain democratic and I do not mean democratic in terms of having a what is called in India the festival of elections and we all go and cast votes and it's a fairly expensive exercise that the state indulges in but in remaining a truly democratic nation what is the what is the relationship what is the synergy that must exist between justice and democracy so that we can refer to a country as a constitutional democracy and I would just end by going back to the point of erasure because I think this is something at least for me this is something that I would like to be seeing much more in the future there is a very active state attempt to sanitize records of all form if you were to go to Kashmir for instance there is no crime of enforced disappearance so you can only lodge an FIR under kidnapping or adoption they are all recorded in the register of missing persons so many men young men go missing through a decade in Kashmir the historical record will not show to you and the legal record and the official record will not speak of these crimes in 2008 Parvina went to the working group on enforced disappearances in Geneva and she went and lodged not only her son's case but cases of other families which they as an organization and as a campaign have been seeking answers for as we speak in many parts of India the notion of what is a state of exception where the rule of law is suspended seems to be expanding as we speak notions of what is human rights and as we were recently told by the Home Minister India has its own understanding of human rights and there is a different way in which human rights will be understood based on Indian culture and this reversion that is taking place even although as we see technology making us look as a modern state sound as a modern state but the very fundamentals on which a constitutional democracy can be built are being erased and dislodged and those concerns are concerns that I wanted to share with you here today, thank you so much