Harsh Mander examines the need for a Communal Violence Bill that makes agencies and individuals, who are responsible to protect minorities and targeted communities, legally answerable for their lapses.
Many hoped that Independence would progressively bring an end to violent communal strife and pogroms in India. But after more than six decades of freedom, millions of Indian people continue to live with lurking fear in their hearts: fear of targeted hate violence which can snuff out their lives and loved ones, violate their bodies, and devastate their homes and livelihoods. Among these are persons of the Scheduled Castes and Tribes, religious minorities, especially Muslims, and in tribal areas, Christian converts, and linguistic minorities.
Living in perpetual fear
When ordinary people of Muslim faith in many corners of the country recall their lives, it is always as life lived in the space between riots. Each of them negotiates everyday living with unspoken trepidation that one day – any day – everything that they love and live for can be destroyed in one brief storm of hate. And in many tribal areas, communal organisations have succeeded in driving a deep and dangerous wedge between people who converted to Christianity, and others - often of the same tribe - who have not. Scheduled Castes and Tribes have lived with subjugation and fear of violence for centuries. And migration has fuelled fear and violence against linguistic minorities who travel to other states in search of dignified work.
Long after the fires of torched homes, looted shops and desecrated places of worship are doused and the blood on the streets dries; after slaughter, rape, plunder and expulsion are accomplished; wounds rarely heal. Survivors live out their lives haunted by the fear of recurrence, the anguish of betrayal, and the dying of hope and trust.
Choosing to fail
We have witnessed too often in this country women, men and children attacked only because of their identity as Dalits or tribals, religious or linguistic minorities. A recurring feature of most such brutal episodes of blood-letting in anti-Dalit and anti-minority hate crimes and mass violence, is that elected and selected public officials fail to uphold their most sacred Constitutional duty - to secure equal protection to every citizen, regardless of their caste, faith or linguistic identity. They fail not because they lack the mandate, authority or the legal powers. They fail because they choose to fail; because of the pervasive prejudice and bias against these disadvantaged groups which permeates large segments of the police, magistracy, judiciary and the political class.
But this enormous moral crime of public officials enabling massacre is not recognised explicitly as a crime for which they can be criminally punished. Far from it, officials who have been named as guilty of bias, and worse, in numerous Judicial Commissions of Enquiry, have very rarely been even administratively penalised; contrarily, guilty police and civil officers have enjoyed illustrious careers, and political leaders under whose watch such carnages have occurred have reaped rich electoral harvests of hate.
A similar culture of impunity surrounds those who instigate and participate in the killings, arson and rape. Impunity is the assurance that you can openly commit a crime and will not be punished. This impunity admittedly does arise from infirmities in and corrosion of the criminal justice system, which require long-delayed police and judicial reform. But it is important to recognise that the collapse of the justice machinery is massively compounded when the victims are disadvantaged by caste, religion, or minority language. You are more likely to be punished when you murder a single person in ‘peace-time’ with no witnesses, than if you slay ten in broad daylight observed by hundreds of people.
We have carefully studied several major episodes of targeted violence, and discovered that despite these being separated vastly by time and geography, despite the victims sometimes being Dalits, sometimes Muslims, sometimes Christians, and sometimes say Tamils in Karnataka - there is a chillingly similar pattern of systematic and active subversion of justice. The impunity of the accused begins immediately after the violence. Preventive arrests and searches usually target dalits and minorities. Police refuse to record the names of the killers, rapists and arsonists, and instead refer to anonymous mobs. If victims assert excessively, ‘cross-cases’ are registered against them, accusing them of crimes. Arrests are partisan, and the grant of bail even more so. Accused persons from the dominant group find it easy to get bail in weeks, or at most months, while those caught in cross-cases are not released sometimes for years.
Imbalance of legal redressal
This openly discriminatory treatment of the accused based on whether they are from dominant or discriminated groups, is one way to coerce them to ‘compromise’. This means extra-legal out-of-court ‘agreement’ by victims to turn ‘hostile’, to retract from their accusations in court. To accomplish this, victims are also widely intimidated and threatened, offered inducements or threatened with exile or social and economic boycott. Police investigation is deliberately shoddy, and the majority of cases are closed even before they are submitted to trial. Those few cases that reach the court are demolished by prosecution who often do not even disguise their aim to protect the accused rather than establish their guilt, and judges who often share their bias.
Inception of the Communal Violence Bill
Therefore many in this country pinned great hopes on a law which could help end communal violence. This Communal Violence Bill remained in incubation for the full ten years of UPA rule, ever since the UPA government was first elected in 2004 with a mandate to end the politics of fear, hate and division in the country. But despite two drafts by the Government, in 2005 and 2010, there was wide rejection of, and disappointment with, what the government has on offer. The government versions of the law had very little in common with what secular opinion, and minority leaders, believe are essential to such a law.
These successive government drafts of the Communal Violence Bill mainly aimed to greatly enhance the powers of the police, on the premise that these increased powers are needed to enable police and governments to take decisive steps to prevent and control mass communal violence. The draft Bill provided for governments to declare areas in which communal violence is imminent, or has actually broken out, as ‘communally sensitive’ areas. In these areas, for the duration of the notification, the police would function with expanded powers, and there would be enhanced punishment for crimes committed in this area, and special courts would hear the criminal cases that arise.
Empowering people not the already powerful
The assumption of the government drafts was that if only the powers of police and governments are augmented in communally charged times and areas, they would control communal violence effectively and decisively. This assumption flies in the face of the actual experience of successive communal pogroms. Did governments in Assam in 1983, Delhi in 1984, Mumbai in 1992-93, Gujarat in 2002 or Kandhamal in 2008 fail to prevent slaughter and arson because they lacked sufficient powers? Do we really believe that these governments were unable to control violence because they lacked the legal muscle? Or was the truth that they did not want to control the violence; but instead they deliberately enabled the slaughter? That they wanted to reap political advantage from a violently polarised polity, and were assured that they would legally be able to get away with such a crime?
If government officials and political leaders wish to act, the law as it stands is more than adequate to empower police and officials to prevent and control communal violence. No riot can continue for more than a few hours without the active will of the political leadership of governments that violence should persist and indeed spread; and the active abetment of police and civil officials to prolong the slaughter and arson. Communal carnages occur because they are systematically planned and executed by communal organisations, and because governments which are legally and morally charged to protect all citizens, deliberately refuse to douse the fires, and instead allow rivers of innocent blood to flow.
I regard such abetment of slaughter by public officials – both elected and permanent - to be one of the gravest crimes possible in public life. To protect minorities from communal pogroms and mass violence, we do not need a law which adds further to the powers of police, civil authorities and governments. Ironically, such a law will achieve the exact reverse of what it claims to seek. The consistent experience of minorities is that greater powers in the hands of police would only be used against them. There is great unease with declaring regions as ‘disturbed areas’: in large swathes of India’s North-East and Kashmir, people have lived in the shadows of similar declarations, which give extraordinary powers to security forces. These routinely lead to crushing of people’s elementary democratic freedoms.
Answerability & accountability of public officials
We need a very different law, not one which makes police and public officials more powerful, but instead one which forces them to be legally answerable to the people who they are responsible to serve and protect effectively and impartially. In present law, public officials can at best be charged with active conspiracy and participation in mass violence (although even this is rarely done). But the worst crimes of police and civil authorities, and those in command positions like Chief Ministers, are of deliberately and maliciously refusing to take action to prevent and control violence. We need law to recognise such deliberate inaction - because of which killings, rape and violence continue unchecked for days and sometimes weeks - to be grave and punishable crimes against humanity.
Broader definition of crimes
The law also needs to recognise new crimes, especially of forms of gender violence during communal carnage. The narrow definition of rape does not envisage the many forms of gendered crimes that are common in mass violence situations, such as stripping and parading women, mass disrobing by the attacking men, insertion of objects into bodies of women, cutting breasts and killing of children in the womb. The procedures for recording complaints, investigating and trials also need to be sensitive to the suppression, fear and sense of public shame which shrouds in silence most such episodes of targeted violence against women.
Issues of relief and compensation
In most episodes of communal violence, states are partisan also in extending relief and compensation. The survivors of the Nellie massacre of 1983 were paid a mere 5000 rupees for each death, against a total of around 7 lakh rupees for the families of those killed in the Sikh massacre of 1984. Such an implied hierarchy of official valuation of human lives of people of different persuasions and ethnicity is intolerable. The government in Gujarat in 2002 refused even to establish relief camps, and forced the pre-mature closure of the privately established camps. The law therefore must establish binding standards for awarding compensation after communal violence, and duties relating to rescue, relief camps, rebuilding of homes, livelihoods and places of worship.
The National Advisory Council (NAC) produced a draft law to prevent communal violence and end impunity, by making public officials legally answerable to the people for their acts – and failures to act – which lead to the brutal and criminal loss of innocent lives. The NAC consulted with a wide range of the country’s most respected human rights and legal experts before finalising its recommended draft of the law to the union government.
To discourage targeted hate-crimes in future, above all we were convinced that what is most required is a law which creates the offence of dereliction of duty of public officials who deliberately fail in their Constitutional duty to protect targeted vulnerable groups. This must be coupled with the principle of command responsibility, which ensures that responsibility for failing to act is carried to the level from which orders actually flow. This public accountability lay at the heart of the NAC draft Bill. We were convinced that if such a law existed, the massacres at Khairlanji and Tsundur, Delhi, Gujarat and Kandhamal, would have been controlled and justice better accomplished.
The NAC draft Bill
We also needed a law which established binding duties and standards for relief and rehabilitation, because these do not exist. Indian criminal law is also based on the assumption that the State is always on the side of the victim, against the accused, and therefore primarily the rights of the accused need to be protected. The State investigates, prosecutes, and also adduces evidence and appeals. The victim has limited rights in this process. The reality of targeted violence against non-dominant groups is that a biased State may in these cases, be on the side of accused and actively hostile to the victim. This draft Bill sought to correct this bias, by incorporating a number of rights and protections of victims in post-conflict criminal justice.
The NAC draft was predictably attacked bitterly by the opposition BJP. The BJP deliberately misrepresented the protections in the law for minorities as trying to lay down a law that hate crimes by minorities against the majority community would not be punishable. Others who were more sympathetic to the idea of the law, such as the Left, felt it should be restricted only to religious minorities, and not to other minorities such as Dalits, tribal people, linguistic and ethnic minorities.
In the dying months of the UPA regime, in 2013, the Union Government did half-heartedly try to introduce a much more satisfactory version of the bill in the Rajya Sabha. This derived substantially from the NAC draft, but extended its protections to both minority and majority communities, while restricting its scope as suggested by the Left only to communal violence, and not to violence against SCs, STs, linguistic and ethnic minorities. However, it was introduced at a time when the ruling UPA government’s credibility had plummeted rock-bottom, and the besieged government did not make any serious attempt to seek the support of the Left and other non-BJP parties for this landmark legislation in advance of its introduction in the Upper House of Parliament. As a result, all parties including even the CPM opposed even the admission of this revised Bill into the Rajya Sabha, and it was therefore still-born.
I have spoken to victims of caste and communal carnages in many parts of the country, and found that the most important reason that they cannot find closure even years later is because legal justice is not done. ‘How can we forget, even less forgive, if we see every day the man who raped our daughter or killed our father, walk free; when not once has he had to even see the inside of a police station or a court? How can we believe we are equal citizens of this land?’
The Right to Information changed on its head the relationship of public servants with the people, by enabling them to question them for the probity of their actions. We believe that the Communal Violence Bill must carry this further, by enabling them to ask whether them whether they did all they should to protect all citizens against mass violence, regardless of their religious faith, gender, caste and ethnicity. Only such a law can stem the rivers of innocent blood that flow periodically across this land. Only such a law can secure secular democracy in India.It is impossible for such a law to be introduced in the current Parliament, dominated by the majoritarian BJP. But the contours of the law must be debated by secular political parties and public opinion, so that a consensus is built around it before a new non-communal political formation takes office in a future election. Only such a law would pave the way for an India free from fear and riots.
Harsh Mander, a former IAS officer, has worked with and written extensively on human rights issues in India. He has served on many investigative and advisory panels related to rights across India. He was a member of the NAC, as co-convenor with Farah Naqvi on the working group, to draft the Communal and Targeted Violence Bill. He is currently the Director of the Centre for Equity Studies, an autonomous body working on issues of social and economic justice and equity.