New Delhi: The Supreme Court on Friday gave a split verdict on a review plea filed by the Maharashtra government challenging the top court’s order to form a special investigation team (SIT) comprising both Hindu and Muslim police officers to probe the assault on a Muslim boy during the 2023 communal riots in Akola.
The bench of justices Sanjay Kumar and Satish Chandra Sharma differed on whether their September 11 judgment needs to be revisited. While justice Kumar dismissed the review petition and rejected the applications seeking a hearing of the review petition in open court, justice Sharma felt that a ground was made out for review and listed the matter in open court after two weeks.
Considering the difference of opinion, the matter is likely to be placed before the chief justice of India (CJI) for constituting a separate bench to decide the matter. However, the order did not specify the next course of action.
What the judges said
Justice Sharma said, “We are on the same page to the extent that we have agreed to disagree.” In his separate opinion, he said, “As review and recall has been sought of the judgment to the limited extent that it directs or mandates the composition of the SIT on the basis of religious identity, [it] requires consideration…”
However, justice Kumar affirmed the earlier judgment and passed a scathing order describing how a complete dereliction of duty by the police in investigating the crime necessitated such a move.
His separate but detailed opinion said that the case, related to communal riots involving the Hindu and Muslim communities, prima facie hinted at a religious bias. As a result, “it was necessary to direct [the] constitution of an investigation team comprising senior police officers of both communities so as to maintain transparency and fairness in the investigation,” he added.
Justice Kumar also noted how the Supreme Court has defined secularism in India, highlighting that the state neither supports any religion nor penalises the profession and practice of any faith.
“This being the ideal, the state machinery must tailor its actions accordingly, but the inescapable fact remains that such state machinery ultimately comprises members of different religions and communities. Therefore, transparency and fairness in their actions must be manifest in matters even remotely touching upon secularism and religious oppression,” he said.
The state, in its review plea, had stated that the order to constitute the SIT, although well-intentioned, directly impinges upon the principle of institutional secularism. However, justice Kumar differed on this, saying, “Secularism needs to be actuated in practice and reality, rather than be left on paper to be enshrined as a constitutional principle.”
He added that the constitution of an investigation team comprising members of the communities involved in the communal riot “would go a long way in ensuring and safeguarding the transparency and fairness of the investigation to be carried out, and there is no impingement of any idealistic principle”.
Justice Kumar further condemned the state for adopting a “dubious” and “unprecedented” practice of mentioning the review plea before the two judges simultaneously on the same day. Solicitor general Tushar Mehta, appearing for the state, apologised for the same. Justice Kumar then said that the age-old practice has been to mention a matter before the presiding judge, which, in this case, was himself.
Mehta told the court that the state was apprehensive that such a direction may spill over to other areas, with demands being made that a bench having a particular composition should hear a matter. He said that the uniformed force cannot afford to have officers divided on the basis of their religious identity. The court replied, “On [the] face of it, it is a uniformed service, but people within seem biased.”
The case
The Supreme Court’s judgment came on a petition filed by a 17-year-old Muslim minor who was assaulted during a communal riot that broke out in Akola in May 2023, following an objectionable social media post on Prophet Muhammad. The Bombay High Court had earlier rejected his petition to set up an SIT and take action against the erring officials.
The apex court, however, held in its earlier judgment that there were clear lapses on the part of the police, who did not believe the victim’s statement that four men had assaulted him with iron rods and also wounded an autorickshaw driver, Vilas Mahadevrao Gaikwad, who later died. The police had named Muslims in the FIR even when the victim told them that the assailants were Hindus, who had assaulted Gaikwad under the mistaken impression that he was a Muslim, the court had noted.
The police justified their action by stating that the victim was unfit to give a statement when they visited him in hospital; and as he failed to later submit a complaint, no case was registered, they said. The victim claimed to have a snapshot of his statement recorded at the hospital, which the police dismissed as unreliable, as it lacked any signature. On June 1, 2023, the victim’s father submitted a written complaint to the Akola superintendent of police (SP).
The bench had noted that section 154 of the Code of Criminal Procedure (CrPC) mandated the SP to conduct an inquiry and register a case if it disclosed a cognisable offence. The court also pulled up the officer in charge of the Old City Police Station in Akola, who, despite being aware of the medico-legal case involving the victim and his admission to hospital, failed to follow up by registering an FIR.
“When members of the police force don their uniforms, they are required to shed their personal predilections and biases, be they religious, racial, casteist or otherwise. They must be true to the call of duty attached to their office and their uniform with absolute and total integrity,” the judgment said.
The top court had then directed Maharashtra’s home secretary to initiate disciplinary action against the errant SP and station-in-charge of the Old City police station for “patent dereliction of duty”. It went on to direct the home secretary to instruct the rank and file of the police department on their duties, and constitute an SIT comprising senior Hindu and Muslim officials to investigate the assault and submit a report to the court within three months.