Honouring 
Mukul Sinha: The Struggle of Memory Against Forgetting

Within the miniscule tribe of Indian human rights lawyers, even one loss is  irreplaceable. We felt that way when we lost
K. Balagopal  in 2009,  K.G. Kannabiran in 2010 and most recently, when Mukul Sinha passed away  on 12 May 2013.  Each of these figures was a giant in the
world of human rights activism who struggled for an idea of India which all too
often remained an ideal and a vision, sometimes far from reality. Regardless of
how distant the vision of a real and functioning democracy, founded on the
ideals of social and economic justice was, these three figures never lost
heart, always communicating a spirit of hope about the future based on concrete
and grounded work in the present.

As
such the lives of these three great figures of the contemporary human rights
movement are nothing less than exemplary lives, always acting as an inspiration
for each of us to do more to ensure that justice moves from being an abstract
ideal to a concrete and lived reality. Mukul Sinha was a part of this great
trio and exemplified a dogged
commitment to make the state and its agents accountable for its acts of
commission as well as omission of constitutionally mandated duties,  in very difficult times. [1]  

Through
his work inside and outside the courts, Mukul Sinha kept alive the struggle of
the Gujarat violated of 2002 for justice and functioned as the public
conscience of India in very dark times. Through his work as part of the Jan
Sangarsh Manch (which he founded), Mukul Sinha fought to ensure that  the crimes of Gujarat 2002 would be accounted
for. Post the overwhelming victory of Narendra Modi in the Lok Sabha elections
of 2014, the temptation to forget Gujarat 2002 will be immeasurably higher.
Honouring Mukul Sinha means that we continue to struggle against the forces whose
aim  is to ensure  that the world forgets the injustice of  Gujarat 2002. 
 

Responding to injustice

Mukul
Sinha  joined the Physical Science
Laboratory in Ahmadabad to do a Ph.D. in physics. However he did not remain for
long in the secluded confines of  scientific
research, but was moved to respond to the injustice in the world around him.
When he saw a supervisor kick a helper, Mukul 
spontaneously intervened.  When he
went on to  raise the issue with his
faculty, he was told that he was student and that he should behave as a
student.  The issue snowballed into a
protest by employees and turned into a major confrontation between the managers
and the employees. Mukul was marked as a trouble maker. When finally Mukul was
dismissed from his position he challenged the dismissal all the way to the
Supreme Court. As he puts it,

“ I still remember the judge in the Supreme Court
asking a question to which my counsel who were Girish Patel and Soli Sorabjee
had no answer. If the petitioner is a scientist why is he a member of a trade
union?  Finding no answer my petition was
dismissed. I remember that Girish Bhai was very upset and had tears in his
eyes,  I consoled him and  said well at least it is clear now  that I have no place in a  scientific establishment  as there is no relationship between science
and trade unions.”[2]

Mukul
Sinha continued his work as a trade unionist organizing the educational sector
connected with  research  and becoming a part of the  Gujarat Federation of Trade Unions.   Realizing the usefulness of a law degree, in
1986, he started doing his  law. In 1987
he  finished his  law and in 1989  he got his sanad.  That time onwards, in his words, ‘I became a
lawyer and my identity as a physics guy went away.’

The
other reason why the period in the  Physical Science Laboratory was important  was that he met Nirjhari a research student at
the same laboratory who went on to become not only his wife but his closest
companion – both  in his personal life as
well as  in his political work.  As Mukul put it regarding his time at the Physical
Science Laboratory,  “It was the most
useless time ever. But then my life changed in 1977. I fell in love. It was
cosmic.”[3]

As
Mukul Sinha recalled to us, it was Nirjhari Sinha  who did the crucial initial analysis of the
record of all mobile phone conversations which were made between the 28 of
February and 3rd of March 2002. Theirs was a partnership where their
 personal commitment to each other  was intimately connected to a larger commitment
to the struggle against injustice. 

Gujarat Pogrom 2002 – Towards
Constitutional Liability

Mukul
Sinha’s work in Gujarat began as a labour lawyer and activist working on
organizing labour in the institutions of higher education.  However he felt that the trade union
framework itself was inadequate to address issues such as slum displacement and
environmental pollution and hence went on to form the Jan Sangharsh Manch. This
organization took up labour issues including low wages of drivers and
conductors of state transport corporations, and the rights of other sections of
society that he felt had been ignored by the government. He then felt that this
framework of a civil liberties group was also inadequate and went on to form a
political party called the New Socialist Movement. Mukul envisaged these three
organisations as sister organisations through which the struggle for justice
could be taken forward. Though Mukul’s individual work was extraordinary,
equally important was his ability to build a larger committed team. The Jan
Sangharsh Manch, for example, is composed of a team of at least fifteen lawyers
who are committed to the project of social and economic justice. 

To
people within Gujarat, Mukul Sinha will be known as a trade unionist, a lawyer
as well as a political activist. But to people around the world, his indelible contribution
will be in the direction of consistently taking on the state government on the
Godhra train burning incident, and his efforts at making the state and its
agents accountable for the Gujarat pogrom of 2002. In this regard, Mukul
Sinha’s work showed qualities of both head and heart, as he applied a quiet intelligence
to the almost impossible task of making the state accountable for allowing the
murder, rape and brutalization of its own people.  Just in bare figures, the story of breaking
the cycle of impunity for the violence of Gujarat 2002 is unprecedented in the history
of independent India.  The story of
communal pogroms in India has been a shameful story of complete impunity for
the perpetrators. The first time that that the narrative changed in independent
India was in the case of Gujarat where for terrible crimes, perpetrators were
convicted.

At present 96 persons have been convicted for
their role in the mass crime (32 in
Naroda Patiya,11 in Bilkis Bano, 31 in Sardarpura, 18 in Ode, and 4 in Best
Bakery). In the convictions till now perhaps the most significant is the
conviction of the 32 persons in Naroda Patiya, one of whom was Mayaben Kodnani –
a former minister in the Gujarat Cabinet and a key confidante of Narendra
Modi.  Among the courageous band of human
rights activists responsible for eking out justice from a recalcitrant state,
the role of Mukul Sinha cannot be forgotten. 

While
clearly one cannot forget the courage and determination of Mukul Sinha in
making the public servants and political figures accountable for the pogrom,
equally important is the question of craft. Mukul Sinha’s enduring contribution
to the craft and vision  of the human
rights lawyer  was to decide in 2002 to
participate in the proceedings  of the Commission of Inquiry that was set up to inquire into the reasons for the riots.  Every other activist boycotted the Commission of Inquiry.  While Mukul was clearly aware of the politics of the commission of inquiry, and
its establishment by the state government as a delaying tactic and cover for
its culpability, his effort was to use the Commission of Inquiry to both
extract vital information out of the state as well as to use it to keep the
spot light on what happened in 2002. 

In
Mukul Sinha’s words, 

“All organizations boycotted the Commission; however
we looked at it politically. Our objective was to use the Commission to get
data. Today all that we know about the riots from official documents has really
emerged from the Commission. Some of the information which has been key to
convictions has also emerged from the Commission. For example Rahul Sharma’s
C.D of phone call records made in Ahmadabad on the crucial days of the riots
was produced before the Commission. Since everyone else boycotted the
Commission, the Commission also realized that a Commission without opposition
is meaningless and hence we were given some leeway. Since many government
officials deposed before the Commission, the cross examination was one way of
getting some good evidence.” 

Equally
Mukul recognised the value of the Commission as a tool through which the spot
light could be kept on the crimes of 2002. 
As he opined,

“The Commission hearings became a source of
information for the press. It must be admitted that Justice Nanavati ensured
that the hearings itself were fairly democratic with open access to the press.
Some thirty to forty journalists got interested and regularly followed the
proceedings and particularly the cross examination. Very often after the
proceedings we would all go out and have tea and I would get the chance to
brief them on what happened. I feel through these interactions that the younger
journalists have changed in their perception even in the regional press.”

In
the struggle against impunity in Gujarat, according to Mukul Sinha, what the
activists in Gujarat had achieved was in some measure to ensure that there was
criminal liability for the brutal acts of murder, rape and destruction of
property which had been committed against the minority community.  However according to him, where activists
were not successful was in ensuring that there was constitutional liability for
the pogrom which was carried out in 2002.

As
he explained,

“Modi facilitated the whole crime, by taking the
police out of the picture and he was definitely constitutionally responsible
even if not criminally responsible. As you know there is no doctrine of
vicarious criminal responsibility and hence it’s difficult to pin criminal
responsibility.[4]  Criminal Conspiracy is also difficult to
prove.”

The
first tentative steps towards this goal has been the recommendations of the
Verma Committee. The Verma Committee for the first time recognized the doctrine
of command responsibility whereby  public
servants ‘in command, control or supervision of the police or armed forces’
fail to exercise control and allow for criminal offences such as murder, rape,
destruction of property etc to be committed shall be guilty of the offence of
‘breach of command responsibility’.[5] However
this recommendation was not accepted by the government when it carried out
amendments to the Indian Penal Code in 2013.

The
question of constitutional liability needs to be kept in mind especially when Modi
tom-toms the so-called ‘clean chit’ which he has got through the order of the
Magistrate’s Court accepting the closure report filed by the Special
Investigation Team (SIT).  However,
regardless of whether activists are successful in ensuring that Modi is held
criminally responsible for 2002, the question of constitutional liability
cannot be foreclosed. Under the doctrine of command responsibility, as the man
who was in command and control of the machinery of the state, Modi cannot
escape responsibility for the pogrom of 2002.

Questioning State-sanctioned Murder

Where
the tireless efforts of activists have succeeded in even greater measure was
with respect to the encounter deaths of innocent Muslim youths which began
haunting Gujarat from 2003 onwards. The pattern was the abduction of Muslim
youths and then their cold blooded execution by 
members of the Gujarat Anti Terrorism Squad. The idea, according to
Mukul Sinha,  was to ‘keep the
anti-minority spirit alive among the Hindus and to ensure that the minority
Muslim community lives in perpetual fear.’ The state government  projected the 
encounters as the killing of ‘terrorists’ by the ‘brave’ Gujarat  police, and claimed that these   ‘terrorists’ 
had hatched a conspiracy to kill Narendra Modi and other key persons in
Gujarat.

This
highly successful  plan first developed
cracks when magistrate Tamang, after doing the inquest under S. 176 Cr PC in
the killings of Ishrat Jahan and three others, concluded in his report, based
on prima facie evidence, that the killings were a false (extra-judicial)
encounter.  In Mukul Sinha’s opinion, the
state government, which had used the inquest as a delaying tactic to foil
investigation, was shocked at the report and its indication of the complicity
of public officials, and appealed against it and obtained a stay on the report.[6] Mukul
Sinha remained in the forefront of the effort to publicize the  findings of the report and bring public
attention to the fact that elements of the Gujarat state were functioning as an
illegal killing machine.

The
larger plan of state-sponsored extra-judicial killings of ‘terrorists’ fell
apart when one of the police officers, Rajnish Rao, revealed that the Gujarat
Anti-Terror Squad (ATS)  was at the  core of the killings.  This revelation led to the arrest of 30 top
police officers from the Gujarat ATS, which, under the blessings of its higher
ups, was revealed to have abdicated its constitutional duty and instead of
protecting life, it was taking life.

The
work of Mukul Sinha in representing those killed in the encounter as well as
those honest police officers who chose not to be complicit  with the killings or the attempt to scuttle
justice for the same was invaluable.  His
courage, determination, intelligence and craft in adopting legal strategies to
ensure that those rogue elements of the state were behind bars cannot be
underestimated. His presence will undoubtedly be missed.

At
the level of strategy, Mukul Sinha was one of those who favoured investigation
by a  ‘Special Investigation Team’
appointed by the court as opposed to the Central Bureau of Investigation (CBI),
as he opined that in the former, those representing the victims had the
opportunity  to nominate an honest
investigation officer, who could potentially turn the tide.  Time 
proved him right as it was the SIT which was responsible for the
breakthrough which led to 30 police officers being arrested   on the grounds of authorizing ‘murder’.

Again
in Mukul Sinha’s terminology, while there has been criminal liability, the
question of constitutional liability is yet to be answered. The arrest of Amit
Shah was a step in that direction. However this is an unfinished project. While
undoubtedly Mukul Sinha will be remembered outside Gujarat for  his efforts to ensure state accountability
for the  pogrom  as well as the extra judicial killings, he
will also be remembered for advancing  a
vision of the potential of law, even as it operates within a hostile state
where the institutional pillars of democracy are compromised.   A radical approach to the law prides itself
on its ability to ‘trash’ the law. Mukul Sinha’s approach to law and courts was
to the contrary. As he explained:

“There is no point in abusing the courts; instead
one should find a way to use it. They (some human rights lawyers) abuse the
High Court and the Supreme Court and think it is radical. However it is clear
that the state can’t give you rights, only the courts can.  We also don’t (fully) believe in the law or
the courts but we think that whatever relief you can get you should. The results
we have got in the fake encounter cases is an exemplar on what you can achieve
through the courts. The reason the courts are useful is because the
Constitution of India does cast a duty on the judges to go by the
Constitution.”

What Does it Mean to Honour Mukul
Sinha?

To
honour Mukul Sinha means many things. It means that we learn how to combine the
qualities of heart and head such that we can fight doggedly against
seemingly  impossible odds;  it means that we commit ourselves to a long
struggle and persist because we believe that the world should be a better place;
in a practical everyday sense it means the employment of  creative legal strategies to embolden the
cause of justice even in a bleak situation. 

But
perhaps, most of all in today’s context, when Modi has come to power with a
brute majority, to honour Mukul Sinha means to not forget the injustices of
2002.  As Milan Kundera put it, ‘The
struggle of man against power is the struggle of memory against
forgetting’.  Today the struggle has
become more difficult and the possibility of forgetting looms large. To honour
Mukul Sinha means that we are not deterred by the seemingly  impossible odds and  we do not allow the Gujarat pogrom 2002 and
its unfinished project of justice to  be
forgotten, as forgetting means a denial of what happened. This act of active
remembering is really a gesture towards a future in which what happened in 2002
will not be repeated. This is what Mukul Sinha worked for in his eventful and
deeply meaningful life and this is the project we will have to take forward.