It was only the day before yesterday, that a local, Rajasthan court gave a clean chit to 6 people named by Pehlu Khan on his deathbed as his killers, in his dying declaration. Pehlu was lynched by a self styled cow vigillante group on in April this year. The incident took place in Alwar, Rajasthan.
 
Captured live on a mobile camera, the identity of Pehlu’s assailants was evident…yet the Rajasthan court’s verdict effectively meant “No one has killed Pehlu Khan.”
 
The verdict has generated widespread outrage; justice has clearly been poorly served…
 
Today, activist Harsh Mander’s ‘Karwan-e-Mohabbat’, a Peace Yatra against hate, reached Behror, Rajasthan. Mander wanted to visit Pehlu Khan’s family. Hindutva activists stopped Mander’s bus and physically prevented him from paying respects to Pehlu’s family.
 
Mander sat on a Dharna…the Police remained mute spectators.It was Mander’s force of will that finally forced the Police to allow him a visit to Pehlu’s home. In a blatant show of anti-national cowardice, Hindutva groups kept screaming ”Bharat Mata Ki Jai’, as if this kind of sloganeering was in any way relevant.
 
It is a simple case of cold-blooded murder of an Indian citizen by a lumpen, communal mob. That enjoys the patronage of the powerful in Rajasthan and in Delhi.

Related Articles:

1. The Karavan-e-Mohabbat Begins  

The post When Mob Rule was Beaten Back by Harsh Mander’s Dharna: Pehlu Khan Lynching appeared first on SabrangIndia.

Image courtesy: nhritortureprevention.org
 
Recently there was again a bit of a hullabaloo about the need for a specific law against torture in India. The practice of torture is endemic to the Indian police and other agencies permitted the right to custodial interrogation. The enforcement directorate, the department of customs and excise and the income tax department have all been indicted for this. In areas where the AFSPA is in force the armed forces of the Union, the army and the para militaries, are said to routinely practice torture.

There is no dearth of evidence of torture. From the Supreme Court down, all levels of courts know this for a fact. One would not be wrong in saying that – in this sense at least – the justice system condones torture.

There is no dearth of evidence of torture. From the Supreme Court down, all levels of courts know this for a fact. One would not be wrong in saying that – in this sense at least – the justice system condones torture. In private a very large number of judges will say that it is impossible to run the country without permitting the police to use third degree methods. 

For the longest time the governments of the day denied the need for a separate law/ mechanism to address the issue of custodial violence and killing. It was argued that the existing law of the land, the IPC, was sufficient to deal with such offences by the police and other agencies. Ultimately the government did come up with a draft law – The Prevention of Torture Bill, 2010. The farcical nature of the draft is evidence of the difficulties that we face in framing such a law. The question here, however, is, do we need such a law?  And, as a corollary, can there be a law that takes care of all or most of the tortures that are inflicted upon people in India? 

An answer to these questions must also address several related issues. For example, we are notorious as a polity that does not implement its laws. The reasons are many (and complex) but the simple fact of non-implementation is sufficient to put a big question mark against the proposal. It is obvious that all the factors that operate to make us a polity with a low index of effective implementation will operate with redoubled force in the case of a law against torture. 

There is also the issue of coming up with effective definitions and descriptions of actions that must be construed as ‘torture’. The 2010 draft bill defines torture as action that “intentionally” inflicts “grievous hurt” or “danger to life, limb or health (whether mental or physical)”, for obtaining “information or a confession” as ‘torture’. It, however, excludes “pain, hurt or danger… inflicted in accordance with any procedure established by law or justified by law” from the definition (section 3, 2010 bill).  Needless to say, the definition is highly inadequate.

I will not dwell upon the ridiculous absurdity of the definition, since it has been taken from a mere draft bill. But it is not unreasonable to assume that the drafters of the bill were not patently malafide or, even less likely, patently stupid. In which case, it would be useful to hazard a guess at the possible reason (or reasons) for such a definition. To a drafter of bills, vagueness and/or lack of precision are the stuff of nightmares. Since, over inclusion and/or under inclusion are among the most common faults when it comes to definitions it seems to me that the drafter of the Torture Bill, 2010 decided to err on the side of caution and render a definition so narrow as to virtually eliminate the offence. Add to this the need to ensure that the definition does not make it impossible for the police to function, and the definition in the Bill becomes (almost) understandable. I would argue that this difficulty would remain in any fresh effort at a law against torture, and any definition that is ultimately adopted is likely to be inadequate, to say the least. 

While extraction of a confession and/or other information about the facts and circumstances of a crime indubitably feature prominently as motive for torture they are far from comprising the whole of it or, even, most of it. Similarly, proscribing the inflicting of hurt, injury, pain, or analogously putting life and limb in danger does not cover all or even most of the ground. For example, Indian law enforcement agencies routinely torture by filing false cases against their chosen victims. They manufacture evidence against such persons, thereby ensuring that the victims are denied bail and spend considerable time in jail even if they are ultimately acquitted. Literally hundreds of thousands of Indians languish in jail every year, as under trial prisoners, for varying lengths of time, many for years. Cases of people being acquitted after a decade or more of incarceration are not uncommon. To my mind this is torture. And, I do not think any “law” against torture will be able to satisfactorily address this aspect of the issue.

The Indian criminal justice system is frequently a conspiracy in which the whole system is complicit. In a system in a state of extreme disrepair impunity (and manipulation) acquires a whole new dimension. The system itself becomes a regime of (invisible) manipulation.

The Indian criminal justice system is frequently a conspiracy in which the whole system is complicit. In a system in a state of extreme disrepair impunity (and manipulation) acquires a whole new dimension. The system itself becomes a regime of (invisible) manipulation because the state of the system makes it virtually impossible to prove the culpability of the actors involved. Besides, probably because of the continual need to deny the actual extent of the collapse, the denizens of such a system become adept at imparting a patina of functionality to the system; thereby rendering the crime (of torture) and its perpetrators, even more invisible.

In such a regime the magistrate before whom an undertrial prisoner is produced can easily get away with failing (or, even refusing) to listen to his complaints of torture. It is not uncommon for magistrates to ignore even flagrant marks of torture while remanding prisoners to judicial custody or, even, further police custody. Besides, as the lowest rung of the justice system, magistrates lead a cheek by jowl existence with the police. Sheer survival requires them to maintain a “balance” in their functioning, and turn a blind eye to such practices. On top of this, an overwhelmingly large percentage of magistrates profess the belief that in India policing is impossible without torture. The fact that 95% or more of the accused that come before them belong to a different (lower) class or caste or are part of a religious ‘other’ helps in rationalising such conduct. 

In such a regime doctors frequently overlook or under report injuries and other signs of torture upon prisoners brought before them for the mandatory medical check-up, immediately after arrest or before and after a spell of police custody. Almost as a corollary, doctors are also amenable to providing off the record treatment to prisoners needing patching up, whenever requested by the police. Thus, the law making such medical examinations mandatory has barely impacted on the incidence of torture in the country, if at all. Nor has it helped in increasing the rate of conviction of police officials accused of custodial violence.

The annals of the justice system of such a regime are full of accounts of prosecutions of police personnel (on charges of torture or custodial death) that resulted in acquittal of most if not all the accused police personnel. In many cases no one is convicted – not police, not doctors, not magistrates – even though a person died while in police custody.  In fact, it is unheard of to prosecute doctors or magistrates, even though they are frequently culpable, at least by the strict liability principles and definitions that are applicable in such cases. 

Yet, the cases go on for years.  As if in recognition of its inability (leavened at least in some measure by its unwillingness) our higher judiciary has evolved an instrument of redress that virtually obviates the need to punish, namely compensation. Once again, it is not uncommon for the high court or, even, the Supreme Court, to dispose of a case with directions to the state to pay compensation to the survivor victims (or victims) of the crime, while the criminal prosecution of the accused police personnel is still in process.

This makes the courts look good: compassionate, caring. Besides the victims/victim survivors are almost invariably people who desperately need the money. Yet, I have not come across a case where the court revisited a case to ascertain the outcome of the criminal prosecution. Since it is only the rare, pig headed, victim/survivor who will likely have the steely determination necessary for seeing the criminal prosecution through, in most cases the order granting compensation is the end of the matter.   

Despite torture being endemic we have virtually no jurisprudence on the subject. Nor do we have reliable statistics, the national crime records bureau and the NHRC/SHRCs notwithstanding. No one follows up criminal prosecutions in cases of custodial torture and death. Inevitably then, we have an endless series of cases of torture and custodial death. It is unlikely that a law on torture will be able to cover cases such as I have described. It is more likely that the agencies involved will come up with new ways of circumventing the new law.

The writer is a senior advocate in the Supreme Court.
 

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On the 5th of March 2016, the Turkish government took control of the country’s largest private newspaper, Zaman. The takeover happened at the newspaper’s head office during bizarre if not depressingly familiar scenes: police in riot gear firing canisters of tear gas into crowds of chanting protestors.

Ten years ago, such a brazen assault on the free press might have defied the logic of Turkey’s international political calculus. No longer. Sadly, we now live in an era where political leaders and powerful non-state actors know that civil society and the media are fair game, and that egregious violations of fundamental rights are less likely to attract punitive sanctions or even a cold shoulder from the international community.  

Of course, civil society is reacting to the current threats against it, as shown through the courage of activists who continue their perilous struggle around the world every day. But it has done so mostly on a country-by-country basis. For its part, the United Nations has tried to address the situation by issuing strong condemnations in repeated resolutions, raising the profile of international agreements and supporting working groups and Special Rapporteurs, whose work helps to translate international law into practical recommendations for states to follow. Despite all of these efforts, the overall picture remains grim.

In today’s world, combatting terrorism, economic stagnation and the refugee crisis all trump the need to protect democracy and space for a vibrant civil society. There is no doubt that these are important issues, and all of them are at play in Turkey. The raid on Zaman comes at a time when European Union (EU) leaders are more likely to gloss over human rights violations—they desperately need the Turkish government’s help to address what they perceive as the much more pressing problem of mass migration through Turkey from the Middle East.
 

Emrah Gurel/Press Association Images (All rights reserved)

Thousands of protestors gather in solidarity outside the Zaman newspaper headquarters after Turkey declared a government takeover of the agency.

Governments all around the world are making similar calculations every day. A decade ago, we might have expected such attacks to be confined to particular geographic hotspots, beset by conflict, weak democratic institutions and authoritarianism. In 2014, CIVICUS published a list of 96 UN Member States that had violated fundamental freedoms to a significant degree. Our provisional findings for 2015 show that there are now at least 101 countries on this list. These countries are led by range of authoritarian, hybrid and democratic governments, and people living in these countries account for roughly 86% of the world’s population. Mimicking a contagious disease, the erosion of civil liberties has now spread worldwide.

Ever since 2013, when Edward Snowden revealed the extent of mass surveillance by the United States and several other established democracies through the Five Eyes alliance, citizens everywhere have realised that their own elected, supposedly accountable governments are threatening their fundamental freedoms. Attacks on civil society in democratic settings are now taking other forms too—from restrictive NGO rules in the UK, to harsh penalties for peaceful protestors in Spain and Australia, to public vilification of civil society in Hungary. According to our monitoring from 2015, the number of countries seriously violating space for civil society on the European continent jumped from nine to 16.

All of this has made it much more difficult for democratic states to claim the moral high ground when promoting human rights outside their borders. It has also emboldened other states, who know, like Turkey, that they are unlikely to be held to account internationally for abusing civil society.

Domestically, these violating governments also have free reign. While independent courts and a strong rule of law shield civil society from the worst forms of attack in democratic states, in many other parts of the world—where democratic institutions are much weaker—assaults on civil society are fuelled by a growing culture of impunity. This includes impunity for unidentified police officers using excessive force against peaceful protestors, and a lack of consequences for state and non-state agents who ransack NGO offices. Even worse, it means that people who have gunned down investigative journalists in cold blood are not investigated or prosecuted.Impunity also extends beyond individuals. For example, profit-making companies implicated in human rights violations—such as maquiladoras in Mexico—are not held to account. In addition, states such as Azerbaijan, Ethiopia and Egypt, which have destroyed their civil societies, continue to be courted on the international stage by democracies in geopolitical power plays. In pilot surveys that CIVICUS conducted with civil society in 2015-2016 about their operating environment, respondents in South Africa, Poland, Tajikistan and Macedonia universally rated lowest the state’s willingness to investigate abuses against the sector.

There is no doubt that civil society is unfairly targeted in all of this. No justification exists for beating or locking up people trying to foster robust democratic debate or hold leaders accountable. At the same time, civil society must avoid creating a one-track narrative based on disempowerment and victimisation. We must remember that civil society organisations, social movements and individual activists are singled out because they are having an impact, because they do have power, and because their actions are upsetting entrenched political and economic elites.

More fundamentally, the assault on civil society should be correctly understood not just as a symptom of democratic failure, but also as a weakening of the forces that can actually solve the problems of intolerance and exclusion currently dividing societies. CIVICUS’ State of Civil Society Reports in 2014 and 2015 made it abundantly clear how civil society has been the first responder in crisis and conflict situations, saving lives, reaching out with compassion to refugees and defending the rights of the most marginalised people in society.

What we now need is far greater international solidarity and the creation of an internationalised social movement, which should have as its core purpose the development of a positive counter narrative and a vision for free and equitable societies, safeguarded by a robust space for civil society. In 2016, CIVICUS plans to support these efforts through a new international campaign on civic space, and through the launch of our new Civic Space Monitor web platform. Civil society also needs to push its traditional allies to do more to prevent democratic erosions at home so that their calls for protection will be taken seriously. For instance, European CSOs must continue their efforts to ensure the EU makes more active use of tools like the framework to safeguard the rule of law, recently called into action for the first time in response to events in Poland.  

If we don’t move on this now, actions like Turkey’s outrageous takeover of Zaman newspaper—and the world’s deafening silence—will only become more common.

This article was first published on Open Democracy

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Israeli soldiers are almost never prosecuted for killings in the occupied Palestinian territory, the Israeli human rights group Yesh Din said yesterday after finding over the past 15 years, no officers were indicted for murder, and only one soldier was convicted of homicide in the case of the killing of a foreign national.

No soldiers were charged with homicide in the slaying of Palestinians during the period of September 2000 to November 2015. In this time frame Israeli forces killed more than 5,500 Palestinians and ten foreign nationals in the West Bank, Gaza and East Jerusalem, according to the human rights group B’tselem (this figure excludes casualties from both the 2009 and 2014 wars in Gaza).

“The fact is that we see the cases and we see the statistics, and it just seems the army doesn’t know how to or doesn’t have the ability to investigate these cases property,” said Yesh Din spokesperson Gilad Grossman, “And I’m not sure they have the will to do it either.”

Yesh Din analyzed data released by Israeli’s military court and found investigations were opened into the killings of 262 cases since 2000, leading to the indictments of 22 soldiers, and the conviction of seven.

The Israeli military did not disclosed information on all of the incidents where soldiers were sentenced. Filling in the blanks on one of the two negligent homicide convictions, Yesh Din conducted an independent inquiry and found a staff sergeant identified as “M.M.” opened fire on Palestinian Udai Darwish, 21, as he attempted to cross into Israel near the Negev in 2013. Darwish did not pose any threat to M.M. at the time of his killing.

For Darwish’s death, the soldier served less than one year in prison.

Yesh Din said M.M. “was convicted on the basis of his own admission and sentenced to seven months’ imprisonment, a five-month suspended sentence, and demotion to the rank of sergeant.”

In a similar case where Yesh Din said two soldiers were indicted but not convicted of reckless behavior in 2013, Israeli forces killed Samir Awad, 16, from the West Bank town of Budrus. Awad was shot multiple times while caught between two army fences that comprise the wall separating the occupied Palestinian territory from Israel.

Awad’s killing was one of 22 cases profiled in Amnesty International’s 2013 report Trigger-happy: Israel’s use of excessive force in the West Bank. The year of his death marked an increase in the killings of Palestinian civilians, twice as many were slain that year than in the two years prior.

Amnesty International said in the report Awad’s shooting may have amounted to an “extrajudicial killing,” or a willful execution, which is considered a war crime under international law.
Amnesty International’s Philip Luther questioned the legality of the shooting.
“It’s hard to believe that an unarmed child could be perceived as posing imminent danger to a well-equipped soldier. Israeli forces appear in this and other cases to have recklessly fired bullets at the slightest appearance of a threat,” Luther said.

Witness Malik Murar, 16, and a friend of Awad told Amnesty International, “They shot him first in the leg, yet he managed to run away… how far can an injured child run? They could have easily arrested him… instead they shot him in the back with live ammunition.”

“The fact that they don’t indict on more severe charges—I’m not talking about murder, nobody has been charged with that,” Grossman said, “raises a lot of questions.”

The most serious conviction handed down was for the charge of homicide in the killing of a British citizen, Tom Hurndall, 22. Hurdnall was shot by an Israeli soldier in the head in 2003 while volunteering in Gaza. 
Grossman’s view is light sentences reflect a culture within military tribunals that sees these incidents not as “an extreme criminal case, but as a a mistake that happens during soldiers’ work.”

In other types of criminal offenses such as sexual abuse, Israeli military courts near a 50 percent rate of conviction.
 

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The struggle of man (or woman) against power is the struggle of memory against forgetting:— Milan Kundera

It was not simply the number of lives lost,though the number — perhaps 2500— is not insignificant. It was the cold-blooded manner in which they were taken. It was not simply that 19 of Gujarat’s 25 districts burned while Neros watched,fiddled and smirked but the sinister similarity in the way they were set alight. Militias were armed with deadly training,weapons,technology and equipment; with a lethal brew of deadly intent,inspired by constructed tales of hate,using the February 28,2002 edition of a leading Gujarati daily that urged revenge; all combined with a deadly white chemical powder that seared to burn and destroy already killed bodies. And,of course,truckloads of gas cylinders,in short supply for cooking,were used instead to blast mosques and homes. Mobile phones and motorcycles made communications easy and movement swift.

Part of the plan was to humiliate,destroy and then kill. Another was to economically cripple. But at heart the desire was to construct a reality whereby a whole ten per cent of the population lives (and a few even prosper) as carefully whipped into shape,second-class citizens. Most incidents that racked the state,except the famed Best Bakery incident,took place in the glare of the day,not the stealth of the night. Critical to the plan to mutilate and humiliate was to subject women and girls to the worst kind of sexual violence. Tehelka’s “Operation Kalank” records victorious testimonies of rapists and murderers who claim to have received personal approbations from the man at the helm. Over 1,200 highway hotels were destroyed,more than 23,000 homes gutted,350 large businesses seriously damaged (and are still unable to recover) and 12,000 street businesses demolished.

Genocide is about economic crippling as much as death and humiliation. The Concerned Citizens Tribunal — Crimes Against Humanity 2002 called the happenings in Gujarat a genocide,because of the systematic singling out of a group through widely distributed hate writing and demonisation,the economic destruction,the sexual violence and also because over 270 masjids and dargahs were razed to the ground. The bandh calls on February 28 and March 1 by rabid outfits and supported by the party in power enabled mobs free access to the streets while successfully warding off the ordinary citizen.

Eight years on,it is this level and extent of complicity that is under high-level scrutiny. The involvement of high functionaries of the state in Gujarat did not begin,and has not stopped,with the violence. It has extended to destruction of evidence that continues until today,the faulty registration of criminal complaints,the deliberate exclusion of powerful accused and,worst of all,the utter and complete subversion of the criminal justice system by appointment of public prosecutors who were not wedded to fair play,justice and the Constitution — but were and are lapdogs of the ruling party and its raid affiliates. The proceedings in the Best Bakery case in the Supreme Court and the judgment of April 12,2004 strips our legal system,especially lawyers,of the dignity of their office.

The hasty granting of bail to those involved in the post-Godhra carnage remains a scandal. While over seven dozen of those accused of the Godhra train arson have been in jail,without bail for eight years — and today face trial within the precincts of the Sabarmati jail — powerful men,patronised by the state’s political hierarchy who are accused of multiple rapes and murders roam free in “vibrant Gujarat” even as the trials have resumed. The few that are in jail — ten of the 64 accused in the Gulberg society carnage,eight of the 64 accused in Naroda Patia massacre,two of the 89 in the Naroda Gaam killing,eight of the 73 in the Sardroura massacres (all the 84 accused of the massacre at Deepda Darwaza roam free on bail) are those with no political godfathers. A vast majority have lived in freedom even after committing unspeakable crimes. All this and more is being investigated under the orders of our apex court on a petition filed by Zakia Ahsan Jafri and the Citizens for Justice and Peace. For the first time in our history criminal conspiracy and mass murder are the charges,the chief minister and 61 others the accused. Will the wealth of evidence be matched by the rigour of investigation? Will the will to prosecute surmount political considerations? Will the Indian system throw a spotlight on what surely must be its darkest hour? As we stood,remembered and prayed in painful memorial,with lit candles at the Gulbarg Society this Sunday we did so in both faith and hope.

Following 14 years since the Gujarat Genocidal Carnage, our intensive legal work puts the figure of lives lost post the Godhra arson at close to 2000.

This article was first published in March 2010: Indian Express.

Cover Photo Credit: Ram Rahman
 

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“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

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Excerpts from the report of the National People’s Tribunal on Kandhamal

Christians are a tiny minority in India. Contrary to the perception that British brought Christianity to India, it is one of the oldest religions of India. Its spread has been slow. Not much was heard against this minority till the decade of the 1990s when suddenly it started being asserted that Christian missionaries are converting. Anti-Christian violence has been occurring more in the remote interior and is accompanied by another phenomenon, that of Ghar Vapasi (return home), which is the conversion of Adivasis into the fold of Hinduism by the Vishwa Hindu Parishad (VHP)-Vanvasi Kalyan Ashram.
It is from 1996 that this phenomenon of conversion/anti-Christian violence has captured the attention of all of us. Suddenly, as if from nowhere has descended the ‘threat of conversion to Christianity’ by force or fraud. Simultaneously, attacks on priests and nuns increased in distant interior places. It has been a peculiar phenomenon that while these attacks in remote places were being undertaken, the Christian institutions in cities – schools, colleges and hospitals – were hard pressed to cope with the demands on their services related to education and health.

The message has been spread that Christian missionaries working in remote places are soft targets and one can get away without much reprisal. Also, the anti-Christian mobilisation of Adivasi youth through cultural manipulation was the groundwork on which the anti-Christian violence could sustain. In the atmosphere created by the activities of Rashtriya Swayamsevak Sangh (RSS) progeny, local communal groups have felt emboldened to pick up any small issue and to make a violent incident out of it. Its frightening effect on the victims is tremendous. It also begins to polarise the local communities into Christian and non-Christian camps amongst whom the seeds of tension are sown.

The physical violence has been accompanied by cultural manipulation in these areas. The silent work to Hinduise Adivasis through religio-cultural mechanisms has been stepped up from the last three decades. People like Swami Aseemanand (Dangs, Gujarat), Swami Lakshmanananda (Kandhamal, Orissa), followers of Asaram Bapu (Jhabua, Madhya Pradesh), began their work in popularising Hindu gods and goddesses in the region.

The choice of gods/goddesses from the vast pantheon of the Hindu religion was a clever one. Here Shabri (symbol of poverty and deprivation) was the main goddess, the idol for Adivasis. Temples in her name were started and regular Kumbhs (mass religious congregations of Hindus) were organised in her name. Kumbhs have been a tradition in Hinduism at fixed intervals of time on the banks of holy rivers, the Ganges in particular. Modifying that tradition, these Kumbhs were organised in Adivasi areas. Here the work of conversion to Hinduism, the spread of hate against “foreigners”, particularly Christians, was spread. In addition, an atmosphere of terror was created against those who do not toe the line of the Vanvasi Kalyan Ashram.

Similarly, the god Hanuman, the foremost devotee of Lord Rama, was also made popular, by spreading his lockets and through different stories around him, in the Ekal (Vidyalaya) schools and Saraswati Shishu Mandirs. It created an atmosphere of divide in the Adivasi areas; Adivasis turned Hindus, the Hindu Dalits and upper castes versus the Christians. It is this atmosphere of divisiveness which has been at the root of the violence in these areas.

The role of state agencies has been no different in these incidents than what it has been in the anti-Muslim violence. In most cases, the administration has looked the other way when communal goons were on the rampage. The administration most often provided enough leeway for them to wreak havoc, indulge in intimidation, violence, and to get away with that.  

It is in this backdrop that when the Kandhamal carnage took place, the offences of RSS affiliates, the lapses and partisan behaviour of the state machinery, the lack of rehabilitation and deliverance of justice, came as a big jolt to the victims and became a matter of concern for human rights groups. The lack of proper investigation and other actions on the part of the state were the key for getting justice for the victims.

Prologue
Thousands of Dalits and Adivasis belonging to the Christian minority community in Kandhamal district of Orissa were victims of organised violence that began in August 2008. According to government figures, during the violence from August to December 2008, in Kandhamal district alone, more than 600 villages were ransacked, 5,600 houses were looted and burnt, 54,000 people were left homeless and 38 people were murdered. Human rights groups estimate that over 100 people were killed, including disabled and elderly persons, children and women. An un-estimated number suffered severe physical injuries and mental trauma. While there are reports of a few women being sexually assaulted, many more such victims are believed to have been intimidated into silence.

Two hundred and ninety-five churches and other places of worship, big and small, were destroyed; 13 schools, colleges, and offices of several non-profit organisations damaged. About 30,000 people were uprooted and lived in relief camps and continue to be displaced. During this period about 2,000 people were forced to renounce their Christian faith. More than 10,000 children had their education severely disrupted due to displacement and fear. Despite the passage of time since August 2008, the situation has not improved. The state administration though continues to claim that Kandhamal is peaceful and has returned to normalcy.

The National People’s Tribunal on Kandhamal
The National People’s Tribunal (NPT) on Kandhamal, held in New Delhi on August 22-24, 2010, was organised by the National Solidarity Forum – a countrywide solidarity platform of concerned social activists, media persons, researchers, legal experts, film-makers, artists, writers, scientists and civil society organisations – to assist the victims and survivors of the Kandhamal violence, 2008, to seek justice, accountability and peace and to restore the victim survivors’ right to a dignified life.

 The tribunal heard 45 victims, survivors and their representatives. The victim survivors of the violence narrated their experiences to the tribunal through duly notarised affidavits which were taken officially on record by the panel of jury members. Though the organisers intended that each of the victim survivors would orally present the contents of the affidavit before the tribunal, not all gave oral testimonies, for lack of time.

Except for one woman victim of sexual assault, who gave her testimony to the jury members in camera, all other persons deposed before the tribunal in open proceedings despite being threatened and intimidated against testifying. This report quotes from both the affidavits as well as the oral testimonies of the affected persons, who spoke in Oriya and English, assisted by translators.

In addition to the oral testimonies, the jury members considered all documentation related to each case, consisting of affidavits, court documents, medical and other supporting documents, as well as copies of reports and studies on the violence. A unique feature of this NPT was that the testimonies and depositions by victim survivors of the violence were supplemented by 15 expert testimonies of reports of field surveys, research and fact-finding, as well as statements to the tribunal… This report incorporates and draws upon the contents of all reports and statements presented before the tribunal.
Formal invitations were extended to the ministry of minority affairs, ministry of tribal affairs, ministry of women and child development, ministry of social justice and empowerment, National Human Rights Commission, National Commission for Minorities (NCM), National Commission for Scheduled Castes, National Commission for Scheduled Tribes and National Commission for Women to participate in the proceedings of the tribunal. However, there was no participation from the concerned ministries and commissions.

From August-December 2008, in Kandhamal district alone, over 600 villages were ransacked, 5,600 houses looted and burnt and 54,000 people left homeless. Human rights groups estimate that over 100 people were killed. Several suffered severe physical injuries and women were sexually assaulted. About 30,000 people continue to be displaced.

On the final day of the tribunal – August 24, 2010 – the panel members of the jury released an interim report which contained its preliminary findings.
The jury of the NPT was headed by Justice AP Shah, former chief justice of the Delhi high court. Joining him as jury members were Harsh Mander (member, National Advisory Council), Mahesh Bhatt (film-maker and activist), Miloon Kothari (former UN special rapporteur on adequate housing), PS Krishnan (retired secretary, government of India), Rabi Das (senior journalist based in Bhubaneswar), Ruth Manorama (women’s and Dalit rights activist), Sukumar Muralidharan (Delhi-based freelance journalist), Syeda Hameed (member, Planning Commission, government of India), Vahida Nainar (expert on international law, mass crimes and gender), Vinod Raina (scientist and social activist with a specific focus on right to education), Admiral Vishnu Bhagwat (former chief of naval staff) and Vrinda Grover (advocate, Delhi high court).

Context of communal politics in Orissa
The historic context of the Kandhamal violence is located in the spread of Hindutva ideology. In 2002, following the carnage of Muslims in Gujarat, Hindu nationalists gave a call to transform Orissa into Hindutva’s next laboratory. It is only since then that concerned individuals and groups began seriously studying the reach of Hindu nationalism in Orissa. Following the Gujarat pogrom of 2002 that killed over 2,000 Muslims and destroyed the community, a targeted attack on the Christian minority in Orissa was a disaster-in-waiting. The potential of manipulating the tense dynamics of the relationship between the Dalit and the Adivasi communities to serve the goals of religious fanatics made Kandhamal an ideal site for such an attack.

The sangh parivar has a visible presence in 25 of the 30 districts in Orissa. They consolidated their reach and influence with the support of the institutions of the government of Orissa, and Hindu nationalists in the state. In October 2002 a Shiv Sena unit in Balasore district in Orissa declared that it had formed the first Hindu “suicide squad” to train youth for high-risk assignments. The RSS operates 6,000 shakhas (cells) in Orissa with more than 1,75,000 cadres and a growing general membership. The VHP has more than 1,50,000 primary workers in Orissa. The Bajrang Dal has more than 60,000 activists working as leaders through 200 akharas (training centres) in the state.

The sangh parivar has amassed between 35 and 40 major organisations with numerous branches (including paramilitary hate camps and charitable, religious, educational, political and development organisations), with a massive base of a few million persons operating at every level of society, ranging from, and connecting, villages to cities, in their campaign to “Hinduise” Orissa.

Socio-economic profile of Kandhamal
Kandhamal is among the poorest districts of Orissa. It stands 29th out of Orissa’s 30 districts on the UNDP’s human development index. The Hindutva forces allege that because of low per capita income, the tribals of Kandhamal district have become easy targets for missionaries.
Kandhamal is located in the heart of Orissa. Present-day Kandhamal was formed as a district in 1994 from the earlier Phulbani district. It consists of about 2,415 villages. Because of its hilly forested areas, it has poor connectivity with other districts. Only 12 per cent of its total area is cultivable. About 71 per cent comprises forests and the rest is barren land.

Statistics presented to the tribunal on the livelihood of the people in Kandhamal prior to the violence indicate that 78 per cent of the population depended on daily wage labour and other ancillary jobs (including small businesses, private and government jobs) and 22 per cent of the population earned their livelihood from agriculture.

The Christian community is economically disenfranchised in Kandhamal. A majority of the Christian population, including local Christian leaders, are landless or marginal landholders with an average holding of half an acre per family. Christian leaders assert that the church does not convert under duress or offer money in lieu of conversions. In the 1960s and 1970s many Adivasis benefited from the services of education, health care and employment provided by the Christian missionaries. The exposure to Christianity in the course of such access to services may have led some to convert their religion.
Adivasis and Dalits are not religious but ethnic groups. Adivasis are primarily animists and do not fall in the category of religion as a social phenomenon in the same way as Christians, Muslims and Hindus. However, the sangh parivar considers Adivasis to be Hindus and where they have adopted religions other than Hinduism, they have become targets for reconversion. More than 90 per cent of the Dalits in Kandhamal, otherwise known as Panas, are Christians. The Dalits are poorer than the Adivasis and have no access to resources. However, Kondhs – the Adivasis in Kandhamal – are also a disenfranchised community; 78 per cent of the Adivasis in Kandhamal live below the poverty line.

The Panas are designated as scheduled castes (SCs), comprise about 17 per cent of the district population and hold nine per cent of the cultivable land. By contrast, the tribal Kondhs, who are designated as scheduled tribes (STs), own about 77 per cent of the cultivable land. To increase their access to land and to avail of benefits, the Phulbani Kui Janakalyan Samiti, acting on behalf of the Panas, moved the Orissa high court seeking an order to be categorised as scheduled tribes. Tribal categorisation would allow Panas to buy tribal land and provide them with benefits such as reservation of jobs, education, regularise disputed land, etc. Irrespective of the outcome of this plea, it is a cause for serious concern for the Kondhs, since any addition to the list of STs without increasing the benefits given to STs as a whole would eat into their rights.

The predicament of the Panas however is no less a matter of concern. An anomaly in the definition of scheduled castes in the Constitution (Scheduled Castes) Order 1950 issued by the president of India is that the scheduled castes who convert to religions other than Hinduism are no longer regarded among scheduled castes. Subsequent amendments to the presidential order have permitted conversion to Buddhism and Sikhism without a loss of SC status but not conversion to Christianity or Islam. As a result, a scheduled caste person loses his/her SC status upon conversion to Christianity. Conversely, scheduled tribes have rights to land and reservations that they do not lose upon conversion to any religion.

The 1950 order has caused many Christian Panas to lose their rights to reservations and other benefits that they were entitled to as SCs. It is in this context that allegations are made against the Panas, of using fake certificates to avail of SC benefits despite conversion to Christianity. There is however no information on how widespread the practice is. The practice is nevertheless alleged to be prevalent in all states and is rooted in the unreasonable character of the 1950 order. While the sangh parivar claims the demand for reservation benefits by converted Panas to be the root of the problem, the fact that both Dalit and Adivasi Christians have been at the receiving end of the violence exposes the hollow nature of this claim.

Socioculturally, there is a tradition of friendly interaction in Kandhamal among people across boundaries – Hindus and Christians, Adivasis and Dalits. Both Adivasis and Dalits speak the same Kui language and despite the politicisation and subsequent construction of oppositional identities, there are intermarriages among tribal Kondhs and Dalit Kondhs. Hindus and Christians have also lived side by side and for many of them, it is the outside Oriyas (mainly caste Hindus, some of whom are members of the sangh parivar) who have instigated conflicts between Adivasis and Dalits or Hindus and Christians so that their continued exploitation of local resources and domination of local politics and economy remains unchallenged. In Hinduising the Kondh Adivasis and polarising relations between them and the Pana Dalit Christians, the sangh parivar engineered rivalries between these two communities.

A desecrated statue of Mary at Mount Carmel Convent, Orissa 2007

Violence in Kandhamal, December 2007
The violence in Kandhamal in December 2007 and that which commenced in August 2008 were interconnected as events in the Hindu nationalist targeting of the Christian minority community in Orissa. Between December 24 and 26, 2007 a total of five parish churches, 48 village churches, five convents, four presbyteries, seven hostels, one vocational training centre and one leprosy centre were burnt and destroyed. Over 500 houses were burnt, looted or destroyed; 126 shops/other properties were destroyed. Several were killed and injured.

Swami Lakshmanananda’s murder, August 2008
The purported trigger for the violence in Kandhamal commencing on August 24, 2008 was the murder of Swami Lakshmanananda the previous day. On the evening of Saturday, August 23, 2008 Swami Lakshmanananda Saraswati was killed at his ashram in Jalespata in Kandhamal district along with four others, including three fellow leaders of the VHP. The swami had lodged a first information report (FIR) 48 hours prior to the attack, seeking adequate security arrangements, based on letters of threat to his life. The attackers, estimated at 30 gunmen, were suspected Maoist insurgents, based on the manner of the attack and a letter found at the ashram. The government announced a special investigation into the attack.

Despite the media’s announcement the next day, quoting police sources, that Maoist involvement in the killings was suspected, the sangh parivar, including the Bharatiya Janata Party (BJP) in Orissa, alleged that “extremist Christian groups” were responsible for the violence. They cited Lakshmanananda’s claims that Christians were trying to eliminate him for his opposition to conversion and had attacked him eight times in the past. On August 28, 2008 some media outlets, the VHP office in Gajapati district of Orissa and the Bajrang Dal received a letter from a Maoist group. Soon after the appearance of the said letter, Azad – a leader of the Maoist People’s Liberation Guerrilla Army – claimed responsibility for the murder of Lakshmanananda. A leader of the Communist Party of India (Maoist), Sabyasachi Panda, also claimed that they had killed the swami and four of his disciples. However, on October 7, 2008 the Orissa police announced that they had arrested three Christians in connection with the murders. As the media reported, there was no post-mortem done on any of the four bodies of the deceased persons.

While a Maoist group claimed responsibility for his killing, Maoist groups had largely not been operational in the riot-impacted areas. The swami had been involved in creating a confrontational situation between Hindutva workers, Adivasis and Maoists in the area. In mid-September 2008 national RSS leader, KS Sudarshan, alleged the involvement of “foreign hands” in the mobilisation of the church and Maoists against Hindus. Maoists began to be uniformly named as “terrorists” and certain members of the Christian community who were associated with Maoists were labelled “Christian Maoists”.
History of attacks against Christians in Orissa

A history of attacks against members of the Christian community in Orissa between 1986 and 2004 was presented by Fr Ajay Singh to the tribunal, illustrating that the 2008 violence in Kandhamal was not the first or the only instance of attacks on Christians in the state.
Many victim survivors who testified before the tribunal had suffered attacks both during the December 2007 violence as well as the August 2008 violence.

Between July and December 2007, Hindutva forces organised rallies that travelled across Kandhamal, raising sentiments against Christians in the district. In December 2007, massive attacks took place, causing several deaths, looting of, damage to and destruction of several hundred houses, churches, shops, educational and health institutions. The violence that commenced in August 2008 is thus a part of the continued attacks on Christians perpetrated by Hindutva forces.

Forms of violence
Physical violence
Some narratives of victim survivors before the tribunal contained references to multiple killings and brutal assaults, indicating the widespread nature of such violence. Indira Digal’s testimony below contained such references:
“On August 26, 2008 an armed mob of more than 4,000 people came again to the village, encircling the area from all directions… Christian people desperately escaped, running into forests, trying to save their lives. The culprits did not leave them any chance for running away. This time the rioters had plenty of guns in addition to axes, daggers, swords. They used their weapons, shot and killed two Christians, Prafulla Nayak, 55, and Ajaba Digal, 20. The murderers did not stop their atrocities and a woman named Sulochana received a deep cut on the head with a dagger.

“I, with other Christians, reached the Orissa State Armed Police camp at the school of the village. During this escape seven more persons [Prasad Digal, Gilap Nayak, Choi Nayak, Prafulla Nayak, Ratikant Digal, Ajab Nayak and one more] were shot and sustained grievous injuries. Later, they were taken to the hospital for treatment and were saved.

“In addition, some members of the mob caught hold of a young girl named Manini Digal, aged about 20. They removed her clothes and made her naked in public view. They even tried to rape her publicly but she protested and resisted. Thereafter, in lust and anger, they poured kerosene/diesel on her and set fire to her body. The lonely girl suffered alone with all these humiliations and pain while the antisocial people were enjoying her suffering. Though her life is saved, she is more than 60 per cent burnt and is under treatment…” (Indira Digal)

Many people were killed or grievously injured due to the assaults by violent mobs. A woman from Petapanga village in Raikia block narrated to a team from Nirmala Niketan College that her eldest brother was stopped by some people who asked him if he was a Christian. When he said yes, they killed him. When the family received his body, they found 27 stab wounds on it, all made by different weapons. There were also burns on his body. The family learnt that they stabbed him and then dragged his body around before trying to burn it.

There are several narratives which speak of sexual and gender-based violence. The attack on Sulokshana, a permanent resident of Barakhama village, Balliguda block, is one such case. Sulokshana said that when she was in her relative’s house, around 50 attackers entered the house and attacked all the people in the house. A 20-year old girl was being raped by five-six of the attackers. Sulokshana was hiding in the house but seeing the girl’s condition, she intervened to rescue her but was in turn also attacked. Sulokshana was sexually abused by the attackers who severely assaulted her on her abdomen. She was assaulted at five places on her head with an axe, became unconscious and was admitted to the government hospital at Phulbani for five days. Due to the severity of the injuries, she was subsequently transferred to a hospital in Berhampur. She has undergone three surgeries, including of her head and stomach.

The Jan Vikas, Orissa, report stated that although 86 people across the district were killed over a period of 120 days, proving how fearlessly and freely people were attacked, the government has confirmed a total death toll of 54 people who have been considered for death compensation. The Multiple Action Research Group (MARG), New Delhi, report, based on various figures stated by different sources, states that between 75 and 123 people were killed and many more injured.

Psychological violence
Among the facets of the psychological violence faced by the victim survivors is the continued threat, intimidation and insecurity, causing obstacles to their return to their places of habitual residence, forcing victim survivors to reside in hiding or preventing a life of dignity and peace upon their return.
The National Commission for Minorities, which visited Kandhamal in September 2008 and interacted with victim survivors in the relief camps, made the following observation in its report: “In every camp I visited, the main feeling was one of despair and hopelessness at the cruel turn of events. Practically everyone complained of the threats they had received that their return to their homes was predicated on their acceptance of the Hindu religion. I was even shown a letter addressed by name to one woman, stating that the only way she could return to her home and property again was if she returned to the village as Hindu.”

While all victim survivors suffered psychological violence pursuant to personal attacks or attacks/killings of their family members or by witnessing the brutal violence perpetrated on others, the mental trauma and other psychosocial problems faced by children and women has been particularly marked yet largely ignored.

Burning of residential premises
During the violence in Kandhamal residential property of Dalit and Adivasi Christians was burnt, destroyed entirely or damaged extensively. An illustrative example is that of Gajanan Digal of Shankarakhol village, Tikabali block, whose house was completely burnt down during the violence.
After conducting a household survey in Kandhamal district, Jan Vikas said that close to 5,000 houses were ruined – it puts the figure of fully and partially damaged houses at 4,864 while the government data states it to be 4,588.

Vandalism and looting of movable property
The vandalism and destruction of movable properties such as household articles, valuables, documents and certificates and looting of ornaments and cash was a recurring experience in survivor testimonies of the violence. Chanchla Nayak deposed to the tribunal as follows: “…a large crowd of about 3,000 people led by leaders of the Bajrang Dal such as Rinku Mishra, Chaita Bindhani, Dhiru Sahoo, Bhagwan Panda, began to attack and loot our houses. Once again we Christians tried to escape from the village, Barakhama. The rioters looted, destroyed and set fire to my house. All valuables of my family, including certificates, documents, money, ornaments and utensils, were completely destroyed.”

The importance given by victim survivors to their valuable documents is in complete contrast to the callous attitude of the police in registering such complaints, as is apparent from Rajnikant’s experience. Rajnikant Pradhan of Bapuria village fled from his house along with his wife as the violence started. In his hurry to flee, he could not carry valuable documents such as his vehicle registration papers, driving licence and his wife’s education certificates. He tried to register a complaint about the lost documents and household possessions at G. Udayagiri. He was asked to visit the police station a second time, only to be shunted to Tikabali police station and thereafter to Sarangada police station, on the pretext that Bapuria did not fall within the jurisdictions of the former two police stations. Despite repeated attempts, the police at Sarangada police station refused to register his complaint and are quoted to have informed him that they were taking complaints “only about those who have gone up (been killed)” and directed him to return to the relief camp.

Between July-December 2007, Hindutva forces organised rallies across Kandhamal, raising sentiments against Christians in the district. In December 2007, massive attacks took place, causing several deaths, looting, damage and destruction of several hundred houses, churches, shops, educational and health institutions. The violence in 2008 is thus a part of the continued attacks on Christians perpetrated by Hindutva forces.

Destruction and damage of places of worship
Many churches and prayer halls were damaged and destroyed and the religious artefacts desecrated. The Jan Vikas survey indicates that at least 264 churches and prayer halls were damaged while the government data states that 196 such places of worship were damaged. The Jan Vikas and MARG reports contain many photographs of damaged and destroyed places of worship of the Christian community.

Fr Basil Kullu’s description of the manner in which the Catholic church at Madhupur, Bargarh district, was attacked by the violent mob is perhaps representative of the nature of violence perpetrated: “…They started destroying the Kanski Dungri Maria grotto (Mother Mary’s statue), which the faithful venerate and respect. Then they came to the church, broke open and got inside the church and destroyed, damaged and defiled sacred articles, statues, places of worship, etc. They also burnt all the valuable documents, utensils, household items, clothes, boxes of the poor SC/ST children who were in the hostels. In front of the police and the deputed magistrate the rioters destroyed, burnt and ransacked everything, whatever they could in two hours. Many valuables were stolen. They completely destroyed the church, priest’s residence, hostels, convent, dispensary and Maria grottos.”

In addition to residential property and religious (Christian) institutions, it has been reported that many philanthropic institutions such as schools, orphanages, old age homes, leprosy homes, dispensaries, tuberculosis sanatoriums and NGO establishments were also looted, razed to the ground, burnt down and damaged.

Forced conversions
The MARG report states that during the violence in Kandhamal that commenced on August 25, 2008 there were reports of thousands of Christians being chased and herded in groups into Hindu temples and forced to undergo ‘reconversion’ ceremonies with their heads tonsured. They were made to drink cow-dung water as a mark of ‘purification’ and some of them were forced to burn Bibles or damage churches to prove that they had forsaken the Christian faith.

The ‘reconverted’ Christians were forced to sign ‘voluntary declarations’ stating that they were becoming Hindus voluntarily – a condition required by the anti-conversion law in Orissa. Others speak of being forcibly reconverted in order to save their families, after having been called to meetings where deadly weapons such as axes, swords and iron rods were displayed. They were asked to sign a piece of paper saying that they were “renouncing foreign religion”. The ‘converted’ were also forced to loudly say “Jai Shri Ram (Hail Lord Rama)” and “Jai Bajrang Bali (Hail Hanuman)”.

Scale of violence
The Jan Vikas report categorically states that more than 25,000 people have been direct victims who lost their family members, houses, properties and livestock. Valuables were looted, trees were felled, wells and water sources damaged, crops and cattle stolen; and hundreds of philanthropic institutions such as schools, orphanages, old age homes, leprosy homes, dispensaries, tuberculosis sanatoriums and NGO establishments were looted, razed to the ground or burnt down; and public/community infrastructure such as hostels, hospitals, community halls and anganwadi kendras (women and child care centres) were considerably damaged.

In addition to the statistics, the scale of violence can be discerned from the many testimonies of victim survivors who referred to the size of the mobs that attacked their villages. Chanchla Nayak informed the tribunal that a mob of more than 4,000 people came to their village, encircling the area from all directions. Prakash Kumar Nayak stated to the tribunal that a mob of more than 3,000 people approached their village. Manyabar Nayak spoke of a mob of more than 2,000 rioters who approached his village. Narasingho Digal witnessed a mob of 500-600 people approach his village. Lalit Digal, permanent resident of Sindrigaon village, Balliguda block, narrated that a mob of about 5,000-7,000 RSS men entered the village and broke all the 36 Christian houses in about 10 minutes. Sandhya Rani of Rudangia village told the Loyola College, Chennai, team that a large mob of about 10,000 people attacked their village from all four directions, leaving them very little scope for escape.

Brutality
One of the distinctive features of the violence in Kandhamal is the extreme brutality of the violence. Many victim survivors spoke of the brutality their family members were subjected to. Ranchi Pradhan of Tiangia village, G. Udayagiri block, narrated that her son Dasarotha Pradhan was killed for supporting Christians despite being an RSS activist. His hands and legs were cut off; some attackers assaulted him on his head with an iron rod. When he fell down and died in his neighbour’s house, the house was destroyed. However, his mother, Ranchi Pradhan, retrieved his body and protected it for three days from animals even as it started decomposing.

Attacks on senior citizens, children and pregnant women
The following testimonies indicate that senior citizens were not spared from the brutal violence:
“While running away from the house, I requested my old parents to come with us. But they told me that they are too old and unable to run. They also told me that nobody would harm the old persons. Thus both my parents stayed back at home and were brutally injured in the attack by the rioters… My wounded parents were taken to hospital at G. Udayagiri and then to the Medical College at Berhampur. Upon reaching Berhampur, my father breathed his last.” (Umesh Chandra Nayak)

A woman from Majumaha village in G. Udayagiri block narrated to a team from Nirmala Niketan College how her family had to leave behind at home her 70-year-old mother-in-law who could not walk, when they fled to the forest to escape from the violent mob. When they returned after three to four hours, they found that the perpetrators had stuffed chiwda (beaten rice) into her mouth in an attempt to choke her to death. She was in immense pain but alive. The family members tried to help her but were forced to return to the forest due to the threat to their lives. The old woman died alone, a painful death.
Similarly, children were not spared from being attacked during the violence. Sulokshana of Barakhama village said that her two small children were thrown around among the perpetrators as if they were balls.

Pregnant women were treated with extreme brutality during the violence. For example, the Loyola College report refers to an incident where a five-month pregnant woman was severely assaulted on her stomach and back with a piece of wood till she became senseless.

The jury, in its interim report, highlighted the brutality and heinous nature of the violence in the following words: “The jury records its shock and deep concern for the heinous and brutal manner in which the members of the Christian community, a vast majority of whom are Dalit and tribals, were killed, dismembered, sexually assaulted and tortured.”

Patterns, planning and preparation
The pattern of attacks on property and livelihood emerges from the following testimonies:
“When I returned from the relief camp after 10 months, I discovered that the rioters had burnt down two churches in my village, looted and set fire to all Christian houses. The rioters had looted paddy, goats, chicken and all valuables from Christian homes.” (Nalini Nayak)
Victim survivors’ testimonies repeatedly referred to the perpetrators wearing red headbands, carrying numerous weapons such as axes, daggers, swords, guns, crowbars, pickaxes, lathis, bows and arrows, lighted torches, bombs, petrol and kerosene barrels, trishuls (tridents), tangias (axes), pharsas (pickaxes), bhujalis (daggers) and bars.

Victim survivors also spoke to the tribunal of various aspects of planning and preparation for the attacks. Keshamati Pradhan, a social activist belonging to the Kuidina Forum for Peace and Justice, made the following observations to the tribunal: “It is sahukars [moneylenders] from the towns of different parts of Kandhamal who took the leadership in creating the violence, supplying weapons, arms and explosives like petrol and diesel to some of our people and also used them to create more violence in the district… The Hindu fundamentalists were collecting funds by means of illegal taxes from marketplaces.”

“The rioters were collecting rice and money from members of the Kui Samaj, some non-Christian SCs and STs, businessmen, traders and government employees of their communities since long.” (Premasheela Digal)

Preparatory meetings
Many affected persons referred to meetings held by perpetrators in/near their villages just prior to the attacks:
“The night prior to the attack there was a meeting at Majagada village organised by the accused persons. Next morning, the attackers, at around 6 a.m., came and pulled my father and started abusing, shouting in filthy language and dragged him…” (Narasingho Digal, whose mother, Priyatama Digal, was raped and killed and father, Meghnath Digal, was killed by a violent mob)

Survivor testimonies further referred to the complicity of public officials: “From August 3-20, 2008, I received repeated phone calls from Sohela police station inquiring about the registration numbers, places and number of different churches in my district. I also came to know about the series of meetings of the leaders and members of the Bajrang Dal and RSS which took place in Sohela town through a police official – Mr Sujit Kumar Pradhan of Sohela police station. The police were well aware of these gatherings, where the main agenda was about destroying the Madhupur church and killing me, as I was the church leader.” (Fr Basil Kullu)

A victim sits in the ruins of her home, Orissa 2008

Among members of the Christian community, human rights defenders who had established or worked in non-profit organisations are among those who have been adversely affected by the violence. These persons narrated to the tribunal the manner in which their residences and organisational premises were attacked, damaged, movable property looted, attacks and threats were made to their persons and, in addition, they were threatened by the mobs not to carry on with human rights activism.

Participation of women as perpetrators
A distinctive feature of the violence in Kandhamal is the mass mobilisation of women who formed violent mobs and perpetrated the attacks. Narratives of victim survivors before the tribunal referred to mobs of women attacking their villages. Women who were local leaders of Hindutva organisations had also reportedly convened preparatory meetings in villages where Hindus were instigated to attack Christians.
 
Destruction of evidence
Another distinctive feature of the Kandhamal violence of 2008 was the systematic destruction of evidence of the attacks. The jury of the tribunal specifically observed as follows in the preamble to the interim report: “The deliberate destruction of evidence pertaining to these crimes came to the attention of the jury.”
Some of the killings (attacks) narrated by the victim survivors to the tribunal, in which the evidence had been deliberately destroyed, are as follows:

• The body of Parikhita Nayak was cut into three pieces and burnt by pieces of wood, straw and kerosene; his half-burnt body was buried.
• The body of Rajani Majhi, the warden of an orphanage at Padampur, was burnt and, according to Nicholas Barla, who testified before the tribunal and quoted Fr Edward Sequeira, the lower part of her body was completely burnt so as to destroy all evidence of alleged gang rape.
• Ishwar Digal’s body was cut into three pieces and thrown into the river by the attackers, as witnessed by his wife, Runima Digal.
• Premasheela Digal’s uncle-in-law, Kantheswar Digal, was killed by cutting his throat and his dead body was thrown into the river and recovered only after some days by the police.
• The collector of Bargarh forced Fr Basil Kullu to remove all evidence of damage to and destruction of the Madhupur church and hostels and even sent some persons to clear the debris that was lying in the compound, indicating the nature and extent of the attack.

    
Attacks on Hindus who assisted Christians
It was brought to the notice of the tribunal that Hindu villagers who supported or protected Christians during the violence or tried to facilitate their return to the villages after the violence were also attacked. For example, the testimony of Iswar Digal refers to the killing of Sidheswar Pradhan, a non-Christian local RSS leader aged about 60, who was trying to offer protection to the Christian people and calm down the situation during the violence.

Kamala Sahoo, a Hindu Dalit woman who was a social worker associated with a non-profit organisation named Pollishree, narrated to the tribunal that her house and office were damaged and properties looted. Her son’s shop was also burnt after all the valuables were looted.
Satyabhama Nayak, a resident of Badapanga village, told a team from Loyola College that she had protected priests and nuns from the attacks by providing them food, shelter and clothing and that due to this, her neighbours discriminated against her and refused to assist her in any way.
The alleged sexual assault and brutal killing of Rajani Majhi, an Adivasi Hindu girl, is an instance of other attacks on Hindus. Nicholas Barla, an advocate and human rights defender from Sundargarh district of Orissa, stated to the tribunal details of the burning to death of Rajani Majhi, who was an inhabitant and warden at an orphanage run by Fr Edward Sequeira in Padampur, Bargarh district.

The tribunal also heard, in camera, the testimony of a survivor of gang rape and multiple sexual assaults. The victim survivor, whom this report will refer to as AB, is a Hindu woman who was gang-raped and sexually assaulted as revenge for her Christian uncle’s refusal to convert to Hinduism.
Couples who had inter-religious marriages were also targeted for attacks and threats of attacks. For example, a Christian woman and her Hindu husband were reportedly threatened and asked to leave Rudangia village, Tikabali block – a Hindu-dominated village that they resided in – or they would be killed.

The perpetrators
Almost all the victim survivors who testified before the tribunal described the perpetrators, their religious and organisational affiliation (RSS, BJP, VHP, Bajrang Dal), their appearance, the weapons they were bearing as well as the slogans they were shouting when they perpetrated the attack.
The perpetrators were not only men, as is usually the case, but, according to testimonies, consisted of mobs of women too, mainly from the Durga Vahini (women’s wing of the VHP).

Almost all victim survivors who testified before the tribunal have identified and named some of the perpetrators from the mob, including those who led the mobs, by name. The report of Nirmala Niketan College too finds that more than half the women interviewed were able to identify the perpetrators and that they were from the same village or local persons.

Forcible conversions from Christianity to Hinduism
Testimonies of victim survivors of the violence, presented before the tribunal, repeatedly referred to threats of being killed if they did not convert to Hinduism. Some such narratives are produced below:

• “We Christian families were made to gather together and Gaurango Kanhar, Basant Kanhar and Subhash Kanhar threatened to kill us if we did not become Hindus. Due to fear for life, we agreed to become Hindus. Two of our Christian families, under threats, got converted to Hindu religion. Rest of us eight families were forced to sit at the yagna [sacrificial rite] conducted by Hindu priests. We have been warned not to go to church.” (Narahari Kanhar)

The narratives of victim survivors presented before the tribunal also indicate that coercion to convert to Hinduism extended from villages prior to and at the time of the violence, to relief camps set up by the government.
The testimonies presented before the tribunal indicate that there were many victim survivors and their families who were eager to return to their villages from the relief camps partly because of the poor conditions in the camps and partly because their land, property and sources of livelihood were in the villages. However, many who attempted to return to their villages in the hope that normalcy had returned and that they would be able to reintegrate within their communities faced severe threats to convert to Hinduism. Those who did succeed in returning to their villages continue to live in fear of forcible conversions to Hinduism and impending attacks.

Role of the state and democratic institutions
There have been many questions raised about the role and responses of the state while the violence was being unleashed on the Dalit and Adivasi Christians of Kandhamal and other districts in Orissa. Was the state a helpless and powerless victim of the perpetrators? Was it a silent spectator and a mute witness to the orgy of violence and destruction? Or did it actively collude with the perpetrators to violate the human rights of the victim survivors?

Did the state and district administration diligently discharge their responsibilities to prevent the violence and protect human lives and properties, as mandated by the Constitution, domestic and international law? What was the role played by democratic institutions that have been established to safeguard the human rights of the people?

“The biggest question is: why was the procession with the dead body of Lakshmanananda and the communal forces allowed openly by the district administration, covering more than 175 km by [road from] Jalespata to Chakapad, when curfew under Section 144 [Code of Criminal Procedure] had been clamped? Who gave the order? Why was it not stopped and controlled? It was noticed that wherever the said procession went, the dead body was kept in front of Christian institutions and houses and there were inflammatory speeches against Christian communities. At that moment a group of fundamentalists went to kill and burn the houses of Christians…” (Mohini Nayak)

The NCM was also unequivocal in holding the state accountable for failure to prevent the funeral procession of Swami Lakshmanananda which inflamed passions and incited violence. The NCM, in its September 2008 report, observes as follows: “It was obvious that public reaction to the murder of a prominent religious leader like the swamiji would be extreme. Yet when options to be followed after the murder were being considered, there is little evidence that high-level political and official leadership offered guidance and support to the local district administration. Given the near certainty that a procession of over 170 km with the body of the slain leader was bound to arouse huge passions, it would have been proper for the senior leadership of the state to try to persuade the swami’s followers to avoid a long procession and bury him in the ashram where he was murdered. A reasoned analysis of the pros and cons does not appear to have taken place.”

The Jan Vikas report stated that Praveen Togadia, a national leader of the VHP who had been barred from entering different states for his role during the Gujarat carnage 2002, was allowed by the Orissa government to visit the state and the district during a very sensitive period. He arrived on August 25, 2008 and was escorted to travel a 300-km distance by road from Bhubaneswar to Jalespata and lead the procession.

It was further brought to the notice of the tribunal that the Orissa government failed to prevent hateful rumours from being propagated, which had the impact of inciting violence against the Adivasi and Dalit Christian community. The report counters each of the baseless rumours that served to increase the scale, intensity and barbarity of the violence that was unleashed.

Dereliction of duties
The following testimonies presented at the tribunal highlight the failure of the local police in promptly responding to violations and protecting human lives and property:
“On August 27, 2008… some miscreants with lethal weapons entered my house… forcefully dragged my husband, tied him to a nearby tree and burnt him alive in my presence… The incident was reported to the local police station by my son but the police did not turn up… Desperately, I watched the dead body for five days and also tried to protect the body from the dogs which almost consumed half of the body of my husband… The police came after 10 days and the body was taken out of the grave and post-mortem was made. Though I had mentioned specific names of the criminals involved in the incident and the GR case was registered vide No. 263/2008, no main culprits were arrested… No appropriate investigation was conducted… no initiative was taken to recover my looted property…” (Priyatama Nayak)

“Personnel of the local police camping in our village did not do anything to save us. Roads were blocked by rioters by felling trees. Personnel of the CRPF [Central Reserve Police Force] and Rapid Action Force [RAF], camped four km away, ran and reached to save us. If they had not arrived, all of us would have been killed and the whole village would have been destroyed.” (Christodas Nayak, whose wife was brutally killed by a violent mob)

In a group interview conducted by Loyola College at Katipada village, the victim survivors said that the homes of 32 Christian families in the village were burnt down. Villagers escaped to the forest and stayed there for three days. They said that the police officers from Balliguda police station were present during the attack but did not help the villagers and that they were silent spectators to the violence because they had some connection with and supported the attackers.

Dereliction of duties of police personnel has been officially acknowledged by the fact that five police officials were reportedly suspended in Sister Meena’s case [of gang rape in Nuagaon] for “misconduct and negligence of duty” on the basis of a joint report filed by the Kandhamal collector Krishan Kumar and superintendent of police (SP) Praveen Kumar. Further, in a letter written by AK Upadhyaya, who works as deputy inspector-general (DIG)-training at the Biju Patnaik State Police Academy, he accuses and names 13 police officials, including former director general of police (DGP) Gopal Nanda, of dereliction of duties in protecting the life and properties of the Christians in Kandhamal. He further recommended withdrawal of medals that had been awarded to four of them.

One of the distinctive features of the violence in Kandhamal is the extreme brutality of the violence… The jury, in its interim report, had recorded its shock and deep concern for the heinous and brutal manner in which the members of the Christian community, a vast majority of whom are Dalit and tribals, were killed, dismembered, sexually assaulted and tortured.

Refusal to register FIRs
Many victim survivors and witnesses deposed before the tribunal that the police had refused to register FIRs or had registered them in a delayed/incomplete manner so as to allow perpetrators to escape accountability. The police had also reportedly failed to take action pursuant to registration of FIRs, including arrest of the accused.

Indifference to the intimidation of victim survivors
According to reports presented before the tribunal, threatening of victim survivors and witnesses has been rampant and has reached an unprecedented level in the context of the Kandhamal violence, leading to a sense of extreme insecurity. Victim survivors narrated to the tribunal their experiences of approaching the authorities for protection from intimidation by perpetrators and their supporters. The following extract is an indication of the state response:

“I have already informed about the ongoing attacks and threatening in writing and also approached personally all the officials concerned like police in-charge officer (OIC), block development officer (BDO), tehsildar, district magistrate and SP, Kandhamal, but no appropriate action has been taken so far. I have also informed the matter to the chief minister of Orissa, DGP and also hon’ble governor of Orissa about the administrative inaction and protection of my life…” (Priyatama Nayak)

Collusion and complicity
In addition to failure to prevent, wilful negligence and dereliction of duty to protect, loss of lives and property, another aspect of state responsibility for the violence in Kandhamal is that of collusion and complicity of government officials prior to, during and in the aftermath of the violence.  
Testimonies of victim survivors indicate that the police and the district administration had prior knowledge of the impending attacks.

“The police and the district administration were aware of the strategies of the rioters before the incident took place because the rioters were organising meetings and rallies in the presence of the police and district administration in many places.” (Premasheela Digal)
Fr Basil Kullu of Madhupur church informed the tribunal that he came to know about a series of meetings of the leaders and members of the Bajrang Dal and RSS which took place in Sohela town through Mr Sujit Kumar Pradhan, a police official attached to Sohela police station. The main agenda of these meetings was how to destroy the Madhupur church and to kill the church leader Fr Basil Kullu. He said that the police was well aware of these gatherings, as Mr Pradhan had taken photos and prepared a CD of it. He questioned as to why nothing was done to prevent the violence despite prior knowledge of the attacks.

Fr Basil Kullu further informed the tribunal that he was repeatedly questioned by officials of Sohela police station about the Madhupur church that he headed, from August 3-20, 2008. He said that it was no coincidence that intensive inquiries about the church were made by the police a few days prior to the attacks and that the inquiries were perhaps a part of the preparation to attack.

Testimonies also pointed to police supporting, shielding and protecting the perpetrators prior to and subsequent to the violence:
“I gave complaints to the police, naming the culprits, but the police are protecting the criminals… The riots are well-planned and executed by the fundamentalists… The police are not taking sufficient action against them.” (Dashrath Digal)
“OIC, Tikabali, Mr Mahapatra, and one Mr Jena (police person) told me two months prior to the communal violence: ‘Your Christian leadership will not work anymore.’ Both of them were silent supporters of such fundamentalists… When the riot was going on, the RAF and CRPF were not utilised by the local police. Some RAF told us that the local police misguide us: When the message is given that in the east the village is burning, then the local police was sending the CRPF and the RAF to the west side. Due to the support of the local police, the communal forces went on killing and burning the Christian community.” (Mohini Nayak)

State participation in the violence was summed up by the National Campaign on Dalit Human Rights in the following words: “The local government by and large not only stood by and silently watched as the horrendous events were unfolding but in several ways, according to the eyewitnesses, facilitated the gangs indulging in the destruction of human life and valuable property. What followed by way of administrative action – controlling the situation, relief measures for the afflicted and punishing the guilty – could only be described as formal, ritual motions to satisfy the letter of the law.”
Threatening of witnesses and destruction of evidence

Testimonies of victim survivors further highlighted the active role of the local police, tehsildars, BDOs and other local government officials in threatening of witnesses and scuttling of justice and accountability. The testimony of Mohini Nayak is a case in point:
“I am a leader of a women’s group. My house was destroyed by a mob of 300-400 persons led by Manoj Pradhan, the local MLA… As I was giving evidence in court against Manoj Pradhan, I was intimidated and threatened. The tehsildar of Raikia, Mr Reba Sankar Mohapatra, is threatening me, telling that ‘If you give witness against Manoj Pradhan, I will initiate a case against you on Regulation 2 of 1956. So you better withdraw your case.’ Mr Debabrata Jena, the BDO of Raikia, threatened me to withdraw the case against him otherwise he would cut my name from the dealership list and I would be in a problem. The local officers warned me that I and my daughter will be raped in public and forced to leave the village if I gave my testimony as a witness to the crimes committed by Manoj Pradhan.” (Mohini Nayak)

Victim survivors also testified to the fact that the collector had actively connived with the perpetrators by destroying evidence of the violence at the site of violence.
“Only on August 27, the collector, Mr Suresh [Prasad Padhy], came to see but he was not at all feeling sad and was telling that they were thieves, not any religious fanatics. When I asked for police protection, plainly he said: ‘I cannot give for 15 days.’ Instead, he forced me to remove all the things immediately, what was lying there, burnt and scattered. Surprisingly, he sent some people to clean and remove things which were lying in the compound as debris.” (Fr Basil Kullu, chief priest of Madhupur church which was attacked)
Another manner in which public officials participated in the violence is by making false allegations and threats of imposing false charges on victim survivors in order to silence them and prevent them from pursuing justice.

Relief and rehabilitation
The public officials reportedly committed grave dereliction of duty through acts of commission and omission with regard to relief and rehabilitation too. Some aspects are as follows:

• Preventing rescue, relief and rehabilitation activities in Kandhamal;
• Failure to respect the rights of victim survivors in the relief camps;
• Forcible return of victim survivors to their villages; and
• Negative role of public officials in village-level peace committees.
•  

Processes of justice and accountability
Failure and delay in registration of FIRs
Testimonies presented before the tribunal repeatedly spoke of the refusal of the police to register FIRs. Extracts of some testimonies are reproduced below:
“I had sent the FIR to OIC, Sarangada police station, with copies to the subdivisional police officer, Balliguda, SP and collector, Kandhamal, and DIG, Berhampur, by registered post on September 26, 2008. But my FIR has not yet been registered by the police station at Sarangada. The kingpins and the culprits are moving freely and no stringent action has been taken against the accused persons as yet and still there is danger to my life.” (Paul Pradhan)

“I was attacked during the 2008 riot and my house was burnt. I lodged an FIR in the local police station, Tikabali, which was not registered against the accused persons… I have repeatedly sought help from the local police station for my protection but no action was taken in spite of my petition dated May 19, 2010 against the criminals with specific names like Dahia Mallick, Sudhira Pradhan, Ajiban Mallick, Mantu Gauda and Biranchi Behera. My petition was not registered and no action was taken against the accused persons.” (Gajanan Digal)
One of the major actions that the police are duty-bound to take, in pursuance of registration of the FIR, is to arrest the perpetrators. Many victim survivors spoke to the tribunal of the failure of the police to arrest perpetrators despite the fact that the perpetrators were named in the complaints to the police.

False complaints against victim survivors
Victim survivors testified before the tribunal that they had been harassed through the lodging of false and baseless allegations against them or threatened that they would be arrested on false charges if they demanded accountability and continued pursuing justice:
“While we were in the relief camp, the secretary of the Sritiguda gram panchayat illegally entered our camp and told us to become Hindus… He contacted the police and instigated a false case against me for which I was arrested and was in the police station at Balliguda. I contacted the SP and at his intervention, I was set free from the police station. But the false case against me is still going on.” (Manyabar Nayak, resident of Kritingia village, Sarangada block)

Investigations, prosecutions and trials
The factors that have contributed to the scuttling of justice are highlighted in the letters of Sampradayik Hinsa Prapidita Sangathana (Association of Victims of Communal Violence in Kandhamal). The association wrote a letter to Mr Naveen Patnaik, the chief minister of Orissa, where aspects of justice processes in the two fast track courts are highlighted. The relevant paragraphs are reproduced below:

“We are not satisfied with the legal procedures undertaken in the two fast track courts established at Phulbani which seem to be in a hurry to dispose of the cases without proper trial and witness examination…
“In most of the cases finalised in the fast track courts at Phulbani, the accused are acquitted. The quality of the police charge sheets is doubtful and therefore we demand a CBI [Central Bureau of Investigation] inquiry into the cases for proper delivery of justice to the innocent people.”

Intimidation of victim survivors and witnesses
The narratives of victim survivors before the tribunal repeatedly referred to intimidation of witnesses with the purpose of scuttling processes of justice. Extracts of some such testimonies are produced below:
“Even in the judicial trial, I was repeatedly threatened by the miscreants not to give witness against the criminals and also pressurised to withdraw the case. Even in April 2010 the miscreants threatened my relatives, to kill me and my family members and also not to allow me to construct my house though it was on patta land, if I don’t withdraw the case… I am in a terrible condition till today. No action has been taken to arrest the criminals and also no protective measures have been arranged for the safety of my life, to lead a normal life in my native place.” (Priyatama Nayak)

Some spoke to the tribunal of how they were forced to live in hiding while pursuing the cases in courts that they were testifying in:
“I have been threatened against giving evidence in the court regarding the murder of my brother… in fear, I do not live in my village and am living in hiding with my family.” (Bipin Nayak)

While some victim survivors have testified in court and continue to live in fear, others spoke about their inability to testify in court if they were not given adequate protection:    
“I have been threatened by Shri Gobardhan Pradhan who is a leader of RSS, VHP and BJP… I am quite unable to give evidence in this case unless I am provided sufficient security.” (Rama Rao Nayak)

Some victim survivors spoke to the tribunal about how they had complained to the judge and the police about the threats and intimidation yet did not receive any assistance:
“Myself and my elder brother have gone to Phulbani to give witness in the fast track court-1. We were threatened by Biswanath Kanhar, Pabira Kanhar and Ajibana Mallick, saying that ‘we will kill you if you give evidence today’. I had complained before the judge and the hon’ble judge advised me to give a complaint to the government advocate. Till now, my life is in danger and the circumstances are not allowing me to go to Phulbani to give a complaint against the above-mentioned people.” (Antaryami Digal)

Acquittals and sentencing
Victim survivors also narrated to the tribunal that due to the destruction of the bodies of the victims, the perpetrators have been convicted for less severe crimes. An illustrative example is the brutal killing of Ishwar Digal. Runima Digal testified to the tribunal that she witnessed her husband’s body being cut into three pieces and thrown into a river by a violent mob. When she managed to take the SP to the spot, nothing was found there. She said: “I identified the accused and had to force the police to arrest the perpetrators. Still only one person was arrested and prosecuted… He was punished for five years for abduction and not for the actual murder, as the prosecution could not prove the murder. None of the people who killed my husband has been made accountable till now. The other accused are absconding.”

Crisis in the justice delivery system
A report of a meeting convened under the banners of the Common Concern and Orissa Manavik Adhikar Suraksha Abhijan on the justice delivery crisis highlights the varied dimensions of processes of justice and accountability that victim survivors have had to contend with.

• “Public prosecutors (PPs) are mostly found biased against the victims;
• In comparison with the skills, influence, clout and number of advocates favouring the accused persons, the strength of advocates needs to be improved;
• Faulty and biased methods of police investigation, framing the charge sheets and presentations in the courts weaken the cases;
• Absence of social and physical security of the victims and witnesses inside and outside the court;
• The provision that in GR cases only public prosecutors can argue, while the victim parties cannot appoint their own advocates privately, does not help the victims in cases where PPs are biased;
• Show of extra favour to the accused by some judges harasses the victims and their counsel;
• Lawyers counselling the victim parties are persuaded not to continue their legal assistance;
• Witnesses are threatened/allured to turn hostile;

Absence of democratic and left parties in comparison to the dominance of the BJP and RSS helps the culprits and corrupts the atmosphere of the courts.”

Relief and humanitarian assistance
Preventing rescue and relief work
The MARG report highlighted the fact that an “appalling feature” of the Kandhamal violence is the blockage of relief material to victim survivors and the prevention of rescue, relief and fact-finding work among them for several months subsequent to the violence. In the context of the December 2007 violence, a notification by Manish Kumar Verma, the collector of Kandhamal, banned the entry of non-profit organisations and humanitarian agencies, including church groups, into the district. The directive was finally quashed by the Supreme Court in May 2008.

However, the quashing did not cause any embarrassment to the district authorities who, subsequent to the August 2008 violence, once again prevented relief agencies, non-profit and charitable organisations from conducting relief work among the victim survivors. On the impact of the ban, the report stated that the state not only abdicated its responsibility towards providing relief measures in a prompt and adequate manner but also ensured that help did not reach the devastated victim survivors and that the attacks against the vulnerable population continued.

Annapoorna Digal narrated that her family had stayed for many days in the jungle without any food and clothing. When they approached a relief camp in Balliguda, they were sent back to their village by the camp officers who told them that there was no place to keep them and that the water in the camp had been poisoned. Subsequently, 30 kg of rice, one kg of dal and a vessel were delivered to their house by the camp officers.

The Jan Vikas report observes that while the administration claimed that the victims are well cared for and protected, these camps were devoid of basic facilities. All religious, cultural, civil and political activities were prohibited in these camps and permission denied to nuns, priests and local nurses for months. Many reports speak of appalling conditions in relief camps and clearly suggest the state government’s indifference to the plight of victim survivors.

The Orissa state government’s act of forcibly closing relief camps before the victim survivors felt secure enough to return to their places of habitual residence or resettle elsewhere is violative of the right of internally displaced persons (IDPs) to safe return or resettlement with dignity, states the MARG report.

Forcible return of victim survivors to their villages
The Women’s International League for Peace and Freedom/ Women in Security Conflict Management and Peace report, based on the visit of a team to relief camps in January 2009, clearly indicated that state officials were attempting to return the victim survivors to their villages with little regard for their security and that there was a “very strong uneasiness” among victims to return to their villages according to this deadline.

Compensation
The state government had announced a compensation package that included an ex gratia payment of Rs one lakh to the next of kin of the deceased persons. After the August 2008 violence, the ex gratia payment was announced as Rs two lakh per deceased person, to be paid from the Chief Minister’s Relief Fund. Compensation for injury caused during the violence does not feature in the compensation package announced. The central government announced an additional Rs three lakh per deceased person as an ex gratia amount, entitling the next of kin of each deceased person to a total of Rs five lakh.
Referring to the compensation amounts announced, enhanced and awarded in other similar contexts, including the Gujarat carnage of 2002, anti-Sikh violence of 1984 and the Bhagalpur violence of 1989, the MARG report concludes that there are substantial disparities between amounts awarded by the state and central governments in other contexts of communal violence and that of Kandhamal. It highlighted the fact that there are no uniform criteria or principles laid down for compensation to victim survivors of communal violence, as a result of which the grant of compensation is determined arbitrarily by the concerned state governments.

Almost all the victim survivors who testified before the tribunal spoke of the wide disparity between the actual financial loss suffered by them, the compensation they were entitled to and the compensation amounts paid.
 
Compensation for places of worship
The MARG report states that initially the state government had been reluctant to compensate for damage to/destruction of religious institutions, stating that it was against the secular policy of the state to pay any compensation for the religious institutions. Due to the insistence of the NCM, which advocated for monetary compensation to aid the work of repair/reconstruction of the buildings, and directions of the Supreme Court, it announced a (measly) scheme for compensation.

Recommendations
Recommendations are generally made to the state government of Orissa unless otherwise recommended to other authorities.

Socio-economic and cultural rights
1. Apply the National Rural Employment Guarantee Act and other livelihood schemes of the state and central government to the affected community without any discrimination on the basis of caste, religion or gender.
2. Implement widow pension schemes and provide government jobs to individuals from families that lost their members in the violence on compassionate grounds. Reinstate/reappoint victim survivors engaged in government jobs prior to the violence and transferred to areas that they perceive to be safe and secure. Soft loans should be provided for commencement of small businesses.
3. Ensure that relief camps meet the minimum international standards of health, hygiene and privacy for IDPs… Provide medical and psychological, particularly trauma, counselling to the victims/survivors, with special attention to the needs of women survivors of sexual and gender-based violence.
4. Incorporate a separate section in the state policy on relief and rehabilitation that conforms to Article 3 of the UN Convention on the Rights of the Child 1989, as the guiding principle for all relief and rehabilitation work.
5. Recommend that the National Commission for Protection of Child Rights and the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes assess the needs of children, Dalits and Adivasis respectively from the affected Christian community in Kandhamal and make recommendations to appropriate agencies at the state and central levels for ensuring their rehabilitation at the earliest.
6. Address educational needs of the children who have suffered displacement as a result of the violence.
7. Address the long-standing problem of landlessness and land alienation of the Dalits and Adivasis in a comprehensive manner through land reform and redistribution.

Legal and judicial process
1. Identify unreported cases of sexual and gender-based violence and include the offence of sexual assault in FIRs in cases where it has been ignored and ensure that they are effectively investigated and prosecuted.
2. Inquire into the acts of all public officials named in this report and pursue stringent disciplinary, administrative and other legal action against them for grave dereliction of duty and for collusion and complicity in the crimes committed by the perpetrators.
3. Strictly enforce Sections 153A and B of the Indian Penal Code to proactively prevent programmes planned by Hindutva forces within the state, that are divisive, propagate hate and incite violence against religious minorities.
4. Constitute a Special Investigation Team (SIT) to re-examine the already registered FIRs for accuracy, examine registrations of fresh FIRs, the trials that resulted in acquittals due to intimidation and/or lack of evidence and recommend the trials that need be transferred or fresh trials be conducted outside Kandhamal.
5. Appoint special public prosecutors who discharge their duties with professional competence and integrity. At the appellate stage in the Orissa high court a special panel of lawyers to represent the victims of the Kandhamal violence be constituted.
6. Recommend that the State Legal Services Authority set up a legal cell to assist victims in their legal cases and interactions with the police and courts.
7. Provide protection to victims and witnesses before, during and after the trial process, according to the guidelines provided in the judgements of the Delhi and Punjab and Haryana high courts. Take proactive measures to prevent threats of sexual and gender-based violence to women survivors and their daughters and pay attention to the needs of the child witnesses involved in various proceedings related to the Kandhamal violence.
8. Accord special protection to human rights defenders and adequately compensate the damage to their residential and organisational properties.

Reparations
1. Adopt, at the very minimum, the 1984 anti-Sikh and 2002 anti-Muslim Gujarat compensation package to enhance the compensation already announced. In addition, victims of sexual and gender-based violence should be included as a ground eligible for compensation and employment.
2. Recognise the right of the internally displaced persons to return home and create enabling conditions to facilitate such safe return in accordance with the UN Basic Principles and Guidelines on Development-based Evictions and Displacement 2007 and the UN Guiding Principles on Internally Displaced Persons should be effectively implemented.
3. Formulate and implement policies to provide victim survivors full reparations which include compensation, restitution, rehabilitation…
4. Include movable properties in the scheme of compensation.
5. Focus on revival of dignified livelihood options for the affected families and facilitate a resumption of the livelihood they had pursued prior to the violence.
6. Include members of the affected community, particularly women, in all confidence building and peace building initiatives by the state and district administration…

Minority rights
1. Protect the right to religious freedom and clarify that this freedom means and includes the right to remain animist, areligious and/or atheist, and make any form of forced conversion or reconversion illegal.
2. Formulate a policy/programme to urgently address the issue of institutional bias against the minority Christian community in Kandhamal and other parts of Orissa, through a combination of perspective building and stringent action that is intended at upholding the rule of law.
3. Review the Orissa Freedom of Religion Act to ensure that it does not violate the right to religious freedom as guaranteed by the Indian Constitution and international law.
4. Review the definition of the scheduled castes in the presidential order of 1950, on the basis of the discrimination experienced by members of scheduled castes even after conversion.
5. Implement the recommendations of the National Commission for Minorities, issued in the reports of January, April and September 2008, with immediate effect.    

(The final report of the National People’s Tribunal on Kandhamal, August 22-24, 2010, was released in Bhubaneswar on December 2, 2011.)

Archived from Communalism Combat, January 2012 Year 18    No.163, Cover Story  
 

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In September 2003 the then chief justice of India, VN Khare, had sharply chastised the Gujarat government for not only its failure to protect lives and property but its open collusion in the subversion of the justice process and had subpoenaed evidence in the now famous Best Bakery case. The indignities heaped on the Gujarat state apparatus included the cross-examination in open court of the two most senior civil servants in Gujarat at the time – its chief secretary, PK Lahiri, and director general of police, K. Chakravarti. The judge’s remarks were occasioned by the state’s abysmal failure to offer cogent explanations for the hasty completion of the Best Bakery trial (in a matter of a few weeks!) and the failure to protect evidence or to ensure that all witnesses had appeared for the prosecution, which led to speedy acquittals. It was possibly the first time ever in the history of independent India that the higher judiciary had spoken, and spoken sharply, in a case of mass communal violence. (The apex court then decided to monitor the government’s appeal in the case and subsequently, in an indictment of the Gujarat high court which had dismissed the appeal, ordered retrial and transfer of the case to Mumbai, Maharashtra.)

Two months after these remarks, the first ever conviction in a 2002 carnage case occurred in Nadiad in Kheda district. On November 24, 2003 Judge CK Rane sentenced 12 persons to life imprisonment and three to two years’ rigorous imprisonment. Forty-eight persons were acquitted. The crime: the brutal massacre of 14 Muslims at Ghodasar and Jinger villages in Kheda on March 3, 2002. Six years later, six convicts had jumped parole and the Gujarat state apparatus claimed inability to track them down. About a year earlier, in October 2002, two other carnage cases, Pandharwada, where about 25 Muslims were killed (the unofficial figure is higher), and Kidiad, where 61 Muslims had been chased and burnt alive in two tempos, saw complete acquittals. In both cases, senior elected representatives and functionaries of the ruling dispensation were accused; in both cases, the story behind the acquittals was similar to that in the Best Bakery fast track trial in Vadodara in May 2003 – witnesses had been made to turn hostile.

In February 2006 the Best Bakery retrial judgement of Judge AM Thipsay finally convicted nine persons (if the Gujarat police are to be believed, seven of the accused are still absconding!). On October 30, 2007 eight persons who were accused of rape and murder in Eral, Panchmahal, were sentenced for life while 29 were acquitted. They were part of a mob that had brutalised, raped and then killed seven Muslims. In January 2008, in the Bilkees Bano case, also transferred to Mumbai, Judge UD Salvi sentenced 11 to life imprisonment. The case involved the brutal gang rape of Bilkees and the slaughter of her three-year-old daughter Saleha, during an incident in which 14 Muslims had been massacred. Though a constable was convicted for destruction of evidence, government functionaries, including doctors, escaped the arm of the law and senior policemen who had orchestrated the subversion of the case were let off by the court.

It is in this overall context that the November 9, 2011 verdict in the Sardarpura massacre case – which convicted 31 persons, all of them landed Patels responsible for assaulting defenceless agricultural labourers who had toiled in their fields for generations – must be viewed and assessed. Communalism Combat brings its readers edited excerpts of the judgement as this month’s cover story. This is the highest number of convictions ever recorded in a case of targeted communal violence in independent India. It is a tribute to the grit and courage of the 33 survivor witnesses, displaced from their homes, who testified in court, identified the accused despite threats and inducements and ensured that justice was delivered. That the case was one among those monitored by the Supreme Court, whose directives had ensured effective witness protection, enabled the impossible to happen. That the judge cleared Citizens for Justice and Peace and its secretary of malicious and motivated charges of tutoring witnesses was another landmark. None of this would have been possible without the energetic and committed CJP team, especially its lawyers in Gujarat. Advocates Yusuf Shaikh, Aslam Baig and Sameer Mansuri assiduously participated in an onerous process.

Some points for reflection: Even in simple cases wherein a group of persons acting with one mind have assembled to commit a set of crimes, the charge of conspiracy holds. Why then were the charges of conspiracy under Section 120B of the Indian Penal Code dropped?

Remember that Gujarat 2002 was about 300 ghastly incidents in 19 of the state’s 25 districts. Evidence was led through witnesses who testified about significant preparations by politicians and leaders of the Bajrang Dal who enjoyed state patronage and protection. Witnesses also sought to lead evidence on Tehelka magazine’s courageous sting ‘Operation Kalank’ which revealed specific and relevant aspects concerning arms and ammunition being brought into Mehsana (the district in which Sardarpura is located) prior to Godhra, February 27, 2002. At witnesses’ insistence, the Special Investigation Team (SIT) did record the statement of Tehelka’s correspondent Ashish Khetan but they did not call him as a witness. Why? Though former director general of police RB Sreekumar’s affidavits, with annexed reports of the State Intelligence Bureau, corroborated some of this evidence, the SIT was reluctant to probe this aspect further.

Sharp and aggressive in its approach to the Godhra train burning tragedy, the SIT and its prosecutor had not only bought the Gujarat police’s shaky and shady version of conspiracy but had argued for the death penalty, which was imposed on 11 of the 31 accused. In the Sardarpura case, witnesses, being opposed to retributive justice, did not argue for the death penalty at all.

And thus a niggling question remains: do we view the incidents of Godhra and post-Godhra as qualitatively and quantitatively different kinds of crimes? This is a tough one, which the Indian system would do well to answer.

— EDITORS

Archived from Communalism Combat, December 2011, Year 18, No. 162, Editorial

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Continuing atrocities

• Despite the enactment of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act to protect the lives and security of the scheduled castes and scheduled tribes (SCs and STs), from 1995 to 2007 less than one-third (30.7 per cent) of the crimes committed against SCs/STs across India were registered under the provisions of the act.
• As per the National Crime Records Bureau (NCRB) data, 1,21,464 (only one-third) of a total of 3,71,942 crimes against SCs and 14,263 (only one-fifth) of a total of 69,482 crimes against STs were registered under the act. It also states that the annual average of crimes registered against SCs/STs is 33,956 crimes while the daily average of crimes registered against SCs/STs is 93 crimes.
• If we look at the extreme forms of atrocities, a breakdown of the 4,41,424 registered crimes against SCs/STs during 1995 to 2007 includes 9,593 cases of murder, 61,168 cases of hurt or grievous hurt, 20,865 cases of rape, 4,699 cases of arson, 4,484 cases of kidnapping and 10,512 cases of ‘untouchability’ practices.
• A study of 500 cases of violence against Dalit women across Andhra Pradesh, Bihar, Tamil Nadu and Uttar Pradesh between 1999 and 2004 revealed that the majority of the women faced several forms of violence from either or both perpetrators in the general community and the family. The most frequent forms of violence were verbal abuse (62.4 per cent), physical assault (54.8 per cent), sexual harassment and assault (46.8 per cent), domestic violence (43 per cent) and rape (23.2 per cent).

The police

• As per the NCRB, 67 per cent of crimes committed during 1992 to 2000 and 64.9 per cent of crimes committed during 2001 to 2007 were not registered under the act. A study covering 11 atrocity-prone areas in Gujarat also exposed that between 1990 and 1993, 36 per cent of atrocities cases were not registered under the act. In 84.4 per cent of the cases where the act was applied, the cases were registered under wrong provisions with a view to concealing the violent nature of the incidents.
• A large number of cases have been closed by the police for various reasons. As per the NCRB, the police closed a substantial 21.7 per cent of the cases registered under the act during 1997 to 2007.
• As per the NCRB, investigation has been completed in only 1,34,534 out of a total of 1,76,397 cases, which includes the pending cases. A charge sheet has been submitted in only 97,341 of these cases and there are 37,193 cases pending charge-sheeting even 10 years after investigation.
• The Andhra Pradesh high court, in an interim order in writ petition 1019 of 2006 filed by Sakshi Human Rights Watch, Andhra Pradesh, observed that as per the statistics furnished by the director general of police regarding cases registered under the act: one case has been pending investigation for almost six years, 53 cases for between three to five years, 190 cases for almost two years and 805 cases for about one year. In response to this writ petition, a counter-affidavit filed by the police reveals that during 1995 to 2006, 21,000 cases were registered under the act. Of these, more than 14,000 were pending without a charge sheet being submitted even though the act stipulates that the investigation must be completed within 30 days of the FIR being filed.
•  A study covering 11 atrocity-prone districts in Gujarat during 1990 to 1993 showed that the time lag between the registration of murder cases and arrest of the accused was 121.2 hours; for rape cases, it was 532.9 hours; and for grievous cases, it was 862.4 hours. A study in Tamil Nadu revealed that out of 371 cases of atrocities for which data was available on arrests, in 25.6 per cent of the cases, the accused were never arrested while in only 25.9 per cent of the cases were all the accused arrested immediately after the registration of the FIR or on the next day. In 20.7 per cent of the cases, the arrests occurred at any time from a week to one year after the incident had taken place. Further, in 23 cases (six per cent), the accused succeeded in getting anticipatory bail from the high court.

The judiciary

• Given that the trial pendency rate is roughly the same for all crimes committed under the Atrocities Act, the Protection of Civil Rights Act 1955 and the IPC, reality shows no ‘speedy trials’ for crimes committed under the Atrocities Act. Also, in contravention of Section 14 of the act, special courts have still not been set up in 133 of the 612 districts/divisions across India.
• As per the NCRB, at the end of 2007, 99,659 cases in crimes against SCs/STs (79 per cent) remained pending for trial in criminal courts across the country, showing no significant improvement over the trial pendency rate (82.5 per cent) in 2001. Similarly, the trial pendency rate for crimes registered under the act did not decrease below 80 per cent during 1997 to 2007, averaging 82.9 per cent.
• As per the NCRB, the conviction rate under the act in 2007 was the fourth lowest (26.1 per cent) as compared with cases under more than 20 special and local laws (SLL). In fact, the average conviction rate under the act during 2003 to 2007 stood at just 25 per cent as compared to 72 per cent for other SLL cases.

Rights of victims and witnesses

• In spite of the provisions in the act, instances where victims and witnesses do not receive immediate relief, compensation and rehabilitation, and travelling and maintenance expenses, are very common. Wherever this phenomenon has been studied, be it Andhra Pradesh, Gujarat or Tamil Nadu, the figures show that the government is not paying adequate relief and compensation. In spite of the recommendations by various commissions, the National Human Rights Commission (NHRC) and the National Commissions for Scheduled Castes/Scheduled Tribes (NCSC/ST), relief and compensation is hardly ever paid to the victims of atrocities unless the case receives a lot of publicity.
• Both the ministry of social justice and empowerment’s annual report of 2006 on the implementation of the act as well as the NHRC’s 2004 report on prevention of atrocities against SCs observed that very few atrocity victims receive legal aid, which leaves them to the ‘due process of law’ without the help of a lawyer.

Kherlanji, September 2006

Implementing mandatory provisions of the act

• State governments must make known the atrocity-prone districts so that they can focus their resources on prevention of atrocities. Only 12 out of 35 states/union territories (UTs) have declared atrocity-prone districts.
• Whereas SC/ST Protection Cells are necessary to ensure public order and tranquillity, a Contingency Plan is necessary to implement the act. But only half of the states/UTs have set up an SC/ST Protection Cell and only nine states have created a Contingency Plan
• Nomination of nodal officers and appointment of special officers are necessary to coordinate the implementation of provisions of the act. But five states have not yet nominated their nodal officers while only 14 states have appointed special officers.
• One-third of the states/UTs have not yet set up the district-level and state-level Vigilance and Monitoring Committees. Even the union minister for social justice and empowerment and state ministers agree that regular meetings are not being organised so there is still a need for more meetings of the Vigilance and Monitoring Committees.
• The union ministry of social justice and empowerment has mostly not been adhering to its role of submitting an annual report, mandatory under Section 21(4) of the act. Its 1991-92 report was placed before Parliament in 1998, the finalisation of annual reports of 1993 to 1995 was delayed by almost four years, placing of the 2000 annual report was delayed by two years and the last annual report it placed before Parliament was in 2006.

Recommendations

• Appoint high-level committees at the centre and in the states/UTs to review the implementation of the act, assess the realisation of its objectives and take appropriate and speedy action for strengthening the act and for effective implementation in the future
•  Direct the concerned central and state ministries dealing with implementation of the act and rules to evolve ways and means for formulating and including the required legal amendments as well as for their effective operation
• Set up exclusive special courts, exclusive public prosecutors and exclusive investigators for the speedy trial of cases under the act.
• Include additional crimes which SCs and STs are subjected to but which do not figure in the present list of offences in the act, such as social and economic boycotts and false counter-cases.
• Delete expressions such as “intent”, “on the ground”, “wilful”, etc from various sections of the act, which give leeway to the police and judiciary to weaken cases of atrocities through subjective or arbitrary interpretations of the act.
• Add a new chapter in the act to deal with the rights of victims and witnesses thereby explicitly granting them various citizen rights with regard to atrocity cases.
• Amend the act to explicitly bring in all types of negligence by public servants at various stages in their handling of atrocity cases
• Enhance punishment for offences of atrocities under the act to be on par with the Indian Penal Code as well as based on the nature and gravity of the offences so as to ensure its deterrent effect
• Amend the definitions of “scheduled castes” and “scheduled tribes” in the act so as to add all Christians or Muslims belonging to any of the castes in the Schedule, all ethnic minority communities subjected to atrocities on the basis of their ethnicity and SC/ST migrant labourers on the basis of their caste/tribal status in their state of origin.
• Give priority attention to accepting and implementing the recommendations of national and state commissions as well as civil society organisations working to defend and promote the rights of SCs and STs.

Courtesy: National Campaign on Dalit Human Rights; www.ncdhr.org.in

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

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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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