The following guest post has been contributed by Saumya Uma (Women's Research and Action Group), and Arvind Narrian (Alternative Law Forum). It is cross-posted at Kafila.
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. 
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.”
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.”
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. 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’. 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. 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.
 This short remembrance is based upon a detailed conversation with Mukul Sinha in February 2013, as part of an initiative to document the work and lives of human rights lawyers across the country.
 Report of Justice Verma Committee on Amendments to Criminal Law (2013), available at http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf, accessed on 11 February 2014, p. 445
 The report is available at http://www.scribd.com/doc/32817482/Magistrate-Tamang-s-Report-Ishrat-Jahan-Encounter-Case