The Bombay High Court, while observing that “the medieval notion of the wife being the property of the husband to do as he wishes, still persists”, upheld the conviction of a husband who killed his wife after she refused to make tea for him.

The Single-judge Bench of Justice Revati Mohite Dere was hearing a criminal appeal filed by the husband convicted under sections 304 (culpable homicide not amounting to murder) and 201 (causing the disappearance of evidence) of the Indian Penal Code.

The prosecution had stated that the couple frequently quarrelled and in one such instance, the deceased wife was about to leave the house without preparing tea. This compelled the convicted husband to give a blow on her head from behind, with a hammer. He also allegedly kept questioning her character.

Soon after she was assaulted, the appellant husband gave her a bath, wiped the blood-stains from the spot and took her to Vitthal Hospital where she succumbed to her injuries after a week. During the trial, he had submitted that the incident was a result of “grave and sudden provocation”.

The court observed that this was “nothing but notions of patriarchy”. It held that the ground of grave and sudden provocation because she did not make tea was “ludicrous, clearly untenable and unsustainable”.

The court also made observations on social issues of patriarchy, strict gender roles and the arbitrary responsibility imposed on married women. Justice Revati said, “It would not be out of place to observe that a wife is not a chattel or an object. Marriage ideally is a partnership based on equality. More often than not, it is far from that… Such cases reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship. There is an imbalance of gender roles, where a wife as a homemaker is expected to do all the household chores.”

It further observed, “Emotional labour in a marriage is also expected to be done by the wife. Coupled with these imbalances in the equation, is the imbalance of expectation and subjugation. Social conditions of women also make them handover themselves to their spouses. Thus, men, in such cases, consider themselves as primary partners and their wives, chattel.”

The High Court also took into account the testimony of the child of the couple that was initially discarded by the trial court as it was recorded after 10-12 days of the brutal incident. The 6-year-old child had witnessed the entire incident.

Justice Revati held that a delay of a few days is not “fatal”. She said, “It will have to be borne in mind, first the trauma of a young child, aged 6 years on seeing her mother being assaulted by her father; the trauma of seeing not only the assault but of seeing her mother lying there for an hour, during which, her father (appellant) gave her mother a bath, to clean the blood and also cleaned the spot”.

Placing all facts on record, the Bombay High Court upheld the decision of the trial court and refused to provide any leniency.

The judgment may be read here: 

Related:

Bombay HC acquits husband accused of cruelty and abetment to suicide of wife
Shabnam Ali likely to become first woman to be hanged in independent India

The post Refusal to give tea to husband not sudden provocation: Bombay HC upholds conviction appeared first on SabrangIndia.

Image: Jayshankar Menon

In a bid to fix quick responsibility following any acts of “terror”, the law enforcing agencies abduct persons deemed suspicious (the testimonies specifically point out to kidnapping or abduction by the police and not arrest), what follows is a media trial wherein the fourth estate act as faithful stenographers of the state. Thus public memory remains prejudiced and fixed onto that moment of televised castigation of people even before the trial has been concluded.

The media, investigating agency or the judiciary have no fear of any consequences and therefore they are able to implicate the innocent through the systematic abrogation of the criminal justice system. In institutionalising impunity, those who keep guard to defend the state from its ostensible predefined enemy continue to remain outside the purview of law even after a series of acquittals. Thus, the arbitrariness and lawlessness of those responsible for enforcing law gets exposed to show the inherent bias and throws light on routinisation of “wrongful prosecution” as a means to portray that the rule of law is being adhered to, even in extraordinary cases of terrorism. As opposed to the spectacle of arrest of an alleged terrorist, their discharge following a number of years, sometimes decades, is not considered a matter of importance. Their struggle largely remains invisibilised.

Taking cognizance of the above, India’s first People’s Tribunal on Acquitted Innocents was organized on October 2 at the Constitution Club of India to call attention to unrepresented and unheard voices of those wronged by the system. The Tribunal consisted of a jury headed by a retired judge, AP Shah along with other distinguished members from the legal fraternity as well as the larger civil society. This event was facilitated by Innocence Network India, which is an all India network of individuals and organisations facilitated and supported by JTSA, Quill Foundation, Peoples’ Campaign against Politics of Terror, Association for Protection of Civil Rights, Aman Biradari, Karvaan and others.

All testimonies revealed a sordid ordeal of brutal torture, the duress under which a confession is obtained, plantation and fabrication of evidence, long-drawn legal proceedings, hostility of jail inmates, constant humiliation and helplessness. The stigma of belonging to the family of a “terrorist” affected their families in ways which iis difficult to reverse. Their little kids were rebuked in school, their elderly parents had to arrange for their legal assistance despite their ailing health. The long wait to see their loved ones walk free took a toll on them.

Md. Nisaruddin was falsely implicated in 1994 and spent 23 years in jail before he was acquitted. His brother, Zahiruddin, who was accused in the same case, spent 14 years in jail. In their absence, their father, “passed away in distress, mother went into depression and the society shunned them.” This is not a one-off case of wrongful prosecution; there are others like them who have spent years languishing in jails, only to be acquitted later for the want of evidence. Senior journalist Iftikhar Geelani, Dr. Faarog Makhdoomi from Malegaon, Shoeb Jagirdar from Jalna, Md. Aamir Khan from Delhi, Dr. Md. Yunus, Haji Md. Salees, Syed Wasuf Haider from Kanpur, Sanauddin from Karnataka, Abdul Wahid and Zubair Ahmed from Maharashtra, who participated in the Peoples’ Tribunal, had similar heart-wrenching stories of abduction, torture, castigation and acquittal to tell.

In the Aurangabad Arms Haul Case, the main accused Adbul Wahid was a driver by profession. He was called to the police station for questioning and was later produced before the media as the man who drove the terrorists around in the city. It still surprised Abdul Azim that the policemen asked him to “rise up to the occasion and do something for his country”. When he resisted, his women relatives were brought to the police station and were threatened of sexual assault in his presence to obtain his signature on his “confession”. In most of the cases, the confession formed bulk of evidence against the accused which was obtained through custodial torture. Victims were subjected to numerous third degree methods of physical harm like electric shocks on private parts, water boarding, gassing, beatings, stretching of legs for a prolonged period of time.

Image: Jayshankar Menon

The narration of every case, brought out persisting struggle of everyday life which is spent amidst social isolation and continuous surveillance. The livid experiences of spending a number of years in incarceration takes a toll on victims and their families. Loss of livelihood opportunities accompanied by shrunken avenues of employment, loss of prime of their youth, multi-layered psychological effects of staying away from their families make it difficult for them to blend easily with the mainstream. The trials run into years and some of the accused have languished in jail for as long as 23 years; before they were acquitted. Their acquittal doesn’t mean a return to normalcy. Since there is no acknowledgement and recognition of the wrong done, their lives are caught in the interminable cobweb of suspicion and enduring struggles to build their lives and support their families.

Everyone present in the hall was moved during the tribunal by these personal accounts. In their preliminary observations, the jury emphasised on the need to fix criminal culpability on investigative officers for wrongful prosecution and that this provision must be made to supersede Section 197 of the CrPC that requires sanction from government departments before a case can be registered. Further, they also pointed out to the systematic ways in which, the entire prosecution process is oriented towards implicating persons from a minority community. They stressed upon the urgency for creating a legislative framework in consonance with India's commitment to ICCPR's article 14 (6) which states that:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

Impunity is not only political and legal, but also moral. The public at large remains detached from the outcome of these cases which contributes to the continuing ostracisation of the victims. Knowledge and public recognition of what happened is important for individual closure. The Tribunal was an effort to publically acknowledge the innocence of these men who were at the receiving end of systematic and institutional prejudice. Through recognising the harm done, the Tribunal sought to make not only the state accountable, but also put onus on the society to orient themselves towards shaping their lives in a holistic manner. It brought out that by dusting off their responsibility of rehabilitation, reparation and fixing culpability for wrongful prosecution, the state and its agencies are wanting to keep a community in the shade of criminalisation.
 
(Surya Ghildiyal completed her MA in Conflict and Peace Studies from Jamia Millia Islamia in 2014 and currently works in the development sector. 

Preetika Nanda completed her MA in Conflict and Peace Studies from Jamia Millia Islamia in 2014. She is currently researching and documenting mass enforced disappearances during the decade-long conflict in Punjab.)

The post Life After Acquittal: Narratives at a People’s Tribunal appeared first on SabrangIndia.

A letter from Jail after the Judgment

Excerpts from the Letter Written by Those allegedly Wrongfully Convicted. This letter was written by the accused from prison and sent through their lawyer a year back on September 21, 2015 after the delivery of judgement and before the sentencing

• Mr. Shishir Gupta, related to Hindustan Times, has firmly claimed in his book “Indian Mujahideen” that the arrested 13 accused were never involved in the 7/11 Train Blasts case but Indian Mujahideen was involved in it.
• It is also to be noted that three arrested accused in MCOCA Special Case no. 04/09 (Indian Mujahideen case) have made confessions that they were involved in 7/11 train blasts…but those accused were never involved in our case.
• The real culprits of the 7/11 Train Blasts case are the members of Indian Mujahideen who were arrested by Crime Branch in 2008 and not us. When the ATS failed to arrest the original culprits after 7/11 blasts in 2006, these criminals became more confident that they could never be arrested and therefore dared to plan and conspire more blasts which shook nation in 2008. Hundreds of innocent lives were sacrificed due to the inability and impotency of the ATS. If the ATS would have arrested original or real culprits in 2006 in this case, then the bomb blasts in 2007 and 2008 would not have occurred and hundreds of innocent lives would not have been wasted. The worthless ATS abetted the crime of Indian Mujahideen by arresting innocent people and closing the investigation without catching the real culprits.

Excerpts from the Letter Written by Those allegedly Wrongfully Convicted. This letter was written by the accused from prison and sent through their lawyer a year back on September 21, 2015 after the delivery of judgement and before the sentencing
 
Entire Text of Letter can be read below:

After 9 years of long wait, we 12 of the 13 arrested accused are held guilty, now some of us or all of us will get death sentence and others will be punished for life imprisonment. You may be happy that at last you have got justice after 9 years. Your hearts might be delighted and feel some relief that the killers of innocent people are sent to the gallows. Your happiness and feeling of relief is natural. But we are sorry to say that your happiness and satisfaction is fictitious and not real, as we 12 (held guilty) are not the murderers of your loved ones but we ourselves are the victims of these blasts. You might be happy but the spirits of your loved ones killed in these blasts are still screaming for justice. Those who were killed in these blasts and injured persons and all of you did not get real justice and you will never get it unless and until the real culprits get punished.

ATS and Mumbai Police could not reach to those who actually conspired and executed the blasts, though they have got some leads. It is on record that a police party had gone to Bhatkal, Karnataka, to arrest RiyazBhatkal, the founder of Indian Mujahideen on 30/07/2006. Station Diary Entry no. 2 dated 30/07/2006 of unit-7 of DCB-CID proves it. (A copy of this diary entry is available to us.)

When ATS failed to arrest the real perpetrators of the 7/11 Train Blasts, they started searching for ‘scapegoats.’ We 13 innocent persons were arrested only to cover up the inability of the police and government. They fabricated the evidence against us and the evidence which may prove our innocence were either destroyed or covered up only to show that they successfully arrested the original criminals…but…the reality was that the original criminals were in their safe havens and planning their next target. Out of us 13 arrested persons, none was connected to this heinous crime in any manner. ATS tortured us and our relatives and friends to get signatures on readymade confessions and statements. Apart from us, our family members were also tortured and harassed. Some of the best officers were selected not for arresting the real culprits but only to fabricate evidence and documents. Those who refused to implicate us in this case falsely were sidelined. One honest officer of ATS ACP ShriVinodBhat committed suicide as he could not bear the pressure of his seniors and he could not gather courage to sacrifice innocent people in the name of ‘fast’ and ‘fair’ investigation.

Another honest officer who did not disclose his name decided to expose the truth and to save the innocent people. He exposed the false investigation of the ATS by writing a letter to the President of India on 03/11/2006.

Apart from the best officers of the ATS, a team of legal experts was also involved in preparing false evidence and chargesheet. This chargesheet was nothing but a bunch of lies, having statements of so-called eye-witnesses. These so-called eye-witnesses were informers of the police or habitual criminals or the stock witnesses of the police. A huge amount in several cases was extravagantly spent to prove the false story of the ATS. And this amount was, of course, of the public, who pay income taxes and other taxes from their pure earnings.

We are not terrorists but victims of this case like you. Only the difference is that your lives have been ruined by terrorists and ours by terrorists in khaki uniform. Just look into the following points, which cannot be denied even by the ATS.

1.  As per the chargesheet, the bombs were assembled in a small room of 10×12 ft. in the slum area of Shivaji Nagar, Govandi. This bomb making continued for 3 complete days in that over-crowded slum area…but surprisingly ATS did not get even a single eye-witness from that area. Instead, ATS introduced a so-called eye-witness from Vikhroli, who had come there with his friend. The so-called eye-witness has a case registered against him at Park Site Police Station. Police lured him into closing his case if he became witness in this case (7/11 case). This so-called eye-witness is also the local president of BJP. 

2.  As per the chargesheet, seven bombs were assembled and these bombs were planted in seven different trains by seven different pairs. Each pair had an Indian and a Pakistani planter.
ATS made ‘thorough’ and ‘fool proof’ investigation and ‘cracked’ the whole case…but surprisingly ATS could arrest only the 5 Indian planters. Other two planters are unknown to ATS also, till date…though ATS had claimed that they have ‘completely cracked’ the case…in this possible?

3.  Between the night of 21 and 22 August, 2006, ATS had killed an alleged Pakistani terrorist Abu Osama, who was later shown as ‘planter’ in this case. At that time, one more Pakistani Riyaz Nawabuddin was also arrested by the ATS.
As per the ATS, Riyaz was staying with Abu Osama, who was shown involved in the 7/11 Train Blasts case. But, surprisingly, Riyaz was not shown involved in the 7/ 11 Train Blasts case and later deported to Pakistan. ATS could not find any connection between Riyaz and 7/11 Train Blasts case, who was staying with the bomb planter of the 7/11 Train Blasts case…can you digest this theory?

4.  As per the ATS, two accused in this case, Mohammed Ali and Asif Khan were also involved in the Malegaon 2006 Blast case. ATS had declared that these two accused had used the remained RDX from the 7/11 blasts in Malegaon. Later, the investigation of Malegaon 2006 Blast case was handed over to the NIA (National Investigation Agency) and NIA arrested a different set of accused and gave a clean chit to these two accused and others and all of them were granted bail. Clean chit from NIA proved that ATS had falsely implicated them in that case…is it not possible that these two accused and all of us were also framed in the 7/11 Train Blasts case?
Now just look at some more points.

5.  In 2008, the whole nation was shocked by bomb blasts in Surat, Ahmedabad, Jaipur, Delhi, Hyderabad, Bangalore, etc. ‘Indian Mujahideen’ claimed responsibility for all these blasts by sending emails to media and police. In one of such emails, Indian Mujahidden (IM) had also claimed the responsibility of 7/11 Mumbai Train Blasts. This email is a part of the chargesheet of Hyderabad Blast case (and a copy is available to us also).

6.  On 24/09/2008, Mumbai Crime Branch, arrested 5 member of IM and announced that those were also involved in the 7/11 Mumbai Train Blasts case…but they were not arrested in our case as it would have exposed that ATS had carried out great injustice to us, the 13 innocent accused.

7.  On 07/10/2008, Mumbai Crime Branch filed a remand application R.A. No. 114/08 in MCOCA Special Case No. 04/09 and in this application they had claimed that Riyaz Bhatkal and his organization IM was involved in the blasts carried out in Mumbai, Surat, Ahmedabad, Delhi, etc. since 2005, including 7/11 Mumbai train blasts.
Riyaz Bhatkal is the same person whom Mumbai Crime Branch wanted to arrest in 2006 and had gone to Bhatkal, but failed to arrest him and returned empty handed.

8.  Shri Rakesh Maria, the chief of Crime Branch in 2008 had announced on 06/10/2008 in a press conference, alongside then Commissioner of Police and then chief of ATS Shri Hemant Karkare that IM was responsible for 7/11 Mumbai train blasts.

9.  Apart from this, Delhi Police Special Cell, Ahmedabad Police, Octopus, NIA and other elite investigation agencies of our country had claimed that IM was solely responsible for 7/11 Mumbai train blasts in 2006 (and not us).

10.  In February 2010, the Government of India handed over a dossier to Pakistan which had the details of all the wanted accused sheltered by Pakistan. Our government had mentioned in it that Riyaz Bhatkal, his brother Iqbal Bhatkal and Dr. Shahnawaz &others are wanted as they had direct role in 7/11 Mumbai train blasts. Surprisingly, the government claimed their involvement in our case but they are not shown as wanted accused in the chargesheet. Inclusion of those names will destroy the claims of ATS that some other accused are involved in this case, means our case.
At least now you may be clear and sure that either the chargesheet filed by the ATS in our case is false or the dossier submitted by our government is false…The reality is that ATS has filed false chargesheet against us.

11.  Mr. Shishir Gupta, related to Hindustan Times, has firmly claimed in his book “Indian Mujahideen” that the arrested 13 accused were never involved in the 7/11 Train Blasts case but Indian Mujahideen was involved in it.

12.  It is also to be noted that three arrested accused in MCOCA Special Case no. 04/09 (Indian Mujahideen case) have made confessions that they were involved in 7/11 train blasts…but those accused were never involved in our case.
 
The real culprits of the 7/11 Train Blasts case are the members of Indian Mujahideen who were arrested by Crime Branch in 2008 and not us. When the ATS failed to arrest the original culprits after 7/11 blasts in 2006, these criminals became more confident that they could never be arrested and therefore dared to plan and conspire more blasts which shook nation in 2008. Hundreds of innocent lives were sacrificed due to the inability and impotency of the ATS. If the ATS would have arrested original or real culprits in 2006 in this case, then the bomb blasts in 2007 and 2008 would not have occurred and hundreds of innocent lives would not have been wasted. The worthless ATS abetted the crime of Indian Mujahideen by arresting innocent people and closing the investigation without catching the real culprits.
 
Our government knows very well that none of us 12 convicted persons are involved in this case in any manner and that we 12 are innocent. But if we would have been released, then the whole nation will scream “where is justice?”, “If these 12 are innocent, then who committed the blasts?”, “When will we get justice?”. And therefore to calm you down, we all 12 were sacrificed to keep the “morale” of the ATS and the police high, though ATS has no morals and no humanity.
 
Are you still satisfied by the ATS?
 
Are you still not convinced of our innocence?
 
Then…please surf the internet to read all the news and articles since 2008 regarding Indian Mujahideen.

Call the dossier of our government handed over to Pakistan in 2008 and make sure that we are not lying.

Meet Mr. Shishir Gupta of HT and Mr. Rakesh Maria and ask about their claims regarding 7/11 Train Blasts case, whether their claims are true or false?

Come to the court and see the case papers of the Indian Mujahideen case (MCOCA Special case no. 04/09)…you will find our claim of innocence genuine.
 
Before getting happy on the judgement of our case, you will have to make sure that whether we 12 are guilty or not?
 
And if we are not guilty…and certainly not we are…then instead of becoming happy, you should explode on ATS as ATS has fooled not only you but the entire nation and they are indirectly responsible for each and every death caused by IM after the 7/11 train blasts.
 
We 12 are innocent and never committed any blast and have never killed any single person. Your loved ones did not die due to us…alas we ourselves are victims of these blasts like you all. You are victims of terrorism and we are the victims of state terrorism. Your relatives died once 9 years back…but…we are dying every day since our arrest. And now, by declaring us “guilty” on the basis of false evidence, we are being deprived of this right of dying daily.
 
We humbly request you to come and stand up…and try to know the reality. Read the judgement copy…have a look on our defence evidences and documents, our call detail and location detail records of our mobile phones, deposition and evidence of defence witnesses, the chargesheet filed by the ATS…and at last all the documents related to Indian Mujahideen…you will know that you did not get justice.
 
If you want justice for yourself and for the peace of the spirits of your loved ones…then you will have to rise up and discover the facts and reality.
 
Awake and rise…

…to punish the real culprits of the 7/11 blasts.

…to make the ATS accountable for fooling you and the entire nation.

…to change the trend of implication of innocents falsely.
 
The real power is in this democratic country are its people and not the politicians or the police. It is your duty to provide justice to the innocent spirits of your relatives.
 
Be aware…that certainly you and the spirits of your loved ones will never get justice by hanging us 12 innocent persons. On the other hand, the terrorists will think that nobody can bring them to justice and they will remain a danger for other innocent lives.
 
We are innocents like you all and are always with you in your grief and pain and as we are victims too, not responsible for your unbearable pain.
 
We most humbly request you to stand with us in the High Court and make a petition in the High Court praying to punish the real culprits and not the innocents. Or at least write a letter to the Hon’ble Chief Justice of Bombay High Court and other officials to get justice, or do whatever you can in this regard.
 
We hope and wait for your positive and just response.
Prove yourself as a fair and just democracy in the name of those injured and dead.
 
Thanking you,
12 innocent convicted of the 7/11 Train Blast case

September 21, 2015

The post ‘Convicted, but not Guilty’: Plea before People’s Tribunal appeared first on SabrangIndia.

It is often said that India is afflicted by three Cs, all in capital letters: Casteism, Communalism, Corruption. The issue of corruption and Team Anna’s own peculiar recipe to deal with it have so hogged the headlines through most of 2011 that insufficient attention has been paid to another bill on the anvil – the Communal and Targeted Violence Bill – which addresses the other two Cs. In May this year the Sonia Gandhi-headed National Advisory Council (NAC) placed its draft Prevention of Communal and Targeted Violence Bill 2011 in the public domain, inviting comments from the public. The draft bill now awaits the consent of the union cabinet before it can be tabled in Parliament. Meanwhile, the sharpest attacks, the loudest howls of protest against the proposed law have come from the BJP, other constituents of the sangh parivar and their political allies. The fact that communal organisations are so vehemently opposed to the proposed law indicates that something must be very right with what has been suggested.

It is true that some misgivings have also been expressed vis-ŕ-vis certain provisions of the draft bill by some allies of the Congress and a few others from within secular quarters. The rationale behind the bill is the subject matter of our cover story this month, in which the misconceptions and apprehensions of some secularists have also been comprehensively dealt with. Our limited purpose here is to draw our readers’ attention to an issue that Communalism Combat has repeatedly focused on, more so since the genocidal targeting of Muslims by the Narendra Modi-led BJP government in Gujarat in 2002.

The issue in question is the culture of impunity in the context of communal or targeted violence, which has prevailed in the country since independence. Reports of various judicial commissions – appointed by different governments from time to time to probe incidents of communal violence, fix responsibilities and make recommendations – have two conclusions in common. One, the violence was not spontaneous but the result of meticulous planning, organisation and implementation by Hindu communal bodies. Two, the police and the administration displayed anti-minority bias. The repeated recommendations by commission after commission on what needs to be done to pre-empt violence and punish the police officers and administrators guilty of dereliction of duty have gone unheeded. It is in this climate of permissiveness and the absence of accountability mechanisms that the culture of impunity has flourished.

As lawyer HS Phoolka – who for over two decades has spearheaded the legal battle for justice for the victims of the anti-Sikh carnage in 1984 – has repeatedly stated in recent years, if the perpetrators of 1984 had been prosecuted and punished, the 1992-93 anti-Muslim pogrom in Mumbai may have been prevented; and if the perpetrators of 1992-93 had been punished, the 2002 genocide in Gujarat may have been pre-empted. Not only have the perpetrators and errant policemen and civil servants never been punished; in the last 25 years we have repeatedly seen the state playing the role of mute witness, co-conspirator or even sponsor of mass crimes whose targets have been the country’s religious and other minorities.

It is against this backdrop that civil society groups have been campaigning, since the 2002 killings, for an appropriate law to bring an end to this unconscionable and blatantly unconstitutional state of impunity. It was in response to this persistent campaign, in which Citizens for Justice and Peace and Communalism Combat were among the most vocal, that in 2005 the first UPA government floated a draft – The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005 – for discussion and debate. The bill elicited widespread criticism from the very groups and organisations which had been at the forefront of demands for a new law. To them, it was evident that the bill as it stood then would be worthless in preventing future massacres. A principal demand was that the new law should hold public servants – politicians, senior civil servants and police officers – accountable for their failure to control targeted violence. If anything, the 2005 draft envisaged even greater powers for the police instead of holding them accountable. In the face of all-round criticism, the draft was reworked but even the second draft was far from satisfactory.

In a welcome move, soon after the UPA-II government took charge in 2009 and the NAC was revived on Sonia Gandhi’s initiative, the council included a Communal Violence Bill among its priorities. The bill of 2011 is a result of that initiative. We need only add here that since both the UPA-I and UPA-II governments had in principle accepted the need for such a bill, they now have an obligation to ensure that the new bill sails through Parliament notwithstanding the expected resistance from the BJP and its allies. For the UPA government to delay or procrastinate on the bill – simply because, unlike Team Anna, the NAC members have neither threatened indefinite hunger strike nor issued deadlines and ultimatums – would be unfortunate, to say the least.

– EDITORS

Archived from Communalism Combat, November 2011, Year 18, No.161- Editorial

The post The culture of impunity must end appeared first on SabrangIndia.

Both characteristics hold good today.

One is the silent yet strident mobilisation by right-wing supremacist groups through hate speech and hate writing against religious and other minorities for months beforehand. Though these have always amounted to violations of the Indian Penal Code (IPC), they have gone unchecked and unpunished, creating a climate that is fertile ground for the actual outbreak of violence. The other major cause of such violence has been found, by several members of the Indian judiciary, to be the failure of large sections of the administration and the police force to enforce the rule of law, resulting in a complete breakdown indicating deliberate inaction and complicity.

Both these features combined each time – whether in Jabalpur (1961), Ranchi (1967, Justice Raghubir Dayal Commission of Inquiry), Ahmedabad (1969, Justice Jagmohan Reddy Commission of Inquiry), Bhiwandi, Jalgaon and Mahad (1970, Justice DP Madon Commission of Inquiry), Tellicherry (1971, Justice Joseph Vithayathil Commission of Inquiry), Hashimpura (1987) or Bhagalpur (1989) – to ensure that minorities were not just brutally targeted but also denied free access to justice and reparation.

The organised violence in Delhi in 1984, Bombay in 1992-1993 and Gujarat in 2002 took the levels of impunity for state and non-state actors to hitherto unknown heights. A historiography of communal violence since Indian independence thus reveals a poor report card on justice delivery and reparation. Today unfortunately, we have extant examples of victim survivors, Muslim, Sikh and Christian, still waiting at the threshold for the first stages of investigation and trial to begin decades after the crimes have taken place.

The newly drafted Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 (commonly referred to as the Communal and Targeted Violence Bill), which awaits a nod from the cabinet before it is tabled in Parliament, is an attempt to address the imbalance and the despair caused by over six decades of discriminatory justice delivery. Far from being discriminatory against the majority, it entitles any victim – whether from the majority or a minority – to a robust scheme for compensation and reparation.

The bill is legislative acceptance of the discriminations in justice delivery faced by sections of our population that have long been subject to communal and targeted violence. When citizens who are numerically weak and socially disadvantaged are attacked on account of their identity, institutions of governance – law enforcement and protection and justice delivery – most frequently act in ways that discriminate against them.

The Communal and Targeted Violence Bill seeks to protect religious and linguistic minorities in any state in India, as well as the scheduled castes and scheduled tribes, from targeted violence, including organised and communal violence. Apart from including the offences listed under the penal code, the proposed law modernises the definition of sexual assault to cover all sexist crimes that heap indignity on the victims (including stripping in public, etc), not just rape, and broadens the definition of hate speech and writing already penalised under Section 153A of the IPC.

Most significantly, it deepens the definition of dereliction of duty – which is already a crime under the IPC – and for the first time in India includes offences by public servants and/or other superiors for breach of command responsibility. “Where it is shown that continuing unlawful activity of a widespread or systematic nature has occurred,” the draft bill says, “it may be presumed that the public servant charged with the duty to prevent communal and targeted violence has failed… to exercise control over persons under his or her command, control or supervision and… shall be guilty of the offence of breach of command responsibility.” With the minimum punishment for this offence being 10 years’ imprisonment, superiors will hopefully be deterred from allowing a Delhi 1984 or Bombay 1992-1993 or Gujarat 2002 to recur. The proposed law will also act as a deterrent to acts of complicity by public servants during smaller bouts of violence and awards fair compensation and reparation to victims when they do occur.

Positive and reasonable legislative steps to correct either the discriminatory exercise of state power or the discriminatory delivery of justice draw strength from a clear constitutional mandate. Article 14 of the Indian Constitution states that: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 21 clearly places the responsibility on the state to ensure equal protection of life and liberty (and, by implication, property) and Article 15(1) provides that “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. This is recognition that vulnerable groups may require protection from the state.

Every democracy is premised on the assumption that while the majority can take care of itself, minorities need special protection. Consider for a moment India’s experience in tackling communal violence (or its failure thereof) alongside our history of recurring bouts of targeted violence, when numerically weaker and socially disadvantaged groups –linguistic or religious minorities or Dalits or tribals – are attacked because of their identity. Throw into this analysis the review of the application (or non-application) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. And the reasoning behind the need for this law, applicable to minorities defined not just by faith but also by other criteria, becomes immediately evident.

“Minority” is not, or should not be, a rigidly frozen concept based on religion alone. The reality is otherwise, as our sordid experience of the attacks on Kashmiri Pandits in the Kashmir valley or the violence unleashed on North Indians/Biharis in Mumbai and Maharashtra or Tamils in Karnataka has shown. With the migration of populations and altering demographies, democracies need to develop sound measures for the protection of all the people. Jurisprudence through justice delivery and reparation through compensation packages must reflect this ever changing reality.

There is a simple way in which to make the proposed law applicable to the state of Jammu and Kashmir. The Jammu and Kashmir assembly must first pass a simple resolution addressed to the president of India asking that the law be made applicable in the state. Thereafter, it would require a reference made to Parliament by the president of India for amendment of the Jammu and Kashmir (Extension of Laws Act) 1956 so as to extend the new law to Jammu and Kashmir.

A law to protect the minorities draws its source from already existing powers granted to the centre, implicit in Article 355 of the Indian Constitution regarding the “Duty of the union to protect states against external aggression and internal disturbance” which provides that: “It shall be the duty of the union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this Constitution”. This has generated considerable debate and will also be deliberated upon when the bill is put before the parliamentary Standing Committee. Detractors who speak only of India’s federalism baulk at admitting the ground realities during prolonged bouts of violence; such selective public amnesia negates years of bitter experience in dealing with outbreaks of majoritarian mob frenzy.

Over the decades the collective experience of civil libertarians and jurists at such times has been to ask for law and order enforcement to be temporarily handed over to the army. Assimilating this experience without impinging on the responsibilities of state governments to protect lives and property, the proposed law, under Chapter IV, envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty and monitoring the build-up of an atmosphere likely to lead to violence.

The National Authority cannot compel a state government to take action – in deference to the federal nature of law enforcement – but it can approach the courts for appropriate directions. There will also be state-level authorities, staffed, like the National Authority, by a process that the ruling party of the day cannot unduly influence. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

The creation of this new entity was incorporated in the draft bill after much deliberation with practitioners, including former judges who felt that without a body to supervise, monitor and properly intervene when smaller but recurring bouts of communal and targeted violence take place, state governments would continue to be lax, as we have seen even recently in Bihar (Forbesganj, June) Rajasthan (Bharatpur, September) and Uttarakhand (Rudrapur, October 2011).

The powers of this authority are recommendatory and in no way violate federal principles. Similarly, the state-level authorities have also been created in order to facilitate district-level inputs towards the prevention of violence and its containment as well as justice delivery. Moreover, the National Authority has no power to issue binding orders against any state government except for the purposes of providing information. The National Authority is only empowered to issue advisories and recommendations with which the concerned state government/public servants may disagree, the only condition being that the reasons for such disagreement must be recorded.

Since mid-2011 when the National Advisory Council (NAC) invited comments on the draft bill, many voices have been raised expressing concerns about some basic precepts of the proposed law. These concern, in the main, the definition of the victim group – religious and linguistic minorities and scheduled castes and scheduled tribes – and the creation of a National Authority to monitor the build-up and occurrence of targeted and communal violence, issue advisories, extract replies from the state governments and intervene in courts hearing the cases. The provisions on witness protection, the rights of victims during trials and the thorough scheme of compensation and reparation have been largely welcomed.

There are two questions of concern expressed among those, across the ideological spectrum, who have objected to the draft bill’s definition of the victim group. One of these voices disquiet about a law which, if it comes into existence, will divide people on the basis of minority and majority. The second objection is sharper; it asks whether a law premised on the assumption that a minority has never committed or will never commit acts of violence can be just or fair. It comes as no surprise that the second criticism was first made through an article by Arun Jaitley, the leader of the opposition in the Rajya Sabha who is also a senior lawyer. Others who have vociferously echoed Jaitley’s criticism – with the sole exception of Tamil Nadu chief minister Jayalalithaa who is also dead against the law – belong to India’s main opposition party, the Bharatiya Janata Party (BJP), or are among its votaries. Lending voice to this criticism is the ideological fountainhead of the BJP, the Rashtriya Swayamsevak Sangh (RSS), and its affiliates, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal.

Other protests against the bill have come from the leaders of some regional parties, such as West Bengal chief minister Mamata Banerjee of the Trinamool Congress who appears to be more concerned with the role of the centre/National Authority under the proposed law and how this may impinge on the rights of state governments.

Let us first address the concern relating to the definition of the victim group.

Democracies, based as they are on electoral and representative politics, reflect the voice of different sections but do also privilege the majority. This majority is not always religious; it could be from a certain social stratum or caste or committed to a certain ideology. At their best, democracies maintain the balance of power while always giving space and protection to the minority voice, the single voice. Short of this delicate balance, democracy can tip over into the rule of the mob, a mobocracy. Values of constitutional governance, equality for all, especially equality before the law, are principles that could fall by the wayside when mob rule takes over. Can we in India – looking back with candour – accept that we have collectively succumbed to the rule of the mob?

While we rightly celebrate elections as a fundamental reaffirmation of the vibrant, live democracy that India is, the power of every individual’s right to vote can and has been subverted by the manifestation and legitimisation of brute majority power through the same electoral process that we celebrate.

Sober reflection reminds us that even while we cringe at categories like majority and minority, the anomalies of the very electoral victories we celebrate must force us to reconsider our views. Mass crimes have sat comfortably with electoral politics in India. And electoral discourse seems reluctant to propagate the principles of justice for all and discrimination against none.

Let us recall a moment in our history. In November 1984, within a short and bloody spell lasting about 72 hours, more than 3,000 Sikh residents of Delhi were massacred in cold blood. When Parliament convened in January the following year, no official condolence motion was moved to mark the massacre. And what is worse, among those who sat in the wells of the lower house, having ridden to victory in elections held just a month earlier, were Congress leaders HKL Bhagat, Jagdish Tytler and Lalit Maken, men who, along with Sajjan Kumar, had been named as guilty of inciting mobs by the People’s Union for Civil Liberties and People’s Union for Democratic Rights in their 1984 report ‘Who are the Guilty?’. (This was later corroborated by the testimonies and affidavits of victim survivors.)

Twenty-seven years have passed since then.

The four politicians identified as perpetrators of the 1984 Sikh massacres have never been punished. Instead, three of them were elected to Parliament within a month of the violence, from the city where they were accused of leading mobs, signalling democratic sanction for the brutal massacres. They had not only been given tickets by the ruling Congress party but Hindu voters, expressing brute majority support for their actions, had voted them in.

Should this brute democratic sanction of mob violence by the majority have gone legislatively unchecked?

Should Indian democracy not rise above political and partisan interests and enact a law that ensures protection of its minorities?

Following a similar pattern, those named as perpetrators of the violence against innocent Muslims in Bombay in 1992-1993 by Justice BN Srikrishna in his report on the post-Babri Masjid demolition violence in Bombay – Bal Thackeray’s Shiv Sena and its leaders – rode to power in the state of Maharashtra in 1995. Shiv Sena leader Madhukar Sarpotdar was elected member of Parliament from the Mumbai North-west constituency in 1996 and again in 1998. The man elected had been named in the Srikrishna Commission report as leading mobs, as was Gajanan Kirtikar, the Sena leader from Goregaon. The judge’s report also indicted 31 policemen who, instead of being prosecuted and punished, were elevated by a cynical Congress-Nationalist Congress Party regime that has ruled the state since 1999.

The genocide in Gujarat in 2002 and the near decade since has taken the “democratic” sanction for mob violence to new heights. The Concerned Citizens Tribunal – Gujarat 2002 in its findings held chief minister Narendra Modi to be “the chief author and architect” of the state-sponsored genocide. Modi not only rode to power in December 2002 and again in 2007 but he and the party that he represents have also shamelessly used these electoral victories to erase his guilt in the massacres. As chief minister and home minister, he is responsible for the subversion of justice in many pending cases and faces the possibility of being charge-sheeted as the main accused in a criminal complaint. The offences are as serious as destruction of official records and the appointment of public prosecutors with an ideological affiliation to the very groups that perpetrated the violence.

Here constitutional governance has been held to ransom by the very aspects of democracy, the electoral politics that we celebrate. Unchecked with each bout of violence, the subversion of the justice process has reached an all-time high. When majoritarianism creeps into systems of governance, legislative checks like those contained in the Communal and Targeted Violence Bill become vital.

It is therefore evident that one of the greatest challenges of our time – though by no means the only one – is how we in India equally protect all citizens. Can we safely say that there is no bias in the delivery of justice? Can we deny that during periodic bouts of targeted and communal violence over the years it is the minorities who have suffered the greatest loss of lives and property and who have also been denied justice? And that the perpetrators of such targeted crimes have got away unpunished?

Nowhere does the Communal and Targeted Violence Bill make the assumption that targeted violence can never be perpetrated by a minority group. There is no denying that in, say, Marad (Kerala), Malegaon (Maharashtra) or Bhiwandi (Maharashtra), Muslims were rioters. The bill simply reflects a legislative acknowledgement that when such incidents do occur, the police and the administration will behave in accordance with existing laws and will not fail to record accurate first information reports (FIRs), carry out thorough investigations and prosecute the guilty – which has been the sorry record of communal and targeted violence in India to date. If the criminal justice system is tardy and floundering for all Indians, when it comes to those in the minority, it is that much worse.

Hence the bill through its definition provisions provides that apart from the sections relating to remedy and reparation, all aspects that involve higher performance from the policeman and administrator are made applicable only if the victim is a member of the defined group. To ensure fair and non-discriminatory governance, the protected group comprises the religious and linguistic minorities and scheduled castes and scheduled tribes.

In 2009 about 50 Dalit organisations had collectively reviewed the functioning of the 20-year-old Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. In the course of this review, it was identified that among the many factors responsible for the failure in the act’s implementation was the absence of any provisions for pinning down the accountability of public servants. This coupled with the fact that in the caste hierarchy, scheduled castes and scheduled tribes represent the most deprived minority was the rationale for their inclusion in the protected group in the proposed law.

Apart from the Atrocities Act, we have in place the Protection of Women from Domestic Violence Act 2005 which was also a special legislative response to social reality and experience. Until this law was enacted, the amended Section 498A of the IPC was the section of criminal law invoked when domestic violence against women occurred. Many of those who had opposed the empowerment of women through this amendment had long argued for the repeal of Section 498A on the grounds that it had in a few cases been abused. Fortunately, the facts on the ground carried the day.

The BJP through Jaitley has also sought to project communal violence as a mere “law and order” problem even as it conveniently disregards the crucial element that allows communal violence to occur in the first instance, intensify in the second and fail to deliver justice in the third. They are equally outraged that the proposed law recommends that four of the seven members of the National Authority should, in the interests of representative governance, belong to minority communities.

The crucial component mentioned above – administrative and police bias – is blithely overlooked in Jaitley’s outraged arguments. This should come as no surprise, since his party rose to power on a wave of majoritarian mob frenzy and the crimes committed by BJP leaders (including a former deputy prime minister) in Faizabad-Ayodhya in 1992 and Gujarat in 2002 – to give only two examples – reflected the impunity of men secure in the knowledge that institutional tardiness and majoritarian bias would assist them in escaping prosecution. And punishment.

At a more intellectual level, the arguments proffered by sociopolitical commentator Ashutosh Varshney also appear to be mired in a frozen reality, three decades old. Unlike in the 1960s and 1970s when communal violence generally occurred in communally sensitive cities like Bhiwandi, Ahmedabad, Aligarh, etc – a hypothesis that Varshney uses – communal violence and serious eruptions of mob frenzy are today spreading to rural India and to towns and cities hitherto free from this malaise. A major reason for this is the widespread currency of majoritarian communalism which accompanied the BJP’s rise to power together with the moral failure of the “secular” Congress or the left to tackle the ideological onslaught. This encroachment by the majority, brutish and arrogant, has crept into our systems of governance, the administration and the police. While the proposed Communal and Targeted Violence Bill in no way pretends or purports to tackle the scourge of irrationality and prejudice, it certainly aims to hold to account those public servants who fail to abide by Articles 14 and 21 of the Indian Constitution, to protect the lives and liberties of innocent victims who are targeted simply because they belong to a minority group.

It is imperative that those concerned with justice and reparation join the campaign for the restoration of fair debate. Currently the proposed law has become the victim of hysterical propaganda – led, unsurprisingly, by players whose political trajectory gained momentum by legitimising irrational prejudice and even hatred, who rose to power on the wings of communal mob frenzy.

To enable a reasoned rational discourse on a long overdue law, the Communal and Targeted Violence Bill must be tabled in Parliament and be put before a Standing Committee forthwith. Any anomalies within it can be ironed out at that stage. We must not allow this process to be derailed by the same cynical political players who have gained political brownie points and mileage through the spread of hatred and the generation of mob frenzy. 

Archived from Communalism Combat, November 2011,Year 18, No.161, Cover Story

The post Act Now – Why the Communal and Targeted Violence Bill must be codified into law appeared first on SabrangIndia.