In 1998, five years after we launched Communalism
Combat, we had pointed out, in possibly one of the first researched
com-
pilations on judicial pronouncements on communal violence, that from the
first ever bout of communal violence in free India (Jabalpur, 1961) to
the full-blown pogroms that followed some decades later, two
characteristics typified the violent frenzies that frequently cost us
lives and property (‘Who is to blame?’, Communalism Combat, March
1998).
Both characteristics hold good today.
One is the silent yet strident mobilisation by
right-wing supremacist groups through hate speech and hate writing
against religious and other minorities for months beforehand. Though
these have always amounted to violations of the Indian Penal Code (IPC),
they have gone unchecked and unpunished, creating a climate that is
fertile ground for the actual outbreak of violence. The other major
cause of such violence has been found, by several members of the Indian
judiciary, to be the failure of large sections of the administration and
the police force to enforce the rule of law, resulting in a complete
breakdown indicating deliberate inaction and complicity.
Both these features combined each time – whether in
Jabalpur (1961), Ranchi (1967, Justice Raghubir Dayal Commission of
Inquiry), Ahmedabad (1969, Justice Jagmohan Reddy Commission of
Inquiry), Bhiwandi, Jalgaon and Mahad (1970, Justice DP Madon Commission
of Inquiry), Tellicherry (1971, Justice Joseph Vithayathil Commission of
Inquiry), Hashimpura (1987) or Bhagalpur (1989) – to ensure that
minorities were not just brutally targeted but also denied free access
to justice and reparation.
The organised violence in Delhi in 1984, Bombay in
1992-1993 and Gujarat in 2002 took the levels of impunity for state and
non-state actors to hitherto unknown heights. A historiography of
communal violence since Indian independence thus reveals a poor report
card on justice delivery and reparation. Today unfortunately, we have
extant examples of victim survivors, Muslim, Sikh and Christian, still
waiting at the threshold for the first stages of investigation and trial
to begin decades after the crimes have taken place.
The newly drafted Prevention of Communal and Targeted
Violence (Access to Justice and Reparations) Bill 2011
(commonly referred to as the Communal and Targeted Violence Bill), which
awaits a nod from the cabinet before it is tabled in Parliament, is an
attempt to address the imbalance and the despair caused by over six
decades of discriminatory justice delivery. Far from being
discriminatory against the majority, it entitles any victim –
whether from the majority or a minority – to a robust scheme for
compensation and reparation.
The bill is legislative acceptance of the
discriminations in justice delivery faced by sections of our population
that have long been subject to communal and targeted violence. When
citizens who are numerically weak and socially disadvantaged are
attacked on account of their identity, institutions of governance – law
enforcement and protection and justice delivery – most frequently act in
ways that discriminate against them.
The Communal and Targeted Violence Bill seeks to
protect religious and linguistic minorities in any state in India, as
well as the scheduled castes and scheduled tribes, from targeted
violence, including organised and communal violence. Apart from
including the offences listed under the penal code, the proposed law
modernises the definition of sexual assault to cover all sexist crimes
that heap indignity on the victims (including stripping in public, etc),
not just rape, and broadens the definition of hate speech and writing
already penalised under Section 153A of the IPC.
Most significantly, it deepens the definition of
dereliction of duty – which is already a crime under the IPC – and for
the first time in India includes offences by public servants and/or
other superiors for breach of command responsibility. “Where it is shown
that continuing unlawful activity of a widespread or systematic nature
has occurred,” the draft bill says, “it may be presumed that the public
servant charged with the duty to prevent communal and targeted violence
has failed… to exercise control over persons under his or her command,
control or supervision and… shall be guilty of the offence of breach of
command responsibility.” With the minimum punishment for this offence
being 10 years’ imprisonment, superiors will hopefully be deterred from
allowing a Delhi 1984 or Bombay 1992-1993 or Gujarat 2002 to recur. The
proposed law will also act as a deterrent to acts of complicity by
public servants during smaller bouts of violence and awards fair
compensation and reparation to victims when they do occur.
Positive and reasonable legislative steps to correct
either the discriminatory exercise of state power or the discriminatory
delivery of justice draw strength from a clear constitutional mandate.
Article 14 of the Indian Constitution states that: “The state shall not
deny to any person equality before the law or the equal protection of
the laws within the territory of India”. Article 21 clearly places the
responsibility on the state to ensure equal protection of life and
liberty (and, by implication, property) and Article 15(1) provides that
“the state shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them”. This is
recognition that vulnerable groups may require protection from the
state.
Every democracy is premised on the assumption that
while the majority can take care of itself, minorities need special
protection. Consider for a moment India’s experience in tackling
communal violence (or its failure thereof) alongside our history of
recurring bouts of targeted violence, when numerically weaker and
socially disadvantaged groups –linguistic or religious minorities or
Dalits or tribals – are attacked because of their identity. Throw into
this analysis the review of the application (or non-application) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act
1989. And the reasoning behind the need for this law, applicable to
minorities defined not just by faith but also by other criteria, becomes
immediately evident.
“Minority” is not, or should not be, a rigidly frozen
concept based on religion alone. The reality is otherwise, as our sordid
experience of the attacks on Kashmiri Pandits in the Kashmir valley or
the violence unleashed on North Indians/Biharis in Mumbai and
Maharashtra or Tamils in Karnataka has shown. With the migration of
populations and altering demographies, democracies need to develop sound
measures for the protection of all the people. Jurisprudence through
justice delivery and reparation through compensation packages must
reflect this ever changing reality.
There is a simple way in which to make the proposed
law applicable to the state of Jammu and Kashmir. The Jammu and Kashmir
assembly must first pass a simple resolution addressed to the president
of India asking that the law be made applicable in the state.
Thereafter, it would require a reference made to Parliament by the
president of India for amendment of the Jammu and Kashmir (Extension of
Laws Act) 1956 so as to extend the new law to Jammu and Kashmir.
A law to protect the minorities draws its source from
already existing powers granted to the centre, implicit in Article 355
of the Indian Constitution regarding the “Duty of the union to protect
states against external aggression and internal disturbance” which
provides that: “It shall be the duty of the union to protect every state
against external aggression and internal disturbance and to ensure that
the government of every state is carried on in accordance with the
provisions of this Constitution”. This has generated considerable debate
and will also be deliberated upon when the bill is put before the
parliamentary Standing Committee. Detractors who speak only of India’s
federalism baulk at admitting the ground realities during prolonged
bouts of violence; such selective public amnesia negates years of bitter
experience in dealing with outbreaks of majoritarian mob frenzy.
Over the decades the collective experience of civil
libertarians and jurists at such times has been to ask for law and order
enforcement to be temporarily handed over to the army. Assimilating this
experience without impinging on the responsibilities of state
governments to protect lives and property, the proposed law, under
Chapter IV, envisages the creation of a National Authority for Communal
Harmony, Justice and Reparation. The authority’s role will be to serve
as a catalyst for implementation of the new law. Its functions will
include receiving and investigating complaints of violence and
dereliction of duty and monitoring the build-up of an atmosphere likely
to lead to violence.
The National Authority cannot compel a state
government to take action – in deference to the federal nature of law
enforcement – but it can approach the courts for appropriate directions.
There will also be state-level authorities, staffed, like the National
Authority, by a process that the ruling party of the day cannot unduly
influence. The monitoring of relief and rehabilitation of victims will
be a major part of their responsibilities.
The creation of this new entity was incorporated in
the draft bill after much deliberation with practitioners, including
former judges who felt that without a body to supervise, monitor and
properly intervene when smaller but recurring bouts of communal and
targeted violence take place, state governments would continue to be
lax, as we have seen even recently in Bihar (Forbesganj, June) Rajasthan
(Bharatpur, September) and Uttarakhand (Rudrapur, October 2011).
The powers of this authority are recommendatory and
in no way violate federal principles. Similarly, the state-level
authorities have also been created in order to facilitate district-level
inputs towards the prevention of violence and its containment as well as
justice delivery. Moreover, the National Authority has no power to issue
binding orders against any state government except for the purposes of
providing information. The National Authority is only empowered to issue
advisories and recommendations with which the concerned state
government/public servants may disagree, the only condition being that
the reasons for such disagreement must be recorded.
Since mid-2011 when the National Advisory Council (NAC)
invited comments on the draft bill, many voices have been raised
expressing concerns about some basic precepts of the proposed law. These
concern, in the main, the definition of the victim group – religious and
linguistic minorities and scheduled castes and scheduled tribes – and
the creation of a National Authority to monitor the build-up and
occurrence of targeted and communal violence, issue advisories, extract
replies from the state governments and intervene in courts hearing the
cases. The provisions on witness protection, the rights of victims
during trials and the thorough scheme of compensation and reparation
have been largely welcomed.
There are two questions of concern expressed among
those, across the ideological spectrum, who have objected to the draft
bill’s definition of the victim group. One of these voices disquiet
about a law which, if it comes into existence, will divide people on the
basis of minority and majority. The second objection is sharper; it asks
whether a law premised on the assumption that a minority has never
committed or will never commit acts of violence can be just or fair. It
comes as no surprise that the second criticism was first made through an
article by Arun Jaitley, the leader of the opposition in the Rajya Sabha
who is also a senior lawyer. Others who have vociferously echoed
Jaitley’s criticism – with the sole exception of Tamil Nadu chief
minister Jayalalithaa who is also dead against the law – belong to
India’s main opposition party, the Bharatiya Janata Party (BJP), or are
among its votaries. Lending voice to this criticism is the ideological
fountainhead of the BJP, the Rashtriya Swayamsevak Sangh (RSS), and its
affiliates, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal.
Other protests against the bill have come from the
leaders of some regional parties, such as West Bengal chief minister
Mamata Banerjee of the Trinamool Congress who appears to be more
concerned with the role of the centre/National Authority under the
proposed law and how this may impinge on the rights of state
governments.
Let us first address the concern relating to the
definition of the victim group.
Democracies, based as they are on electoral and
representative politics, reflect the voice of different sections but do
also privilege the majority. This majority is not always religious; it
could be from a certain social stratum or caste or committed to a
certain ideology. At their best, democracies maintain the balance of
power while always giving space and protection to the minority voice,
the single voice. Short of this delicate balance, democracy can tip over
into the rule of the mob, a mobocracy. Values of constitutional
governance, equality for all, especially equality before the law, are
principles that could fall by the wayside when mob rule takes over. Can
we in India – looking back with candour – accept that we have
collectively succumbed to the rule of the mob?
While we rightly celebrate elections as a fundamental
reaffirmation of the vibrant, live democracy that India is, the power of
every individual’s right to vote can and has been subverted by the
manifestation and legitimisation of brute majority power through the
same electoral process that we celebrate.
Sober reflection reminds us that even while we cringe
at categories like majority and minority, the anomalies of the very
electoral victories we celebrate must force us to reconsider our views.
Mass crimes have sat comfortably with electoral politics in India. And
electoral discourse seems reluctant to propagate the principles of
justice for all and discrimination against none.
Let us recall a moment in our history. In November
1984, within a short and bloody spell lasting about 72 hours, more than
3,000 Sikh residents of Delhi were massacred in cold blood. When
Parliament convened in January the following year, no official
condolence motion was moved to mark the massacre. And what is worse,
among those who sat in the wells of the lower house, having ridden to
victory in elections held just a month earlier, were Congress leaders
HKL Bhagat, Jagdish Tytler and Lalit Maken, men who, along with Sajjan
Kumar, had been named as guilty of inciting mobs by the People’s Union
for Civil Liberties and People’s Union for Democratic Rights in their
1984 report ‘Who are the Guilty?’. (This was later corroborated by the
testimonies and affidavits of victim survivors.)
Twenty-seven years have passed since then.
The four politicians identified as perpetrators of
the 1984 Sikh massacres have never been punished. Instead, three of them
were elected to Parliament within a month of the violence, from the city
where they were accused of leading mobs, signalling democratic sanction
for the brutal massacres. They had not only been given tickets by the
ruling Congress party but Hindu voters, expressing brute majority
support for their actions, had voted them in.
Should this brute democratic sanction of mob violence
by the majority have gone legislatively unchecked?
Should Indian democracy not rise above political and
partisan interests and enact a law that ensures protection of its
minorities?
Following a similar pattern, those named as
perpetrators of the violence against innocent Muslims in Bombay in
1992-1993 by Justice BN Srikrishna in his report on the post-Babri
Masjid demolition violence in Bombay – Bal Thackeray’s Shiv Sena and its
leaders – rode to power in the state of Maharashtra in 1995. Shiv Sena
leader Madhukar Sarpotdar was elected member of Parliament from the
Mumbai North-west constituency in 1996 and again in 1998. The man
elected had been named in the Srikrishna Commission report as leading
mobs, as was Gajanan Kirtikar, the Sena leader from Goregaon. The
judge’s report also indicted 31 policemen who, instead of being
prosecuted and punished, were elevated by a cynical Congress-Nationalist
Congress Party regime that has ruled the state since 1999.
The genocide in Gujarat in 2002 and the near decade
since has taken the “democratic” sanction for mob violence to new
heights. The Concerned Citizens Tribunal – Gujarat 2002 in its findings
held chief minister Narendra Modi to be “the chief author and architect”
of the state-sponsored genocide. Modi not only rode to power in December
2002 and again in 2007 but he and the party that he represents have also
shamelessly used these electoral victories to erase his guilt in the
massacres. As chief minister and home minister, he is responsible for
the subversion of justice in many pending cases and faces the
possibility of being charge-sheeted as the main accused in a criminal
complaint. The offences are as serious as destruction of official
records and the appointment of public prosecutors with an ideological
affiliation to the very groups that perpetrated the violence.
Here constitutional governance has been held to
ransom by the very aspects of democracy, the electoral politics that we
celebrate. Unchecked with each bout of violence, the subversion of the
justice process has reached an all-time high. When majoritarianism
creeps into systems of governance, legislative checks like those
contained in the Communal and Targeted Violence Bill become vital.
It is therefore evident that one of the greatest
challenges of our time – though by no means the only one – is how we in
India equally protect all citizens. Can we safely say that there is no
bias in the delivery of justice? Can we deny that during periodic bouts
of targeted and communal violence over the years it is the minorities
who have suffered the greatest loss of lives and property and who have
also been denied justice? And that the perpetrators of such targeted
crimes have got away unpunished?
Nowhere does the Communal and Targeted Violence Bill
make the assumption that targeted violence can never be perpetrated by a
minority group. There is no denying that in, say, Marad (Kerala),
Malegaon (Maharashtra) or Bhiwandi (Maharashtra), Muslims were rioters.
The bill simply reflects a legislative acknowledgement that when such
incidents do occur, the police and the administration will behave in
accordance with existing laws and will not fail to record accurate first
information reports (FIRs), carry out thorough investigations and
prosecute the guilty – which has been the sorry record of communal and
targeted violence in India to date. If the criminal justice system is
tardy and floundering for all Indians, when it comes to those in the
minority, it is that much worse.
Hence the bill through its definition provisions
provides that apart from the sections relating to remedy and reparation,
all aspects that involve higher performance from the policeman and
administrator are made applicable only if the victim is a member of the
defined group. To ensure fair and non-discriminatory governance, the
protected group comprises the religious and linguistic minorities and
scheduled castes and scheduled tribes.
In 2009 about 50 Dalit organisations had collectively
reviewed the functioning of the 20-year-old Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act 1989. In the course of
this review, it was identified that among the many factors responsible
for the failure in the act’s implementation was the absence of any
provisions for pinning down the accountability of public servants. This
coupled with the fact that in the caste hierarchy, scheduled castes and
scheduled tribes represent the most deprived minority was the rationale
for their inclusion in the protected group in the proposed law.
Apart from the Atrocities Act, we have in place the
Protection of Women from Domestic Violence Act 2005 which was also a
special legislative response to social reality and experience. Until
this law was enacted, the amended Section 498A of the IPC was the
section of criminal law invoked when domestic violence against women
occurred. Many of those who had opposed the empowerment of women through
this amendment had long argued for the repeal of Section 498A on the
grounds that it had in a few cases been abused. Fortunately, the facts
on the ground carried the day.
The BJP through Jaitley has also sought to project
communal violence as a mere “law and order” problem even as it
conveniently disregards the crucial element that allows communal
violence to occur in the first instance, intensify in the second and
fail to deliver justice in the third. They are equally outraged that the
proposed law recommends that four of the seven members of the National
Authority should, in the interests of representative governance, belong
to minority communities.
The crucial component mentioned above –
administrative and police bias – is blithely overlooked in Jaitley’s
outraged arguments. This should come as no surprise, since his party
rose to power on a wave of majoritarian mob frenzy and the crimes
committed by BJP leaders (including a former deputy prime minister) in
Faizabad-Ayodhya in 1992 and Gujarat in 2002 – to give only two examples
– reflected the impunity of men secure in the knowledge that
institutional tardiness and majoritarian bias would assist them in
escaping prosecution. And punishment.
At a more intellectual level, the arguments proffered
by sociopolitical commentator Ashutosh Varshney also appear to be mired
in a frozen reality, three decades old. Unlike in the 1960s and 1970s
when communal violence generally occurred in communally sensitive cities
like Bhiwandi, Ahmedabad, Aligarh, etc – a hypothesis that Varshney uses
– communal violence and serious eruptions of mob frenzy are today
spreading to rural India and to towns and cities hitherto free from this
malaise. A major reason for this is the widespread currency of
majoritarian communalism which accompanied the BJP’s rise to power
together with the moral failure of the “secular” Congress or the left to
tackle the ideological onslaught. This encroachment by the majority,
brutish and arrogant, has crept into our systems of governance, the
administration and the police. While the proposed Communal and Targeted
Violence Bill in no way pretends or purports to tackle the scourge of
irrationality and prejudice, it certainly aims to hold to account those
public servants who fail to abide by Articles 14 and 21 of the Indian
Constitution, to protect the lives and liberties of innocent victims who
are targeted simply because they belong to a minority group.
It is imperative that those concerned with justice
and reparation join the campaign for the restoration of fair debate.
Currently the proposed law has become the victim of hysterical
propaganda – led, unsurprisingly, by players whose political trajectory
gained momentum by legitimising irrational prejudice and even hatred,
who rose to power on the wings of communal mob frenzy.
To enable a reasoned rational discourse on a long overdue law, the
Communal and Targeted Violence Bill must be tabled in Parliament and be
put before a Standing Committee forthwith. Any anomalies within it can
be ironed out at that stage. We must not allow this process to be
derailed by the same cynical political players who have gained political
brownie points and mileage through the spread of hatred and the
generation of mob frenzy.
