Those who do not remember the past, are bound to repeat it: Justice AP Shah

Good day everyone. Thank you to Dr Ram Puniyani and his colleagues at the National Solidarity Forum for organising Kandhamal Day this year. This is an important event to mark one of the most horrific incidents of communal violence that has taken place in India in the recent past. They say that those who do not remember the past, are bound to repeat it. This is precisely why we must remember what happened in Kandhamal, so that such incidents are never repeated.

Kandhamal, in Orissa, among the poorest districts in India, was home to one of 21st century India’s most gruesome riots in December 2007 and August 2008. The trigger for the violence was ostensibly the killing of a Hindu religious leader, which, after hate propaganda by Hindu rightwing forces, quickly descended into a spiral of attacks against dalit and adivasi Christians in the district. 

My association with Kandhamal lay primarily in heading the National People’s Tribunal. We brought out a report which unequivocally concluded that “the carnage in Kandhamal is an act of communalism directed mainly against the Christian community, a vast majority of whom are dalit Christians and adivasis; and against those who supported or worked with the community.”

What exactly happened in Kandhamal? After Swami Lakshmananda Saraswati, a Hindu priest, was killed, a sense of “collective guilt” was imposed on Christians in the district, inhabited by tribals and dalits. The two main communities are the “Kandhas” and the “Panas”, and neither community was left untouched.  Scores of people were killed, hundreds of villages were ransacked, thousands of houses were looted and burnt. Overnight, over 75,000 people became homeless. Mainly one community bore the brunt of all this violence, as those who lost their homes, villages and belongings were predominantly Christian. Churches, schools, colleges, philanthropic institutions, even leprosy homes and TB sanatoriums were destroyed and looted. Schooling and education came to a standstill, dozens of women were raped and molested. And many were also forced to renounce Christianity, and / or reconvert to Hinduism. 

The state government of Orissa completely failed to act to prevent the horrific crimes. They tried to portray this as an inter-tribal dispute, instead of acknowledging the gravity of the violence as a communal issue. The government appointed two commissions, as is usually the case in such matters, but both were ineffective. Neither commission issued any report, not even an interim report. Nearly 15 years on, there are no signs of any reports either. Such commissions, especially those set up after incidents of communal violence, tend to be nothing more than mere eyewash, intended to temporarily placate, but mostly never materialise into anything meaningful.   

The way the Kandhamal incident was handled is a textbook example of the failure of India’s criminal justice system. Almost all trials involving such incidents, such as 1984 Punjab and 2002 Gujarat, are victims of this failed system. Supreme Court Advocate Vrinda Grover and Law Prof Saumya Uma prepared a detailed report on the Kandhamal incident, demonstrating with hard facts the stark problems of the criminal justice system. Communal riots cases tend to be treated as cases of routine violence, falling into the quagmire of the Indian court system like any other criminal case. Lackadaisical investigation and prolonged trials invariably end up in acquittals. Add to this the colossal waste of resources spent on trials over years. 

In Kandhamal, for example, out of 3300 complaints, only 800-odd FIRs were lodged, of which only 500-odd were chargesheeted. Fast track courts were then appointed to deal with these cases. But, as is the norm in such cases, the justice dispensed by these courts was in fact “speedy injustice”. Actual murder conviction happened only in TWO cases! There were a few other cases where conviction happened, but for lesser offences.

What went wrong in the judicial process, despite fast track courts being set up? The investigation was completely biased. With FIRs not being registered, many victims could not even go to the police, because they could see that the accused were being openly protected by the state officials. 

Of the limited FIRs registered, many were flawed. No names were included. Incidents were underreported. In many cases, the police registered an omnibus FIR – the entire village would be asked, or made, to file a single FIR of not more than one or two pages! The courts never asked why victims were unwilling or indifferent to file independent FIRs. Neither were any strictures ever directed against biased or compromised investigations by  the police. Any delays in investigation, etc, were very technically dealt with.

Courts were also the scene of extreme hostility and fear. Witnesses would be terrified when the accused and their supporters, Hindutva forces, were allowed to roam freely. Threats and intimidation of witnesses was common, which the courts completely failed to prevent. Witnesses routinely turned hostile, unsurprisingly, for there was no witness protection to speak of. Indeed, when a police station was burnt, even police personnel turned hostile!

The Kandhamal trials, along with other such trials concerned with mass violence, show how unequipped courts are to tackle such cases. There are many layers to the story of the Kandhamal violence, as indeed to many of the incidents of its kind: the complicity of the state, partisan and compromised investigations, shoddy prosecutions, all offer nuance to each incident of violence. 75 years after independence, we see no end to communal violence in sight. Surely, our judicial machinery should have a systematic means of handling such cases. At the outset, the system needs to recognise that these cases are different from routine criminal cases, and cannot be dealt with in the same mechanical way. With most cases ending in acquittal at the highest level, it is time for courts to revisit the procedural and evidentiary standards in cases of mass violence. Witness protection is non-existent, and needs to be instituted particularly for gathering evidence in such cases. There is also the question of reparation, which has many facets, including rehabilitation, monetary compensation, medical treatment, providing education especially to children, and restoring communities to a state of normalcy. The goal should be to bring confidence back in the minds and hearts of the people, such as by rebuilding places of worship. These are all the state’s responsibilities. 

The court can play its part by ensuring these responsibilities are met.  

Indeed, in the Kandhamal case itself, the Supreme Court tried to intervene in some matters of reparation. The compensation being provided to families was so poor that the Court found itself compelled to interfere in August 2016, when it passed a judgement declaring that the quantum and scope for compensation was not satisfactory and that it was disturbing that the offenders of law were not booked. It ordered a review of over 300 cases, but these cases have still not been reopened or reviewed. The Supreme Court never set a deadline for the review, and the accompanying judicial, enforcement and investigative machinery has conveniently been allowed to go silent. This shows that the judiciary still has a long way to go in playing a meaningful role in such matters.

My own association with communal riots is not new. I grew up in the city of Solapur in Maharashtra, where the Hindu Mahasabha was very prominent. There was also a sizeable population of Muslims there, and tensions always existed between the two communities. At larger festivals, like Ganesh Utsav, or during Ramzan, riots were almost always routine. Shops and houses, mostly belonging to the minority community, would be burnt. There were also killings, sometimes. 

Another thing I noticed in my childhood, is that there would be routine arrests and prosecutions of some people, but these people would mostly get acquitted at the trial stage or in any case, on appeal thereafter. I do not recall having seen anyone given due justice, or even any kind of proper compensation or reparation being provided.

This is what rankles several of us today still. Is justice ever done to victims of mass crimes? My experience was in Solapur, most of the incidents rarely making it to national headlines. But instances of communal and targeted violence have continued throughout the history of modern India, whether it was in 1983 in Nellie, or in 1984 in Punjab and north India, in 1992 in Bombay, 2002 in Gujarat, 2013 in Muzaffarnagar… the list is growing uncomfortably longer. 

There also seems to be a worrying resurgence of communalism in recent years. Religious nationalism has come to the fore, backed by powerful political forces. This ideology imagines a nation under Hindu rule, a Hindu rashtra in Akhand Bharat (a United India), believing that only a Hindu can claim the territory of British India as a land of their ancestry, i.e., pitribhumi, and the land of their religion, i.e. the punyabhumi. As Veer Sarvakar propounded, “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture).” In this world view, Muslims and Christians are foreigners, not indigenous to India, whose religion originated in a separate holy land. 

This has pushed minorities in India into a life of fear, worried that their already second class existences will be rendered meaningless soon. Divisive language, hateful comments, cultural nationalism, lynching, and polarisation, are all condoned, sometimes even endorsed and encouraged. Any dissent, or expression of  dissatisfaction is punished. Any semblance of institutional neutrality is either being systematically destroyed or being allowed to fail. Agencies like CBI, ED, and NIA are being misused, as also various laws like sedition and UAPA. Nothing is being debated in Parliament, and the judiciary’s glory days are a thing of the distant past. One academic even described the Indian Constitution as being killed by a thousand cuts.

My childhood was in the aftermath of partition. The gruesome tragedy where about 20 million people died in the subcontinent had not been forgotten at that time. Prime Minister Modi today asks India to mark Partition Remembrance Day, but his messaging is contorted and problematic. The purpose of remembering the horrors of Partition is to ensure that it never happens again. Such commemoration should not be reduced to an invitation for further communal segregation, or a political tool for divisive nationalism. Unfortunately, Modi’s rhetoric around marking the horrors of partition appears to be precisely all that it ought not to be. Partition was not merely a one-sided sacrifice, people of many faiths lost their lives, in many parts of undivided India, and almost all of those deaths were meaningless. This holds true for any and every act of communal violence that this country has seen since. Any act of commemoration should acknowledge the meaninglessness and futility of such violence, and proactively attempt to repair past wrongs and prevent future violence. This is what was done with regard to the holocaust in Europe, and with regard to the nuclear attacks in Japan. We need to do something similar here. 

We will do well to recall that the Constituent Assembly, despite being dominated by Hindus (at 85%), also embedded the sentiment of communal peace and harmony in India in its project of building a new nation. The Constitution drafters took pains to protect the interests of the minority, the oppressed, and the dissenters. The post-partition project of making India a secular and peace loving nation is slowly and deliberately being made to come undone. Partition and all communal incidents that followed in independent India should be remembered for the right reasons. I hope that Kandhamal Day going forward will pursue this mission, of ensuring that we do not forget, and we do not repeat our transgressions. Harmony and kindness are as essential to development as economic prosperity. If India aspires to greatness, these are all fundamental  building blocks that cannot be ignored.