The Delhi High Court asked for a report prepared by the National Human Rights Commission to be placed before it in order to determine the need to constitute a court-monitored committee, comprising retired high court or Supreme Court judges.
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WHILE hearing a petition seeking the constitution of a court-monitored judicial committee to probe the extent of force used by the Delhi Police against students and researchers of Jamia Millia Islamia (JMI) in December 2019, the Delhi High Court on Monday asked for a report prepared by the National Human Rights Commission (NHRC) to be placed before the court.
The incident being asked to be probed, in the petitions filed by advocate and JMI alumni Nabila Hasan and others, involved the stomping of the central university by the Delhi Police, and the subsequent unprovoked attacks in and around its campus, in an apparently retaliatory move against the plan by students to march to the Parliament against the controversial Citizenship (Amendment) Act, 2019.
This would be the second time the high court would scrutinise the NHRC report. In August 2020, a division bench of then Chief Justice D.N. Patel and Justice Prateek Jalan of the court had observed that, as per its reading, the report concludes that "the entire police action was not handled very professionally. It doesn't give a clean chit to anyone".
Now, a different division bench of Justices Siddharth Mridul and Talwant Singh is slated to base its decision to constitute a court-monitored committee, comprising retired high court or Supreme Court judges, on the contents of the report and the submissions of the petitioners, who contend that the police action in the incident was excessive and brutal.
Senior advocate Indira Jaising, appearing for one of the petitioners, submitted that the Delhi police had no authority under law to enter JMI, and that the force deployed inside and outside the university was wholly disproportionate. "The force of this kind which results in near fatal injuries can only be justified either in self-defence or (with specific) jurisdiction to do so," she contended.
Meanwhile, advocate Rajat Nair, appearing for the Delhi Police, submitted that the prayers made by the petitioners already stand satisfied since the NHRC had already conducted an inquiry and made certain recommendations.
Jaising disputed this, saying that the NHRC report does not satisfy the prayer of her petition, which seeks the constitution of an independent fact-finding committee that could be seen to be above political influence.
Almost immediately after the incident at JMI on December 15 and similar police violence upon student protestors at Aligarh Muslim University, Jaising, along with senior advocate Colin Gonsalves, had approached the Supreme Court, seeking a fact-finding committee to investigate alleged police brutalities committed at both university campuses.
On December 16, 2019, the then Chief Justice of India S.A. Bobde refused the pleas, stating that it would be too enormous a task for a single committee to probe the facts and evidence of incidents that occurred in various states.
In that hearing, Jaising had also pleaded for a direction against arresting students and ensnaring them with first information reports (FIR), which too was refused.
During the hearing at the Delhi high court on Monday, Jaising also noted that the Delhi police, in an affidavit, had admitted that the march of the protesting students was stopped far ahead of the Parliament near Mathura road, after which the students retreated "and the threat to the so called law and order was diffused".
Jaising also referred to a statement given by the then Vice Chancellor of the university Prof. Najma Akhtar that no permission was sought by the police before entering its premises.
Prof. Akhtar had also stated in January 2020 that the university was planning to file an FIR against the police, disclosing further that "[w]e had initiated a complaint, but the police didn't register an FIR. We have also sent an objection to the government regarding the same", but none was thereafter filed.
An attempt by The Leaflet to seek clarity on the university's prevailing stand on the present petition did not yield result. The standing counsel for JMI, advocate Pritish Sabharwal, refused to comment on the ground that "the matter is sub judice before the Hon'ble court".
The NHRC, which submitted its report nearly half a year after the incident, accused the students of JMI with protesting without permission, but paid no heed to the unauthorised entry of the police in the campus. Instead, in its view, there was a failure of the JMI administration to not inform the police of the discontentment of students and not seeking assistance from the police.
The report weaves a narrative in which the police was left with "no other alternative but to enter inside the campus to contain the violent/unruly mob and to remove them from the campus."
Referring to the planned march to the Parliament, the report notes that "[t]he gathering was declared as an "unlawful assembly" by the police. The police was law bound to contain the activities of these (sic) unlawful assembly to maintain law and order", while confirming the use of tear gas and lathi charge.
However, it takes note that some police personnel, "especially [Rapid Action Force] personnel hit students/protestors despite their pleadings" in the library, but does not go beyond calling these actions "avoidable", despite the discovery of tear gas shells in the confined space of a library, a clear violation of norms which the report fails to flag.
An enquiry on atrocities committed in the JMI library was ordered by the Delhi police, to be conducted by its Additional Commissioner of Police, Cyber and Technology, but no punitive action appears to have been taken.
Puzzlingly, the report even claims, at one instance, that. "[m]edical care was given to the injured on time who were detained by the police."
Nevertheless, the report failed to examine the extent of hurt suffered by students from the police action and whether the actions of the police were commensurate with the Delhi Police Manual and other laws which regulate its conduct. The NHRC also did not probe the anti-minority predilection with which the police allegedly acted during the incident, apparent through a perusal of testimonies of the victim students.
The NHRC also made a slew of recommendations, which as per law, cannot be sought to be enforced. One of these is a recommendation to the Union Government to direct the Delhi Police Commissioner and the Director General, Central Reserve Police Force for the Rapid Action Force (RAF) to identify members of the force (both Delhi Police and RAF) who were seen in CCTV footage damaging CCTV cameras, "unnecessarily coming inside the reading rooms of libraries of Jamia Millia Islamia and also using tear gas shells inside the close compound of the library".
It is the petitioner's argument that in light of the perfunctory report published by the NHRC, the police action at JMI in 2019, which left scores of students with physical and mental trauma, deserves the scrutiny of a court-monitored committee headed by a former judge of the higher judiciary.
Click here to read the NHRC report.