Courtesy: Kashmir Times

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First published on: November 2009

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

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

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

Why this pattern of impunity

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes

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

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

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

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

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

The post Regimes of impunity appeared first on SabrangIndia.

The press release highlighted Grover’s expertise stating that she is a practicing advocate in India and has more than 34 years of experience in constitutional law, criminal law, and human rights. “A practicing advocate in India, Grover has more than 34 years of experience in constitutional law, criminal law and human rights. She has appeared as counsel in landmark cases before the Trial Courts, High Courts and the Supreme Court of India as well as before commissions of inquiry and quasi-judicial authorities,” the Council said in its press release.

The Council highlighted the tireless contributions that Advocate Grover has made in the courts, by defending victims and survivors of sexual assault, torture, extrajudicial killings, communal massacres, enforced disappearances, and mob lynching’s. It was further provided that she has also defended journalists, human rights advocates, and death row inmates.

The UN Human Rights Council established the three-person Commission of Inquiry on Ukraine on March 4, 2022, with the task of investigating all the alleged human rights abuses, breaches of international humanitarian law, and related crimes in relation to Russia’s aggression against Ukraine.

On April 4, 2023, the Council had renewed the aforementioned mandate of the Commission for a further period of one year.

Advocate Grover will be joining Erik Møse (Norway) and Pablo de Greiff (Colombia), who have been serving as Chair and Commissioner of the Commission of Inquiry since March 2022. Notably, the Commission is scheduled to present an oral update to the Human Rights Council at its fifty-fourth session, which is in September 2023, and later submit a report to the General Assembly at its seventy-eighth session, in October 2023. A comprehensive report will then be submitted to the Human Rights Council at its fifty-fifth session, to be held in March 2024.

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Speaking in context of the spate of the arrests made in the aftermath of the Bhima Koregaon violence, senior human rights lawyer Vrinda Grover criticises the manner in which the government is trying to suppress the rights of the citizens, and the voices of those who wish to contest the socio-political imagination propagated by the government. She questions why we continue to operate with the colonial jurisprudence where the citizen is a suspect, and the state is presumed to act in good faith. Grover feels that the authorities and agencies have been used and abused against those who are challenging and contesting the state power.

Courtesy: Newsclick.in

The post False to Assume Agents of State Act in Good Faith: Vrinda Grover appeared first on SabrangIndia.

At a press conference on the recent ordinance to introduce death penalty for child rape, child and women rights activists voiced dissatisfaction with the move. Vrinda Grover spoke on why this is a wrong move.

Courtesy: Newsclick.in

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Full Text of the Statement

We, the undersigned activists and organisations of the Indian women’s movement express our outrage at the fact that R.K. Pachauri has filed a civil suit for injunction and demanded damages of Rs. 1 crore against Advocate Vrinda Grover.
The attempt is to hold Ms. Grover liable in a civil suit for her efforts towards bringing official cognisance of two complaints of sexual harassment at the workplace brought against Mr. R.K. Pachauri by two of his former colleagues.

Both these women have complained that they were sexually harassed at TERI by Mr. Pachauri much prior to the complainant of FIR dated 18th February 2015, in which Mr. R.K. Pachauri has now been charge-sheeted in February 2016.
Alarmingly, despite the fact that Ms. Grover has sent repeated written communications to senior officers of the Delhi police informing them that her two clients would like their statements to be recorded, the police have till date not taken any steps in this regard.

The very public attack on Ms. Grover is a matter of concern for all those who, like the signatories to this letter, are struggling to deliver substantive justice under the laws on sexual harassment in the workplace in India today.

Firstly: All codes of professional ethics have been breached in this act of suing Ms. Grover for damages. Mr. Pachauri’s legal representative, Ashish Dixit, in The New Indian Express article titled “European Woman Accused Pachauri of Harassment”, dated 31st March 2016, has charged Ms. Grover of leading a “conspiracy to defame” Mr. R.K. Pachauri.

This imputation of motives of a criminal nature to Ms. Grover, the opposing counsel, is a serious violation of the statutorily binding professional code of conduct and etiquette expected from advocates.

This breach is made even more egregious by the fact that Ms. Grover is the woman lawyer representing two women in their complaints of sexual harassment by the petitioner, leading as it does to the inescapable conclusion that the civil suit is just a continuation of the intimidation and vilification of women (be they complainants or their lawyers) who have the temerity to pursue complaints of sexual harassment against powerful men.

Second: Given that laws and provisions legitimising the grievance of workplace sexual harassment are relatively recent, investigation into such charges needs to record the complete history of every case that may be relevant to ongoing investigations.

By refusing to record the statements of Ms. Grover’s clients against Mr. R.K. Pachauri for close to a year after Ms. Grover approached them on their behalf, the police have already demonstrated its lack of commitment to a full and vigorous investigation of these women’s grievances.

Now, by suing Ms. Grover for acting on her clients’ instructions to make their statements public, Mr. Pachauri seeks to restrain her from executing her responsibilities to her clients. Clearly his intent is also to deny to these two women, and by implication all complainants, the right to share their experiences of sexual harassment in public when their every effort to access justice has been thwarted.

The fact of the matter is that this civil suit against Ms. Grover is yet another instance of the impunity which Mr. Pachauri has been able to maintain with respect to his abuse of three women’s human rights. His objective in trying to gag Ms. Grover, is to consolidate the immunity given to him by his organisation TERI, by ‘cooperative’ police officials strangely reluctant to record the two statements that will strengthen the case against him, and amenable sections of the media which have buttressed his claims of being framed in the charges against him.

Over the past month or so, Mr. Pachauri has courted the international media. In interviews given to The Guardian and The Observer, he presents himself as a man beleaguered and hounded by climate-change sceptics and women activists, conflating women activists taking up charges of sexual harassment with climate change sceptics.

The three women complainants it should be pointed out were working for the cause of climate change to the point of enduring sexual harassment from Pachauri, which makes such a charge of belittling the cause of climate change absolutely ridiculous.

As individuals and organisations committed to the implementation of the country’s laws on sexual harassment in the workplace, we condemn in the strongest terms Mr. Pachauri’s shamelessly transparent bid to influence the sub judice case about to enter its trial phase in a month’s time.

The fact that Mr. Pachauri’s suit is also directed simultaneously at prominent Indian media houses, such as Bennett Coleman, NDTV, and India Today, reveals an intent aimed at throttling all public reference to the complaints of sexual harassment against him.

Furthermore, we would like to emphasise that Mr. Pachauri’s suit against opposing counsel has implications that will have a chilling effect on complaints of sexual harassment, as it has all the characteristics of an instance of a strategic lawsuit against public participation (SLAPP).

Such legal actions are intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. In addition, since Mr. Pachauri’s suit also targets prominent media houses, the aim is perpetuation of a social space in which only Mr. Pachauri’s defence and allegations against complainant(s) holds sway, thereby creating an atmosphere that is in general disbelieving and often downright hostile to complainant(s) and their efforts to access justice.

By refusing to record the statements of Ms. Grover’s clients against Mr. R.K. Pachauri for close to a year after Ms. Grover approached them on their behalf, the police have already demonstrated its lack of commitment to a full and vigorous investigation of these women’s grievances

Accordingly, we demand that official cognizance be taken of the attempt to intimidate Ms. Grover and her clients. Mr Pachauri’s actions suggest that he has learnt nothing from the failure of his earlier attempts to silence the complainants. Mr. Pachauri it appears is finding it difficult to understand that he can no longer evade the law and he will have to face legal consequences.

We expect those who bear the responsibility of bringing him to justice, to convey this message to Mr. Pachauri in clear and unambiguous terms. We also urge the National Commission for Women to maintain oversight of the pre-trial process and ensure that it is not influenced or subverted by those who seek to protect Mr. Pachauri from the consequences of his actions.

We call upon all like-minded individuals and organisations to join us in supporting the right of Advocate Vrinda Grover to pursue this case and bring justice where it is due.

Ayesha Kidwai, Jawaharlal Nehru University
Ania Loomba, JNIAS/ University of Pennsylvania
Kalyani Menon-Sen, Feminist Learning Partnerships, Gurgaon
Mary E John, Centre for Women’s Development Studies
Kavita Krishnan, AIPWA
Janaki Abraham, Delhi University
AIDWA, Delhi
Nandini Rao, New Delhi
Geetha Nambisan, Jagori
Annie Raja, NFIW
Syeda Hameed
A. Mani, University of Calcutta
Aarthi Pai, Lawyer
Aatreyee Sen, Forum for Human Rights and Justice
Ahmad Faraz, Coordinator MenEngage Delhi
Ammu Joseph, Independent journalist and author
Anita Ghai, Ambedkar University
Anja Kovacs, Internet Democracy Project
Anjuman Ara Begum, Women in Governance, India
Ankita, NIRD
Anuradha Kapoor, Swayam
Aprajita Sarcar, Queen’s University, Canada
Archana, PRADAN
Aruna Gnanadason, Independent Consultant
Arundhati Dhuru, NAPM
Ashish Kothari, Pune
Ashok Yadav, Social Worker
Bhim Subba, Delhi University
Binayak. Sen, PUCL /MFC
Burnad Fathima Natesan, Tamil Nadu Women’s Forum.
Chayanika Shah, LABIA – A Queer Feminist LBT Collective
Chirashree Das Gupta, Jawaharlal Nehru University
D Subrahmanyam, PUDR
Deepa V, Delhi
Deepak Xavier, New Delhi
Devadeep Chowdhury, Journalist
Dr Nandita Shah, Akshara
Dr Sandeep Pandey, Socialist Party
Dr V Rukmini Rao, Gramya Resource Centre for Women
Dr. Anand Philip,
Dr. Anant Phadke, Health activist
Durgesh, Tata Institute of Social Sciences, Mumbai
Dyuti, Researcher
G Arunima, Jawaharlal Nehru University
Gabriele Dietrich, Movement for Women’s Rights, Madurai
Gargi Mishra, Lawyers Collective Women’s Rights Initiative
Gayatri Sharma, Women Power Connect
Geeta Seshu, Independent Journalist, Mumbai
Gina Dias, New Delhi
Ginny Shrivastava, Women’s Movement
Githa Hariharan, Writer
Gouranga Ch. Mohapatra, Janaswasthys Abhiyan, Odisha
Imrana Qadeer, Council for Social Development
Indranil, Public Health Foundation of India
Ira Bhaskar, Jawaharlal Nehru University
Ishita Chaudhry, Founder, The YP Foundation
Janaki Nair, Jawaharlal Nehru University
Jashodhara Dasgupta, SAHAYOG
Jasmeen Patheja, Blank Noise
Javed Malick, Retired Academic
Jaya Menon, Professor, Shiv Nadar University
Jayati Ghosh, Jawaharlal Nehru University
Johanna Lokhande, Independent
Julia George, Lawyer
Jyoti Sabharwal, University of Delhi
Jyotsna Sivaramayya, Independent Researcher
K.Ajitha, Anweshi Women’s Counselling Centre, Kozhikode, Kerala
Kalpana Mehta, M.P. Maahila Manch
Kamayani Bali Mahabal, Feminist and Human Rights Activist
Kartika Bhatia, The World Bank
Kasturi Chatterjee, Jawaharlal Nehru University
Kaushik Roy Chowdhury, Accenture
Kavitha Kuruganti, ASHA
Khushboo, University of Delhi
Kriti Budhiraja, University of Minnesota
Lata Singh, Jawaharlal Nehru University
Laxmi Murthy, Journalist, Bangalore
Lina Krishnan, Bangalore
Madhu Bhushan, Independent activist. (re)searcher, writer
Madhu Sahni, Jawaharlal Nehru University
Madhurima Nundy, Institute of Chinese Studies
Malika Virdi, Maati
Mamatha Karollil, Ambedkar University Delhi
Manak Matiyani, The YP Foundation
Meena Menon, Journalist
Mihira Sood, Advocate, Supreme Court
Mita Deshpande, Jawaharlal Nehru University
Mohan Rao, Jawaharlal Nehru University
Moushumi Basu, Jawaharlal Nehru University
Mridu Kamal, Women’s Rights Activist
Mukul Mangalik, Delhi University
Nalini Nayak, Kerala Stree Vedi
Nandita,
Navaneetha M, Jawaharlal Nehru University
Neeraj Malik, Delhi University
Neha G, Communications Professional
Nisha Biswas, WSS, WB
Nivedita Menon, Jawaharlal Nehru University
Nupur Basu, Journalist
Nupur Chowdhury, Jawaharlal Nehru University
Om Prakash, Delhi University
Padma Deosthali, CEHAT
Padma Velaskar, Tata Institute of Social Sciences,Mumbai
Padmaja Shaw, (retd) Osmania University
Padmini Swaminathan, Tata Institute of Social Sciences
Pamela Philipose, Senior Journalist
Panchali Ray, Jadavpur university
Papiya Mazumdar, Institute of Public Health Kalyani, West Begal
Paromita Vohra, Filmmaker and Writer
Poorvi Bhargava, Student
Poulomi Pal, Fulbright scholar
Prabha, TARSHI
Pramada Menon, Independent Consultant
Pratiksha Baxi, Jawaharlal Nehru University
Preeti Chauhan, Individual
Primla Loomba, National Federation of Indian Women
Prof Pritam Singh, Oxford Brookes University
Prof. Anjali Monteiro, Tata Institute of Social Sciences
R.Gopinath, Jamia Millia Islamia
Radha Holla, Independent researcher
Radhika, Advocate
Rajni Palriwala, Department of Sociology, University of Delhi
Ramnarayan, Uttarakhand
Ranjan De, Documentary film-maker
Reva Prakash, Jawaharlal Nehru University
Ridhima, Delhi
Rigya Singh, NGO
Ritambhara, Nazariya and ASER Centre – Pratham
Rohini Hensman, Union Research Group
S.Ashalatha, Mahila Kisan Adhikaar Manch
Sadhna, Saheli, Delhi
Sadhna Saxena, Delhi University
Sagari Ramdas, Food Sovereignty Alliance, India
Saheli Women’s Resource Centre, Delhi, Saheli Women’s Resource Centre
Samir Kumar Dass, Jharkhand Science Forum & JSA
Sandhya Srinivasan, Journalist
Sangeeta Dasgupta, Jawaharlal Nehru University
Sangeeta Rege, Personal
Sanjay Kak, Film maker, New Delhi
Sarita Falcao, Individual
Sarojini N, Health Researcher
Savita Prabhune, Advocate
Shambhavi Prakash, Jawaharlal Nehru University
Sharmila Sreekumar, Academic
Shehla Rashid, Vice-President JNUSU, Jawaharlal Nehru University
Shewli, Tata Institute of Social Sciences
Shilpa Phadke, TISS
Shoba Ghosh, University of Mumbai
Shobha, WSS
Shobhana Warrier, Delhi University
Shraddha, concerned citizen
Shraddha, phD candidate UoH
Shraddha Chigateri, ISST
Shubhangi, Association for Adovcacy and Legal Initiatives (AALI)
Siddharth Narrain, Lawyer, Delhi
Simona Sawhney, Indian Institute of Technology, Delhi
Soma Kishore Parthasarathy, CAWL Rights
Somya, Student
Sona Mitra, CBGA
Sonal Narain,
Subhash Gatade,
Sucharita Sen, Jawaharlal Nehru University
Sujata Patel, University of Hyderabad
Sukumar Muralidharan, Independent Journalist
Sunalini Kumar, Delhi University
Suneeta Dhar, Activist
Sunil Kaul, The Ant
Sunita Bandewar, Vidhayak Trust, Pune
Supriya Varma, Jawaharlal Nehru University
Surabhi Sharma, Independent filmmaker
Svati P Shah, University of Massachusetts
Swatija Manorama, Forum against oppression of women, Mumbai
Tanvi Mishra, Feminist Approach to Technology
Tenzing Choesang, lawyers collective
Tultul Biswas, Madhya Pradesh Mahila Manch
Ujwala Kadrekar, Socio-legal Consultant
Uma Chakravarti, Feminist historian, Delhi
Urmimala Sarkar Munsi, Jawaharlal Nehru University
Urvashi Butalia, Zubaan Publishers Pvt Ltd
Usman Jawed,
V.Sujatha, Jawaharlal Nehru University
Vanita Leah Falcao, Independent policy researcher
Vasanth Kannabiran, Asmita Resource Centre for Women
Veronica George, Independent Consultant
Vibhuti Patel, WRAG, Mumbai
Vinay Kulkarni, Prayas Health Group Pune
Vineeta Bal, Scientist, New Delhi
Virginia Saldanha, Indian Christian Women’s Movement
 

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