Chargesheets have begun to be filed in cases related to the February communal violence in Delhi, but the 751 first information reports registered in its aftermath remain unavailable.

While FIRs are ordinarily supposed to be uploaded on the police website, certain FIRs are exempt from public scrutiny if the police think their contents are sensitive. Some FIRs may indeed prejudice investigation, if revealed fully. But the blanket withholding of all FIRs related to the Delhi communal violence invites concerns about whether the ‘sensitive’ exception is being applied correctly.

Even as more information about the investigation becomes public, without the FIRs, crucial questions remain unanswered: which crimes have been recognised by the state? Of the violence witnessed and documented in the week starting February 24, what made its way into the official record?

Past episodes of mass violence teach us to be particularly mindful of these questions. For instance, after the anti-Sikh violence of 1984, hundreds of FIRs were not registered till commissions of inquiry directed the police to do so in 1987, 1991 and as late as 1993. After the Bhagalpur communal violence of 1989, FIRs were not recorded for 628 of 982 deaths, many of which were deaths in police firings. Similar issues with the non-recording of FIRs were prevalent after Bombay 1993 and Gujarat 2002, particularly with cases of sexual assault and cases where the allegations were against influential leaders or the police themselves.

The non-recording of FIRs

With the Delhi violence of 2020, the lack of FIRs against political leaders has received widespread attention. But the concerns over the non-recording of FIRs are wider.

For instance, there are reports of complaints not being converted into FIRs or not being accepted if they name perpetrators. Other reports describe survivors unwilling to even lodge complaints because they did not have faith in the police. Some who filed complaints said the police threatened to falsely implicate them in cases.

There are widespread, chilling accounts of uniformed officers perpetrating attacks on a mosque, hitting a pregnant woman with a lathi and a stone, passively watching as someone was beaten until he appeared dead and then thrown in a drain, and instructing mobs to destroy CCTV cameras. Reports document complaints that identify officers and allege that they participated in arson, looting, unjustified assault and firing leading to deaths, and stood by as they witnessed brutal attacks, shootings and sexual assault. According to these reports, the complaints were stamped as received by police stations but not registered as FIRs.

It is settled law, however, that if a complaint discloses a cognisable offence, as the reported complaints do, the police must register an FIR. In a rejoinder, the police questioned the credibility of these complaints. It pointed out “improvements” in one complainant’s version and averred that another complaint was an “afterthought” and a “figment of imagination.” While the police may well come to these conclusions during investigation, this does not answer violating the mandate to register FIRs.

There are several other accounts of sexual violence, and the Delhi Commission of Women had asked the police to submit a report on these in March. It is not known whether any FIRs reflect such violence.

If the police refuse to register an FIR, complainants can approach courts. But this option is often costly and protracted and is contingent on legal aid, widely inaccessible in ordinary times, let alone in the aftermath of communal violence and amidst a pandemic.

Crucial omissions in FIRs

Besides the non-recording of FIRs, past episodes of communal violence also offer caution about how FIRs are recorded. After Bhagalpur 1989, the Commission of Inquiry found some FIRs that recorded only an eighth of reported deaths, and others that conflicted with official records. Various commissions set up after Delhi 1984 noted FIRs that deliberately omitted serious allegations and the names of accused, and clubbed together varied incidents, instead of treating them as separate crimes requiring separate investigation. Fact-finding reports documented similar issues after Gujarat 2002, where complaints of unrelated crimes were added to an FIR instead of being registered separately and the police accepted complaints only if they didn’t name any accused.

A woman mourns over the body of her son, Hashim Ali, who was killed in the communal violence in Delhi in February. Photo: Reuters/ Adnan Abidi

Despite wide recognition of the same problems across many episodes of communal violence, some of these seem to repeat with Delhi 2020. In a statement, the police tried to rebut civil society concerns around clubbing of FIRs by asserting that all murder FIRs had been registered separately. But for offences other than murder, the police confirmed that as many as “15 to 20 complaints have been clubbed in one FIR”, and a resident’s complaint of arson was attached “for all legal purposes” with an FIR filed by another resident over entirely different facts. Bail orders in Delhi violence cases, available online, reflect delayed FIRs and multiple FIRs that don’t name any accused, sometimes even when the complainant likely knew the arrestee from before.

Adverse impact on trials

FIRs contain merely the first information that triggers an investigation, and any mistakes or deficiencies can be addressed in the investigation. But problems in the recording of FIRs can still have a lasting impact on the trial. An analysis of 137 judgments in Delhi 1984 cases, for instance, underscored how in many cases, the “delay on the part of the police in recording of FIRs and statements proved fatal” to the prosecution case. With Bhagalpur 1989, “very bad drafting of FIRs” was a key factor identified in the Commission report for summary closures.

Delayed FIRs mean that crucial time for preserving evidence is lost. As emphasised in several judgments, FIRs are the earliest information received of a crime and are therefore vital for corroborating oral evidence in trials. Any material omissions or unexplained delays in the FIR, or contradictions with later statements, invite greater caution and scrutiny from courts. Even Delhi High Court rules highlight that in “riot” cases, “the mention or omission of the name of an accused person” in the FIR is particularly important.

Investigations into unrelated offences should result in separate chargesheets and trials. But adding complaints to unrelated FIRs, instead of registering them separately, makes it hard to oversee whether this happens. Once an FIR is registered, the police must investigate and file a report in court – either a chargesheet, or a closure report if the police concludes that no case is made out. Victims can file protest petitions against closure reports if they believe the case was not investigated properly. But this right is rendered ineffective if a victim’s statement is merely added to an FIR and not registered separately.

Where FIRs are registered, the lesser the detail, the harder it is to hold the police accountable. For instance, if the perpetrators are known to the victim but their details are not recorded in the FIR, it becomes harder for the victim to protest if they are not ultimately named in the chargesheet, and for the prosecution to establish their guilt if they are.

Questions over arrests

Some of the most important concerns with how FIRs are recorded relate to investigation itself, particularly arrests. In previous episodes of communal violence, fact-finding reports highlighted how FIRs against anonymous mobs enabled arbitrary arrests.

A recent Delhi High Court order in a communal violence case against unnamed persons noted that though a police officer claims to have seen the accused at the spot of the crime, the complaint on which the FIR is based itself shows the police were not present there. In the FIR, the complainant states that he tried to call the police when his shop was being burnt but couldn’t get through. This order underscores both the importance of recording details in the FIR, which showed the absence of police, and the potential fallout of FIRs against unknown accused, which can lead to unjust incarceration.

People supporting the new citizenship law beat a Muslim man during a clash with those opposing the law, in New Delhi on February 24. Credit: Danish Siddiqui/Reuters

Another Delhi High Court order in an FIR against unknown accused noted the “mystery surrounding the arrest of the petitioner.” The police claimed that one of two eyewitnesses signed the petitioner’s arrest memo, made at the time of arrest. But the statement of this eyewitness did not identify any accused, and a copy of the arrest memo had not been given to the petitioner. No efforts were made to get the other eyewitness to identify arrestees through a Test Identification Parade. The accused were arrested four days after the FIR, during which time they alleged they were unconstitutionally detained in the police station.

Barriers to justice

Accused persons do not have a right to see all the material against them before a chargesheet is filed. Details in the FIR thus become crucial for an accused person’s arguments for bail. This is even more important when the state’s replies opposing bail in Delhi 2020 cases are often being filed in a sealed cover, as reflected in online district court orders. These orders also indicate other concerning patterns, from persons being arrested under multiple FIRs that appear to arise out of the same facts, to survivors ofassault and arson themselves being implicated in cases. In many cases, the sole evidence underlying arrests are uncorroborated statements of police witnesses, which are hardly sufficient to justify continued custody.

The police dismissed an earlier civil society critique of these concerns as selective since it was based on an analysis of around 40 FIRs. But any analysis must remain tentative, because the police have not made all Delhi 2020 FIRs available.

Besides these concerns, the inaccessibility of FIRs compounded large-scale violations of the rights of arrestees in the first few weeks of lockdown. As Maneka Khanna and I had earlier written, the shutdown of courts meant that arrestees were unable to access legal help or usual remedies for getting an FIR copy. In numerous cases, arrests were made without duly informing the family or providing the FIR. Since several lower courts had not notified video-conferencing procedures then, lawyers were mostly unable to be present for remand, or file applications for an FIR copy.

Erasing crimes

In 2016, the Supreme Court mandated the online uploading of all FIRs except those deemed ‘sensitive’. The court gave examples of what might be ‘sensitive,’ such as FIRs relating to insurgency, terrorism and sexual violence, particularly against children. But the court clarified that these examples were merely illustrative, granting the police fairly wide discretion to decide which FIRs should not be uploaded. If an FIR is withheld, an accused person still has a right to approach the court for a copy. But there is no such clear right for anyone else, making transparency and collective oversight difficult in the aftermath of mass violence.

In the absence of FIRs related to the Delhi communal violence, it is at least important to remember what questions remain unanswered, and which concerns remain unaddressed.

In its 2018 judgment in the Hashimpura massacre case, the Delhi High Court had highlighted the state’s duty to preserve memory of oppression, citing international principles that affirm both an individual and a collective right to know the truth about violations. States effectively wield the singular power to decide the official version of this truth. In leaving out certain violations, states fundamentally change the nature of what transpired and what will be remembered in decades to come. Accounts of their own complicity remain relegated to scattered news articles and civil society reports, as with the violence at Jamia Millia Islamia University in December last year.

Efforts to ensure greater accountability cannot limit themselves to any one aspect alone. The persistence of state failures in the aftermath of mass violence, and the very recurrence of such episodes, indicate a deeper rot. Previous judgments have emphasised that the criminal justice system as a whole is ill-equipped to deal with cases of mass violence, and offered suggestions for systemic reform. Till these are attempted, we may be condemned to watching the same patterns unfold. We have few means to work towards justice and recompense for crimes that are not written down as crimes in the first place.

The author is a lawyer based in Delhi.