First published on: November 2009

Delivering judgement in a 1984 anti-Sikh communal massacre case, a Delhi trial court observed, “After the assassination of late Prime Minister Mrs Indira Gandhi on October 31, 1984, anti-Sikh riots broke out in different areas of the capital, killing thousands of Sikhs. [The] law and order machinery was completely paralysed because of inaction/connivance of the police… In the name of investigation a farce was carried out… It seems the prosecution expected that the trial will be equally a farce and cases would be summarily disposed of thereby drawing a curtain on the legal drama.”1

Today we are confronted with a peculiar schism where the truth of who are the perpetrators and masterminds of the communal pogrom of 1984 is part of public knowledge but it invariably fails to translate into proof beyond reasonable doubt in courts of law.

In the aftermath of the anti-Sikh pogrom, victims have approached the criminal justice system, seeking punishment for the guilty. The consequent judicial verdicts demonstrate that wanton killings and looting in communal pogroms invariably end in acquittals, barring a few rare convictions.

Why this pattern of impunity

Beyond the lament of injustice, it is important to discern and identify the reasons why both the law and the judiciary fail to deliver justice to the victims of communal carnage. The present legal system has failed to award penalty for communal crimes, for these events overturn some fundamental premises on which the criminal justice system is based. The rubric of the Indian Penal Code (IPC), the Indian Evidence Act and the Code of Criminal Procedure (CrPC) is not designed to adjudicate and punish the perpetrators of a communal pogrom.

The violence unleashed against the Sikhs in Delhi in 1984, Muslims in Gujarat in 2002 and Christians in Orissa in 2008 is usually labelled ‘riots’. The term ‘riot’ as defined in Section 146 of the IPC or the commonly used phrase, ‘communal riot’, implies a violent clash between members of different religious communities, causing loss of life, limb and property to both. This phrase is inaccurate to describe the communal violence under discussion, which was a premeditated and organised targeting of the minority community, carried out with the explicit and/or implicit sanction and support of the state, its representatives and functionaries. The term ‘pogrom’ is more appropriate to describe the events of 1984.2

A corollary would be that the list of accused persons to be prosecuted must include not only those whose hands killed, sexually assaulted, looted and burnt but also the minds that planned, incited, abetted, conspired and provided financial and other resources as well as those who abandoned their constitutional duty to protect the people caught in the vortex of communal violence.

A successful prosecution hinges on professional investigation by the police. The Kusum Mittal report indicted 72 and recommended summary dismissal of six senior Delhi police officers for their culpability in the 1984 carnage. The executive exonerated them all. After the massacre, for the police the registration of crimes and investigation of offences are a matter of political expediency. In a case of 1984, a Delhi trial court stated, “After the rioters had done their job, the rest of the job to frustrate the investigation was done by the police.”3 The shoddy and partisan investigation conducted by the police undermines the very foundation of the prosecution.

The absence of an independent and effective investigating agency is felt most acutely when victims and survivors have to beseech the very police force that through myriad acts of omission and commission was complicit in the communal crimes. The directive of the Supreme Court in the Prakash Singh judgement is a beginning in the direction of a professional investigating agency but much more remains to be done.

Experiences from across the country indicate that the malaise runs much deeper. The police as a force have displayed an institutional bias against religious minority communities. A communalised police force, enjoying de facto and de jure immunity and subject to weak mechanisms of accountability, will only reinforce the already etched patterns of impunity for communal crimes. This deep sectarian institutional bias displayed by the police force against minority communities is further aggravated by the de facto and de jure immunity enjoyed by them. A serious hurdle in punishing public servants is the shield of legal immunity provided by Section 197 of the CrPC, which must be repealed.

The underlying premise, of the state as the parent and protector, stands completely distorted when the political executive dons the mantle of the mastermind and becomes an accomplice in communal crimes. The present legal apparatus requires the executive, which stands deeply implicated, to discharge the onerous task of prosecuting itself and its henchmen. In such a scenario, the filing of closure reports by the CBI against Congress leaders, or the Tehelka sting operation showing public prosecutors in Gujarat scheming to derail trials, should come as no surprise. For the prosecution of communal crimes, the law must grant the public prosecutor a measure of institutional autonomy and functional discretion.

Although the IPC defines murder, rioting, rape, it is insufficient for convicting either the mobs or the masterminds. The criminal provisions of conspiracy and abetment are also inadequate to nail the sponsors of communal crimes. Sections of the IPC simply list and describe the acts that are labelled crimes. The IPC does not envisage mass crimes where an entire community is systematically targeted by reason of their religious identity and this attack is carried out with the direct and/or indirect complicity of state institutions and agents. For the guilty to be nailed, the law will have to be amended to adopt a distinct typology of crimes akin to the ‘crimes of genocide’ and ‘crimes against humanity’ as codified in the statute of the International Criminal Court.

The CrPC prescribes the procedure for purposes of investigation and trial notwithstanding that during the pogrom the investigators and prosecutors were themselves complicit in the crimes and later obliterated traces of the same. The Indian Evidence Act too demands the same kind and degree of proof for communal crimes as otherwise. For instance, delay in lodging the FIR by a survivor, or absence of corroborative material evidence, or non-mention of names of accused in the statements recorded by the police, or absence of a medical report can lead the court to draw an adverse inference against the victim without taking cognisance of the difficult circumstances prevailing at the time. It is therefore critical to formulate new rules of procedure and evidence, sensitive to the context of communal violence.

Women whose bodies become sites of contestation and community ‘honour’ rarely get redress. The failure of the present law to even provide a definitional description of the brutality and scale of sexual violence suffered by women emboldens its denial.

The weakness of the law is most glaring in its abject and recurring failure to punish those who sponsor and profit from the carnage. To extend criminal liability beyond the actual perpetrator and affix culpability of political leaders and persons in positions of social, administrative, civil or military authority, the principle of command/superior responsibility must be incorporated. This would make the leaders criminally responsible for failing to take reasonable measures to prevent crimes committed by subordinates under their effective control and about which they can reasonably be presumed to have had knowledge. Thus the escape route deployed by political leaders, of ignorance and inaction, while their party men kill and burn, could be plugged. It is time to shift the burden of responsibility from the victim witness to those at the helm.

Clearly, the jurisprudential yardstick of ‘normal times’ cannot be indiscriminately applied to decide trials marked by an extraordinary collusion of state agencies and institutions. This challenge must be met not by whittling down the guarantees and rights of the accused but rather by exacting greater accountability from the state and empowering the victim.

As the home minister sagely advises us to ‘let the law take its own course’, it is pertinent to point out that the delay in punishing the guilty of 1984 for 25 years indicates an urgent need to forge new legal tools to alter this pattern of continuing injustice and rampant impunity. The UPA government has yet to fulfil its promise of introducing a comprehensive legislation against communal violence. A flawed beginning in this respect has been made by the government through the introduction of a bill that has been rejected outright by citizens’ groups. Criticising the same, a public statement stated, “What we have before us today is a dangerous piece of legislation called the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005, which will not only fail to secure justice for communal crimes but will actually strengthen the shield of protection enjoyed by the state, its political leaders and its officials for their acts of omission and commission in these crimes. It is a bill which conceives of communal violence as a ‘one-time’ event rather than as a long-term politically motivated process and seeks to prevent it only by giving greater powers to (often communally tainted) state governments. Further, it continues to perpetuate the silence around gender-based crimes.”4

Notes

1 ASJ OP Dwivedi, State vs Kishori & Ors, Karkardooma, Delhi, SC No. 53/95, FIR No. 426/84. p. 1.

2 Jyoti Grewal argues that the 1984 anti-Sikh violence was a pogrom in Betrayed by the State: The Anti-Sikh Pogrom of 1984, Penguin Books India, 2007, pp. 14.

3 ASJ SN Dhingra, State vs Kishori & Ors, Karkardooma, Delhi, SC No. 42/95, FIR No. 426/84, p. 9.

4 Public statement released at the National Consultation on the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005, June 16, 2007, New Delhi.

Archived from Communalism Combat, November 2009  Year 16    No.145, Cover Story 5

The post Regimes of impunity appeared first on SabrangIndia.

“Now, after nearly two years of the SIT saying that these records, as per the government of Gujarat’s version, are destroyed, you mentioned when I (Teesta Setalvad) brought this to your attention to be recorded in my 161 statement, that then commissioner of police PC Pande has, after the hon’ble court directed the SIT to go into the report filed by the amicus curiae, thereafter produced the entire documentary record that he had scanned and kept aside before they were ‘destroyed’! You also mentioned that there was 3,500 pages of such evidence which the SIT is now, after nearly two years of the inquiry, examining.

We wish to express, as co-petitioners and co-complainants, our distress and consternation at what we believe is a belated attempt by Shri Pande to save his skin or those of his political bosses, as all this while – including in the report submitted by yourself and Shri Raghavan to the hon’ble Supreme Court – you have maintained that these records have been destroyed. Shri Pande has, we have been given to understand, twice before been examined by the SIT in the Zakiya matter, between May 2009 and May 2010. Surely in the 12-month period he ought to have produced this record that he had so carefully scanned and preserved?

It may be assumed that if the inquiry had not reached this stage i.e. if the hon’ble Supreme Court had not impelled or compelled the SIT to go further, Shri Pande’s sudden and generous manoeuvre would have never happened, that is, the “destroyed” records would have remained buried!

Sir, We were particularly disturbed by your interpretation of the actions of Shri Pande, which seemed to be interpreted as his astute generosity (Shri Pande’s) in actually scanning and producing these records at this belated stage. The following questions arise that we wish to place specifically before you:

1. The timing of the “destroyed” records “reappearing” in the action of Shri PC Pande suddenly handing over the scanned CD of all destroyed documents to you post-March 15, 2011 i.e. the last directions of the hon’ble Supreme Court.
2. Since Shri Pande’s role of collusion in the conspiracy has been specifically alleged, we at least cannot see this either as a stray or innocent act and would therefore urge that a hard, objective inquiry into the previous evasion and suppression of evidence, and thereafter the sudden disclosure, takes place and offences against Shri PC Pande are also registered for the earlier suppression and subsequent disclosure.
3. When a senior officer like Shri Pande states that records are destroyed, in the preliminary inquiry, and thereafter turns up with the vanished documents, what are we to make of this? Similarly, we believe that videos will turn up.
4. Shri Pande’s role in the overall conspiracy and his subsequently being rewarded for his silence and suppression make him liable to be inquired into. His personal assets and accounts and those of his family members as also the assets and accounts of other IPS and IAS officials who have been favoured by the government of Gujarat need to be part of the inquiry.
5. We thought it imperative that this matter be placed on record…

I would like to end by stating that the fresh revelations by Shri Pande amount to an effort by a highly placed officer of not merely attempting a cover-up of his suppression of crucial records for nine-plus years but subverting the inquiries into various cases by not making available these records in the individual trials and thereby committing grave contempt of the judicial process. We would like to state that though partial records in the Gulberg cases (police control room and fire brigade, etc) were made available, this happened only after applications under 173(8) were filed by witnesses and did not logically form part of the charge sheet as they should have done from the very beginning. Why were Shri Pande and other senior officials suppressing these records? Allegations of high-level involvement and complicity have been made by victim survivors since immediately after the incidents. Was this suppression related to protection of the mighty and powerful?”

The SIT in 2010

“The Gujarat government has reportedly destroyed the police wireless communication of the period pertaining to the riots… No records, documentations or minutes of the crucial law and order meetings held by the government during the riots had been kept” (p. 13 of the Preliminary Inquiry Report).

The SIT makes this observation but recommends no action for this criminal act.
 

 
Archived from Communalism Combat, April-May 2012. Year 18, No.165 – Introduction, Gujarat 2002

The post Destroyed records resurface 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

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Role of Congress(I)

Escapees from the [Gandhi Nagar] area, whom we met at the Shakarpur relief camp on November 6, blamed the Congress(I) MP from the area, Mr HKL Bhagat, for having masterminded the riots. On November 1, Satbir Singh (Jat) a Youth Congress(I) leader brought buses filled with people from Ber Sarai to the Sri Guru Harkrishan Public School at Munirka and burnt the school building and buses and continued looting and assaults on Sikhs the whole night. Another group of miscreants led by Jagdish Tokas, a Congress(I) corporator, joined the above group in looting and assaults. In the Safdarjung-Kidwai Nagar area of South Delhi, eyewitness accounts by those who stood in front of the All India Medical Institute [All India Institute of Medical Sciences] from where Mrs Gandhi’s body was taken out in procession on the evening of October 31, confirmed the presence of the Congress(I) councillor of the area, Arjan Dass, at the time when attacks on Sikh pedestrians, bus-drivers and conductors began.

The allegations against these individuals, repeatedly voiced by the residents of the respective localities which we visited, cannot be dismissed as politically motivated propaganda since many among the Sikhs who accused them of complicity in the riots had traditionally been Congress(I) voters. Sufferers from Trilokpuri and Mangolpuri resettlement colonies whom we met looked dazed and uncomprehending when they said to us: “We were allotted these houses here by Indiraji. We have always voted for her party. Why were we attacked?”

Eyewitness accounts

Sudip Mazumdar, Journalist

The police commissioner, SC Tandon, was briefing the press (about 10 Indian reporters and five foreign journalists) in his office on November 6, at 5 p.m. A reporter asked him to comment on the large number of complaints about local Congress MPs and lightweights trying to pressure the police to get their men released. The police commissioner totally denied the allegation and when questioned further, he categorically stated that he had never received any calls or visits by any Congress or for that matter any political leader trying to influence him or his force. Just as he finished uttering these words, Jagdish Tytler, Congress MP from Sadar constituency, barged into the police commissioner’s office along with three other followers and at the top of his voice demanded of the police commissioner: “What is this Mr Tandon? You still have not done what I asked you to do?”

The reporters were amused, the police commissioner embarrassed. Tytler kept on shouting and a reporter asked the police commissioner to ask that ‘shouting man’ to wait outside since a press conference was on. Tytler shouted at the reporter: “This is more important!” However, the reporter told the police commissioner that if Tytler wanted to sit in the office, he would be welcome but a lot of questions regarding his involvement would also be asked and he was welcome to hear them. Tytler was fuming. Perhaps realising the faux pas, he sat down and said, “By holding my men you are hampering relief work.” Then he boasted to some foreign reporters that “There is not a single refugee in any camp in my constituency. I have made sure that they are given protection and sent back home.” However, the incident left the police commissioner speechless and the reporters convinced about the Congress(I)’s interference in police work.

Written complaint by journalist Rahul Bedi of The Indian Express against three senior Delhi police officers, dated November 5, 1984 and addressed to the police commissioner of Delhi (with a copy also being sent to the lieutenant governor)

Following our meeting in your room at the police headquarters on Sunday, November 4, I wish to register a complaint of criminal negligence against Mr HC Jatav, IPS, additional commissioner of police, Delhi, Mr Nikhil Kumar, IPS, additional commissioner of police, Delhi, and Mr Seva Das, IPS, deputy commissioner of police (DCP), East District, for being responsible through their apathy and severe dereliction of duty for the massacre in Trilokpuri where over 350 persons were slaughtered in a carnage lasting over 30 hours, ending on the evening of November 2. You agreed to look into the matter.

The official figure of the number of dead is 95 in Trilokpuri. The following are the details of the negligence:

1. On learning of the massacre on [the morning of] November 2, I along with Mr Joseph Maliakan, reporters, Indian Express newspaper, rushed to Trilokpuri at 2 p.m. Around 500 metres away from Block 32 we met a police rider and a constable coming from the block where the killings were still taking place.

Stopping the rider and asking him what was going on inside the block, he told us that the situation was quiet. Only two people had been killed, he said.

2. On going further, our car was blocked by an angry mob which stoned us and told us to leave or face the consequences. Block 32, they said, was out of bounds.

3. We went to the local Kalyanpuri police station, looking after Trilokpuri, and asked the subinspector on duty for help in getting into the beleaguered block around 3.30 p.m. The police officer said that all was quiet in Trilokpuri as his rider had reported the same to him. Besides, he said, he was short of men.

4. After seeking army patrols in vain, we arrived at the police headquarters at 5 p.m. Mr Nikhil Kumar, manning the telephones in your room, was told of the situation. He called the central control room, two floors above. Mr Nikhil Kumar did nothing to ensure that a force had been sent other than make the telephone call to the control room. He asked the control room to inform the captain on duty inside the control room.

5. On reaching Trilokpuri at 6.05 p.m., we found the Kalyanpuri station house officer (SHO), Mr SV Singh, accompanied by two constables, arriving in a Matador van. Mr SV Singh said that he had radioed his senior officers, specially his DCP, Seva Das. The DCP was nowhere in sight till after 7 p.m.

6. On returning to the police headquarters, we were told by Mr Nikhil Kumar that he had done his job by informing the control room.

Meanwhile, Mr Jatav, returning from a tour of the Trans-Jamuna areas, including Kalyanpuri police station area (which includes Trilokpuri), arrived in your room and declared that ‘calm’ prevailed in his area. His DCP, Seva Das, he said, confirmed this.

7. When we stressed the urgency of the situation, Mr Jatav inquired of Mr Nikhil Kumar as to why he had not been told of the emergency, as he was in his office, a floor above, at 5 p.m. when the latter had merely called the control room. Mr Nikhil Kumar had no answer other than parroting the fact that he had called the control room.

8. Mr Jatav arrived at the spot around 7.45 p.m., over 30 hours after the killing began on November 1, around 10 a.m.

I hope suitable action is taken against these police officers who through dereliction of duty became accessories to the butchering.

(Excerpted from ‘Who are the Guilty?’, Report of a joint inquiry into the causes and impact of the riots in Delhi from 31 October to 10 November 1984, PUCL-PUDR, Delhi, November 1984.)

Archived from Communalism Combat, November 2009 Year 16    No.145, Cover Story 6

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Phoolka, incidentally, was publicly threatened in the course of a live programme on national television on September 7, 2004 by Union Minister Jagdish Tytler, a man who continues to face the charge of leading and inciting a mob during the anti-Sikh carnage in Delhi. This speaks volumes for the impunity that our system gives to those charged with serious mass crimes. On the basis of the evidence placed before it, the ongoing Nanavati Commission has issued notice to Tytler, on the prima facie ground that there was a case against him. The Commission relied on the eyewitness report of Surinder Singh, a head granthi (priest) of a Sikh gurdwara, who had said in his affidavit that during the November 1984 carnage he saw Tytler incite and lead a mob of rioters to burn the gurdwara and kill Sikhs.

Of the 2,000 prosecutions launched in courts arising out of the massacre of Sikhs, only nine convictions have resulted. None involved prominent politicians or members of the police force who hold command responsibility and need to be directly held responsible and culpable when mass crimes against sections of the population take place.

Eighteen years after Delhi 1984, the Gujarat genocide of 2002 shocked the conscience of the people, including jurists, profoundly. A historic verdict delivered on April 12, 2004 not only attempted corrective justice but in scathing, no-nonsense terms, squarely detailed the hell let loose on the soil of Gujarat by the political leadership. Just as a corrective process was underway and the re-trial had begun in Mumbai in accordance with the historic verdict, (see Special Report in this issue), a serious attempt to challenge these remedial attempts is afoot. Since the day that Zahira Sheikh held her press conference in Vadodara on November 3, 2004, at which she rubbished the historic steps underway to renew faith in the judicial process and hurled baseless allegations at us while declaring herself as a hostile witness, we have maintained that she is a pawn for those who would like to see justice subverted in Gujarat.

In a system and society that grapples with the reality of interminably long drawn out criminal trials, a very low conviction rate (a mere six per cent in criminal cases) and a huge backlog of cases, the phenomenon of witnesses being made to turn hostile is unfortunately routine. Radical reform and corrective measures that include both police and judicial reform, witness protection schemes and a new law to prevent and punish genocidal killings are the crying need of the hour.

Between Delhi 1984 and Gujarat 2002, the mapping of violent internal conflict includes the Meerut-Malliana (UP) massacre in 1987, where Provincial Armed Constabulary (PAC) jawans lined up and shot dead in cold blood 53 Muslim youth and the Bhagalpur massacre of 1989 during which an overnight slaughter of the minority (nearly 1,000 were killed) was organised. In one gruesome incident, bodies were buried and vegetables planted over them in a unique cover-up operation. There have been no convictions worth the name for these crimes. In the post-Babri demolition violence in Bombay 1992-1993, despite the publication of the Srikrishna Commission report in February 1998, no significant prosecutions have followed.

The message is therefore clear. For the perpetrators of a pogrom or genocidal killing, impunity from prosecution and punishment appears to be guaranteed in advance. Armed with this impunity, the mass murderers have mastered techniques of subversion of investigation. And the destruction of evidence is now ‘in-built’ into the very modes of killing adopted. This was clearly visible in Gujarat where a chemical powder was extensively used while burning people so that no trace of the victims remained and which made it all the more difficult to ‘count the dead’.

Demonisation of sections of the population through hate speech and hate writing are a vital ingredient of the genocidal plan. Delhi 1984 and Gujarat 2002 displayed this tendency in full as did the pogroms in between. Economic crippling and cultural humiliation wrap up the picture. If 270 dargahs and masjids were destroyed in the first 72 hours in Gujarat (see Genocide; Gujarat 2002), 450 gurdwaras (nearly 75%) were destroyed or seriously damaged in 1984.

Each or all of these elements have been visible on Indian soil for well nigh a quarter of a century. Nineteen-eighty-four constitutes a watershed in the history of communal violence in post-Independence India. While earlier there were riots, what we have been witnessing with frightening frequency since 1984 are one-sided pogroms and genocidal assaults with the active connivance of, if not brazen sponsorship by, the State. Even as justice eludes the victim-survivors of 1984 (Delhi) and Mumbai (1992-93), the post-2002 attempts to subvert investigation and justice for the victim-survivors of the Gujarat genocide are a new challenge to Indian democracy. Will it respond?
— Editors

Archived from Communalism Combat, November-December 2004. Year 11    No.103, Editorial

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