Hindutva and Democracy

Courtesy: Nishrin Jafri Hussain

I am the daughter of the former Member of Parliament, Ehsan  Jaffri, who was brutalised, burnt  in his own house and killed on February 28 during the Gujarat violence that took place in the wake of the Godhra incident. It was hard for me even to believe that he is no more, that he was taken away so untimely and with such cruelty and brutality. As he was burnt and we did not find his body, there is no closure for me on his death. During the past 5 months I have swung wildly between the extremes of faith and hopelessness, brotherhood and utter disbelief in humanity, our ancient values and wisdom, and the displayed dance of immorality and violence in Gujarat. Over this time, I even confronted my roots and religion. But thanks to the power of my father’s teachings and the support of my family, I have now regained my balance, overcome my grief, even if only partially.

Partially, because I still fail to control my emotions while thinking about the sword that ripped him, the fire that burnt him, the people who killed him. But I can now share with you my memories of my father, what he was to me, what he endured in the services to his family, his country, and how proud he has made us all.

He was my hero. The moment I close my eyes the entire period of my life from my early childhood to the day I got married and left my family in India, plays back. Repeatedly. He was with me every moment of that life and he is with me, in spirit, now as I write this letter.

My dear Abba, I love you. We all love you. We all miss you. We thank you for your devotion, your faith, your courage, your values, your sacrifice. You have taught us to be selfless and not put ourselves first. Ammi is never tired of recounting the incident when in the bedroom of your old house while you were sleeping, the small kerosene lamp on the side of the bed fell off and the curtain caught fire. You were sleeping on the side of the fire and Ammi was next to you. As the heat woke you up and you saw the fire, instead of jumping out of the bed immediately, you first woke Ammi up and asked her to get to safety. But when she woke up and saw the fire, she thinks she quickly jumped out of bed and ran to the door without even knowing where you were or what you were trying to tell her. It is more than 40 years since, but she still remembers and regrets that incident and feels guilty of putting herself first that day and not grabbing your hand as she ran to the door.
In the wake of what happened on February 28, as she was upstairs in the house while you were being brutalised and burnt in your efforts to save the lives and honour of over a hundred men, women and children who had gathered in your house seeking protection from the violent mob, the guilt has become unbearable for her. She sees that 40 year old incident replayed yet again if under different circumstances and with not so bearable consequences.

Thousands of books in your library, the books on law, literature, philosophy, humanity, religion, national unity and your own poems articulating your understanding of all that, have turned into ashes – the treasure you had safeguarded and saved for your children and grandchildren. The sparrows in your office are no more — their nests burnt. I remember how you used to encourage and assist the sparrows to make their nest in your office, lay eggs, rear their chicks and teach them to fly. You would keep one office window open all the time, even when we went out and locked up the entire house. Only so that the sparrows could get in and out freely. Several times a day you would happily clean the mess the sparrows made in your office in the process of making their nests. When the sparrows had little chicks, you would put a tape on the fan switch never allowing it to be turned on even by mistake. You would work in the heat rather than risk injuring the chicks by the fan blade. We also miss those sparrows.

Kaliya, the young boy who had foot infection, cries and recalls how you took him to the doctor and used to personally dress and bandage his wounds. He also talks of how he, whom no one else would even touch, used to feel embarrassed to sit on the chair while you would sit down and tend to his feet. Dozens of those whom you helped over the years also come and reminisce about your kindness and generosity. Many of them also know how you asked them to white–wash the house, paint the doors, or remodel the toilets, kitchen, or garage in our house, not because that was needed, but because you wanted them to work and make a living for themselves. They all miss you.
Abba, I know if you wanted, you would have earned a lot of money through your practice of law or your political career. But instead, consistent with our ethos, the Indian ethos, you chose to lead a life of simple living and high thinking. If you wanted, you could have become a very powerful and pragmatic politician. But instead, consistent with the values of your mentor and ideal Mahatma Gandhi, you chose to serve the people of our country. Your poems on communal unity, national integrity and human dignity will continue to guide generations.

Thanks to your optimism and my upbringing with a positive outlook, I choose to see love, brotherhood, peace and communal harmony in India. I choose to believe the violence and communal intolerance we saw in Gujarat was only an aberration that will soon pass.

You have touched many hearts. A majority of Hindus and Muslims have come together in mourning you. You were an apostle of peace and an advocate of humanity and human dignity. Most of our Hindu friends express regret and shame over what a few misguided radicals who believed they were Hindus did to you and to the thousands of other innocent people in Gulberg society and in Gujarat. Bearing a feeling of guilt, these friends often come and apologise to us for the Gujarat violence. But we tell them, as you would have, that it is not they who must feel guilty.

It is not Hinduism that is responsible for the carnage and should not be blamed. The misguided radicals were extremists, followers of extremism, which is a religion in itself. Hindus are as innocent, as kind, as compassionate, as God–fearing and law-abiding citizens as those Muslims who were made targets and killed in Gujarat by those extremists. We tell this to all our friends, here and everywhere. We love them, respect them and respect their sincerity and faith in our values just as you did. We share their concern and resolve to work together to eliminate the monster of fascism injecting and spreading the poison of hate in our society, our country.
Abba, there was a time when I was totally overwhelmed with my loss, when I repeatedly kept asking myself, why my father? Why him? But thanks to your teachings, the teachings of always seeing the bigger picture of events and the bigger picture of our lives, I have recognised that there are thousands of others like me – men, women and children – who have lost their near and dear ones and who are also asking why them? Scores of children have become orphans and scores of parents have become childless. I also recognise that some of the likes of me are in Godhra and in Kashmir. Their pain is no less than mine. Their loss is no less than mine. Their innocence is no less than mine. So I ask of those in power who have carried out this carnage and who from time to time commit such crimes against humanity, why us? And with all humility, humbleness and a sincere heart I ask God, Why not those who preach hatred? Why not those who spread communal intolerance? Why not those who propagate violence against His creation?

My dear Abba, I remember you telling me there is animosity in the world, but there is also peace, harmony and love. There is pain and misery in the world, but there is also happiness, progress and prosperity. There is fighting and brutality in the world, but there is also brotherhood, peace and tranquillity. It also depends upon where and how you look at the world. Thanks to your optimism and my upbringing with a positive outlook, I choose to see love, brotherhood, peace and communal harmony in India. I choose to believe the violence and communal intolerance we saw in Gujarat was only an aberration that will soon pass. The hate–mongers with a divisive agenda will be defeated and the people in India will come together, regardless of their religion or race, regardless of their colour or caste, regardless of their political orientation or ideology, to realise your dream and the dream of millions of others like you — that of a united, progressive, prosperous, secular and proud India.

My dear Abba, thinking about you and your teachings revitalises my resolve to go out and help thousands of those homeless men, women and children produced in the wake of the Gujarat massacre who have been suffering what is insufferable, who have been enduring, what is unendurable. I am not bitter against any individual, or community. Following in your footsteps, I with your son–in–law, Najid Hussain am working to the best of my capacity and capability, to help these destitute people. We have help from several individuals, institutions and organisations. We are working to provide those people rehabilitation, guarantee their safety and security and work to ensure justice in Gujarat.

Bless us Abba. And bless the country you served all your life with distinction, honour, and a selfless devotion. Bless us and guide us so that we can clearly see and tread the path you showed us — the path of kindness and compassion, of unity and integrity, of peace and harmony – so that we never have to see Gujarat repeated ever again. Thank you. We love you. We will always love you. We also miss you.  

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Bless us, Abba!            

The crisis the country is facing today has a most respectable genesis; it is intricately linked to the history of the movement for Independence

To be less than blunt will be altogether pointless. The crisis the country is facing has a most respectable genesis; it is intricately linked to the history of the movement for independence. Mahatma Gandhi, whom we love to describe as the Father of the Nation, was the indisputable leader of that movement in the early decades of the last century. He was in search of a paradigm which could capture the imagination of the innocent, illiterate, ill-fed, ill–clad masses and inspire them to be active participants in the great endeavour to liberate the nation from foreign subjection. Religiosity, he concluded, held the answer.

His ceaseless pontification has a single message: freedom would bring back the Ram Rajya of Puranic times; in Ram Rajya, justice and fairplay prevailed in all seasons, nobody exploited anybody else and people lived happily together under the benign rule of Lord Rama. Whether Lord Rama’s treatment of his consort, Sita was impeccably correct was an issue that was conveniently brushed aside. Rama was the embodiment of all virtues, and once the country was rid of foreign rule, equity and manna would begin to drop from heaven.

The dream of Ram Rajya, the just kingdom, was the incitement Gandhiji provided his people. The paradigm, however, was sectarian to begin with. It was a Hindu paradigm; to the innocent masses, who overwhelmingly belonged to the Hindu community, the liberated land would be another Ram Rajya all right, but one the denominational identity of which could hardly remain vague. The Ram Rajya was a Hindu concept, post–liberation India would ipso facto be a Hindu domain.
The other communities were excluded. The problem lay with the Gandhian model. A subterranean attitude of the mind was simultaneously pervasive after all: we have made a gift of Pakistan to the Muslims; the rest of the great Indian subcontinent naturally belongs to us, the Hindus. It did not matter what the sophisticated thin stratum at the top thought or felt; for the nation’s multitude, the imagery of India was that of a basically Hindu land. That imagery has not weakened in the course of the past half a century and more.

The sojourn from Gandhiji’s Ram Rajya to the Ram Rajya of the Ram Rajya Parishad and the Vishwa Hindu Parishad was therefore not particularly arduous. The Parishad could claim to be the sincerest followers of the Gandhian path. And it should not be much of a surprise that the medieval savagery the country has witnessed this year had Gandhiji’s very own Gujarat as its venue. The current thought of a considerable number of Gujarati Hindus bears traces of Gandhiji’s ideological baggage. What is true for Gujarat is equally true for the rest of the country. It is not for nothing that the offspring of such eminent Congress leaders as Pandit Govind Vallabh Pant and Lal Bahadur Shastri are distinguished members of the top hierarchy of Bhartiya Janata Party leadership.

The poison tree that has impeccable roots has made nonsense of the Indian Constitution’s secular pretensions.  Jawaharlal Nehru, free India’s first prime minister, was unable to conceal his emotions in those heady days: no fooling, he was going to preside over a secular India. Nehru had a noble mind. Unfortunately, it was also a flawed mind. A secular republic, Nehru thought, is one whose government tends to be equally sympathetic to all religions and communities. He would accordingly hop from temple to temple and satisfy his secular conscience by visiting mosques, gurdwaras, churches and synagogues with equal gusto. Since the number of Hindu temples in the country far exceeded the number of religious sites identifiable with other faiths, it was his visits to the Hindu institutions which caught the attention of the media and therefore of the general public.

The malady spread, and with rapidity, following Nehru’s departure from the scene. India Gandhi’s persona was an enigma: she was a modern woman par excellence; however, she had a religious streak in her, laced with strong superstitious beliefs. Sadhus and fakes of the Hindu denomination were constantly visible in her neighbourhood. Her elder son, who too became prime minister, was born of a Parsi father and wedded to a Catholic wife.

Democracy is a mug’s game though, and one must flaunt one’s denominational credentials if the prime object is the garnering of votes. Photographs exist of the young prime minister of India bowing down, bare bodied, before Hindu priests while visiting holy Hindu temples and seeking benediction. These pictures were regularly flashed across newspaper pages. The subconscious Hindu mind, nestling in the bodies of millions of honest, innocent Indians, could not but take the hint.
Soon the electronic media was drawn in. The great Puranic epics, the Ramayana and the Mahabharata, were serialised for years on end under government auspices on the Doordarshan screen. The Hindu epics were government–sponsored epics; by inference, the government had to be Hindu. For a few weeks, as a balancing stratagem, those in authority with some leftover conscience tried to run a serial on Tipu Sultan. That proved to be extremely disappointing and was abandoned pronto.

The Republic of India continued to be nominally secular, but it was Hindu secular. Hindu secularism defined itself as one which does not mind the powers that be to patronise occasionally other denominations as well. There is a catch though: others are tolerated, Hindus are the dominant entity.

The problem lay with the Gandhian model. A subterranean attitude of the mind was simultaneously pervasive after all: we have made a gift of Pakistan to the Muslims; the rest of the great Indian subcontinent naturally belongs to us, the Hindus.

The rest of the grisly story is easily summed up. The practice of Vast Pug persists in all construction activities in the public sector. A boat, built in a government workshop and owned by a government company, cannot be floated into the waters without the crushing of a coconut. Hindu totems choke public offices. You should not be surprised to find incense burning before the picture of a Hindu deity when you step into the lift in a government building or take a ride in a government car.
Secularism has lost its way. It has come to be defined as a state of existence where the government is equally chummy, at least on paper, with all religions; in reality, it is much more chummy with Hindu ascriptions. The awareness that genuine secularism is something else — a condition of being where the State is equi-distant from all religions, is indifferent to all of them and keeps all of them at arm’s length — has in the present circumstances, ceased to exist.

Competitive democracy, besides, has its own rules and an infectious disease is an infectious disease. For his sins, the present writer was once a minister in a state government which was immensely proud of its Left radical credentials. One of his most shameful memories of that tenure concerns a cabinet decision to declare a public holiday on the occasion of a solar eclipse; some eminent astrologers had predicted the end of the world on that day and the state government did not want to go against the general sentiments of the people: is it not a reasonable proposition that, on the last day of human existence, one should be in the midst of one’s near and dear ones and not be attending office?

It is going to be a long, long haul before the parameters of this society could be totally overhauled. And that will remain a very dim possibility as long as the present political establishment, infested by crooks and hypocrites and devoid of all scruples and moral compunctions, monopolises the proceedings.            

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Rotten roots

A subtle, steady and perceptible erosion has, and is, taking place at all levels and within all constitutional institutions, including the judiciary

The Constitution is under attack not externally, but from within. The Indian State is under the administration of those who have no regard for the values enshrined in the Constitution. Every institution under the Constitution is being subverted  and maligned. The executive today is a saffronised executive with no respect for the secular ideals found in the Constitution. The Prime Minister and his ministerial colleagues, who have taken oath to protect the Constitution have no compunction in periodically reaffirming their allegiance to the Rashtriya Swayamsevak Sangh (RSS) with an oath which says: “I must solemnly take this oath, that I become a member of the RSS in order to achieve all–round greatness of Bharatvarsha by fostering the growth of my sacred Hindu religion, Hindu society and Hindu culture”... This is the prayer that every member, pracharak of the Sangh utters with reverence:

“Affectionate Motherland,
I eternally bow to you,
O Land of Hindus,
You have reared me in comfort..,
O God Almighty,
We the integral part of
Hindu Rashtra,
Salute you in reverence,
For your cause have we girded up our  
loins,
Give us your blessing
For its accomplishments.”

The domination of the RSS over the Indian executive is complete, with all the important portfolios retained by them, and small crumbs of no significance distributed amongst the BJP’s allies whose sole, albeit unholy, objective is to simply hang on to power. Constitutionally, the President is the executive head.  However, with the appointment of APJ Abdul Kalam they have succeeded in installing a very pliable President who has neither political acumen nor constitutional knowledge.
The next is the assault on Parliament. With a Shiv Sena man as Speaker in the Lok Sabha and a sangh parivar man as vice-president chairing the Rajya Sabha, the takeover is almost complete. Thus, the two wings of the government — the executive and the legislature — are under the leadership of those who have no faith in the Constitution.

What about the judiciary? It is difficult to imagine that the government is not doing anything to saffronise the judiciary. When  attempts at saffronisation of the bureaucracy have been so blatant, attempts to infiltrate the judiciary with men and women who are ideologically opposed to the Indian Constitution will not lag far behind.

At the lower level, the judiciary is dependent on the government whichever be the party in power. At the higher level, ie, at the level of the High Court and Supreme Court judges there is greater independence. But there is no transparency in the selection of judges. In any event, unfortunately, a commitment to Constitutional values neither is nor has governed the criteria for selection of judges. As Justice VR Krishna Iyer says: “The social justice perspective, a people–oriented credential, secular socialist essentials are frequently alien to the selection process of the brothers on the bench.”

For all we know, some of the the appointments to the bench could be primary members of the RSS who were appointed as judges later on. It is no wonder then that a former chief justice of a state high court has now become governor in a BJP–ruled state, the only apparent reason for his appointment being his close association with the VHP. This is in line with the perceptible policy of the government to appoint RSS pracharaks as governors in the states, yet another institution under the Constitution that is being manipulated and eroded.

When the Babri Masjid was about to be demolished, the only persons who could have stopped the demolition were the then Prime Minister Narsimha Rao and Justice Venkatachaliah, the judge who headed the Supreme Court bench before whom the matter was pending. Rao connived in the crime. Justice Venkatachaliah was naïve enough to accept an undertaking from Kalyan Singh, then chief minister of UP, which he never intended to keep.

After the masjid was demolished in full public view, resulting in the death of thousands of innocent people and large scale destruction of property in the riots that followed all over the country, there was hardly any feeling of righteous indignation on the benches of the Supreme Court. A routine contempt of court notice was issued  against Kalyan Singh. In response, Kalyan Singh paraded the corridors of the Supreme Court and his token punishment lasted only until the court rose for the day.
In sharp contrast, the innocuous tone and tenor of an affidavit filed by Arunadhati Roy was sufficient to invoke a severe punishment from the Supreme Court. Later on, another judge, Justice JS Verma of the Supreme Court, in what is now known as the Ayodhya verdict, observed that the demolition of the Babri Masjid was the act of certain mischievous “miscreants who cannot be identified” when the whole world knew who were the perpetrators of this crime.

It is a sad reflection on the Indian judiciary that when on occasions it has been called upon to deal with ‘secularism’ as enshrined in our Constitution, it has dithered, it has displayed unbecoming traits leaning in favour of the majority as against the minority community.

Soon after the demolition of the Babri Masjid, someone installed a ramshackle Ram Mandir on the site of the demolished mosque and sought protection for the same from the court. It was patently an illegal structure put up by “miscreants” who were plainly trespassers in law. Yet, Justice Tilhari, who in his wisdom found that Lord Rama has a place in the Indian Constitution, gave protection to the structure and allowed worship and darshan for the Hindus (Vishwa Hindu Adhivakta Sangh vs. Union of India — Judgement delivered on 1-1-1993).

A special leave petition filed against this judgement was summarily dismissed by the Supreme Court. The government enacted an ordinance on January 7, 1993, the sole object of which was to permanently establish and legitmise the  make shift Ram Mandir. When this ordinance (which later became an Act) was challenged in the Supreme Court, the majority judges (Judgement of Verma J.) upheld this very provision in the law (Section 7), which sought to maintain the status quo as on January 7, 1993, on the specious plea that in the demolition of the Babri Masjid, it was the Hindus who suffered their rights of worship which they were exercising from December, 1949  until December 6, 1992.
Further, Justice Verma observed that the “freeze enacted in Section 7(2) only enabled them to exercise “a lesser right of worship for the Hindu devotees” and as such the law “appears to be reasonable and just.” The learned judges conveniently forgot that in December 1949, the idols were forcibly installed within the premises of the Babri Masjid, after which action, they were sustained there through several interim orders. The minority judges on that bench of the Supreme Court rightly observed, “that the Act is skewed to favour one religion against another” (Bharucha J.).

Thus the issue of Ramjanma-bhoomi was kept alive by an order of the Supreme Court! It is the judiciary that kept this issue alive since 1949, by passing a series of orders which only favoured the Hindu community over the other. This trend set by the judiciary was to be exploited later by the communal elements in political parties, and to be hijacked and monopolised as their exclusive agenda by the sangh parivar, since about 1980.

It is a sad reflection on the Indian judiciary that when on occasions it has been called upon to deal with “secularism” as enshrined in our Constitution, it has dithered, it has displayed unbecoming traits leaning in favour of the majority as against minority community, reminding us unwittingly of what Justice Oliver Wendell Homes once said: behind every judgement lies an “inarticulate major premise.” However, their subjective conscience should not have allowed them to commit a breach of their own oath on the Constitution.

The only exception was the judgement in the case of SR Bommai (1994) wherein it has been said: “Article 25 inhibits the government to patronise a particular religion as State religion overtly or covertly. A political party is therefore positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws… A political party that seeks to secure power through a religious policy or caste orientation policy, disintegrates the people on grounds of religion and caste” …

In this case the court took into account the manifesto of the BJP which stated that the “BJP firmly believes that construction of Sri Ram Mandir at Janmasthan is a symbol of the vindication of our cultural heritage and national self respect… And (that) party is committed to build Sri Ram Mandir at Janmasthan by relocating superimposed Babri structure …”.

The court also took into account that the leaders of the BJP had consistently made speeches to the same effect and that some of the chief ministers and ministers belonged to RSS and that the ministers had exhorted people to participate in the kar seva that led to the demolition. The court observed that all these materials were sufficient to hold that the state governments (which were dismissed following the demolition of the Babri Masjid) were not run in accordance with the provisions of the Constitution.

Yet this judgement was not even referred to by the Supreme Court when the election of the Shiv Sena leader Manohar Joshi (former chief minister of Maharashtra, and the present Speaker of the Lok Sabha)  was upheld. In an election rally Joshi had sought votes stating that the first Hindu state will be established in Maharashtra with the Sena–BJP victory. The latter judgement gives the distinct impression that canvassing on the basis of Hindutva was permissible since “Hindutva is only a way of life.” What about Christianity? Is it not a way of life? Is Islam not a way of life? Thus, Hindutva got judicial reprieve and thereby the government at the Centre and in Gujarat today gets legitimacy.

In the 1992–93 riots in Bombay, none could doubt that the worst culprit was Bal Thackeray who had repeatedly incited the mobs through his mouthpiece, Saamna. Since the the Congress government was not taking any action against the Sena leader, two concerned citizens moved the Bombay High Court with all the newspaper articles and adequate documentation seeking direction to sanction prosecution of Thackeray. The two judges who heard the petition simply turned down the plea on the basis that past wounds and atrocities should be swallowed and forgotten because of apparent peace in the city. Worse still,  the division bench of the Bombay High Court held that the provocative exhortations by Thackeray to his cadres on January 9, 1993 were not against all Muslims “but only against anti-national Muslims.”

What is even more regrettable is that the SLP filed against the judgement in the Supreme Court was summarily rejected, giving sanction to, ‘kill, loot and forget!’ Much later, when Bal Thackeray was arrested, a lower Court in Mumbai released him on a technicality and the Bombay High Court has had no time in the last three years to hear a review petition against the said order.

 While the bomb blasts cases have been going on, almost on a day–to–day basis for the past several years,  the judiciary has simply been postponing the case against those accused for the Babri Masjid demolition (which include LK Advani & Co.) for the last nine years!

On  December 12, 1992, Narasimha Rao, by a notification, banned the RSS, the VHP and the Bajrang Dal under the Unlawful Activities (Prevention) Act, 1967. This ban had to be confirmed by a judicial tribunal under the Act. Justice PK Bahri, a retired judge of the Delhi High Court who sat on the tribunal confirmed the ban on the VHP but quashed the ban against the RSS and the Bajrang Dal. He however spoke of  “the laudable objects pursued by VHP.” So the Ram Janmabhoomi movement became a laudable act by virtue of a judicial pronouncement.

The issue of Ramjanma–bhoomi was kept alive by an order of the Supreme Court! It is the judiciary that kept this issue alive since 1949, by passing a series of orders which only favoured the Hindu community over the other.

What the judge said about the RSS discloses his “major inarticulate premise.” According to him: “The word “Hindu” has been firmly imprinted in our national mind, was radiantly reflected in our freedom struggle against the British as well. The fight was essentially for certain ideals associated with the word Hindu, and not for mere political independence or economic rights.” No wonder then that he came to the conclusion that the accusation that the RSS is opposed to Muslims is wrong. The question is, how did the then Prime Minister select such a person to head a judicial tribunal?

When Graham Staines and his two innocent children were so tragically burnt to death on the night of January 22/23, 1999 by Dara Singh in association with members of the Bajrang Dal, the government promptly appointed Justice Wadhwa, a sitting judge of the Supreme Court to hold an inquiry, inter alia on “the role, if any, played by any…organization…or individual in connection with” the killings. Within days, before the commission could begin it’s work, LK Advani, as Union home minister had granted a character certificate to both the VHP and the BD, on the floor of the Lok Sabha. He said that he knew these organisations well and they were incapable of criminal acts. What happened thereafter is well known.

Despite the investigations and depositions of police officers and counsel before the commission that revealed the clear links between Dara Singh and the sangh parivar outfits, the learned judge was in a great hurry, despite the submissions made by the commission’s advocate, Gopala Subramaniam to nullify the link. Justice Wadhwa categorically held that Dara Singh alone was responsible and that no “authority or organisation was behind the gruesome killings.” Thus Advani stands vindicated.

Fortunately for India and the founding principles of the Indian State under the Indian Constitution, the judiciary has not been entirely influenced, ideologically. It remains, with all these major deviations, the most secular institution under the Constitution, as compared to the other two. It is still the judiciary and the judiciary alone can resuscitate constitutional values to their original intent. However, we need to be warned of the subtle, steady and perceptible erosion that has been, and is, taking place at all levels and within all constitutional and democratic institutions, including the judiciary. One of the main causes for anxiety is the lack of transparency in the matter of selection and appointment of judges. Coupled with this is the lure that is offered to judges who are about to retire-with commissions and tribunals all legislatively sanctified as reserved for retired judges as also seats in the Rajya Sabha.

Added to this list is now the governor’s post. Even when there are no constitutional or statutory commissions to head that retired judges can be appointed to, the Government can always, by its executive orders create one like the recent Constitutional Review Commission — the sole purpose of which was to make use of retired judges to create doubts about the Constitution, in the minds of the people.                

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Your lordships, beware!

The most subversive factor in Gujarat is not so much its polarised society, but the use of organs of the State to cultivate this polarisation

Courtesy: Dainikbahskar
 
There is a sense of anxiety and bewilderment when we look at the current crisis in the Indian State, and in our own lives. There is increasing corrosion of the secular commitment in politics and a loss of trust in authority and their intent to maintain the rule of law. The enormity of the problem lies in the casualness with which these principles, once held so sacrosanct, have been so easily compromised. What has happened in Gujarat is a stark example of the subversion of democratic institutions for the pursuit of sectarian power.

“Hindu Rashtra Karnavati mein aapka hardik swagat hain!” An audacious, unconstitutional and anti-national signboard symbolising an open challenge to the nature of the Indian State was placed prominently on a bridge over the Sabarmati river in Ahmedabad. Proof of official sympathy and complicity came from the fact that the signboard was not even taken down for weeks, let alone attempts to prosecute those responsible.

Similar signboards had been appearing in villages and towns across Gujarat, well before the orgy of planned violence that was unleashed in Godhra and in post-Godhra Gujarat. They have been multiplying ever since. Do these signboards not amount to a call for civil war? And yet this pernicious message spreads and a government which has taken an oath to protect the secular Indian State deliberately looks the other way.

The success of communal forces in dividing the social fabric of society along sectarian lines is a cause for comprehensive introspection. However, the systematic and deliberate agenda of a government acting counter to its oath of office raises fundamental questions of its accountability and legitimacy. The short history of independent India has had several sad and shameful chapters of sectarian violence. Larger numbers of people have died in some of those incidents. However, not even in the Sikh “riots” of 1984, (where similar action and reaction theories were shamefully trotted out) was there such a deliberate, comprehensive and sustained plan to subvert the rule of law.

There have been many moments of despair since 1947, but the minorities in India have never been made to feel so conclusively that they can have no faith in the State and its machinery. The government that allowed aggressive and lawless mobs a free a hand has indicted itself. And the confidence in a civil service, which abides by the Constitution and the law, has hit an all time low. The institution of the civil service, including the police, created to prevent the laws of the land from being violated, has failed its own people and the reason for its own existence. It should, if nothing else be ashamed of its incompetence and inability to ensure law and order and quell the violence.

The danger in situations like Gujarat arises when a set of people are elected with a declared allegiance to the Constitution, but who in fact are committed to an agenda of subverting its basic principles.

Even a newly appointed sub divisional magistrate with a conscience and a sense of duty, could have restored peace within hours. The police continually accused for its communal and criminal nature will not be able to live down this shameful period in its history. Countless people prayed for help from the police in Gujarat, and learnt while being raped, looted and killed, that a partisan police force will not perform its duty.

The most subversive factor in Gujarat is not so much its polarised society, but the use of organs of the State to cultivate this polarisation. It is for this reason that it must be understood as a State in an undeclared war against itself. There has been no indictment of the state by the central government or of the civil servants by their own community. What does this portend for the country?

What should also frighten the common woman and man in this deliberate and naked connivance of the State in these crimes against humanity is their own future. If the State can encourage these acts against a minority community, it does not take long for these to be perpetrated against any group that threatens the political party or a dominant group’s vested interest.

What has given the victims of the Gujarat carnage and citizens alike some hope for the rule of law has come from the action taken by bodies like the National Human Rights Commission and the Election Commission of India. They have acted to protect constitutional rights, profiling the positive potential that can be exercised by institutions of the State.

The Constitution with its basic features of egalitarian democratic values, with special attention for the disadvantaged, has been responsible for our strength and resilience as a nation state. This was the result of a long struggle for independence and has the sanctity of the approval of its people, who fought for and cherished the idea of a pluralistic and inclusive India. There have been groups which have questioned this sanctity, through direct conflict and confrontation. Their conflicts have been openly placed in the public domain, and many such movements have engaged in violent struggle with the state machinery. The State used its own powerful tools of reprisal and often invoked constitutional authority to quell these rebellious groups. The danger in situations like Gujarat arises when a set of people are elected with a declared allegiance to the Constitution, but who in fact are committed to an agenda of subverting its basic principles. It is imperative that this be recognised.

Communalism of any colour is unconstitutional, and anti-national, and its worldview runs counter to the principles we have set for ourselves. The hidden agendas must be exposed and fought openly on the political plane. This uni-polar nationalism advocating an ‘Akhand Bharat’ by threatening the pluralistic nature of our country, will be the reason, in fact, for its balkanisation. ‘Peace’ alone, is not the critical factor in Gujarat: it is what kind of peace. We have seen the vision of a ‘Hindu Rashtra’ in Gujarat .We have to recognise that communalism is the biggest threat to the Indian nation state. Communal acts within government are an insidious, subversive, and even greater threat.

What we have to understand as ordinary citizens is the unholy alliance between political aggrandisement, personal gain, corruption and the crumbling edifice of institutions created to maintain the rule of law. It is for us to decide whether we want boards like the one in Ahmedabad to welcome us to a divided India. 

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Conniving state
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With the BJP controlling the central government, the threat of subversion of the Constitution and the Parliament is very real  

Courtesy: bbc.com

It is not a mere coincidence that the last three election manifestos of the Bharatiya Janata Party (BJP) included the issue of a review of the Indian Con-stitution. And the fact that the BJP could manage to smuggle in this issue as part of the national agenda for government — the joint common manifestos of the motley combination, which calls itself the National Democratic Alliance — betrayed the intolerance of the Hindutva forces spearheaded by its political arm, the BJP, to the present Constitution. It is also quite revealing that once it assumed office it went ahead with the formation of the Constitution Review Commission, which has since submitted its report. The attempts at tinkering with the basic features of the Indian Constitution, which has the parliamentary system as the centre–piece of the political structure, provides a sharp contrast to the involvement of elected representatives of the people as inherent in the Constituent Assembly and underlines the alien nature of this latter attempt which essentially is divorced from the people and their aspirations.

Fortunately, the composition of the Indian Parliament as of now, and the insight of a broad array of political forces into the possible dangers of the Hindutva forces in redefining the secular democratic and composite nature of the Indian State and society have largely thwarted the potential mischief–making potential of the move. The silence of the government thereafter, on implementing some of the issues raised by the constitution review is a case in point. Perhaps we will hear more about it on the eve of the coming election.

In response to his plea to lift the ban on the RSS, in 1948 the then Prime Minister Pandit Jawaharlal Nehru had observed in a letter to the then RSS chief and the most influential of Hindutva ideologues, MS Golwalkar: “In the course of the last year both the central government and the provincial governments have received a mass of information in regard to the objectives and activities of the RSS. This information does not fit in with what has been stated by you in this behalf. Indeed it would appear that the declared objectives have little to do with the real ones and with the activities carried on in various forms and ways by people associated with the RSS. These real objectives appear to be completely opposed to the decision of the Indian Parliament and the provisions of the proposed Constitution of India.”

But now that the BJP has virtually come to control the central government thanks to the servile capitulation of its so-called secular allies, the threat of subversion of the Constitution and the Parliament is very real. In the wake of the ban on the RSS, the Hindutva forces had found themselves completely on the back foot. And it is against this background that the Jan Sangh was formed in the early 50’s, since nobody was prepared to take up the Hindutva view in the Indian Parliament at that point of time. Subsequently, by the mid 60s, though the Jan Sangh had increased its strength in Parliament and tried its best to use the floor of the two Houses to further the interest of the Hindutva cause, they met with  limited success. Though the Sangh elements managed to position themselves crucially within the Janata Party in the general background against the authoritarian politics of the Congress Party epitomised by the Emergency, during the late 70’s, notwithstanding the success they achieved in planting Sangh Parivar elements in important governmental positions (particularly in the media with Advani handling the I&B portfolio), the fight back by the secularists led by Madhu Limaye on the dual membership question led to the Hindutva forces suffering a set-back.

By the 1984 elections, the BJP, the new incarnation of the Jan Sangh, came down to an all time low of just two members in the Lok Sabha. But the fortunes of the Hindutva forces started looking up, with the Hindutva campaign concentrating on “pseudo secularism” against the Congress after the Rajiv Gandhi government’s completely misplaced decision to placate fundamentalist elements by reversing the Supreme Court judgment on the Shah Bano case.   

The use of Parliament by the Hindutva forces reached a most crucial phase with the Ram Mandir campaign in the early 90s. The BJP used the floor of the Parliament to propagate the mandir cause and ultimately, along with the National Integration Council, the two Houses were also used to hoodwink the nation on its real game plan about bringing down the Babri Masjid. However, this gory act once again saw the BJP finding itself in splendid isolation. The spectacle of Vajpayee completely lost standing alone in the Lok Sabha in an atmosphere of all–round condemnation will continue to be part of an enduring memory in the annals of the Indian Parliament.

But the fact that Vajpayee did not outright condemn the unmaking of the Indian Constitution in Ayodhya was a crucial point in the process of the Hindutva forces’ attempt to subvert Parliament. The Hindutva forces attempt at subverting Parliament went on unabated till 1998, so long as it was in the Opposition. But these efforts did not help the BJP emerge out of its political isolation.

However, these subversive efforts assumed a new dimension with the NDA government’s assumption of office in 1998. The dubious political and ideological premise which separated the BJP from its allies was promised to be relegated to the backburner on the eve of the elections. When questioned by the media on the absence of controversial issues like the reconstruction of the Ram Temple in Ayodhya, or scrapping of Article 370 of the Constitution at the time of the release of the NDA’s common election manifesto, Vajpayee pointedly stated that the NDA, if voted to power, would have nothing to do with these issues.  

The so-called secular allies of the BJP and NDA allowed themselves to suffer the self–delusion that the BJP was abandoning these issues for good. This was despite the fact that the Hindutva brigade did not make any secret about merely putting them on hold and not really abandoning them. But opportunism and lust for power prevailed in so far as the thinking of these so–called allies was concerned. To start with, the BJP was cautious and gave the impression that it was genuinely sensitive to the allies’ concern over the controversial issues. But as and when the vulnerabilities of these allies were exposed, the BJP went on the offensive,  more so, after the NDA was re–elected to office in 1999.

The first major issue in its attempt to subvert the parliamentary system started with the efforts in securing endorsement for the Gujarat government’s decision to allow its employees the freedom to associate with the RSS. This was in complete contravention of the existing rules. The Opposition wanted the government to advise the Gujarat government to reverse this decision. Not only the Opposition, even a section of the NDA put its foot down, rubbishing the bid of BJP leaders at the Centre to pretend they did not wish to interfere or undermine the ‘legitimate authority’ of a state government.

The protest against this led to the stoppage of normal transaction of business in both houses of Parliament. In the face of such strong resistance, the government had to relent and appropriate advice was communicated to the Gujarat government, leading to the scrapping of the latter’s earlier order.  

The next major confrontation was sparked off by Vajpayee’s infamous assertion that the ‘reconstruction of the Ram Temple was an expression of national sentiment.’ The debate on this dubious statement by the Prime Minister brought out the hypocritical commitment of the BJP to keep Hindutva agenda out of the government’s ambit. The Opposition did well to expose the sham and the Rajya Sabha, where the Opposition was in majority, voted a resolution disapproving the Prime Minister’s statement. But the flip side of this development was that so-called secular allies with otherwise impeccable credentials steeped in non–Brahminical Dravidian ideology like the DMK, MDMK or PMK sided with the government over such a crude expression of Hindutva.
The Ayodhya issue also saw government efforts at making the construction of the Ram Temple a part of the government’s agenda by offering legitimacy to the shiladaan program sponsored by the VHP and the Ram Janmabhoomi Nyas even as the matter remains pending before the Supreme Court. It is the Prime Minister who gave legitimacy to the VHP’s pernicious design by promising it a deadline on the issue.

As long as the Hindutva forces are not ideologically weeded out from the body politic, the threat of Hindutva subverting Parliament will be real. The legislature and its capacity to assert its independence flow from the executive’s accountability.

Having thus allowed the drift and once again put the entire nation on tenterhooks, the Prime Minister justified the action of the attorney general making the government a party to a religious ceremony. Another major attempt at undermining secularism as the mainstay of state policy by the Hindutva forces is related to its series of actions aimed at saffronising education. Be it the question of withdrawal of manuscripts edited by secular historians for the ‘India Wins Freedom’ series or rewriting of NCERT history text books or framing of the national curriculum policy, Union minister for human resources development, Murli Manohar Joshi misled the Parliament and the nation with half-truths and plain lies. That the Opposition nailed these lies is a different issue.

But the most serious of all attempts to subvert Parliament by the Hindutva forces was over the Gujarat development.In the first week of March itself, the treasury benches refused to accept the terming of the indiscriminate looting, killings, arson, rape of the hapless minorities in Gujarat as state–sponsored genocide. All important ministers of the government, particularly LK Advani and Arun Jaitley justified Narendra Modi’s infamous “every action has an opposition reaction” theory, linking the communal carnage to the Godhra incident. Gaping holes in the government’s line of argument can be identified in the three debates which have taken place so far in Parliament on the subject.  Attacks on independent institutions like the National Human Rights Commission (NHRC) and the National Commission for Minorities have been major features of the government’s stand. On the floor of the House, Jaitley defended intolerance of the media, like the blocking of Star News coverage of the Gujarat genocide. Venkaiah Naidu was so enraged over facts quoted from the special issue of Communalism Combat on Gujarat that he demanded an immediate banning of the publication. Only a reminder that it is a legitimately published magazine brought him to his senses. The contradictory facts over the Godhra incident also bear testimony to the government’s attempts at subverting Parliament. Notwithstanding the government’s most blatant attempts to shield the Modi government and the indefensible acts of the Hindutva forces in Gujarat, the NDA–government ultimately had to be a party to a resolution in the Rajya Sabha accepting the failure of the Gujarat government and its own inaction.  

To conclude, as long as the Hindutva forces are not ideologically weeded out from the body politic, the threat of Hindutva subverting Parliament will be real. The legislature and its capacity to assert its independence flow from the executive’s accountability. This is how the makers of the Constitution conceived the parliamentary system in our country. Given the obnoxious record of the BJP and the Hindutva forces, the threat is all the more serious.

In democracies the world over, the functioning of the legislature is inseparably linked to the functioning of a free press reflecting truthfully the development and proceedings in  Parliament. Therefore, in the coming days, vigilance has to be redoubled to safeguard Parliament from such pernicious attempts at subversion.          

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Subversive Sangh

 
A frontal attack on communalism will be ineffective if it is not part of a larger campaign for good governance

The Gujarat carnage has once again proved that the Indian Administrative Service, which heads the law and order machinery in India, cannot be trusted to act with fairness and objectivity. Rather than follow dictates of the Constitution most of them got swayed by their communal prejudices and willingly allowed themselves to be governed by the local politicians, in the process forgetting that they were duty–bound to save the lives of innocent citizens.

Three issues need to be probed; the changing nature of politics in India, the response of the civil service to it; and the legitimacy that Hinduisation has provided to both politics and administration, which has otherwise completely failed to solve the real social and economic problems of the common people.

Political pressure can be healthy if it results in greater demand on administration for efficiency and better services to the people. Pressures properly regulated and wisely tempered, improve the spirit of administration and help to keep it on an even keel. Unfortunately, the main problem today is that the politics of the country has itself become divorced from public welfare and is more concerned with narrow sectarian interests.

Politicians think that electoral behaviour can be manipulated through precipitating caste or some other populist wave at the time of elections, which does not require sustained work in the constituency. At the same time, elections require funds, which have to come through the looting of the government treasury.

The political system is accountable to those who are behind the individual MLAs/MPs; these are often contractors, mafia, corrupt bureaucrats and manipulators who have made money through using the political system and are therefore interested in the continuation of chaos and patronage–based administration.

A vast gap exists between the stated and unstated objectives of government. On paper, the avowed objective of government is to give clean administration, but many posts are auctioned to the highest bidder. Corruption is rampant. People have unfortunately accepted the position as fait accompli and resigned themselves to their fate. They, too, tend to seek short cuts and exploit the system by breaking rules or approaching mafia gangs and politicians for favours.
Democracy in most developing countries is not about people; it is about access to state power. Entry into the political arena is driven by a desire for personal gain, not by a genuine commitment to serving the people. The state’s resources are the most valued prize for both politicians and their constituencies, which leads to a client–patron relationship between the holders of state power and those seeking favours.

Patronage is controlled by individuals, not established institutions bound to follow set procedures. Where power is highly personalised and weakly institutionalised, the political process is replaced by arbitrary and informal transactions. In such an environment, access to power and material resources leads to the fudging of rules (show me the person and I will show you the rule), plundering of public treasury, dependence upon intermediaries, and decay of governance. When the fence itself starts eating the field, there is little chance of the survival of the rule of law.

Winston Churchill, on the eve of India’s Independence, had said, “Power will go to the hands of rascals, rogues and freebooters. All Indian leaders will be of low calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for power and India will be lost in political squabbles.” What appeared as a scandalous outburst then may be called an understatement now!

The power–hungry IAS officer, soon after his recruitment, gives up studies, and sees no reason for making efforts to improve his skills. There is then an exponential growth in both his ignorance and arrogance.

Civil Service
India started with a competent and motivated civil service (though it was pro–rules and not pro–people), but in the course of the last thirty years the service has lost much of its dynamism and autonomy. It has ended up as being a stooge in the hands of its wily politicians. The political morose has affected the civil service, too, though reasons for the decline in its performance are many.

Some such as secrecy, cumber-some procedures and unnecessary controls are well known. Here we will highlight two more factors: unplanned expansion of the IAS in the 1970s and 80s, and lack of professionalism.

In a north Indian state, where previously one officer used to be the secretary of medical and health, now there are five secretaries doing the job of one; four are in charge of health, family planning, medical, and medical edu-cation respectively, whereas the fifth one, as principal secretary, oversees the work of these four secretaries! With the changing role of govern-ment, the bloated size of the civil service no longer relates to the nature of functions that government can or should undertake.

The proliferation of promo-tion posts (though carrying little challenge) has apparently been done to avoid demoralisation of individual civil servants due to stagnation, but the net result has been just the opposite. First, it leads to cut-throat competition within the service to get into more important slots. The old camaraderie has given place to a rat race. Instances are not lacking when IAS officers wanting a plum job, say a foreign posting, have gone to the press denigrating their competitors.

This has also resulted in the decline of superior–subordinate relations, even when both are from the IAS. Previously, the junior officer was always a colleague, now he appears more as a subordinate wanting favours from his superior. The annadata and the maibap culture of  bygone feudal days now pervades the IAS. Second, this no–holds–barred competition is then exploited by politicians in playing up one against the other leading to officers becoming more pliable. Third, for IAS officers in marginalised positions govern-ment seems remote, heartless and more unjust now than ever before. Previously, IAS officers were the government, now the individual officer considers himself alienated from government. Many have gone to the tribunals and courts for promotions and postings, a phenomenon that was unknown ten years ago.

Lack of professionalism
A high degree of professionalism ought to be the dominant characteristic of a modern bureaucracy. The fatal failing of the Indian bureaucracy has been its low level of professional competence. The power–hungry IAS officer, soon after his recruitment, gives up studies, and sees no reason for making efforts to improve his skills. There is then an exponential growth in both his ignorance and arrogance.

It is said that in the house of an IAS officer one would find only three books — the railway time-table, because he is always on the move, a news magazine because that is the only book he reads, and of course, the civil list that describes how many in the system are above him. Stagnation in his intellectual calibre leads him to believe that the state structure has been created to pander to his ego. When the world is moving fast to a new goal oriented culture, the IAS officer is sliding back to the 18th century mentality.

The IAS officer is not so much worried of a transfer per se, as he is worried of being transferred to a job that carries no patronage or perks. He would use all kinds of pulls and pressures — both adminis-trative and political — to avoid it. In addition to the fear of marginalisation, another factor which contributes to the surrender of senior officers before political masters is the total lack of any market value and lack of alternative employment potential. Beyond govern-ment they have no future, because their talents are so few.

The only job for which they were suitable, that of liaison officers for the private sector, would also no longer be available to them as the process of liberal-isation of the economy gains momentum. Most IAS officers thus end up as dead wood within a few years of joining the service and their only talent lies in manipu-lation and jockeying for positions within government.

The IAS serves the State but the State structure is itself getting increasingly dysfunctional and diminished. In some north Indian states parallel authority struc-tures and mafia gangs have emerged. Tribal regions in central and north–east India are out of bounds for normal administration. In such a situation it is no surprise if the bureaucracy, too, is in a bad shape.

There is greater integration now both socially and in terms of group objectives between the members of the IAS and the politicians of that state. Many civil servants are deeply involved in partisan politics: they are preoccupied with it, penetrated by it, and now participate individually and collectively in it.

This is understandable, though unfortunate, because between expression of the will of the State (represented by politicians) and the execution of that will (through the administrators) there cannot be any long–term dichotomy. In other words, a model in which politicians will be communal, corrupt and harbourers of criminals, whereas civil servants would be secular, responsive and behave as change–agents cannot be an equilibrium position. In the long run, administrative and political values have to coincide.
Over the years, whatever little virtues the civil services possessed — integrity, political neutrality, courage and high morale — are showing signs of decay. The impact of low self–image, identity crisis and complete alienation from peoples’ concerns has led them to strange and deviant behaviour. Some of the newspaper headlines truly depict the morass to which the IAS has sunk. ‘IAS officer caught shop–lifting’, ‘Chief secretary expelled from the IAS association’, ‘Several IAS officers jailed for corruption’, etc. Now, IAS officers should include in their career graph a stint in jail, not as jail superintendent or IG Prisons, but as jail inmates!

While defending the continuation of the All India Services, Sardar Patel had said, “They are as good as we are.” At that time it was taken as a big compliment that the civil service was being compared with statesmen who had won freedom for the country. One does not know how many civil servants will like to be told today that they are like politicians. But things have moved a full circle, and perhaps many of them have become like politicians; the English–speaking politicians, corrupt, with short–term targets, narrow horizons, feudal outlook, disrespect for norms, contributing nothing to the welfare of the nation, empty promises, and no action.

Rather than try to improve the delivery system, most IAS officers are compromising with the rot and accepting a diminished role for themselves by becoming agents of exploitation in a State structure which now resembles more the one in the medieval period — authoritarian, brutal, directionless, and callous to the needs of the poor.

A few lucky and ambitious civil servants may be able to rise above all this, by joining the UN and other such organisations. Their material success will further fuel the desire of the ordinary members of the service to enrich themselves by hook or by crook. In the process they would become totally indistinguish-able from other rent–seeking parasites — politicians, inspectors and babus.

Perhaps they had not imagined that they would end up like this at the time of joining the service. Stagnation in their intellectual capabilities and a decline in self-esteem has further demoralised them. Marginalisation and corruption are thus likely to coexist in the IAS for quite sometime to come.

Hinduisation of Gujarat society has come as a golden opportunity, for both the discredited politicians and the ineffective bureaucracy, to gain legitimacy and distract the attention of the people from their day–to–day problems. If the majority community has no feelings of shame or remorse in perpetrating the orgy of violence in Ahmedabad and other places, and if they have no expectation of good governance from adminis-tration, then why should the ruling elite not exploit this situation? They cannot make teachers teach or government doctors attend to patients, or fair price shops supply foodgrains, but can surely promise a Ram Rajya. It requires much less political and administrative effort.

The rise of Hindu fundamental-ism in Gujarat serves several objectives. It helps the lower castes’ acceptance within the Hindu fold, so long as they do the dirty work of brutal confrontation against the minorities on behalf of the high castes. It also absolves the rulers from their responsibility of providing clean, equitous and humane administration.

A frontal attack on communalism will be ineffective if it is not part of a larger campaign for good governance.            
 
Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Servile service

That the Indian police have lost their credibility with the minorities is no longer a matter of opinion

Courtesy: IANS

The recent carnage in Gujarat — some call it genocide — has been well–documented, thanks to an alert media and the dedication and diligence with which some citizen groups and NGOs have gone about the job of exposing the administrative atrophy and the collusion of the law and order machinery with a partisan political leadership. Their contribution in highlighting the criminal negligence of the police and magistracy in handling one of the worst communal episodes in the country as well as their alleged collusion with their political bosses in furthering their diabolical sectarian agenda, is undoubtedly an act of great courage and of immense value.

It is also, in a different sense, a tribute to the strength and vibrancy of the secular tradition that thankfully still runs deep in Indian society as a whole, not excluding a vast majority of Hindus. Admittedly, there has been a major ideological shift to the right in Indian society, especially in the northern and western states in recent years, in the wake of the empowerment of sundry outfits of the sangh parivar, as a sequel to the BJP’s ascendancy to power. In consequence, a certain enfeeblement of the secular sentiment has taken place because of determined and calculated assaults by the Hindutva proponents, against communal harmony and the composite nature of Indian culture.

What is even more dangerous is that such intolerance and anti–minority biases are no longer confined to the uninformed and ignorant segments of the people; they have seriously undermined the secular belief systems of a large number of the well-educated and well–to–do middle classes. Considering all these factors, it is highly creditable that Indian civil society still retains enough fire and sparkle to be able to rouse the collective conscience of the nation so as to effectively challenge the forces of obscurantism, intolerance, atavism and communal hatred that triggered the recent Gujarat happenings.

In the event, the horrendous designs and goals of the current rulers in Gujarat stand discredited and stalled, at least for the present. However the issues of police and magisterial collusion with the politicians in such matters and their failure to implement the law of the land in the process are equally alarming and need to be examined in some depth.

That the Indian police have, by and large, lost their credibility with the minorities is no longer a matter of opinion. The fast spreading virus of communalism in the force is a stark reality, which has troubled  well-meaning members of the service now for several decades. The matter has engaged the attention of police leaders for long and has been debated at length in umpteen in-house meetings, seminars and conferences. It has also been written about and projected in the media ad infinitum.
Commission after inquiry commission has provided ample evidence of the increasing deterioration of the force in many different ways. It is not as if the political classes are unaware of the inherent vulnerabilities of the Indian police as constituted under the Indian Police Act of 1861 that make it open to misuse and manipulation by the State, which really means, in the current situation, the political party holding office. No political party for the last several decades has made any effort to restore to the police and magistracy some measure of functional autonomy so that they are able to uphold the rule of law and provisions of the Constitution. The sad fact is that no political party is averse to using this coercive instrument of state power in advancing its own selfish interests and political agendas, hidden or otherwise.

As late as mid–April this year, the parliamentary standing committee in the ministry of home affairs castigated the Gujarat police in severe terms for its partisan role in handling the communal frenzy in that state. It asserted in very clear terms that the police all over the country are “politicised and politically polarised.” It described the police as a “pawn in the hands of its [political] masters.”

The committee further asserted that policemen consider political “patronage essential for their survival… and police personnel are found to be divided in camps having distinct political leanings” and that this connivance of the police with the powers that be is giving rise to cynicism among people… “These are, by all means, very dangerous signs for the continuance and survival of democracy.” Recommending the preparation of a blue print for a “model police force” to be followed by all states, the committee impressed upon the home ministry to “make earnest efforts to depoliticise the institution of police before it becomes too late to retrieve it from the morass of degeneration.”

It is interesting to note that the committee that made such profound observations was presided over by the veteran Congress leader Pranab Mukherjee. Unless he was suffering from temporary dementia, surely the suave Mukherjee could not have forgotten the reign of terror let loose on the Sikhs in Delhi and many other Congress–ruled states in October-November 1984, when the police stood by and watched hundreds of Sikh men and women being murdered in cold blood and according to a plan hatched by his own senior colleagues.

Not one of those police officials, including some IPS officers, indicted by several official and non–official committees, was disciplined or so much as superseded. His party government adopted the same lackadaisical attitude to guilty police officers in the Mumbai riots in 1992–93, or earlier in Meerut. The latter case, in fact, is an interesting study in itself. Although indicted in no uncertain terms by an eminent commission of inquiry for shooting down dozens of Muslim men and dumping the dead bodies in a canal, the impugned PAC personnel could never be brought to justice because of want of government sanction to prosecute them.

The Congress party, which has been in power at the Centre and in the states for much longer than others, must also take the major part of the blame for failing to effect structural and operational reforms in the police and its law–enforcement procedures, in tune with the new constitutional and other imperatives.

During that period, UP was ruled by all political parties at some time or the other — the Congress, BJP, BSP and the Samajwadi Party of the wrestler–turned–political leader Mulayam Singh Yadav. One need not labour too hard to expose the hypocrisy and pretensions of Indian politicians, for they are in evidence at every single moment in some part of the country or the other.

 The Congress party, which has been in power at the Centre and in the states for much longer than others must also take the major part of the blame for failing to effect structural and operational reforms in the police and its law–enforcement procedures, in tune with the new constitutional and other imperatives.

It is incredible but true that the Indian police continues to function under a legal framework that dates back to the mid–nineteenth century. The Indian Police Act that governs the police in India and indeed in the whole of South Asia except Pakistan, was enacted in 1861, the Indian Penal Code in 1862 and the Indian Evidence Act in 1872. Most other laws that the police are expected to enforce also belong to the 19th century.

It is not that the urgency for updating the law–enforcement organs of the State has not been underlined again and again by expert bodies, police and administrative commissions and many other forums over the years, including the national police commission [NPC], state police commissions, administrative reforms commissions and any number of inquiry commissions. Even the Supreme Court and the National Human Rights Commission are on record for having stressed the need for urgent and meaningful police reforms.

That the Indian political classes have continued to turn a blind eye to this most important subject is not because they are unaware of the total decay of the system in recent decades but because they are loath to lose this servile and obedient instrument of oppression that can be manipulated to serve their partisan interests in a most effective manner, not unlike their imperial predecessors.

The question that worries the concerned citizens of the country is why do Indian cops refuse to change with the times and why do they continue to behave in the same high–handed and insensitive manner as during the colonial era. These are by no means vacuous worries and are perfectly justified. However, in the absence of substantive reforms to update the legal architecture that governs our police and taking it out of the control of politicians, no worthwhile change can be foreseen.
One need only go through section 23 of the Indian Police Act, 1861, to realize that under the law, Indian police have no commitment to or concern with accountability to the community or earning their support. As against this, out of nine principles of conduct that govern the British police and which serve as their mool mantra right from the time a recruit joins the force, as many as seven deal with community participation and support.          

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Partisan police

The genocide in Gujarat, as well as the earlier communal riots, have taught a painful lesson to Muslim women that the secular and women’s rights voices are too distant from their harrowing realities

Courtesy: Amit Dave: Reuters
 
If Black people had accepted a status of economic and political inferiority, the mob murders would probably have subsided. But because vast numbers of ex–slaves refused to discard their dreams of progress, more than ten thousand lynchings occurred… Whoever challenged the racial hierarchy was marked a potential victim of the mob.  The endless roster of the dead came to include every sort of insurgent — from the owners of successful Black business… to those who refused to be called ‘boy’ and the defiant women who resisted white men’s sexual abuses. Yet public opinion had been captured and it was taken for granted that lynching was a just response to the barbarous sexual crimes against white womanhood. And an important question remained unasked: What about the numerous women who were lynched – and sometimes raped before they were killed by the mob.
— Angela Davis¹

My heart is sickened, my soul wearied, my shoulders aching with the burdens of guilt and shame… I force myself to write a small fraction of all that I heard and saw, because it is important that we all know…What can you say about a woman, eight months pregnant who begged to be spared. Her assailants instead slit open her stomach, pulled out her foetus and slaughtered it before her eyes?…What can you say?… I have never known a riot which has used the sexual subjugation of women so widely as an instrument of violence as in the recent mass barbarity in Gujarat. There are reports everywhere of gang rape, of young girls and women… followed by their murder by burning alive, or by bludgeoning with a hammer and in one case with a screw driver.
— Harsh Mander²  

Two different cultural divides, one of race, the other of religion, situated within two great democracies of our times. Both ensure equality before law and equal protection of law and proclaim non–discrimination on the grounds of race, caste, sex, and religion. The conjunctures and parities in the way the language of rights unfolds within them is the focus of this essay.  

The vocal, visible and highly articulate women’s movements in both countries, the United States and India, have contextualised gender concerns and examined the overarching influence of patriarchy upon the lives of women. State interventions have been invoked through sustained campaigns to release women from its clutches. But how has this articulation addressed concerns of women who are at the margin of social boundaries, whose reality is marked not only by patriarchal dominations but also by racial, religious and caste prejudices?

Within a hierarchy of social relationships, gender concerns are articulated from the context of the mainstream — for India, it is the Hindu woman and for the West, the White woman. A slogan coined by women of colour in the US succinctly captures this reality:  All women are White, All Blacks are men… but some of us are brave.   

What is worse, even when gender concerns of the marginalised women hit the headlines, they do so primarily to strengthen the prevailing stereotypical biases against the community at large. Rather than the explicit pro–women concern, what gets foregrounded is the anti-community undertone. No other example can better serve to explain this, than the Shahbano controversy.  

The controversy arose out of a Supreme Court ruling in 19853  which upheld the right of a divorced Muslim woman for maintenance. The adverse comments in the ruling against the Prophet and Islam led to a backlash and a demand for separate statute based on Islamic jurisprudence. The then Congress government gave in to the pressure exerted by the Muslim fundamentalist lobby and enacted the Muslim Women’s Act in 1986. But over time, this statute, advertently or inadvertently, bestowed upon Muslim women, a superior economic right than the one enshrined in S.125 CrPC. But despite this, for well over a decade, the statute enacted amidst protest from human rights and women’s groups, was viewed as a marker of ‘Muslim appeasement’ and a defeat of secular principles within the Indian polity.   

The denial of rights of a meagre maintenance dole was lamented by all and sundry, notwithstanding the fact that the maintenance awarded to the wife of an advocate with a flourishing practice was just Rs.25 in the first instance and Rs.179 upon appeal. So long as the debate could be used as a stick to beat the community with, these minor details didn’t seem to matter. What did matter is the fact that a communal campaign could be mounted upon a patriarchal paradigm and thereby legitimised. The irony lay in the fact that the groundwork for mounting this campaign was laid by the women’s movement, with genuine gender concerns, but firmly located within the cultural ethos of the mainstream. Within this framework, a similar appeasement of Hindus, by strengthening coparcenaries4  by various legislative measures went unnoticed.

Even when gender concerns of the marginalised women hit the headlines, they do so primarily to strengthen the prevailing stereotypical biases against the community at large. Rather than the explicit pro-women concern, what gets foregrounded is the anti-community undertone.

The communal fervour could be sustained only by denying the fact that the Act provided for an alternate remedy, far superior to the one that had been denied to Muslim women; by negating the fact that since 1988, the Act was being positively interpreted by various High Courts in the country by awarding substantial amounts as ‘settlements’; by glossing over an important development in the realm of family law, that of determination of   economic entitlements upon divorce, rather than the prevailing right of recurring maintenance.

So even while homes of poor Muslim women were looted, gutted and razed to the ground in various communal riots which broke out in the country in the post-Shahbano phase, while teenage sons of Muslim women were killed at point blank range in police firings, while Muslim women were raped under floodlights in post-Babri Masjid riots, the mainstream continued to lament over ‘Muslim appeasement’ and denial of maintenance to  ‘poor Muslim women / the Shahbanos’.    

One could overlook even this. Perhaps there was a justification. Denial of maintenance by husbands was as loathsome as rape of women in communal riots. In the ultimate analysis, it was the Muslim woman who suffered. So far so good. But how can one logically explain the recurring motif of ‘Muslim appeasement’ even after the Supreme Court decision in the Danial Latifi5  case, when the controversy was finally laid to rest by upholding the Constitutional validity of the Act? Yet, the rhetoric continues.
The symbolism becomes even starker, when one is confronted with the gruesome sexual violations of women during the recent Gujarat carnage. While exploring possible legal portals to place these blood–curdling barbarities, one hits a dead end at each turn.  As one hears the narratives of young women, running helter-skelter, slipping, falling and becoming prey to the marauding mobs, their violated and mutilated bodies being thrown into open fires, the question keeps haunting: where and how does one pin the culpability?

When violence of this scale supersedes the parameters of criminal jurisprudence which is bound by conventions of proof and evidence, medical examinations and forensic reports, when criminal prosecution itself is a closed-end process in the hands of the state machinery, what legal measures can be invoked to bring justice to the dead and the surviving? But the danger at the other end, if these violations do not form part of  ‘official records’ they can be conveniently negated as NGO exaggerations or normalised as routine occurrences as our defence minister, George Fernandes did, on the floor of the Lok Sabha during the marathon debate on Gujarat.  

The official discourse is geared towards denial. Uma Bharati, the woman minister of the NDA government, (who had cheered and goaded the crowd while the Babri Masjid was being demolished) asked in feigned disbelief, “Who is she whose stomach was slit and foetus taken out? No one has heard of this woman. She is a fiction created by the media.”     

A further report by another statutory body, instituted presumably for the protection of women, the National Commission for Women, continued with this denial mode. In a cursory report, brought out after the commission’s whirlwind tour of the riot torn state forty days after violence broke out, it gave no details of sexual violence on the pretext that media and fact–finding teams had already done so. A member of the team, ironically a former women’s movement activist, further trivialised this through a newspaper report, by stating that only three women admitted to being raped. A cultural argument was advanced that Indian, subcontinental and even Asian women are reluctant to admit rape as it may result in abandonment. Within this cultural reality, should women be forced to share their experiences, she wondered.  

The entire logic and rationality of the anti–rape movement gets turned on its head here. The catalyst for that inspired campaign of the ’80s was an isolated incidence of rape by   state functionaries. The author of the article was one of the signatories to the open letter to the chief justice to reopen the case. It was this open letter, which turned Mathura into an icon of the movement. One wonders whether permission of this poor, orphan, rural, tribal young woman was ever sought before writing off the open letter. Mathura, Maya Tyagi, Rameezabi, Suman Rani, Banwari Devi, Kuntaben — all individual cases. Here the numbers did not matter. Each isolated incident was sufficient to trigger a national campaign for law reform. But when it comes to state complacency in communal carnage, when sadistic gang rapes and brutal sexual violations are buried under a more grievous and yet, more acceptable crime of murder, one tends to resort to a game of numbers. How many more young girls’ vaginas need to be slit open, how many more rods need to be inserted into as yet unformed uteruses, how many more foetus’ have to be gorged out of the bellies of pregnant women, for the state administration to take serious note of the scale of sexual violence on minority women?

The genocide in Gujarat, as well as the earlier communal riots, have taught a painful lesson to Muslim women — that when threatened with a life and death situation, in the face of blood–thirsty and sexually debased mobs, mosques, dargahs and madrassas are transformed into an oasis of security and solace. The secular and women’s rights voices are too distant from their harrowing realities.

The genocide in Gujarat (as well as the earlier communal riots) have taught a painful lesson to Muslim women — that when threatened with a life and death situation, in the face of blood–thirsty and sexually debased mobs, mosques, dargahs and madrassas are transformed into an oasis of security and solace. The secular and women’s rights voices are too distant from their harrowing realities. Communal and patriarchal identities get forged.

Women in relief camps narrated incidents of camp organisers helping out, not only with arrangements of food and first aid, but also with cleansing bleeding wounds on private parts and extracting wooden splinters buried into the deepest crevices. While women gave birth in the open in those traumatic days, they were forced to help in the birthing process. Before government aid could be accessed, hungry children were fed only through hurriedly put together community resources. Women partook in the festivity of marriage celebrations of young orphaned girls, arranged by camp leaders. They cried out, when the men were picked up in combing operations and bore the brunt of police brutalities. The bonding between people under siege is cemented through the adhesive of shared fears and sufferings. In the struggle for day–to–day survival, gender concerns and patriarchal oppressions seem remote, which in the long run will weaken the fight against patriarchy.

How should concerned groups within civil society respond to this social and political reality? When the moral basis for the rights itself shifts, where can one start the process of renegotiating and reframing the covenant of equality and equal protection? What are the myriad ways in which the seemingly innocuous laws get unfolded within the complex terrain of social hierarchies?  These are difficult questions.

Angela Davis is perhaps one of the first scholars to raise some of these difficult questions. She explains how the hard won abortion right of the White women’s movement became a draconian measure of state-sponsored genocide for women of colour. Within a racially tinted population policy of the US government, involuntary sterilisations were used for mass birth control of black and coloured and Native American women.  In her own words:

“It was not until the media decided that the casual sterilization of two Black girls… was a scandal worth reporting that the Pandora’s box of sterilisation abuse was finally flung open. But by the time the case of the Relf sisters broke, it was practically too late. It was the summer of 1973 and the Supreme Court decision legalising abortions had already been announced in January. Nevertheless, the urgent need for mass opposition to sterilisation abuse became tragically clear. The facts surrounding the Relf sisters’ story were horrifyingly simple. (The sisters) aged twelve and fourteen had been unsuspectingly carted into an operating room, where surgeons irrevocably robbed them of their capacity to bear children.”⁶   

By 1976, 24% of all Native American women of childbearing age had been sterilised. A Choctaw physician told the senate: Our bloodlines are being stopped…Our unborn will not be born… This is genocidal to our people^.7
Picking up cudgels with the anti-rape movement, she explains that the myth of the Black rapist is located within insidious racist ideology and women of colour, for their own survival, had to stick with their men to explode the myth. Susan Brownmiller’s⁸  discussion on rape and race evinces an unthinking partisanship which borders on racism:

“Given the central role played by the fictional Black rapist in the shaping of post-slavery racism, it is, at best, irresponsible theorizing to represent Black men as the most frequent authors of sexual violence. … (It) is an aggression against Black people as a whole, for the mythical rapist implies the mythical whore. Perceiving the rape charge as an attack against the entire Black community, Black women were quick to assume the leadership of the anti-lynching movement.⁹
The historical knot binding Black women —  systematically abused and violated by White men — to Black men — maimed and murdered because of racial manipulation of the rape charge — has not been adequately analysed by feminist theorists during the anti–rape movement in the US, she laments.

Covenants of equality and equal protection may unfold diagonally opposite trajectories for the mainstream and the marginalised. Within the Western women’s movement, several Black feminist scholars, Martha Fineman, Patricia Williams, Toni Morrison, to name a few, have challenged the theories advocated by a predominantly White women’s movement and have attempted to rewrite the covenants of equality and equal protection, within the alchemy of Race and Rights.

The women’s movement in India has continued in its scholarship primarily within the ethos of the mainstream, though there are some tentative formulations, which are yet to be evolved into complex feminist theories. The challenge for the feminist legal scholarship in India is to develop a new praxis within which the covenants of equality   and equal protection can be rewritten in the context of the marginalised.     

Footnotes
 1  Women Race & Class Vintage (1983) p.190-1.  
 2 ‘Cry My Beloved Country’, The Times of India, March 20, 2002.   
 3  Mohd Ahmed Khan vs. Shahbano Begam, AIR 1985 SC 945.
 4  Coparcenary is the term used for Hindu Undivided Family  (HUF) properties within which inheritance rights are confined to male heirs.
 5 II (2001) DMC 714 (SC).
 6 Supra n.1 at p.216.
 7 Ibid p.218.
 8 Against Our Will, Men, Women and Rape Penguin (1975).
 9 Supra n.1 p.191.

Gujarat offers us clear glimpses of a Hindu fascist polity working within a totalitarian Hindu worldview 

Courtesy: PTI

Our Constitution stands for democracy, sovereignty, socialism, secularism, republicanism, equality, liberty, justice, dignity of the individual and unity of India. The Hindutva ideology of the Sangh Parivar is the negation of every basic feature of our Constitution. Though the Supreme Court of India has declared the basic feature of our Constitution as unalterable and not amendable. And despite the unanimous view of the Parliament and the Legislatures, the BJP–RSS–VHP–Bajrang Dal combine have acted in the way Hitler did in Germany: subverting the Constitution and the law from within by resorting to perversions and distortions and by destroying them from without by openly violating and defying every legal and constitutional provision and authority through its volunteers and mobs.

So far we had some glimpses of their ‘Hindu agenda’. Now we have their entire agenda fully unfolded and acted upon without any fear, scruples and remorse in Gujarat. Let us see how Narendra Modi’s ‘One day cricket match’ was played in Gujarat.

The tragedy of the Bharatiya Janata Party is that its defeat starts from the first moment of its victory. Once it comes to power on a communal platform of anti-Muslims and anti–Pakistan, it loses its raison d’etre, as it has no other people–centred socio-economic program of governance, despite its big talk. It cannot continue to bank upon communal riots for its strength and legitimacy because communal riots then tend to be counter–productive. Frequent riots, if unchecked, will cast doubts about its capacity to govern. And if attempted to be checked, it will antagonise the rioting Hindus by its police actions to control them.

The same tragedy overcame the BJP’s Keshubhai–led government earlier. Once riots were not on their agenda, it had nothing to offer except hollow promises in highly sanskritised words, like ‘Bhay, Bhukh, Bhrastachar Mukt Gujarat’ (Fear, hunger, corruption–free Gujarat), Gokul Gram Yojana, etc. All it could really offer to the people of Gujarat was insensitive and inefficient management of natural calamities like cyclone, drought, earthquake, and man–made maladies, criminalisation of politics, gross violations of human rights both by state agencies and dominant castes, communalisation of police and administration, rampant and all–pervasive corruption, least concern for social justice and healthy environment. In short, an almost
total absence of any kind of governance.

When the BJP high command realised that Keshubhai’s BJP government was fast losing ground, as was clearly evident from its defeat in the Panchayat elections and a few by–elections, and there were hardly 12-15 months left for the next Assembly elections due in February–March 2003, they decided on a change of guard. Modi, the sangh pracharak, who was brought in as the new chief minister of Gujarat gave a new slogan: ‘Apnu Gujarat, Aagvu Gujarat’ (Our Gujarat, unique Gujarat).

The induction just 10–12 months before the Assembly elections of a staunch RSS pracharak, a hyped–product of the mass media, an organisation man without any exposure to or experience of government or administration, and a special favourite of the RSS–VHP–BJP was the surest indication of the direction in which Gujarat was to move: a laboratory for the Hindutva agenda. As the BJP was losing elections in one state after another – it ended up in the third position behind the Samajwadi Party and the Bahujan Samaj Party in UP — its hawks started attributing its defeat to the dilution of the Hindu agenda.

Narendra Modi, “a textbook case of a fascist and a prospective killer” (first recognized a decade ago by Ashish Nandy – Seminar, May 2002) was ordered to march into Gujarat, not to reform or improve governance or to provide a just, responsive and people–centred government that works, but to saffronise Gujarat, implement the Hindutva agenda and offer a model of a Hindu state for the next round of elections, first in Gujarat in 2003 and then in India in 2004.

On assuming the reins of power in Gandhinagar amidst boisterous Hindu mobs chanting ‘Jai Sia Ram!’ and ‘Modi, March ahead, we are with you’, Modi significantly projected his short stint in power as a ‘one day cricket match’ in which he had to prove himself. For some time he fumbled, unable to get a grip over the government and the administration. While he managed to win his own election with a slender majority, he lost two other by–elections to the state Assembly. He tried to avoid Panchayat elections in the name of ‘Samras Yojana’, which meant unanimous or uncontested elections, by offering monetary incentives. He was about to lose his lustre. And then, suddenly but not so unexpectedly, in the midst of the rising crescendo of the Ram Shila Nyas program of the VHP and the Bajrang Dal, came the Godhra carnage of ‘kar sevaks’ on February 27. This was followed by a call for a Gujarat Bandh by the VHP–BD and supported by the BJP on February 28 to voice ‘people’s reaction, resentment and anger’ against the Godhra killings. This provided the golden opportunity that Modi and his ministers had been eagerly awaiting.

Thus, under the stewardship of Modi, Gujarat witnessed in Year Two of the 21st century a new kind of communal barbarism, where the chief minister and his government virtually presided over the well–organised and systematic liquidation of the life, liberty, property, business and dignity of lakhs of Muslims across Gujarat. Clearly anticipating the RSS’ Bangalore message to the Muslims that “the Muslim minority can live in India only if they can win the goodwill of the Hindu majority.”
After the Godhra killing of Hindu kar sevaks, Muslims in Gujarat — remember, not just the culprits of the Godhra incident — lost the ‘goodwill of the Hindu majority’ and therefore had to pay a price for it.

And what a price they paid: Hundreds of innocent Muslims were burnt alive; women were raped, molested and killed, even pregnant women were not spared; children and old people were butchered; thousands of homes, buildings and business houses with their belongings were looted and destroyed; a large number of Muslims’ religious places were razed to the ground and replaced by Hindu temples or thoroughfares; more than 2 lakh people were forced to leave their houses and to live in relief camps, without  adequate relief facilities and with no hope of just resettlement  and rehabilitation; the police continued  to act  in a partisan manner, indulging  in indiscriminate firings, arbitrary arrests, ruthless combing, abuse of criminal law process, refusal to start criminal proceedings against the criminals and closing the doors of justice  to the  victims. As if Modi was impatient to finish his ‘One–day cricket match’ well before the allotted number of overs.

Earlier, Prime Minister Vajpayee announced at election rallies in UP that the “BJP does not want Muslims votes for its victory.” The subsequent revised version was, “We will win even if Muslims do not vote for us”. Gujarat’s chief minister Modi perverted it into: “We do not care, not only for your votes, but even for your lives.” He converted ‘Apnu Gujarat’ (‘Our Gujarat’) into ‘Maru Gujarat’ (‘My Gujarat’), claiming to speak as the sole defender of the image, prestige and honour of Gujarat; and ‘Aagvu Gujarat’ (‘Unique Gujarat’) into Hindu Gujarat reducing Muslims to helpless victims and second–class citizens.

Once the polity is controlled by the Sangh Parivar and civil society is substantially communalised and polarised in terms of ‘We’ and ‘They’, and ‘They’ are identified with international Islam, Pakistan and terrorism and branded as anti–national, the threat is more open, direct, serious and dangerous for the forces of democracy, rule of law, secularism, justice and pluralism.

And now he is planning for early elections in Gujarat trying to capitalise on the communal divide and hostility to win a majority in the elections, as if winning elections even with a greater majority, with Hindu support, would legalise and legitimise the killing and looting of the Muslim minority and the gross violations of their basic human rights. Modi is hailed by many as ‘Chhote Sardar’ (Junior Sardar Vallabhbhai Patel) but in fact he is only a ‘Chhote Hitler’.

The question which agitates the minds of hundreds of well–meaning people in Gujarat, in India and elsewhere in the world is: What explains the successful arrival of ‘Chhote Hitler’ in Gujarat? Why the macabre dance by the killers of Mahatma Gandhi in the land of Gandhi himself? Why this Hindu tribalism and medievalism in ‘Nay Gujarat’ in the 21st century? What is still more disturbing and horrifying is the boast of the elite of Gujarat and the fear of those who are committed to democracy, secularism and social justice, namely, “What Gujarat is today, India will be tomorrow.” The elite claim with pride that Gujarat is always “a path–breaker for India.” Will this turn out to be true?    

The commonly accepted picture which emerges from various writings and reports is that what we have witnessed in Gujarat are not the ordinary communal riots between Hindus and Muslims Gujarat has had many in the past. Nor are they a mere product of the communal divide surcharged with intense mutual hatred and hostility, something we have had in abundance in our history. What is significant and striking is that these communal disturbances, commonly described as Hindu–Muslim riots, are qualitatively different from earlier Hindu-Muslim riots.

Since Independence and particularly during 1969 and thereafter,  Hindu–Muslim riots have been by and large one–sided, causing larger casualties and losses to the Muslims in general. But the recent riots in Gujarat are perceived to be nothing but a kind of genocide and ethnic cleansing, comparable to what the Nazis did to the Jews in Germany.

These trends were increasingly visible and discernible with each successive riot, particularly after the rise of Hindutva in the ’80s. Now they have emerged so distinctly, visibly, intensely and in accentuated and aggravated form that the quantitative difference has now become a qualitative difference, amounting to a distinct phenomenon. It is not merely a question of more violent and more widespread nationwide riots, but of a clear and present danger of fascism, threatening and undermining the very basis of our constitutional system.

What happened in Gujarat after February 27 has no parallel in India; it is even worse and more dangerous than the Emergency of 1975-77. The latter was certainly a gross abuse of the constitutional system for avoiding a direct threat to Prime Minister Indira Gandhi’s power and authority in the name of the poor and for saving the country from chaos threatened by “reactionary forces.” And yet it maintained some semblance of constitutionalism.

Moreover, it was in a way a ‘coup’ by a handful of Indira Gandhi’s supporters, led by Sanjay Gandhi. But there was a lot of discontent even within the ruling Congress Party and large sections of civil society in India were totally opposed to the Emergency. It led to a very powerful JP–led people’s movement for democracy.

The Emergency could not take root in society and was perceived even by Smt. Indira Gandhi to be nothing but a temporary phenomenon, to be removed when circumstances were favourable, as she well knew that her steps to remain in power were so inherently against the basic values of democracy, civil liberties, rule of law, independence of judiciary and resistance to any form of authoritarianism.

These values were so well understood and accepted in the polity and society that the authoritarian super-structure sought to be created by Mrs. Gandhi and Sanjay Gandhi was bound to face cracks or to collapse sooner or later. Realising this, Indira Gandhi, on the basis of intelligence reports which turned out to be incorrect, declared elections and lost power. The constitutional system was soon restored.

But the communal carnage carried out in Gujarat after February 27 was an expression of majoritarian communalism nurtured, developed and consolidated by the Hindutva forces in civil society, winning substantial support among Hindus, and with the open support, assistance and participation of the BJP government, administration and police. During the Emergency, a vibrant civil society resisted state power. But in Gujarat,the communalised state acted in close collaboration with the support of a large number of Hindus, while the rest of Hindu society remained silent or passive as Muslims were made the targets.

Once the polity is controlled by the Sangh Parivar and civil society is substantially communalised and polarised in terms of “We” and “They”, and “They” are identified with international Islam, Pakistan and terrorism and branded as anti–national, the threat is more open, direct, serious and dangerous for the forces of democracy, rule of law, secularism, justice and pluralism.

The Hindutva ideology of the RSS parivar, namely, India is Hindu and Hinduism is nationalism, of the ideal of a Hindu state within which Hindutva is seen as constituting the national mainstream or cultural nationalism, a state in which Muslims and Christian are minorities and second–class citizens and can live only if they win the goodwill of the majority, cannot be implemented in India through the constitutional system we have. Both cannot co–exist. And therefore the Gujarat situation is a direct subversion of the Constitution and presents a permanent threat, which if not defeated will destroy the Constitution itself.

Courtesy: AFP

Let us briefly describe what happened in Gujarat after February 27.

• The government of Gujarat failed to discharge its elementary constitutional obligation, viz., protecting the life, liberty and properties of its citizens, irrespective of their caste, religion or community. Modi’s government did not act as a constitutional government but a government of the Sangh Parivar, meant for the implementation of the Hindutva program and only for the protection and defence of the Hindu community.
• The government and its administration directly participated in the communal holocaust in aid and support of the marauding mobs of the Hindu fanatics, attacking members of the Muslim community throughout Gujarat and looting or destroying their property, thereby violating its constitutional obligation of non–discrimination as enjoined by the Constitution of India.
• Even though the BJP is a ruling party having its own government in the state, it openly declared support to the ‘Gujarat Bandh’ of February 28 declared by the Vishwa Hindu Parishad and Bajrang Dal, even though bandhs have been declared to be unconstitutional by the Supreme Court of India.
• Modi is most reliably reported to have instructed the officers and  police personnel not to come in the way of what he called the natural reaction of Hindus to the Godhra killings. The government of Gujarat directly and openly violated and infringed upon the basic rights of the Muslim minority under the Constitution of India, resulting in the killing of hundreds, destruction of houses and places of business, desecration of Muslims’ religious places, thereby violating Art.14, Art.19 (1))(g), Art.21 and Articles 25 and 26 of the Constitution.
• Instead of accepting responsibility for the mass killings and mass destruction, of the Muslims, Modi’s government justified the killing and destruction thereby taking sides with one community only. The law and order machinery itself participated in the communal violence against Muslims either directly or by remaining indifferent and passive in controlling the mobs.
• The government originally discriminated between the victims of Godhra violence even in respect of payment of compensation. Subsequently it was forced to withdraw the discrimination.
• The government also failed in providing efficient, effective and speedy relief to the victims belonging to the minority community and also did not take effective steps in providing rehabilitation to the inmates of the refugee camps. A few ministers of Modi’s government and almost all important leaders of BJP, the party in power, participated in the violent activities perpetrated by Hindu mobs throughout Gujarat.
• The government condoned and justified the attacks by the Hindus upon Muslim women, thereby encouraging them to violate the fundamental duties regarding gender equality and regarding respect for women.
• The ruling party and its allies threatened all secular forces and also attacked some of them so as to prevent them from exercising their fundamental rights in the society.
• The government has openly abused the provisions of the Criminal Procedure Code and has failed to enforce the criminal law, blocking the filing of proper FIRs and proper investigation into the crimes, and by appointing its own party men as police or public prosecutors. This has resulted in a denial of justice to  members of the minority community even in respect of crimes committed against them by the ruling groups.
• Modi continued to attack the mass media for their factual reportage of the communal carnage in Gujarat, branding them as anti-Gujarat, anti–Hindu and even foreign agents, thereby directly violating the freedom of speech and expression under Art.19 (1)(a) of the Constitution.
• The chief minister attacked the Parliament of India, particularly the leaders of the opposition parties by making all sorts of allegations against them for their visits to Gujarat and their observations on the happenings and the continuance of violence in Gujarat.
• The Modi government abused every legal and constitutional machinery for its partisan ends. For example, it imposed SSC and HSC examinations, ignoring the all–pervading atmosphere of fear and insecurity only in order to show that everything had become normal. Similarly, in order to pre–empt any allegations or accusations against him for his direct responsibility for the riots, the government even abused the provisions of the Commissions of Inquiry Act by appointing a commission, which was not generally acceptable to the independent citizens of the state.
• The government, through its agents, tried to malign even the National Human Rights Commission through a public interest petition in the Gujarat High Court, making all sorts of wild allegations against the chairman of the National Human Rights Commission.
• Modi’s government also made it very clear by its various actions that Muslims cannot enjoy equality with Hindus and must be content to live as second–class citizen at the mercy of the Hindu majority.
• The administration and the police to a substantial degree were communalised thereby violating the basic principle of a constitutional government, viz., objectivity and impartiality of the administration and law and order machinery.
• The central government controlled by the BJP failed to exercise its constitutional obligations under Art.356 of the Constitution of India and failed to protect the members of the minority community from the violence perpetrated against them by Hindu militants with the support of the state government. Not just that, the BJP government at the Centre abused the so–called principle of state autonomy, not for protecting the people but for protecting Modi’s government.
• The government deliberately did not  call the meeting of the state Legislative Assembly to avoid any discussion over the government’s failure. Instead it dissolved the Legislative Assembly even though the term of the legislature was to expire only in March 2003. This means that the government abused its power by dissolving the Legislative Assembly and deprived the people of Gujarat of an elected legislature by totally unjustified premature dissolution.
• Modi’s government also tried to abuse Art.174 of the Constitution, going so far as trying to force the Election Commission to hold elections in Gujarat at a time chosen by the BJP Government irrespective of ground realities where free and fair elections are not possible.
• On the one hand, the government of Gujarat has humiliated, alienated and destroyed the economic backbone of the Muslim community. On the other, it has created an atmosphere of insecurity in the minds of the Hindus by encouraging rumours of reprisal and terrorist attacks from the Muslim community. Thus the whole of Gujarat society has been polarised into two warring groups.
• Even the judges of the High Court, sitting or retired, were not spared. No steps were taken for their protection, thus making even the highest judiciary in the state feel insecure. Even top officers belonging to the Muslim community were not saved.

Thus every institution and authority, whether constitutional or legal, has been abused and perverted by Modi’s government in the implementation of its Hindutva agenda. At the same time, the government has encouraged and supported Hindu militant groups acting outside the law and the Constitution to pulverise the Muslim community. All these lead to one irrefutable conclusion – the Sangh Parivar cannot implement the Hindutva agenda legally within the framework of the Constitution because it directly attacks and violates every basic feature of our Constitution.

What has happened in Gujarat cannot therefore be described as “temporary aberration”, “transitory disruption” or “momentary insanity”, but has to be understood and accepted as an inherent and inseparable part and parcel of the Sangh’s Hindutva agenda. It is either the Constitution or Hindutva; there is no way the two can co-exist.

What has happened in Gujarat cannot therefore be described as ‘temporary aberration’, ‘transitory disruption’ or ‘momentary insanity’, but has to be understood and accepted as an inherent and inseparable part and parcel of the Sangh’s Hindutva agenda. It is either the Constitution or Hindutva; there is no way the two can co-exist.

What happened in Gujarat was not within the legal and constitutional framework or parameters. It was completely outside the law and the Constitution — a kind of Hindu terrorism. It was not merely a question of the misuse of state institutions committed to constitutional principles; it was nothing short of a calculated and well–planned experiment to superimpose a Hindutva-inspired state over the present democratic, secular, republican State apparatus. And the Hindutva forces have actually demonstrated, successfully to an extent, their vision of a ‘secular Hindu’ state. It is not just a competing vision of modern India within the Constitution, but an alternative vision totally outside and hostile to the constitutional framework.
Gujarat, therefore, offers us distinct and clear glimpses of a Hindu fascist polity working within a totalitarian Hindu worldview. To achieve this goal, even to attempt this in a single state in a federal country is very difficult, particularly when the Union government is of a different complexion. But the Gujarat experiment was possible because the NDA government in New Delhi was effectively a BJP government, supported by weak allies.

Even the benevolent principle of state freedom or autonomy was grossly abused, not for protecting the Constitution and for discharging the constitutional obligations of the Union under Art. 355 and 356, but for protecting the BJP’s Modi–led government, granting it the freedom to act as it wished.

This was the most treacherous behaviour of the Union government led by Vajpayee and Advani — a most shameful betrayal of the Indian Constitution. Double–dealing, double–speak, cunning, hypocrisy, blatant lies mark the conduct of the top BJP ministers and leaders at the Centre, whose motive was and is to show the entire nation what a full–fledged BJP government can do ‘for the Hindus’, to extract political mileage from the genocide of Muslims and to project the real face of Hindutva in the next Lok Sabha elections in 2004.

The fight then will not be an ordinary electoral contest between political parties, but a clash between two visions of our nation, two alternative processes of nation–formation. It is to be a struggle for the protection, preservation and defence of the Constitution against the naked bid for the perversion, desecration and subversion of the Constitution. If we lose the elections, it will not be a loss of one battle — we would have lost the war.

The true character and design of the Sangh Parivar in all spheres of our polity, society, economy and culture are now clearly, distinctly, unambiguously and nakedly exposed, leaving no room for doubt. Gujarat has revealed the true nature of Hindutva not only ideologically or theoretically but also in actual practice. This is what they stand for and this is what they want to do. Our ideology, our policy, programme and strategy must effectively respond to this and counter it.

In this context, therefore, our approach should be total, comprehensive and clearly focused, not merely fragmented or diffused. Hence how the riots actually broke out, the causes and consequences of the Godhra incidents, the nature, extent, intensity and dimensions of violence, the magnitude of the damage and loss to Muslims, the Muslims’ poverty, illiteracy and backwardness, or the Hindus’ sense of insecurity or neglect, the absence of social interaction or tolerance or understanding between different communities, police action or inaction, adequate or unjust rehabilitation, the recourse to courts, though important in themselves must not be dealt with or treated in isolation from one another. Their importance lies in exposing the true character of the menace we are facing.

Therefore, any partial or issue–based approach or strategy, no doubt important and necessary in its own way, will not be sufficient, adequate or effective. It is the new fascist threat of the 21st century combining authoritarianism, sectarianism, religious   fanaticism and an amoral economic policy of self–aggrandisement, cultural hegemony and brute force. They are operating both constitutionally and extra–constitutionally, inside the Parliament and courts and outside in the streets, and working on people’s minds. But the Gujarat events must not defeat, disillusion, disappoint or frustrate us, but must charge and unite us, open our eyes, shake off our complacency and prepare us for defeating them. In this sense, the Gujarat tragedy could retrospectively prove to be a blessing in disguise, in that it warns us of the impending danger and disaster in 2004.

The elections to the Lok Sabha in 2004 without the backdrop of the Gujarat riots would in a way have been deceptive and misleading. Gujarat at least has rid us of that illusion. Modi and his BJP-VHP-RSS want to replicate Gujarat throughout the country. It is for us to prevent this. The issue is no longer confined to Gujarat. It has become an issue for the entire nation. For Modi, it was a ‘One-day match’ finished in good time. For us now, it is a full 5-day Test. Either they win or we win. Even a draw will be ruinous for the country.        

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, India Modi-fied

The Hindu tradition of toleration is showing signs of strain — the strain of religious tension, fanned by fanaticism

Courtesy: virtualclassroom.org

For centuries Hinduism has been the most tolerant of all religions. It was from the ranks of the Brahmins that the first converts to Buddhism were recruited in the sixth Century BC. Two hundred years after Ashoka’s death Buddhism had replaced Hinduism in vast areas of the sub-continent, although the Buddhism that prevailed was not of the purity envisaged by the Enlightened One. But within two centuries after Buddha’s death, eighteen varieties of the Buddhist doctrine divided and confounded the converted faithful!

And then, at the beginning of the first millennium, the growth of monasticism left India open to easy conquest. When the Arabs came, they looked with scorn upon the Buddhist monks and destroyed their monasteries, making the new faith unpopular. The survivors, under the influence of the youthful Adi Shankara, were then reabsorbed into the Hinduism that had begotten them.

As the historian Will Durant records in an elegant sentence: “the ancient orthodoxy received the penitent heresy Brahmanism killed Buddhism by a fraternal embrace.” And all this because Brahmanism had always been so tolerant. The history of the rise and fall of Buddhism and of a hundred other sects in this subcontinent records much disputation, but no instances of persecution (except from foreign invaders). After five hundred years of gradual decay, Buddhism disappeared from India, not violently or with bloodshed, but quietly and peacefully. And throughout Hindustan, Hinduism (after centuries of decline and decadence) came back into its own: still tolerant, still accommodating.

But all this was in the past. During the last few years I have been a querulous spectator of a new phenomenon — on occasions almost a frightened one. The Hindu tradition of toleration is showing signs of strain – the strain of religious tension,
fanned by fanaticism. This “great orchestra of different languages praying to different Gods” that we proudly call “India” is now seen and heard playing out of tune.

Some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside, a standardisation of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and customs was practiced and every variety acknowledged and even encouraged.

Is Hinduism then changing its face? I hope not — but I fear it is. It is as well to express this fear openly. Secular India versus militant Hinduism is reminiscent of ambassador George Keenan’s metaphor when contrasting democracy with a dinosaur. “You practically have to whack off his tail,” said Keenan of the dinosaur, “to make him aware that his interests are being disturbed: but once he grasps this, he lays about him with such blind determination that he may destroy his habitat with his adversary.” We must not let the dinosaur destroy our habitat.

Look back a little and reflect on what a great patriot of India had to say — a man whose birth centenary we ritualistically celebrate in November each year. He never regarded the varied peoples of India as the dinosaur looked at he Earth’s smaller inhabitants.

Writing in the quiet seclusion of a prison in 1944 (his ninth term of imprisonment for revolting against the British) Jawaharlal Nehru contemplated “the diversity and unity of India”:

“It is tremendous (he wrote): it is obvious; it lies on the surface and anybody can see it… It is fascinating to find out how the Bengalis, the Malayalis, the Sindhis, the Punjabis, the Pathans, the Kashmiri, the Rajputs and the great central block comprising of Hindustani–speaking people, have retained their particular characteristics of hundreds of years, have still more or less the same virtues and failing of which old traditions of record tell us, and yet have been throughout these ages distinctively Indian, with the same national heritage and the same set of moral and mental qualities.”

There was something living and dynamic about this heritage (says Nehru) which showed itself in ways of living and a philosophical attitude to life and its problems. Ancient India, like ancient China, was a world in itself, a culture and civilisation, which gave shape to all things. Foreign influences poured in and often influenced that culture, but they were absorbed. Disruptive tendencies gave rise immediately to an attempt to find synthesis. And (Nehru adds) almost lyrically: “some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside, a standardisation of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and customs was practiced and every variety acknowledged and even encouraged.”

Many Hindus, many Sikhs, many Muslims, many Buddhists — in fact, most Indians — endorse and share this dream; Nehru’s vision of the diversity and unity of India.

But events in Gujarat and elsewhere show that  ‘Dinosaurs’ breed fast — on hatred. Dinosaurs in one religious camp give impetus to the breeding of them in another — as recent events in Pakistan bear testimony. Scientists tell us that it was a great meteorite that finally destroyed all the dinosaurs on this earth. If so, I like to think that the meteor was the symbolic wrath of God!

I belong to a minority community, a microscopic wholly insignificant minority, which spurned the offer made (at the time of the drafting of our Constitution) — to Anglo–Indians and Parsis alike to have, for at least a decade, our representative in Parliament. The Anglo–Indians accepted the offer — but most of them migrated to places abroad. We Parsis declined the offer — and most of us stayed in India.

In the Constituent Assembly, Sir Homi Mody said that we would rather join the mainstream of a free India. We did. And we have no regrets. I have never felt that I lived in this country at the sufferance of the majority. I have been brought up to think and feel that the minorities, together with the majority community, are integral parts of India.

I have lived and flourished in secular India. In the fullness of time, I would also like to die in secular India, when God wills.       

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Tolerant tradition 

District magistrates and superintendents of police must be punished if a riot occurs in their area of jurisdiction

The recent happenings in Gujarat have raised many questions about various institutions of the Indian State. After the demolition of the Babri Masjid, it is these happenings that have posed the greatest challenge to the basic values of our Constitution. It is only values like the spirit of tolerance, respect for the point of view of others, even–handed treatment of all sections that ensure the existence of a progressive and modern Indian nation. All those who are concerned about the continuation of a democratic dispensation governed by the rule of law have had their faith in the State severely shaken by the pogrom against the minorities in Gujarat.

While Gujarat has raised many issues, I will deal with those pertaining to the police force. As a police officer, I have always felt that my primary objective should be to try and put my own house in order before pointing fingers at others — the political class, the civil administration etc — however culpable they may also be.

• The incidents in Gujarat are not unique. The law enforcement agencies have shown their apathy and callousness towards the performance of their primary responsibility of upholding the Constitution in riot after riot. The objective of the Constitution is the creation of a society where all citizens, irrespective of religion, caste, class and gender will enjoy the equal protection of the State, can be realised only if institutions like the police behave in an impartial and fair manner. Unfortunately, this premise has been demolished repeatedly by the actions of the police.
• The crying need for police reform has been repeatedly ignored by all sections of Indian society that matter. It is only very rarely that senior politicians, bureaucrats, members of the judiciary, teachers, writers and other people involved in decision–making or in the formulation of public opinion deliberate on issues related to police reforms. I feel that this question of reform is intrinsically linked with remedying the problem raised in the earlier paragraph.
• On every  occasion that the police have failed in their primary duty, whether in  l984, when thousands of Sikhs were massacred all over the country, or in 1992 when the mosque in Ayodhya was demolished in full view of tens of thousands of policemen, commissions set up to enquire into these incidents have always indicted the police for their partisan behaviour, their deliberate inaction in providing protection to the lives and properties of the minorities and their criminal involvement in violent and murderous attacks and looting of property. But the sections of society mentioned earlier have never made sustained and concerted efforts to bring the guilty to book and award them exemplary punishment. If criminal actions on the part of those who are entrusted with the mandate of fighting crime go unpunished then what hope is there for the maintenance of law and order and the ensuring of justice?

At its meeting in Srinagar, Kashmir, in l968, the National Integration Council had recommended that the onus for the breakout of communal rioting should rest squarely on the shoulders of the district magistrate and superintendent of police who should be punished if a riot occurs in their area of jurisdiction. Punishment being meted out to a government functionary, be it a police officer or a magistrate is, however, a rare exception to the rule.

Unless we make it dangerous for the police to behave in the way that they did with some honourable exceptions in Gujarat, each repetition of such behaviour will become more and more outrageous until the very fabric of our society is rent beyond repair.

As far as I am concerned, the most effective way to ensure the containment of communal violence is to institutionalise this doctrine of responsibility and culpability of those in charge of the government machinery. Police action is the first state intervention in a situation of rioting and therefore the role and behaviour of the police is of the utmost significance in either instilling confidence in those who are being attacked or in destroying it.

There are voluminous reports and recommendations on the subject of police reform. The need for sensitisation of the force, changes in recruitment patterns to increase the representation in the force of members of minority communities, ways and means to preserve the independent functioning of the police hierarchy and implementation of norms in transfer policy are all very important components of this agenda. However, the punishment of erring officials and those who commit crimes of dereliction of duty, murder, loot and collusion during times of communal conflict is the first priority as far as I am concerned.

There is absolutely no justification for these offences to be treated any differently than they would in normal circumstances. In fact, they should be treated with greater severity when they are committed at a time when the constitutional mandate of the police personnel concerned is to protect the minorities and to behave and act in a manner exactly opposite to what is being resorted to.

Unless we make it dangerous for the police to behave in the way that they did with some honourable exceptions in Gujarat, each repetition of such behaviour will become more and more outrageous until the very fabric of our society is rent beyond repair.            

(The writer is a senior IPS officer).

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Partisan police

If state authorities wantonly let violent mobs target innocents, citizens need to resolutely demand accountability and fundamental reforms  

The savage carnage in many parts of Gujarat that followed the horrific torching of a railway compartment in Godhra on February 27, 2002, and the systematic and wanton subversion of all civilised norms of relief and rehabilitation of the survivors in the bleak months that followed, witnessed the collapse and perversion of the state machinery to an unprecedented degree.

In the aftermath of the grim and bloody birth of a dismembered Indian nation in 1947, the leaders of the struggle for Indian Independence had resolved to retain a powerful bureaucracy inherited from the colonial legacy of governance. Their expectation was that it would act as a sturdy bulwark, a ‘steel frame’ to strengthen the unification of a vast, diverse, volatile land.  In the decades that elapsed after Independence, whereas the trappings of colonial power, incongruous in an impoverished democratic country, were retained and elaborated, a slow but steady decline set in, with the growth of indifference, unaccountability, corruption, sloth, arrogance, and most dangerously, complicity and partisanship.  
Beginning with the shameful complicity with mass violence in the anti–Sikh riots of 1984, the decline became precipitous with the ascendancy of fundamentalist pseudo-religious militant ideologies in the country.  Sections of the police, civil and military administration bared their active sympathies with these divisive ideologies, while the large majority opportunistically aligned with these to advance their careers.  

As a result, the corroded ‘steel frame’ dissolved and in the ‘laboratory’ of Gujarat in 2002, the country witnessed its complete ignoble collapse. The state authorities in Gujarat not only actively connived with a planned and orchestrated massacre of a section of the population, specially targeting hapless women and children. In the months that followed, it abetted and assisted for the first time in the country’s history, the deliberate subversion of all civilised norms of relief and rehabilitation of the
survivors.  

In other words, it enabled and assisted not only the murder, rape and plunder of legions of innocent people and their properties. It went further to assist the ruling political class of the state in preventing the organisation of even elementary temporary shelters with basic facilities in relief camps, or grants and loans to assist the destitute and bereaved survivors to rebuild their shelters and livelihoods. This brazen, merciless treatment, with state abetment, of victims of mass violence like unwanted diseased cattle, or like enemy populations, marks a new low in the governance of this nation. It heralds the completion of the unresisting transition of the civil and police administration from protectors to predators of the people.
The culpability of the higher civil and police services in the crimes and inhumanity of the Gujarat carnage and the dishonour of its aftermath, is greater because it is a vocation whose central calling is the upholding of justice, of law, order and the protection of vulnerable people.  Default in the performance of one’s duty by a civil or police officer in a riot is not only the crime of a citizen who turns one’s face away from injustice, because of indifference, fear or complicity.  It is a crime of much graver magnitude, akin to that of a surgeon who wantonly kills his patient on the operation table.

Until the 1980s, there was an unwritten agreement in our polity that even if politicians inflamed communal passions, the police and civil administration would be expected to act professionally and impartially to control the riots in the shortest possible time, and to protect innocent lives. There were several failures in performance, and minorities were targeted in many infamous riots, but the rules of the game were still acknowledged and in the majority of instances adhered to, which is why the higher civil and police services were regarded to be the steel frame vital to preserve the unity and plurality of the country.

The 1980s saw the breaking of this unwritten compact which has led to the corrosion and near–collapse of the steel frame. It became frequent practice for the higher civil and police authorities to be instructed to actively connive in the systematic slaughter of one community, and to do this by delaying, sometimes by several days, the use of force to control riots. Local state authorities complied, and rioters were unrestrained by state power in their mass murder, arson and plunder.  
Why is the decisive and timely use of state coercive force — lathis, tear-gas and bullets by police, para–military and military contingents — so vital a duty of the state in a communal situation? In every other kind of public disorder – labour, student or peasant protests – the broad consensus across a wide section of liberal opinion is that a democratic state must apply the principle of minimum necessary use of force to restore public order and security, respecting the right of democratic dissent
and the expressions of public anger against perceived injustices and grievances.

In situations of sectarian violence, by contrast, the responsibility of the state is completely different from any other. A humane and responsive democratic government must apply in all such situations — of communal riots, or violence against minorities or dalits — the principle not of minimum necessary application of force, but instead the responsible but maximum possible use of force that the state can muster in the shortest possible time. This is because unlike other expressions of public anger, communal violence targets almost invariably people who are most vulnerable and defenceless, it is fuelled by perilous and explosive mass sentiments of irrationality, unreason, prejudice and hatred, and its poison spreads incrementally over space and time. Its wounds do not heal across generations. The partition of our country continues to scar our psyche half a century after its bloody passage. A whole decade of terrorists in Punjab traced their origins to the maraudings of the 1984 rioters. As I held on my lap a six–year–old boy in a camp in Ahmedabad who described the killings of his mother and six siblings, I felt broken by his pain that can never heal, but wondered at the same time how he would deal with his anger when he grows up. Likewise, the ashes of the horrific burnings in Godhra will stir up their own poison. But it is important to understand that the cycles of hatred did not begin in the railway compartments of Godhra, and they will not end in the killing fields of Gujarat.

It is for this reason that every moment’s delay by state authorities to apply sufficient force to control communal violence is such an unconscionable crime: it means more innocents will be slaughtered, raped and maimed, but also that wounds would be opened which may not heal for generations.

Civil and police authorities today openly await the orders of their political supervisors before they apply force, so much so that it has become popular perception that indeed they cannot act without the permission of their administrative and political superiors, and ultimately the chief minister. The legal position is completely at variance with this widely held view. It is unambiguous, in empowering local civil authorities to take all decisions independently about the use of force to control public disorders, including calling in the army. The magistrate is not required to consult her or his administrative superiors, let alone those who are regarded as their political ‘masters’.

The law is clear that in the performance of this responsibility, civil and police authorities are their own masters, responsible above all to their own judgement and conscience. There are no alibis that the law allows them.

It may be argued that this may be an accurate description of the legal situation, but the practice on the ground has sanctified the practice of political consultation before force is applied. Only to convince the reader that I speak from the experience of myself handling many riots, I could contest this with my own experience in the major riots of 1984 and 1989, where as an executive magistrate I took decisions about the use of force and calling in the army, without any consultation. I could similarly contest this with the experience of many other women and men of character in the civil and police services across the country, who would similarly testify to salutary application of force, to control more difficult communal violence, without recourse to political clearances.  There can be no dispute that given administrative and political will, no riot can continue unchecked beyond a few hours.

However, I will not substantiate this with my own experience, or those of older officers. It gives me great pride and hope, amidst the darkness that we find ourselves in today, to talk of the independent action taken by a few young officers in Gujarat and neighbouring Rajasthan during the present crisis itself.

The culpability of the higher civil and police services in the crimes and inhumanity of the Gujarat carnage and the dishonour of its aftermath, is greater because it is a vocation whose central calling is the upholding of justice, of law, order and the protection of vulnerable people.

Rahul Sharma was posted as SP, Bhavnagar for less than a month when the Godhra killings and the subsequent rioting all over Gujarat happened. Following Godhra, he deployed a strong police contingent for the Gujarat Bandh called by the VHP the next day, February 28. Unlike the rest of Gujarat, the day passed off without much trouble in Bhavnagar. But the next day, Rahul learned that a mob of around 2,000 men armed with swords, trishuls, spears, stones, burning torches, petrol bombs and acid bottles, was about to attack a madrassa with around 400 small Muslim boys between the age of 12 and 15.

Rahul rushed to the spot where there was a police force of around 50 people. Seeing that the force was hesitant to open fire on the armed mob, Rahul himself took the rifle from a fellow constable and opened fire. As some attackers fell to police bullets, the crowd stopped in its tracks and faded away.

Rahul then made an entry in the logbook saying that he had fired from the constable’s gun to save the lives of the children. He also gave an order that any policeman with a gun not opening fire to save human lives from a violent mob would be prosecuted for abetting murder. This gave a clear signal to the police force that the SP meant business, was willing to take full responsibility for his actions and was prepared to stick out his neck however far.

This had an immediate effect on his force, and Bhavnagar was a town where more rioters were killed in police firing than innocent victims in actual rioting. For this, Rahul was moved out from Bhavnagar in a mere month of his assuming charge. He is quoted in the Outlook as saying, “I’m not one to run away from transfers. I take these things in my stride. Other than controlling the riots, I did no mischief.”        

In neighbouring Rajasthan, the superintendent of police of Ajmer, Saurabh Srivastava, with a young SDM in his first charge and his small force, doused communal fires in Kishangarh on March 1, 2002, which had the potential of inflaming the tinderbox of the entire state. They controlled an enraged armed mob of over a thousand men bent on attacking minorities in a pitched battle for over four hours.

Another defence that we are hearing is that the lower police force has become hopelessly charged with the communal virus; therefore it is impossible to deploy it as a non–partisan instrument of coercive force to control rioting. It is true that our men and women in khaki work under conditions of great stress, long hours, inadequate facilities and uninspiring training. Even so, whenever commanded by leaders of character, who are non–partisan, professional, fearless and lead from the front, the same forces are known to protect peace admirably.

Unlike the statutory duties and powers of state authorities in the control of public disorders, which are clearly codified in the Criminal Procedure Code, 1973, there is no comparable codification of their duties for extending relief and for rehabilitating to the survivors of sectarian violence or natural disasters.

However, even though there is no formal codification, the principle that underlies the state responsibility in such situations, and the practice even of the colonial government in pre–Independence days, which has been strengthened further by Relief Codes, government circulars and practice after Independence, is that in any natural and human-made disaster, including riots, the state government is the primary agency responsible to provide relief, succour, security and rehabilitation to the victims of such disasters.

It may seek the assistance of NGOs in these tasks, but it cannot be allowed to abdicate its own central responsibility to NGOs.  Therefore, the state government must take direct responsibility not only for the food, but also the safety, shelter, protection from the extremes of climate, health, psycho–social support to deal with their trauma, sanitation, education and rehabilitation of all the children, women and men housed in its camps, and affected by the mass violence.
In Gujarat, the overwhelming majority of camps were set up, and continue to be run, not by the state but by self–help efforts of the Muslim community. The few Hindu camps, mostly housing people living in Muslim dominated areas who feared reprisal attacks, were similarly run by Hindu organisations, although with more conspicuous state support.

There can be no dispute that given administrative and political will, no riot can continue unchecked beyond a few hours. However, I will not substantiate this with my own experience, or those of older officers. It gives me great pride and hope, amidst the darkness that we find ourselves in today, to talk of the independent action taken by a few young officers in Gujarat and neighbouring Rajasthan during the present crisis itself.

State authorities maintain that it is the culture of Gujarat that NGOs establish and run relief efforts. It is euphemistic to describe the support for most camps as even coming from NGOs, because like the state, the majority of mainstream NGOs which were so active in the relief and reconstruction work after the killer earthquake in 2001, have chosen to distance themselves from healing and rebuilding in this far more politically volatile human tragedy.

The result is that in practice, camps are running substantially on the strength of self–help efforts of the affected communities. These self–help efforts even amidst so much adversity inspire great admiration, but this does not absolve the state of its direct and central responsibility that basic living conditions and services are ensured in the relief camps. If, for instance, epidemics break out in the camps, state authorities rather than the camp managers, must be liable.

After an average of ten days subsequent to the violence, state authorities commenced the supply of basic rations to the camp, along with a grant of five rupees per head per day to cover costs of cooking etc. The food is prepared and served in orderly shifts by volunteers from among the camp residents.  However, resources are required for much more than just food, in running such populous relief camps of devastated people.

Our deep worry remained unaddressed that if resources from relief did not come from the state, donor and aid agencies or NGOs, an impoverished, hapless and gravely threatened community would increasingly find itself thrown into the hands of either the mafia or fundamentalist leaders.

Camp residents, the majority of whom have survived with only the clothes on their backs, need additional sets of clothes, as well as a small allowance for daily expenses. Another matter of grave concern is sanitation. In most camps, the number of available toilets and bathing places is abysmally less than needed, and camp authorities find it difficult to ensure the cleanliness of the toilets.

Whereas this compromises the privacy of the residents, especially women, an even more serious worry is that failures in sanitation, particularly after the rains break out, have the potential of causing epidemics. We need to establish some minimum
acceptable ratio of toilets and bathing spaces at all camps, and arrangements for their cleanliness.  

Camps, temporary homes to often several thousand children, women and men, are organised mainly in dargahs, schools or graveyards. The majority of residents live in open shamianas. Makeshift canvas covers were the only protection against the blazing summer heat. However, the survival of the camps and its hapless residents was most threatened by the on–coming monsoons. The camps were low–lying, with tattered canvas covers, no match for the monsoon rains.

Activists attempted to alert the state government about the special vulnerability of the residents of the camps during the monsoon rains, and their desperate need for rainproof shelters. However, efforts through the courts, the National Human Rights Commission and the national media failed to secure state action to construct these shelters.

Finally, three weeks before the outbreak of monsoons, when it became clear that the survivors in the camps would be unprotected from the fury of monsoon rains, a few local organisations decided to build the rain–proof shelters themselves. With volunteers deployed from across the country, rain–proof shelters were constructed with plastic, canvas and bamboo scaffoldings. This massive effort has succeeded in preventing the forced distress dispersal of the most destitute survivors who still remained in the camps.

In Gujarat, the overwhelming majority of camps were set up, and continue to be run, not by the state but by self–help efforts of the Muslim community. The few Hindu camps, mostly housing people living in Muslim dominated areas who feared reprisal attacks, were similarly run by Hindu organisations, although with more conspicuous state support.

Civil rights activists and organisations failed to pressurise the state government also to ensure minimal standards of sanitation and clean drinking water, public health and education. Directions of the National Human Rights Commission and outrage in the national media was resolutely ignored by the state government, which refused to provide much more than ration supplies, occasional visits by doctors and grants to run some temporary schools in camps.

It is indeed tragic that such large numbers of citizens are forced to subsist in refugee camps, reminiscent of the camps after Partition, for extended periods. The residents of these camps, who are forced to live without work or personal spaces in very austere physical conditions, long to return to normalcy. But they can be expected to do so only if they feel secure and have the resources for rebuilding their lives. The neglect of these will prolong their agony, but to force the pace of their exit from the camps without this will threaten their very survival.

After the monsoons broke out, the state government has mercilessly stopped even the supply of rations to the majority of the camps. The district authorities have served notice to the camp residents that the camps are unauthorised, there would be no provisions for food or visits by medical teams. The notices pasted in various camps ominously add that the state government would not be responsible if any calamity or áafat befalls the camp.

District authorities maintain that they want to relocate the camp residents to three large camps. But they are unable to explain how several thousand more women, children and men can be accommodated in these camps, when there continue in these camps sub–human facilities even for the original residents. In the absence of rain–proof shelters and sanitation, crowding these camps further would further mount their distress.

The residents themselves are unwilling to be shunted like unwanted cattle. However hard life is in these camps, at least they are close to their old homes and some have been able to find casual work. Virtually unassisted, they have courageously commenced their uphill journey to rebuild their lives. It would be unconscionable for state authorities to make this journey even harder.

However, despite written assurances to the National Human Rights Commission and the Gujarat High Court, as well as discussions in the presence of the Prime Minister with a delegation of concerned citizens led by IK Gujral, state authorities persist stubbornly with their pitiless enterprise to close camps and to starve them even of food supplies.   

The survivors of the mass violence are facing insurmountable difficulties to secure even the meagre compensation that is assured by circulars of the government. Many of these problems are built into the design of the instructions; others are the outcome of openly partisan implementation by state authorities.

The government of Gujarat has announced a death compensation of Rs.1 lakh for every person killed in the riots, and the Prime Minister has announced an additional support of Rs. 50,000. The first difficulty here is that this support is available only on the production of a death certificate. However, the overwhelming majority of the victims were so badly burned that they could not be identified. The problem was further aggravated by the turbulence created by the mass violence that separated the survivors from their dead.

In these circumstances, it is not acceptable that the unidentified dead should be legally treated only as ‘missing persons’, which would mean in effect that the survivors would be eligible for compensation after the lapse of maybe seven years. Instead, a sympathetic state administration could have developed alternate mechanisms to verify deaths. For instance, an application and affidavit by the next of kin, supported by five affidavits by neighbours or observers, could be accepted. This may be corroborated by documents like the 2001 census, voters’ list, ration card or birth certificate.  

Even if the authorities feel that more evidence is required, death compensation should be sanctioned based on prima facie evidence to the next of kin in the form of bonds that can be redeemed only after the investigation is concluded. However, in the meanwhile, it would ensure that the next of kin is able to subsist on the interest.

The large majority of camp residents are impoverished casual workers, artisans, industrial workers, petty traders or members of their families. There are other more wealthy survivors of the mass violence who have lost their business establishments or factories, and they are mostly not in relief camps.

Given that the numbers of damaged business establishments, small and large, run into tens of thousands and are spread across the state, and that the losses amount to thousands of crores of rupees, the challenges of rebuilding the lost livelihoods of the survivors of mass violence is extremely daunting.  It would require the mobilisation of enormous resources of government, financial institutions, aid agencies and the private sector.

Existing instructions of the government of Gujarat, dating back to 1989, provided for financial grants up to Rs.10,000 for riot victims who have lost their earning assets. The new norms recently issued by the state government provide for assistance up to Rs.10,000 based on actual damage of movable and immovable earning properties.  

According to a report by an NGO, Disha of Wadali Camp in Dahod, most people have received housing compensation of as little as Rs. 200 to Rs. 500. It would be impossible to rebuild even a mud and thatch hut, let alone equip a house with these levels of ‘compensation’.

This ex–gratia assistance expressly debars the riot victim from seeking loans and subsidies under other schemes of the industry department. The ex–gratia relief that riot victims will receive is likely to be much less than the full resources required by the riot victims to rebuild their lost livelihoods. Therefore, the provision debarring recipients of ex-gratia relief for securing benefits of other government schemes is an unprecedented and merciless innovation, a perversion of the obvious principle of humane governance that the state government should make special efforts to secure the access of the riot victims to receive assistance to rebuild their lost livelihoods, by a convergence of all government schemes in a single window.
An even more daunting challenge is the reconstruction of shelters of almost two lakh persons rendered homeless overnight because of the mass violence. Homes have been looted, stripped bare of their belongings, damaged and burned by marauding mobs.

The Prime Minister announced an ex–gratia assistance to families whose houses were damaged or destroyed at Rs. 50,000. Instructions of the state government fixed the assistance up to Rs 50,000. Evaluation teams of only government functionaries have tended to work entirely without transparency and empathy, or even technical rigour, and average house compensation paid has been around Rs 5,000.

Surveys by NGOs have found that evaluation teams have fixed housing compensations at very low levels, even well below the already low ceilings.  A report of the Citizens Initiative states, for instance, that in Sankalit Nagar, Juhapara, Ahmedabad, of  67 houses burnt completely, 13 houses have received compensation between Rs.1,000–2,000;  18 have received compensation between Rs. 2,000–5,000; another 18 have received compensation between Rs. 5,000–10,000; and yet another 18 have received compensation of more than Rs. 10,000. One house has received less than Rs. 500.  

According to another report by an NGO, Disha of Wadali Camp in Dahod, most people have received housing compensation of as little as Rs. 200 to Rs. 500.

It would be impossible to rebuild even a mud and thatch hut, let alone equip a house with these levels of ‘compensation’. Teams of evaluation of house damage must include representatives of the riots victims and non-government technical experts, and this must be concluded within one month. Without such assistance it would be impossible for the survivors of mass violence to move out of the camps into their own reconstructed shelters.

Even these grants would be very meagre given the scale of resources that affected families would require to rebuild their homes. It is possible only if there is a massive mobilisation of housing and other financial institutions and a single–window access to their soft loans organised within the camps themselves. The NHRC had suggested the involvement of HUDCO, HDFC and international financial institutions and development organisations for augmenting the vast resources required by the riot victims for rebuilding their houses. This also has not been done.

In this way, in the carnage in Gujarat of 2002 and its aftermath, the state administration has succumbed not only to complicity in the mass violence, but even more shamefully has unresistingly allowed itself to deny tens of thousands of bereaved, destitute, battered innocent women, children and men with the means for their very survival. The journey from state as protector to predator is complete.

It is sometimes also argued that the entire higher civil and police services have become politicised beyond repair, therefore whatever be their legal and moral duties, they today lack the conditions in which they can reasonably be expected to perform them. Once again, I would strongly contest this alibi. I have spent twenty of the best years of my life in the civil service, but always found that despite the decline in all institutions of public life, there continue to be the democratic spaces within it to struggle to act in accordance with my beliefs without compromise. I do not regret a single day. One may be battered and tossed around, in the way that young police officers who opposed political dictates to control the recent rioting in Gujarat were unjustly transferred.  But in the long run, I have not known upright officers to be terminally suppressed, repressed or marginalised. On the contrary, I value colleagues, in the civil and police services, usually unsung and uncelebrated, who have quietly and resolutely performed their duties with admirable character and steadfastness. Few in the civil and police services can in all honesty testify to pressure so great that they could not adhere to the call of their own conscience.
It is not that there are no costs, but then if the performance of duties was painless, there would not be many who would fail in the performance of their duties. The costs are usually of frequent transfers, and deprivation of the allurements of some assignments of power and glamour, which are used to devastating effect by our political class to entice a large part of the bureaucracy today.

Today, when I stand witness to the massacre in Gujarat enabled by spectacular state abdication and connivance – or to the national disgrace of the subversion of all civilised norms of relief and rehabilitation – I recognise the cold truth that the higher civil and police services are in the throes of an unprecedented crisis. The absolute minimum that any state must ensure is the survival and security of its people, and elementary justice. If state authorities wantonly let violent mobs target innocents without restraint — or connive with the most cynical and merciless designs to deny them the elementary means for human survival — and they continue to do this with impunity and without remorse or shame, then citizens of the country need to resolutely demand accountability and fundamental reforms.  

They cannot permit the collapse or subversion of the state, and its metamorphosis from an institution for justice and security, the protection and welfare of the people, into one that victimises as state policy a segment of its population. Too much is at stake: justice, our safety, our pluralist heritage, and indeed our very survival as a humane and democratic society.         

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Protectors turn predators

The Vajpayee-led government’s argument before the Supreme Court undermines the basic constitutional principle of safe-guarding the interests of vulnerable sections in a democracy

In order to arrive at some conclusion on the question whether there has been an- assault on the Constitution by the pro-ponents of the Hindutva ideology who head the ruling combine at the Centre, it is necessary to look at both the text of the Constitution as well as the practice of the ruling parties.

While it is arguable that the text of the Constitution is by itself liberal, informed by the post–Second World War human rights consciousness, liberal and secular, the working of a Constitution depends on the conventions built up around it. These conventions in turn depend upon the manner in which ruling parties operate the Constitution. On them rests the heavy responsibility of operationalising the democratic ethos of the Constitution.

In the ultimate analysis, however, the Constitution is what the judges say it is. However, the journey between building conventions and having the actions of ruling parties tested in a court is a long one, and often courts, too, have a tendency to endorse existing practices,  which end up being the practice of the ruling parties.

It is no secret that one of the biggest challenges facing the Indian body politic today is the challenge of communalism. The challenge is to the secular credentials of the Constitution. It is also no secret that the challenge comes from the ruling BJP combine which has a self–professed Hindutva agenda.

The devastating consequences of this agenda have only recently been witnessed in Gujarat where the BJP consciously subverted the Constitution in pursuit of its agenda, leaving thousands of the Muslim community dead or devastated, in what was nothing short of genocide. The conscious spreading of communal propaganda, the equally conscious incitement of religious sentiments were all unconstitutional. The guarantee of maintaining communal harmony is at the heart of a secular Constitution. Multiculturalism, respect for all cultures equally and the right freely to practice religion, without fear of being put to death, must surely form the basis of any civilised constitution.

In this brief reflection, I would like to document my impression of what happened in the recent hearing in the Supreme Court when a bench of 13 judges of the apex court was hearing a petition relating to the interpretation of Article 30 of the Constitution of India.

The question arose on a reference by a smaller bench to a larger bench on the question whether minorities had the right to give preference in admission to students of their own community even though that institution was getting state aid. There were several other issues that arose: namely, the extent of permissible state regulation of minority institutions, including the power of regulating appointments of teachers etc.

But there was no serious debate on those issues. What was seriously at issue was the power to admit students of the community despite receiving state aid. It was, therefore, essentially a case about the rights of minorities. It was crucial therefore for the court to come to some understanding of the position of minorities under the Indian Constitution.

Far from an appreciation of the Constitutional position of minorities, what one witnessed in court was a reversal of the debate, namely the rights of majorities! By an amazing side wind, the court permitted an issue to be added, namely, do the “non-minority” communities have a right to establish educational institutions in the same way as minority communities? From that moment on, the dice was loaded against the minorities and the solicitor general of India argued with great gusto that the minorities had no special rights and that the rights of “majorities” were as important as those of “minorities”.

Sounds familiar? Reports appearing in the press indicated that the solicitor general was taking his instructions for the minister for human resources, Murli Manohar Joshi. Since we do not yet have a Freedom of Information Act, there is no way of confirming the reports. Whatever be the ethics of such instructions, the fact remains that that is the official government position.

So where does that leave us? Does the Indian Constitution make no distinction between “minorities” and “majorities”? Are we all so equal before the law that we lose our cultural identity, our religion and our political vulnerability? Is there an obligation on us all to achieve a sameness of thought, belief and practice, a sameness imposed by the powers that be?

Let us look a little closely at the provisions of the Constitution. Articles 29 to 30 of the Constitution fall under the general heading of ‘Cultural and Educational Rights.’ Article 29 begins with the words, “protection of interests of minorities.”
Article 29: Protection of interests of minorities — (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.

Article 30 reads as follows.
Article 30: Right of minorities to establish and administer educational institutions — (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administrated by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
There is no other reference to minorities in the Constitution.

It is not my intention here to expound on the meaning of these Articles but rather to point out that there are specific provisions in the Constitution dealing with minorities. There are no such provisions dealing with “majorities.” While minorities are considered as a group, majorities are not and individuals belonging to majority religious communities must work out their rights as individuals, not as groups seeking protection against “minority” groups.

One would imagine that this would make political and constitutional sense. And yet one saw a playing out in court of the Hindutva argument that the “majority” is under siege and needs protection against the “minorities.” Of course, the argument was dressed in the constitutional rhetoric of “equality”. But by now we have all learnt to decipher the political agenda behind any constitutional argument. The Constitution is after all a political document as much as a legal one and it is only proper that arguments are appreciated in their political context. What is not acceptable however is for that politics to be hypocritically concealed as constitutional logic.

For the survival of minorities in this country, it is essential that we understand the distinction of rights conferred on groups and those conferred on individuals. Group rights are conferred on vulnerable sections of society and can be asserted by and on behalf of groups. Benefits and protections are conferred on groups in order to preserve their identity as groups. For a government to argue that our constitutional goal is to achieve equality and “national integration” at the cost of effacing the identity of religious minorities is not only political rubbish but makes no constitutional sense.

Groups by definition exclude those that do not belong to the group. To argue therefore that they are being pampered by being given certain benefits is begging the question. Minorities are given special rights to achieve an equality which is otherwise denied to them. They stand on the same footing as do Scheduled Castes and Scheduled Tribes under the Constitution. How absurd it would be to argue that an upper caste person is being denied a job which is reserved for a Scheduled Caste person.

That is the way the Constitution meant it to be. Minorities, Scheduled Castes, women and children stand on the same footing. They are all beneficiaries of group rights, all entitled to affirmative action by the State to achieve substantive equality benefits to which “majorities”, whatever that term means in constitutional terms, are not entitled.

What is at stake in the case pending decision in the Supreme Court is not the number of seats the minorities are entitled to, or the extent of aid to which they are entitled, but an understanding of the position of minorities in the Indian Constitution. It is not my privilege here to argue whether minorities should be permitted to admit students of their own community in preference to others; that is for the court to decide. Rather, my concern is with the manner and method of interpreting a constitutional document in its historical and political context. If the court says that there is no difference between “minorities” and “majorities”, it will indeed be endorsing a specific political agenda, one that is ahistorical and makes for bad politics.
None of us have yet forgotten the Prime Minister’s famous Goa speech: “We will not tolerate…” Exactly what did he mean by “We”? The inspiring opening words of the Indian Constitution, “We the People of India…” Or, “We, the Hindutvawalas…?” That is the question.                  

(The writer is a senior lawyer in the Supreme Court).

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Rights of ‘majorities’?

To curb communal violence the nexus between politicians, criminals and the police has to be broken

religious conflicts have brought us considerable pain, hatred, bloodshed and more destruction than any other single institution in the world. The long history of the world reveals that great civilisations and empires fell more often from internal decay than external assault. Group violence takes place normally due to frustration and failure of peaceful efforts and it is like a fever in the body politic. The fear of crime has eroded basic quality of life, as pointed out by the Crime Commission of the US (1967). Social violence has destroyed basic fabric of society, killing the spirit of co–operation, good will and trust amongst its citizens.

It is strange that in a democratic society a citizen has to be afraid of his best endowed fellow citizen and the country gets divided internally, people are burnt alive in their own houses.

Politics and communal violence
The US National Commission on causes and prevention of violence (1969:57) has aptly pointed out that group violence is utilised by “groups seeking power, by groups holding on to power and groups in the process of losing power.” The commission further points out that group violence is “dangerous to free society” and frequently the aim of group violence is not to persuade “but to compel” the opposite group. The lack of respect or fear of law and support from the State accelerates group violence. In a   democratic society, free mobility is conducive for carrying out violent acts with the aid of manpower, materials, including lethal weapons support of mass media and easy availability of soft targets.
The Jagmohan Commission, which enquired into the 1969 riots in Ahmedabad, has quoted from Panikar (Future of India and South East, pg. 30–32): “While Hindus and Muslims fight on religious issues, fundamentally it is a question of political power.” (1970, 229)

Police and communal violence
The machinery to control communal violence is through criminal justice administration, namely, police in commissionerate areas and magistrates and police in other urban centres and rural districts. The police must be effective so that people do not lose faith and take law into their own hands. The police force is the only agency to employ violence as a method to control violence but in modern times, various religious groups use violence as a means to settle scores with their opponents. Thus the basis of civilised administration is questioned and the police have to be aware that their survival depends upon controlling such fanatic religious groups and anti–social elements usurping their role.

Police action
In spite of repeated communal violence taking place in the same place and in the same locality, police have failed to take immediate and effective penal action. The government–appointed inquiry commissions which have enquired into the communal violence in Gujarat in 1969 and in 1985 have confirmed that the  situation became volatile due to ineffectiveness, inaction, or delayed action by police and civil authority.

The common complaints are lack of effective leadership, gross underestimation of likely events, demoralisation of the police, a complacent attitude, seeking political support and instruction from superiors and undue dependence on the alleged promise given by the leader for maintenance of peace.

The Justice Dave Commission (1990), which enquired into the 1985 riots, pointed out that the police was totally inactive on April 22, 1985 and May 9, 1985 and as a result there was large-scale damage to life and property. Worse still, it was found guilty of “at times showing excesses and doing atrocities.” Regarding the collection of advance intelligence and investigation into the riots, the commission has adversely commented on the role of police.

National Police Commission Report
The National Police Commission (1981) appointed by the central government has undertaken a detailed study of police organisation. In its chapter on communal riots it has commented: (1) Controlling riots has become complicated due to growing public resentment against the police. Riots continue due to lack of decisive action on the part of authorities. (2) Authorities adopt a lukewarm attitude in the initial stages.

Several forces come into prominence to interfere in the police’s duty of controlling riots, investigation and arrest of real culprits. Such interference should be condemned and stopped. The NPC recommendation of formation of state security commissions insulating the police from political pressure is discussed below.

Role of police during communal violence
The National Human Rights Commission (NHRC), New Delhi, has commented on the functioning of the Gujarat police during communal violence. The salient futures of the commission’s report are as follows:

• “Failure to protect rights to life, liberty, equality and dignity” as laid down in the Constitution.
• “Serious failure of intelligence and failure to take timely and adequate anticipatory steps to prevent initial tragedy in Godhra and subsequent violence.
• Failure to take appropriate action “to prevent the spread and continuation of violence.” “Immediate and stringent measures were not adequately taken” in the wake of the call for a “Gujarat Bandh” on February 28. Bandhs always end with large-scale violence.
• “Failure to identify local factors and players” for participation in the violence.
• Though a large number of persons have been arrested, break up and details of those arrested are not furnished. It is reported that 90% of the arrested persons in heinous offences were released on bail and some of them were given a warm welcome after release.
• Uneven handling of major cases in respect of Gulberg Society and Naroda Patia in Ahmedabad City, Best Bakery in Baroda and Sardarpura Village in Mehsana District. These cases have not been diligently investigated.
• NHRC has adversely commented on distorted FIRs, extraneous influences, lack of transparency and integrity. “There was widespread lack of faith in the integrity of investigating process and ability of those conducting investigations.” Accused are shown as “unknown” and names of the offenders are not included in the FIR and copies of the FIR have not been given. Atrocities against women including acts of rape are not recorded and investigated. Investigation and prosecution of crimes are not free from “extraneous political and other influences” and, therefore, the Commission called for investigation by the CBI of the “very worst incidents of murder, arson rape and other atrocities.”
• Regarding failure to protect judges, Justice Kadri and Divecha, the response of the State lacks sensitivity and “the fact indicates that the response was often abysmal, or even non-existent, pointing out to gross negligence in certain instances or worse still, as was widely believed, to a complicity that was tacit if not explicit.”

Appreciation
The report of the National Human Rights Commission comments adversely on the inaction on the part of the administration to curb the violence. In the past, the same machinery controlled communal violence in a short period but this time the violence was cruel, harsh and painful. And in a very short time, large numbers of people were killed and properties torched and destroyed. Indiscriminate plundering and torching of targeted houses and business establishment indicates the inability of the government and its machinery to meet the eventualities.

The rioters were not scared of police action and as a result the violence was volatile, continuous and brutal. Yet the inefficiency of the law enforcement machinery is not condemned and punished. It seems the fanatics have not considered that the law is above them, however mighty they may think themselves to be.

The government–appointed inquiry commissions which have enquired into the communal violence in Gujarat in 1969 and in 1985 have confirmed that the  situation became volatile due to ineffectiveness, inaction, or delayed action by police and civil authority.

In short, the secular philosophy of the Constitution and the right to life and property were under severe strain during this period. Gujarat has never seen such serious violence in the past and it seems that the conflict, though apparently religious, is about resources and political power.

Need for reforms
There is urgent need to formulate a system to develop a neutral, secular, non–communal police force which will act as per the law of the land without fear or favour and free from extraneous interference. The nexus among politicians, criminals and the police has to be broken to curb communal violence. Prolonged communal violence is due to the activities of anti–social elements and the nexus mentioned above.

In spite of the various recommendations made by Justice Jagmohan Reddy 30 years ago and the VS Dave Commission 10 years ago, the police continue to be sluggish. The simple reason for this is that there is no political will to punish erring police officers and men for dereliction of duty. These officials have abdicated their duties and deserve strict action. The politicisation of the bureaucracy and police in action has an adverse affect on the administration.

Police reform
The NHRC has underlined the need to proceed without delay to implement reforms that have been repeatedly recommended in order to preserve the integrity of the investigating process and to insulate it from extraneous influence. The recommendations of the National Police Commission (1981) has long been forwarded to the State but the crucial recommendation regarding the constitution of the security commission, selection of the director general of police, insulating the police from the political process have not been implemented.

There is an obvious “lack of political and administrative will” to implement the above recommendations as pointed out by the NHRC. The commission has urged “to revive  quality of policing in this country and to save it from catastrophic ‘extraneous influences’ that are ruining the investigation work of the police — taking the situation in Gujarat as a warning and catalyst to act with determination to implement various reforms recommended and referred to above.”

Supreme Court directive
The Supreme Court in the case of Vineet Narayan vs. Union of India and Another (1998(1) SCC 273) has pointed out the need for establishing a mechanism for selecting the DGP, tenure, transfer and posting of the DGP and police officers of and above the rank of superintendent of police. But no action was taken despite the observation of the Supreme Court in 1997 and the letter from the Union Home Minister (late Indrajit Gupta) “reveal a distressing situation which must be cured if the rule of law is to prevail” as pointed out by NHRC.

The NHRC has further noted, “the police reforms directed by the apex court never took place. An unreformed police force thus allowed itself to be overwhelmed by the ‘extraneous influences’ brought to bear on it... The state government thus failed in its primary and inescapable duty to protect constitutionally guaranteed rights of citizenry.”

The NHRC urged the Centre and State to give top priority to police reform in the interest of the nation without “extraneous” consideration, to cure the “rot that has set” and to “maintain rule of law.”

Action against police officers
The Justice Dave Commission (1990) has urged: “District authorities must be made directly responsible and action should be taken against them for inactiveness if established. They must explain each communal incident which takes place within their respective jurisdiction and assign reasons for failure to control” (Vol. 2, 22). The NHRC has called for the identification of police officers who failed to discharge their duties during the communal violence and recommended prompt action against them without waiting for the report of the commission of inquiry.

“A major deterrent to misconduct or negligence in the performance of  duty, it also acts as a catalyst to restoration of public confidence and indication of good faith of administration. Failure to take prompt action has the opposite effect.” The NHRC has suggested a reward for officers who controlled communal violence.
 
Pay Commission recommendation
The recommendation of the 5th Pay Commission, that senior All India Service officers should be posted outside the cadre state after completion of a fixed period as means to improve the efficiency and integrity of the service so that their nexus with the politician be reduced. It is therefore necessary that the above recommendation be implemented.

Enactment of law
There is no effective law for prevention of genocide during communal violence. In pursuance of the U.N. Universal Declaration of Human Rights (1948), a penal law must be enacted for the protection and safeguard of citizens against the onslaught of powerful groups. Similarly, there should be provision for  relief and rehabilitation to the victims as it is only due to the failure of the state to protect the victim that he becomes destitute in his own country. The role of voluntary associations in providing relief and rehabilitation should also be specified the in proposed law.
Finally, penal action must be provided for serious dereliction of duty on the part of government servants for failing to control communal violence.

There is no effective law for prevention of genocide during communal violence. In pursuance of the U.N. Universal Declaration of Human Rights (1948), a penal law must be enacted for the protection and safeguard of citizens against the onslaught of powerful groups.

Amendment to the protection of Human Rights Act, 1993
The above Act should be amended to the effect that the recommendations of the NHRC, headed by a retired chief justice of the Supreme Court, be accepted like a judgement by both Centre and state. The NHRC should be so empowered under Section 18 of the protection of Human Rights Act, (1993) that the commission’s report after inquiry is accepted in toto, and it is not for the state or central government to interpret the recommendations for its convenience.

National Commission on Communalism
The Justice Jagmohan Commission of Inquiry (1970) which probed the Ahmedabad riots of 1969 had suggested that a National Commission on Communalism be constituted at the Centre as well as in the states, to fix the responsibility at all levels for handling communal violence as well as to find out the evil forces responsible for recurrent communal violence, with modern equipments utilised in advanced countries to minimise the loss of property and life.

General economic conditions and violence
As pointed out by the US National Commission on the causes and prevention of violence (1969:70): “We cannot ensure democratic tranquillity unless we ‘establish justice’ in a democratic society. One is impossible without the other.”  Poor economic conditions,unemployment, multiple deprivation, poor living conditions and lack of facilities encourage violence.

Conclusion
Communal violence will not go or wither away with a superficial whitewash unless conditions responsible for it are removed. Communal violence has been caused by socio-economic administrative factors and our institutions should meet the challenge adequately. Every ‘successful’ round of communal violence has a multiplier effect of inviting more communal violence. There is urgent need for police reforms and maintenance of communal harmony depends upon the acceptance of the legitimacy of social and political institutions, administrative machinery including the police, and meeting the aspirations of the people.
Our institutions should be capable of providing justice to all without discrimination, and our political institutions should be so managed that it makes “violence as a political tactic both unnecessary and unrewarding.” (The Report of US National Commission on Causes and Prevention of Violence (1969; 68).

All should accept the constitutional provisions of fundamental rights. The Jagmohan Reddy Commission has aptly pointed out: “The country neither belongs to Hindus nor to the Muslims nor to any particular section of the community, to think in terms of their separate entity, immutably different apart from Indian people could be a negative idea of sovereignty and one nation.” (1970:229). The greatness of our country’s civilisation depends upon how we respond to communal violence.                               

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Reforms now!