Political battle lines drawn even as victim minorities still look for ideal law to stop targeted hate and bloodshed
by John Dayal
1984 Delhi: On October 31, Prime Minister Indira Gandhi was assassinated by her two Sikh bodyguards at her official residence, in revenge for Operation Blue Star. For the next three days, as Doordarshan telecast the lying in state of her body, over 3,000 Sikhs men and boys were burnt alive while policemen, politicians and the world watched. A very few have been prosecuted for India’s biggest communal violence since the Partition riots of 1947. And twenty-five years later, the Government is still to tell the people if there was a mastermind. A small group of Sikh activists and lawyers have kept alive the pursuit of Justice for the widows of 1984. Needless to say, the aggressors were mainly from the majority community, allegedly owing allegiance to the Congress party though quite a few of them from radical right wing groups, including the Sangh Parivar who were angry at the anti-Hindu actions of terrorists in the Punjab.
2002 Gujarat: On 27 February 2002, the Sabarmati Express stopped at the Godhra station, and its Coach Number six was set afire allegedly by a group of Muslims as part of a conspiracy against the Babri Masjid demolition by the Sangh Parivar. The train fire burnt alive 59 Hindu pilgrims returning from Ajodhya. Their bodies were brought to Ahmedabad in a deliberate political decision. And for the next several days, the city and several other towns burned. In what the President and Prime minister called “a blot on the cultural traditions of India”, the Union government told Parliament that 790 Muslims were killed, 223 more people reported missing and another 2,500 injured. More than 100,000 people fled their homes. Human rights groups feared the toll to be as high as 2,000 Muslims killed. The National Human Rights Commission found evidence of premeditation in the killings by members the Rashtriya Swayamsevak Sangh, Vanvasi Kalyan Ashram, Vishwa Hindu Parishad and Bajrang Dal with a large doze of complicity by the State political and administrative apparatus headed by chief minister Narendra Modi. Many Police officers were named in subsequent enquiry commissions for their role in the violence. The violence spread to 151 towns and 993 villages in fifteen of the state's 25 districts as it raged unchecked between February 28 and March 3, and after a drop, restarted on March 15, continuing sporadically till mid June. Once again, not many have been prosecuted and sentenced for the violence other than Muslims sentenced in the train fire. The Supreme Court and special teams are still investigating allegations of mass rape of women, including genital mutilation, and the tearing out of foetus from pregnant women’s bellies.
2008: Kandhamal in Orissa: The violence in Orissa between 23 August and 1 October 2008 was comparatively on a much smaller scale, but was historically unique in being targeted against the micro-minority Christian community by communal gangs out to avenge the assassination of VHP vice president Lakshmanananda Saraswati in his ashram by self confessed Maoists on 23 August. For almost a month, the district of Kandhamal, on a plateau in the midst of the state of Orissa, was out of bounds even the government’s troops while the killer gangs roamed the countryside, killing perhaps as many as a 100 people – the government acknowledges 37 deaths – burning down 5,600 houses in 300 villages, and – destroying 257 big and small Churches and forcing as many as 55,000 people to flee their houses. At the end of 2009, over 20,000 people had still not come back to their homes. They had been barred from their villages by the Hindutva gangs which have openly declared that they will allows the Christians to return only on the condition they gave up their faith and converted to Hinduism. Orissa chief minister Naveen Pattnaik, who was in a coalition with the Bharatiya Janata party during the violence, and has since returned to power after severing relations with that party, told the state legislature that the attacks were mainly led by right-wing outfits such as the Vishwa Hindu Parishad and its youth wing Bajrang Dal.
The then Union Minister of State for Home Affairs, Ajay Maken, told Parliament there were at least 3,800 communal clashes reported in India between 2004 and 2008, marking a steady rise over the years. The highest incidence of such violence in 2008 was the one in Orissa, of course, followed by Madhya Pradesh with 131, Uttar Pradesh with 114 and Maharashtra with 109 and Karnataka in the south with 108, half of them against Christians and the rest against Muslims. As per the total number of communal incidents in each state during the last five years, Maharashtra is on the top with 681 clashes, followed by Madhya Pradesh with 654 and Uttar Pradesh with 613.
Data shows that barring the occasional incident of retaliation, the Muslims were the overwhelming target, and yet in the arrests, while 27,901 Hindus were arrested, so were as many as 7,651 Muslims. In firing by the police, again, Muslims were the apparent target --93 Muslims were killed as also about 75 Hindus. Human Rights Watch criticized the Indian government for failure to address the resulting humanitarian as administrations for engaging in a cover-up of the state's role in the massacres. .
The Union government finally decided to act, bringing forward a Bill to anticipate and prevent communal violence. The 2005 Bill, which was introduced in the Rajya Sabha – where it still lies – left civil society and specially the Human rights groups aghast. Engaging the central ad state governments in a dialogue extending over scores of seminars in Delhi, Mumbai, Bangalore, Hyderabad, Lucknow and many other cities, Human rights groups and Muslim intelligentsia – the Church was woefully absent in the exercise barring a stray individual or two – pointed out two major flaws in the Bill. It sort of empowered the state without empowering the victims and their communities. And it left unaddressed the entire question of impunity, how to hold politicians, police and bureaucrats responsible for their acts of commission and inaction before, during and after acts of communal violence.
This engagement did bear fruit. The National Advisory Council headed by United Progressive Alliance chairperson Mrs Sonia Gandhi set up a working group coordinated by two NAC members, journalist-activist Farah Naqvi and former bureaucrat and NGO activist Harsh Mander – with members from the various religious communities. The three members from the Christian community included this writer, together with two lawyers, Sister Mary Scaria and P I Jose of Delhi. Major activist-members included Shabnam Hashmi of Anhad, Teesta Setalvad of Mumbai and Vrinda Grover and Usha Ramanathan, and both jurists, from Delhi.
After sittings lasting more than a year and a half, the working group, finally assisted by Additional Solicitor General Indira Jaisingh, came up with a draft law, and called the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. The Bill has been put on the NAC website and people’s reactions have been sought with a deadline of 10th June 2011. The draft will then be sent to the government to undergo the processes which will finally see it being presented in either House of Parliament, presumably later this year in the Monsoon or winter sessions.
This writer, and Ms Shabnam Hashmi and jurists Vrinda Grover and Usha Ramanathan have expressed their own reservations to the NAC about several aspects of the Bill, especially in areas of Centre-State relations, impunity, and trigger mechanisms to make operative central intervention, the powers and structures of the Central and State authorities sought to be created to oversee the control of violence and issues of reparation and so on and finally to ensure the empowerment of the victims and ending impunity. Several Muslim members have also wanted the draft law to be tweaked in several areas to meet the challenge of hate campaigns, violence, rehabilitation and reparations.
But long before the processes take place for a sane debate, the Sangh Parivar has launched a pre-emptive offensive. The Bharatiya Janata Party, the political wing of the Rashtriya Swayamsevak Sangh, has held formal press conferences, and its spokesmen have dominated the TV channels in tailor-made debates. Sangh think tanks have called for consultations on the issue, and their most articulate champion, leader of the Opposition in the Rajya Sabha, advocate Arun Jaitely has gone to town saying, as a newspaper headlines screamed “Draft Bill on communal violence more draconian than TADA”. Arun Jaitely wrote an extraordinary public note “clearly indicating that not only would the BJP not support it in Parliament but that it would fall foul of the Constitution as the Centre would have usurped the jurisdiction of the States on law and order, a subject clearly and entirely within their domain” as the report said.
Understandably, as the leader of a party repeatedly indicted for spreading hate, Jaitely is critical of hate propaganda as an offence and an outbreak of communal violence being treated as an “internal disturbance” that would attract imposition of President's rule. Above all, he said, the draft Bill was discriminatory as it exclusively dealt with violence targeted against a minority. It did not deal with the possibility of minority violence against a majority community, he said. Jaitely says the proposed law was to “fix senior leaders” even when they were otherwise not liable for an offence. Other aspects he faulted were the presence of four members of the minorities on the proposed 7-member national authority for communal harmony - and similar state authorities.
The Union government fielded HRD minister Kapil Sibal, more eminent a lawyer than perhaps even Jaitely, to counter the BJP. Sibal said the Centre was determined to make State governments and individuals responsible for law and order “accountable” in cases of communal violence. “A polity which is just, fair and equitable needs to protect the weaker sections, minorities, SCs and STs,” Sibal said.
Everyone agrees the State governments will have to be on board if the draft Bill is ever to become law.
NAC members say the Bill made provision for all minorities — not just religious, but linguistic and regional as well. They pointed out that there were seven States — Jammu and Kashmir, Punjab, Mizoram, Manipur, Meghalaya, Nagaland, Arunachal Pradesh and the Union Territory of Lakshadweep Island, where Hindus were in a minority. The NAC has made a specific recommendation that the Bill should be extended to Jammu and Kashmir, so that Kashmiri Pandits would also be covered; it also points out that migrants from east Uttar Pradesh and Bihar in Maharashtra — most of who are Hindus — would also be covered by the Bill.
NAC says the focus of the Bill is those particularly vulnerable groups of citizens, who are routinely subjected to violence or threats of violence in different forms because of ‘who they are’. These consist largely of religious and linguistic minorities, SCs and STs. Tragically; it is for these very groups that the existing provisions of law fail because of a similar systemic bias in the administrative and criminal justice machinery against these most disadvantaged groups. Thus, their vulnerability stands twice enhanced. These are the groups that this Bill seeks to protect.
An important clause is the Accountability of Public Officials. Experience has also shown that in cases of communal & targeted violence particular groups of citizens are often denied equal protection before law and access to justice by those whose sworn legal duty it is to serve and protect – namely, public officials, as defined in Section 3 (h) of the Bill. According to the NAC, accountability of public officials is at the heart of this Bill. This is being secured through reiterating the duties of public officials, and defining offences by public officials as the failure to perform those duties. Offences by public officials shall attract penal consequences under this Bill. It is important to stress that often the greatest cause for communal and targeted violence against these vulnerable groups occurring, spreading and persisting, is that public officials simply do not act. The Bill therefore recognizes the offences of both commission and omission.
Hate campaigns are sought to be checked in recognizing the creation of a ‘hostile environment against a group’ as the Bill specifically defines a series of acts that amount to creating a intimidating or hostile environment against members of groups, including economic boycott, denial of public services, and forced migration. It defines as the duty of public servants to identify the creation of such a ‘hostile environment’ and to prevent any communal and targeted violence against such members of groups.
Perhaps the one of the most controversial issue is of Command Responsibility. The NAC feels that given the hierarchical nature of administrative systems, the reality is that too often it is those higher up in a chain of administrative or political command that are responsible for failure to perform their duties. Yet, it is only the officer on the ground whose dereliction is visible. This Bill seeks to ensure that the power of holding command over the actions of others is indeed upheld as a sacred duty, and that there is culpability for those who are ‘effectively in-charge’. This is being ensured through the doctrine of command responsibility. In cases of widespread, mass violence, the command responsibility shall reasonably be presumed to extend to the immediate superior officer who shall be held guilty of such offence. However, the chain of command responsibility may extend to any level where effective decisions to act or not act are taken. This also extends to Non State Actors and any association.
But absolutely the most controversial is the attempt to create a: National Authority for Communal Harmony, Justice & Reparation and State Authorities for Communal Harmony, Justice & Reparation more powerful than any other institution created after the Constitution was promulgated in 1950. NAC defends itself saying the principle behind this Bill is not to supersede the existing law enforcement machinery, nor to disempower or paralyze the existing administrative and justice mechanisms, but rather to strengthen them and make them work by making them more accountable.
The primary monitoring and grievance redressal mechanism laid out in this Bill in the form of the National Authority and State Authorities (NA/SA) do not, in any instance, take over any existing powers of any public official or institution. NAC reassured that their only mandate is to ensure that public functionaries act to prevent and control communal & targeted violence, and to ensure justice and reparation when violence occurs. “The job of the NA/SA is to watch, advise, nudge, push, remind, and warn those who run the system that there will be consequences if they fail to act as per law. The NA/SA will thus monitor, inquire into complaints, receive or suo moto seek information, and issue advisories and recommendations only when there is alleged inaction or malafide action by public officials and governments.: NAC says through the NA/SA this Bill is seeking to create a mechanism that can make the administrative and criminal justice system work as it should, free from favour or bias or malafide intent. The monitoring mechanism of the National and State Authorities will also provide the ‘paper trail’ to ensure robust accountability of public officials in a court of law.
The Selection Committee for members (including Chairperson) of the National Authority shall consist of the following --Prime Minister, Chairperson, Leader of the Opposition in the House of the People, Union Minister for Home Affairs, Leader of each recognized national political party in the House of the People. The Selection Committee for members (including Chairperson) of the State Authorities shall replicate this at the State level, where Chief Minister shall be the Chairperson, and members shall be - Minister for Home Affairs in the State, Leader of Opposition in the Legislative Assembly, and leaders of all recognized State Parties in the Legislative Assembly.
The new Offences of communal and targeted violence, including ‘organized’ communal and targeted violence and mass violence that is widespread or systematic in nature is also defined specifically as ‘organized’ communal and targeted violence.
This Bill recognizes that for rights to relief, reparation, restitution and compensation, there are no statutory norms and provisions for ANY Indian citizen under present law. Thus, all affected persons (whether or not they belong to a religious or linguistic minority or are SCs or STs) have been given justiciable rights to comprehensive reparations and compensation if they suffer any harm as a result of an incident of communal and targeted violence.
“When there is violence, and citizens lose their lives, livelihoods, and homes, then each devastation must be recognized in the same manner. Each life lost must be compensated for justly and uniformly. Regrettably this has not been the case, and governments have been both arbitrary and selective in awarding compensation to different groups of citizens with different standards of generosity. Compensation must not be a matter of charity or largesse, but a justiciable right with a single uniform standard for every Indian citizen. This Bill provides that compensation shall be paid within 30 days from the date of the incident, and in accordance with a schedule, which shall be revised every 3 years. No compensation for death shall be less than Rs. 15 lakhs. No compensation for rape shall be less than 5 lakhs.
Addressing the issue of the federal nature of India’s polity, and the Constitutional framework, NAC sources say the advisories and recommendations of the National Authority are not binding on any State Government. With respect to the powers of the Central Government in relation to organized communal & targeted violence i.e in situations of mass violence, the Bill does not create any new powers as they are already extant in law.
It only proposes that “the occurrence of organized communal & targeted violence shall constitute ‘internal disturbance’ within the meaning of Article 355 of the Constitution of India and the Central government may take such steps in accordance with the duties mentioned there under, as the nature and circumstances of the case so requires,” the NAC feels.
The Christian members repeatedly reminder the NAC that Communal violence is not inevitable; it is not the norm in a maturing democracy, an economic and political superpower, and a caring multi-cultural society such as India wants to be in the 21st Century. Communal violence can be PREVENTED if pre-emptive action by a non-partisan administration [Intelligence, magistracy and police, as also political leadership from Panchayat head to the Chief Minister of the State] is taken at any of the following stages before it explodes as a full-blown mass murder and arson:
A democracy needs be vigilant against such political processes and entities, penetration of educational systems and politicisation of civil, police and military structures and take pre-emptive measures. In Europe, Country Laws show they are aware of the menace of Neo Nazism and Anti Semitism and have taken precautions. The CV Bill must articulate this awareness.
Demonising and constructing images of the “Other”, specially of the Christian and Muslim communities, in gossip and political activity in the public domain, in general and political Media including the electronic media and Internet.
Care has to be taken that it is not the victim-survivor who is punished anew by police and administrative action in imposition of curfew, search and arrest operations. Justice remains a major issue Witness protection programmes, addressing issues of impunity by punishing of all guilty, including government staff and establishing Command Responsibility inclusive of political leadership, relief, reparations and rehabilitation including of religious personnel and institutions, especially in the Christian context.
On issues specific to the Christian community, the NAC was reminded of the issue of Dalit Christians and their targetting, as also those of Tribals. The matter of small churches and house churches was also taken up as hundreds, if not thousands of cases are reported from a dozen States every year of attack on people praying in a house.
Though populations are dispersed in the major states – barring Kerala, Meghalaya, Nagaland and Goa, -- the violence is consistent. And yet authorities, especially the police dismiss it as “sporadic” unrelated and unconnected violence. The overall Pattern of Violence is never taken into account while taking preventive or curative measures.
For the last forty years, there has been a consistent and sustained hate campaign against Christians, often officially supported. Where huge temples exist in government building and even in police stations, it is perhaps difficult to expect a secular approach from subordinate officials and policemen. The hate campaign in media is supported by partisanship in the district administration, further aggravating the communal harmony in those regions. These include refusal to distribute religious tracts and refusal of permission to sell or distribute Bibles, permission for holding Healing Ministries and Prayer meetings on public or private grounds and fields, and mis-reporting in the mass media painting the Christians in a negative light.
Diffused but sustained violence against Christians such as in Orissa, Karnataka, Madhya Pradesh – now termed sporadic and dispersed and yet to recognisable -- has to be taken into account. Place of worship have to include definitions of churches ranging from cathedrals to house or home churches, had gender violence against Christian religious women, such as nuns, Evangelists, tract distributors, health prayer members, has to be specifically mentioned in definitions. The nuances of the hate campaign have to be conveyed in definitions and then once again in the rules as they are formulated.