Iqbal Ansari Lecture Format Final

8/3/2019 Iqbal Ansari Lecture Format Final

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Friends, comrades and students of Prof. Iqbal Ansari present

1st Prof. Iqbal Ansari

Memorial Lecture

Communal Violence in India:Ending Impunity?

13 OCTOBER 2011

New Delhi


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First Prof. Iqbal Ansari Memorial Lecture on

COMMUNAL VIOLENCE IN INDIA: ENDING IMPUNITY?

by

Harsh Mander

Eminent Social Activist, Writer and Member, NAC, GoI

Tributes by

Prof. Manorajan Mohanty, Academic and Civil Rights Activist

Dr. John Dayal, Senior Journalist and Human Rights Activist

Dr. Zafarul-Islam Khan, Editor, The Milli Gazette

Presided by

Prof. Zoya HasanEminent Political Scientist, Author andDean, School of Social Sciences, JNU

Thursday, 13th October 2011Conference Hall II,India Islamic Cultural Centre,Lodhi Road, New Delhi

ContactMahtab Alam [email protected]


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Reminiscences

The news of his passing away surprised and saddened me. The news sosoon after Balagopal is most distressing. I had great argumentation onvarious issues when I was able to visit Delhi and over the phone. Pleaseconvey my grief at his passing away and condole his family on my behalfas well. (Late) Adv. K G Kannabiran, then National President, PUCL

We had over the years interacted and engaged with Prof. Ansari in avariety of joint fora and campaigns - against undemocratic laws likeTADA, POTA, and after the Babri Masjid demolition and the Gujaratgenocide. We will all miss his presence today even more in a milieu ofsevere curbs on democratic dissent, and shrinkage of democratic space

brought about by state and dominant sections in society. MoushumiBasu & Gautam Navlakha, PUDR

Whenever, I met him I learned something. His three volumes onReadings on Minorities is everyday reference for me. I have no hesitationto admit that, he was my teacher in the real sense no matter that he nevertought me formally. His untimely and sudden death has created a void inthe field of human rights in general and minority rights in particular. Syed Shahabuddin, former IFS, MP and President, AIMMMHe was always so dismissive about his health related anxieties among usthat no one is prepared to believe that one of the most passionate Indianvoices of human dignity, religious understanding and civil liberties is notgoing to be heard any more in our gatherings, conferences andcampaigns. His inspiring memory will remain the guiding star for all of uswho are engaged in promoting freedom and human rights for everycitizen of India. Professor Anand Kumar, JNU

I have had a long association with Prof. Iqbal Ansari. He was a tirelesshuman rights defender and a great friend of mine. He will always beremembered for his monumental writings on human and minorityrights. Dr. John Dayal, Human Rights Activist and Member, NIC, GoIProf. Iqbal was the man of intellectual integrity which brooked nocompromise. He was the man who personified sincerity and honesty andin the pursuit of his goals never sought any self-interest or publicity; I

will miss the professor. Adv. Yusuf Hatim Muchhala, National President,APCR


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Communal Violence in India:

Ending Impunity?Harsh Mander

For any teacher, the highest tribute is the love of ones students. It isDr Iqbal Ansaris students who have organised this annual MemorialLecture series to honour his memory. It is an extraordinary privilege forme to speak this evening in memory of a great son of India, a teacher of

English, and a man who was a passionate human rights worker until hislast day. Much of his adult life, he battled the recurring blood-letting inorganised episodes of mass communal violence in India. The organisedhatred, the suffering of the survivors, and the impunity of theperpetrators of these targeted hate crimes, caused him life-long anguish.But never once did he lose hope and faith that the secular democraticfoundations of the Indian republic would ultimately prevail. Each newepisode of violence and impunity only stirred him into even greater

urgency to seek solutions, within the framework of the Constitution.In the later decades of Indias struggle for freedom from Britishcolonial rule, an immense groundswell of popular support and massmobilisation had surged behind Mahatma Gandhi. The majority ofpeople of this land shared his vision for the new India, of a resolutelysecular nation, with freedom and equal rights of citizenship for peopleof every faith, community, caste, class, colour and gender. There wasalso influential mass support for more radically egalitarian anddemocratic ideologies of the left and dalit movements. However, leadersof the Muslim League fought for and secured an independent Islamicnation carved out from Muslim majority segments of India, convincedthat people of diverse faiths cannot live together with peace andequality. Extremist Hindu organisations were also implacably opposedto Gandhis humane and inclusive Hinduism and nationalism, and onefrom among their ranks assassinated him just months after Indiabecame free.

The tolerant and pluralist secularism of modern India is rooted in

millennia of the civilisational experience of Indian people, a civilisationin which every major faith in the world found a home, was nurtured,


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and evolved, alongside a rich and challenging diversity of sceptical,rationalist, atheistic and agnostic beliefs. Indian secularism entailstherefore not a denial of faith, but equal respect for all faiths - includingalways the absence of faith - with all the symbols, philosophical

trappings and ethical imperatives of these different systems of belief. Itderives from an unbroken multi-hued tapestry of practice and teachingsof tolerance and love, including those of Buddha, Ashok, Akbar, Kabir,Nanak, the Sufi saints and Bhakti reformers, and Gandhi. It is overlaidin its modern incarnation of democratic secularism with not just equalrespect for all faiths, but also the guarantee for the practitioners of thesediverse faiths of equal rights and protection under the secular law of thecountry.

Two years after Gandhi fell to the bullets of his assassin; theConstitution of independent India - drafted by one of Indias mostrevered leaders from a community which traditionally was subjected tothe most savage caste discrimination, BR Ambedkar - secured furtherthe secular, socialist and democratic foundations of the nation reborn.This secular Constitution pledged equal freedoms and rights to allcitizens regardless of the god they worshipped or chose not to worship,regardless of whether they were women or men, regardless of their

caste, wealth, ethnicity, the colour of their skin, and the language theyspoke. Although the state had no religion, the Constitution guaranteedall people the freedom to not just follow but also to propagate their ownreligion.

The struggle for freedom was never just a battle against colonialbondage, but also one for the India that would be rebuilt when thecolonial rulers left Indian soil. It is significant that many of those whogave most for the secular democratic idea of India, such as Gandhi andMaulana Azad, were deeply devout practitioners of their respectivereligious faiths. And foremost among those who fought for religiousstates, Jinnah father of the Pakistani nation - was not a practisingMuslim most of his life, and Savarkar, founder of militant Hindunationalism which he called Hindutva, was an avowed atheist. Thebattle is not, and never indeed was, between the actual teachings of anyreligion. It was about whether political mobilisation and institutionsshould be build around identity and difference, or on acceptance of,respect for and even celebration of diversity.


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Despite the solemn guarantees of the Constitution of free India andthe proud and shining legacy of Gandhi and the non-violent strugglethat he led dimmed a little but by means extinguished by theslaughter that accompanied Partition - pseudo-religious fascistic

organisations continue to challenge the secular democratic vision forIndia. Their onslaughts grew more militant since the 1980s, with aresurgence of their aggressive alternate politics of difference and hate,and their propagation of a homogenised, combative, patriarchal andupper-caste version of the essentially pluralist majority Hindu faith.Since then, their mobilisation has been organised most powerfullyaround the symbol of a crumbling medieval mosque, the Babri Masjid,in a small town called Ayodhya, which they claim had been constructed

after demolishing a temple built to commemorate the birth-place ofrevered Hindu deity Ram. A massive mob assault on this Muslim placeof worship in the sacred Hindu town of Ayodhya resulted in its brutishdemolition in 1992. As the highest courts of the country unconscionablyprevaricated in their attempts to arbitrate the rival claims to thedisputed site, extremist Hindu organisations continued to demandstridently that the site of the destroyed mosque be handed over for theconstruction of the Ram temple regardless of the decision of the courts,

or independent historical and archaeological evidence. The movementto build a grand Hindu temple at the precise site of the Babri mosque, isnot about competitive reverence for Ram or Allah, but an assault onthe idea of secular democratic India itself, and the ancient traditions ofequal reverence for all faiths, as well as the modern Constitutionalguarantees of equal protection and equal rights as equal citizens beforethe majesty of the secular law of the land.

~ ~ ~

Since Independence, India has seen scores of group attacks on peopletargeted because of their religious identity1. Such violence is describedin South Asia as communal violence. While there is insufficient rigorousresearch on numbers of people killed in religious massacres, oneestimate suggests that 25,628 lives have been lost (including 1005 in

1Engineer, A.A. Communal riots after independence: a comprehensive

account. Delhi: Shipra, 2004


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police firings)2. The media has regularly reported on this violence,citizens groups have documented grave abuses and State complicity inviolence, and government-appointed commissions of inquiry havegathered extensive evidence on it from victims, perpetrators and

officials. Despite this, it has been remarkably difficult to holdperpetrators and State authorities accountable for committing,encouraging, aiding or enabling (including through deliberate inaction)such violence.

There are many who believe that the pursuit of legal justice by thesurvivors actually blocks prospects for reconciliation, because thetestimonies of survivors would result in the arrest and trial of theirdisjoined neighbours. In Gujarat after the 2002 carnage, some well-

meaning organisations in fact have actively and successfully brokeredthe negotiated return of Muslims to their villages, accepting on behalf ofthe victims the condition that they would not give evidence of thenames their attackers to the police or in courts. They regard suchnegotiated home-coming of internally displaced people on highlyunequal conditions, to be processes of forgiveness and reconciliation.

However, I believe that no authentic reconciliation is possible if it isbuilt on the foundations of persisting injustice. The return of survivors

transacted on the condition of abandoning all their prospects ofsecuring justice as guaranteed under the law of the land for all citizens,for slaughter, rape, arson or loot, is not reconciliation in the sense of arestoration of trust and goodwill, but it is capitulation by a crushed andhapless people. Forgiveness is authentic only if the person who forgiveshas the option not to forgive. In Gujarat, we are witnessing notforgiveness but abject surrender. It is interesting that Gandhi alsostressed that real forgiveness can only come from a situation of strengthand agency of the person who has suffered. He says that Abstinence isforgiveness only when there is power to punish; it is meaningless when itpretends to proceed from a helpless creature. He illustrates this with ametaphor: A mouse hardly forgives a cat when it allows itself to be tornto pieces by her.

Contemporary India has a troubled history of sporadic blood-lettingin gruesome episodes of mass violence which targets men, women and

2Rajeshwari, B. 2004. Communal Riots in India: A. Chronology (1947-2003),

Institute of Peace and Conflict Studies.


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sometimes children because of their religious identity. The IndianConstitution unequivocally guarantees equal legal rights, equalprotection and security to religious minorities. However, the Statesrecord of actually upholding the assurances in the secular democratic

Constitution has been mixed.The Centre for Equity Studies is engaged in an on-going study

which tries to map, understand and evaluate how effectively the State infree India has secured justice for victims of mass communal violence. Itdoes so by relying primarily on extracting the States own recordsrelating to 4 major episodes of mass communal violence - beginningwith Nellie 1983, Delhi 1984 , Bhagalpur 1989 and Gujarat 2001,primarily using the powerful democratic instrument of the Right to

Information Act 2005. In this way, it tries to hold up the mirror togovernments and public authorities and institutions, to human rightsworkers and to survivors themselves - of official documents,supplemented by reports of Judicial Commissions of Enquiry (which areroutinely set up after major episodes of mass communal violence, andtypically forgotten subsequently) to evaluate the accountability andimpunity of public officials after episodes of mass violence.

International law lays down that States owe victims of gross human

rights violations reparation3

, and reparation includes (1) access to justicein the form of criminal prosecution, (2) access to truth, and (3) materialand non-material restitution. The Indian State has substantially failedvictims of mass violence on all these counts. Particularly in themassacres before Gujarat in 2002, there have been very few criminaltrials relative to incidents of serious violence. The record of casesbrought at least to trial has been a little better in Gujarat, only becauseof greater civic activism, not because of the efforts of State institutionsto secure justice. On the contrary, the State in Gujarat has resistedefforts to ensure justice to the survivors of the brutal mass violence.

Many of those who are engaged with this study have experience ofworking directly with survivors of mass communal violence, andlearning from the narratives and experience of victim survivors. Thereis also a very large body of information, of reports of judicialcommissions, of investigations by civil rights groups, of academic

3, UN Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Violations of International Human Rights andHumanitarian Law


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research and journalism available on episodes of mass communalviolence. All of these suggest a recurring pattern of structural injusticeand impunity leading up to, during and in the aftermath of such massviolence. These lay out the broad hypothesis of this study, which we

tried to test against the States own records.The study does not investigate the build-up and prevention of such

episodes of mass communal violence. It investigates the access of victimsto protection, justice and reparation after communal violence actuallybreaks out. Our hypothesis is that many victims of mass communalviolence do not succeed in registering their complaints with the police.

Where the State has a shaky record in failing to protect people frommass violence, and is perceived as partisan, victims have little

confidence in its ability to pursue their complaints. But the greaterproblem is the climate of fear and both official and non-officialintimidation which renders it difficult to register complaints afterepisodes of communal violence. Where victims have complained, thepolice is known to often refuse to register these complaints, or to registercomplaints but deliberately leave out crucial details narrated by thevictims about the events, perpetrators and witnesses. Investigation isoften found to be slipshod, and large numbers of complaints are closed

without the alleged perpetrators being charged with and tried foroffences. Trials are long, and have often been unsuccessful. As withcriminal trials, the process of compensating victims is also typically veryprotracted. Survivors and activists, also testify that securingcompensation is very cumbersome, and can take many years, and ratesand standards of financial assistance extended to survivors of masscommunal violence tend to be far too low to enable survivors to rebuildtheir lives. And finally, there is scant official disclosure on the Statesresponse to mass violence, and therefore a denial of survivors to truth.

In summary our hypothesis is that the Indian State has failed, invery large measure, to prosecute perpetrators, to account for its ownfailures, to compensate victims, and to tell citizens about what it did ordid not do.

~ ~ ~

Communal violence and its aftermath in India has always beencharacterised by injustice and partisanship by State authorities. But the

carnage of Gujarat in 2002 stands apart not only because of the


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unprecedented denial of relief and rehabilitation to the survivors by theelected State government of Gujarat, but also because of the extent of theopen, deliberate and defiant subversion that it witnessed of the criminal

justice system, with the complicity of all its arms: the police, the

prosecution and the judiciary. The charge of deliberate justice subversionis of course consistently denied by the State government, and indeed bythe central government that was in office at the time of the carnage. Forinstance, the then Deputy Prime Minister Mr. LK Advani in a televisioninterview dismissed the claim that there has been an extremely grave anddeliberate subversion of justice in the aftermath of the Gujarat carnage2002. He suggested that whatever failures occurred were the routineoutcome of the general collapse of the criminal justice system in country,

and that there was nothing distinct in the experience of Gujarat. But infact what Gujarat witnessed after 2002 was not a spectacular State failure,but a remarkable State success, because the State succeeded in achievingwhat it set out to accomplish, and this was the subversion of allinstitutions of criminal justice with the sole objective of ensuring thatthose guilty for the massacre are not punished.

In the scathing words of the judges of the Supreme Court of India4,the bench of the highest court in the land gets a feeling that the justice

delivery system was being taken for a ride and literally allowed to beabused, misused and mutilated by subterfuge. The National HumanRights Commission earlier spoke in a similar vein of a large-scale andunconscionable miscarriage of justice and stressed the imperative of therestoration of justice and the upholding of the values of the Constitutionof the Republic and the laws of the land. That is why it remains offundamental importance that the measures that require to be taken tobring the violators of human rights to book are indeed taken. The failuresof the state government to heed its counsel ultimately moved the NationalHuman Rights Commission to respond to what it described as thedamage to the credibility of the criminal justice delivery system andnegation of human rights of victims, by the extremely unusual step ofitself filing an application before the Supreme Court for transfer of five

4in the Zahira Habibiullah Sheikh v. State of Gujarat case, better known

as the Best Bakery case


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major criminal cases connected with the 2002 carnage for their trialoutside the state of Gujarat.

These damning observations about these large cases applied equallyto literally thousands of cases in which justice has been cynically and

efficiently subverted by State authorities in Gujarat, in the aftermath ofthe carnage if 2002. My colleagues and I applied to the Supreme Courtthat out of a total of 4252 FIRs registered after the carnage, 2208summary reports were filed with the magistrates court. This meansthat these cases were closed even without submitting them to trial,based on police claims that they were unable to collect any evidenceagainst the accused, or that the crime itself did not take place. If thiswas not challenged, it would mean that one could kill, rape and pillage

openly, and would not have to even once see the inside of a policestation or court-room. The impunity with which the next slaughtercould be executed can then well be imagined. The extent of bias of thelower judiciary is evidenced by the fact that more than 200 courts in 17districts passed these completely illegal orders of closure. Also, morethan 300 accused had been acquitted in a short time span of over ayear, with very few appeals filed by the State government. The closureof cases or acquittal of the accused in more than half the cases

registered after the massacre in the short space of around one and a halfyears, was all the more extraordinary, given the normally sluggish paceof criminal justice in our country. It was the cumulative outcome ofdeliberately faulty police complaints and investigation, discriminatoryarrests and bail and the intimidation of witnesses and biasedprosecution and judges.

Many of the cases that were closed were deliberately destroyed inthis way at the stage of the filing of the police complaint, known as theFIR or First Information report, itself. The accused were not named,and instead the violence was attributed to anonymous mobs. In manycases, omnibus FIRs were filed in advance by the police, clubbing largenumbers of incidents involving sometimes hundreds of witnesses andaccused in single complaints to render investigation completelyunwieldy and confused, and in which often the victims were accused ofinstigating the mobs. Subsequent complaints by victims were thensubsumed under the police FIRs, and the names of many of the mainaccused eliminated. Even those of the accused who were charged with

grave crimes were released on bail frequently without opposition from


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the local police, enabling them to intimidate witnesses at will. Oftenfalse complaints informally called cross cases - were filed against thefew complainants who managed to get their complaints registered, tobrowbeat them into not pursuing their complaints. There was also a

discriminatory communally motivated pattern in the persons arrestedand released on bail.

Investigation in many cases was assigned to tainted police officersaccused of abetting or even participating in the massacre. Theobservations of the Supreme Court (again made in the context of the BestBakery slaughter) apply to the large majority of the cases: that the role ofthe investigating agency itself was perfunctory and not impartial it wastainted, biased and not fair without any definite object of finding out

the truth and bringing to book those who were responsible for the crime. Witnesses and survivors allege that the police did not take down theirtestimonies properly, deliberately omitting details and the names of theaccused.

Once trials began, prosecution was frequently deliberately shoddy andpartisan, and it was not unusual for public prosecutors to be often openlyactive members of the Sangh and affiliated organisations. The accusedwere frequently not arrested, under the specious claim that they are

absconding, whereas they openly walked free, threatening andintimidating the witnesses with impunity. Once again, the Supreme Courtexpressed anguish about the improper conduct of trial by the publicprosecutor and added that when a large number of witnesses haveturned hostile it should have raised a reasonable suspicion that thewitnesses were being threatened or coerced. It added: The publicprosecutor appears to have acted more as a defence counsel than onewhose duty was to present the truth before the Court. The prosecutorwho does not act fairly and acts more like a counsel for the defence is aliability for a fair judicial system, and courts could not also play into thehands of such prosecuting agency .

The Supreme Court reserved its gravest strictures for the trial court. Itstated: The courtsare not expected to be tape recorders to recordwhatever is being stated by the witnesses. They have to monitor theproceedings in aid of justice Even if the prosecutor is remiss in someways, it can control the proceedings effectively so that the ultimateobjective i.e. truth is arrived at. It observed significantly that truth

should prevail over technicalities which protect the innocent and punish


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the guilty and the confidence in courts must be restored. When theinvestigating agency helps the accused, the witnesses are threatened todepose falsely and prosecutor acts in a manner as if he was defending theaccused, and the Court was acting merely as an onlooker and there is no

fair trial at all, justice becomes the victim.The injustice was further compounded by the large-scale arrest of

people of the minority community, and the strenuous resistance by thepolice to their applications for bail. Men and even boys were chargedwith murder and attempted murder in cases where police fired andkilled innocent people, or powerful people were sought to be charged,in order to build pressure on the victims by filing cross cases againstthem. All of this continues. Witnesses remain under great pressure to

not give evidence against those who attacked them and destroyed theirhomes, even as a condition for returning to the homes of their ancestorsor under threat of being prosecuted themselves on false charges. Withopenly biased police, courts and prosecution, criminal cases against theaccused are sinking like stones in a turgid pool.

The brazenly partisan exercise of state authority is even moreevident in the unapologetically discriminatory application of thedraconian Prevention of Terrorism Act 2002 (POTA) exclusively

against minorities. Several hundred youth arrested under cases ofPOTA in Gujarat have been Muslim, except for one Sikh. Most of thePOTA accused have languished for years in prison without bail. Bycontrast, despite the brutal carnage which took more than 2000 lives,not one of the accused were booked by the state government underPOTA. The central government refused to repeal POTAretrospectively, so these cases persist.

The comprehensive and wanton failure of every institution responsiblefor criminal justice in Gujarat - the police, prosecution and judiciary - andthe deliberate denial of justice with the objective of securing freedom forthose accused of the gravest crimes of massacre, rape and arson from eventhe processes of the legal system let alone ultimate penalties, is clearly nota routine collapse. It seems reasonable to speculate that this was theoutcome of systematic planned subversion of justice in a manner notunlike the planning of the massacre itself.

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There are many groups of people, and State as well as non-Stateinstitutions who bear responsibility for the crimes and inhumanity of the


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Gujarat carnage and the dishonour of its aftermath. These are theelected political leadership of the government, fascistic communalorganisations, the judiciary and the prosecution. I choose to focus inparticular here on the special culpability of one of them with which I

have served for two decades - the higher civil services (including thepolice). This is a vocation whose central calling is the upholding of

justice, of law, order and the protection of vulnerable people. Default inthe performance of ones duty by a civil or police officer in a riot is notonly the crime of a citizen who turns ones face away from injustice,because of indifference, fear or complicity. It is a crime of much gravermagnitude, akin to that of a surgeon who wantonly kills his patient onthe operation table.

Half a century after India shed its colonial shackles, it continues toretain a peculiarly hybrid bureaucratic framework that is in many waysessentially incongruous in a democracy. On the one and, it holds on tomany of its colonial trappings, and public servants who are not electedexercise enormous unaccountable power over several aspects of the livesof ordinary people, both at the local level and in the framing of policyand law. But, at the same time, during the decades that the State inIndia assumed leadership of nation-building and social justice, this same

bureaucracy was charged with combating poverty and protecting therights of dalit and tribal people, women and the working classes. It isthis that attracted many of us to the civil services.

I spent 20 of the best years of my life in the Indian AdministrativeService, living with my family in remote, tribal, districts of MadhyaPradesh and Chhattisgarh; I do not regret a single day. No otheremployment could have enabled me to see and learn so much from theresilience, struggles and humanism of people in distant corners of myland. Like many colleagues I found enormous opportunities toimplement my beliefs about land reforms, laws and programmes fortribal and dalit equity, justice and programmes to combat poverty aswell as to fight corruption.

And yet, even as I worked with the opportunities that the systemafforded, I could see from the start its fatal flaws and rapid corrosion asa democratic institution. It recruited many of the country's bettertalents, but did little to make them genuinely accountable to the peoplethey were mandated to serve. There were and continue to be in the

ranks of the civil service women and men of the highest integrity and


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moral courage. But increasingly there are signs of a spirit of abject,sometimes humiliating subservience, as several civil servants habituallyobey without protest even illegal and unjust directions of politicalsuperiors.

In the aftermath of the grim and bloody birth of a dismemberedIndian nation in 1947, the leaders of the struggle for IndianIndependence had resolved to retain a powerful bureaucracy inheritedfrom the colonial legacy of governance. Their expectation was that itwould act as a sturdy bulwark, a steel frame to strengthen theunification of a vast, diverse, volatile land. In the decades that elapsedafter Independence, a slow but steady decline set in, not only with thegrowth of indifference, unaccountability, corruption, sloth, arrogance,

but most dangerously, partisanship and complicity with injustice andsectarian politics. One low was hit during the Emergency from 1975-77, where few stood up against dictatorship and the subversion of theentire Constitution. And with the shameful abetment of mass violencein the anti-Sikh riots of 1984, the decline became precipitous inconjunction with the ascendancy of fundamentalist fascistic militantideologies in the country. Sections of the police, civil and militaryadministration bared their active sympathies with these divisive

ideologies ignoring that these contradict fundamentally the letter andthe spirit of the secular democratic Constitution of India that they arepledged to uphold - while the large majority opportunistically alignedwith these to advance their careers.

As a result, the corroded steel frame dissolved and in thelaboratory of Gujarat in 2002, the country witnessed its completeignoble collapse. The savage carnage in many parts of Gujarat thatfollowed the horrific burning of a railway compartment in Godhra onFebruary 27, 2002, and the systematic and wanton subversion of allcivilised norms of relief and rehabilitation of the survivors in the bleakmonths that followed, are testimony to the collapse and perversion ofthe State machinery to an unprecedented degree. The majority of Stateauthorities in Gujarat not only actively connived with a planned andorchestrated massacre of a section of the population, specially targetinghapless women and children. In the months that followed, they abettedand assisted for the first time in the countrys history the deliberatesubversion of all civilised norm of relief and rehabilitation of the

survivors. In other words, they enabled and assisted not only the


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murder, rape and plunder of legions of innocent people and theirproperties. They went further to assist the ruling political class of theState to prevent the organisation of even elementary temporary shelterswith basic facilities in relief camps, or grants and loans to assist the

destitute and bereaved survivors to rebuild their shelters andlivelihoods. This brazen, merciless treatment, with State abetment, ofvictims of mass violence like unwanted diseased cattle, or like enemypopulations, marks a new low in the governance of this nation. Itheralds the completion of the unresisting transition of the civil andpolice administration from protectors to predators of the people.

Until the 1980s, there was an unwritten agreement in our polity thateven if politicians inflamed communal passions, the police and civil

administration would be expected to act professionally and impartiallyto control the riots in the shortest possible time, and to protect innocentlives. There were several failures in performance, and minorities weretargeted in many infamous riots, but the rules of the game were stillacknowledged and in the majority of instances adhered to, which is whythe higher civil and police services were regarded to be the steel framevital 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 thefrequent practice for the higher civil and police authorities to beinstructed to actively connive in the systematic slaughter of onecommunity, and to do this by delaying sometimes by several days, theuse of force to control riots. Local State authorities complied, andrioters were unrestrained by State power in their mass murder, arsonand plunder.

Why is the decisive and timely use of State coersive force-lathis, tear-gas and bullets by police, para-military and military contingents sovital a duty of the State in a communal situation? In every other kind ofpublic disorder such as labour, student or peasant protests the broadconsensus across a wide section of liberal opinion is that a democraticState must never use brute force to suppress democratic dissent. Onlyin the rarest of cases, and with a wide range of checks and balances toprevent human rights abuse, may a democratic State apply theprinciple of minimum necessary use of force to restore public order andsecurity, respecting the right of democratic dissent and the expressions

of public anger against perceived injustices and grievances.


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In situations of sectarian violence, the responsibility of the State iscompletely different from any other. A humane and responsivedemocratic government must apply in all such situations of communalriots, or violence against minorities or dalits the principle not of

minimum necessary application of force, but instead the responsible,accountable, lawful but maximum possible use of force that the State canmuster in the shortest possible time, while always still respecting andsafeguarding human rights. This is because unlike other expressions ofpublic anger, communal violence targets almost invariably people whoare most vulnerable and defenceless, it is fuelled by perilous andexplosive mass sentiments of irrationality, unreason, prejudice andhatred, and its poison spreads incrementally over space and time. Its

wounds do not heal across generations. The partition of our countrycontinues to scar our psyche half a century after its bloody passage. Awhole decade of terrorists in Punjab traced their origins to themaraudings of the 1984 rioters. As I held on my lap a six year old boyin a camp in Ahmedabad, recounting the killings of his parents and sixsiblings, I felt broken by his pain that can never heal, but wondered atthe same time how he would deal with his anger when he grows up.Likewise, the ashes of the horrific burnings in Godhra have stirred up

their own poison. But it is important to understand that the cycles ofhatred did not begin in the railway compartments of Godhra, and theywill not end in the killing fields of Gujarat.

It is for this reason that every moments delay by State authorities toapply sufficient force to control communal violence is such anunconscionable crime: it means more innocents will be slaughtered,raped and maimed, but also that wounds would be opened which maynot heal for generations. Civil and police authorities today openly awaitthe orders of their political supervisors before they apply force, so muchso that it has become popular perception that indeed they cannot actwithout the permission of their administrative and political superiors,and ultimately the chief minister. The legal position is completely atvariance with this widely held view. The law is completelyunambiguous, in empowering local civil authorities to take all decisionsindependently about the use of force to control public disorders,including calling in the army. The magistrate is not required to consulther or his administrative superiors, let alone those who are regarded as

their political masters. The law is clear that in the performance of this


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responsibility, civil and police authorities are their own masters,responsible above all to their own judgement and conscience. There areno 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 practiceof political consultation before force is applied. Only to convince youthat I speak from the experience of myself handling many riots, I couldcontest this with my own experience in the major riots of 1984 and1989, where as an executive magistrate I took decisions about the use offorce and in the former case calling in the army, without anyconsultation. I could similarly contest this with the experience of manywomen and men of character in the civil and police services across the

country, who would similarly testify to salutary application of force, tocontrol more difficult communal violence, without recourse to politicalclearances. There can be no dispute that given administrative andpolitical will, no riot can continue unchecked beyond a few hours.

However, I will not substantiate this with my own experience, orthose of older officers. It gives me greatest pride and hope, amidst thedarkness that we find ourselves in today, to talk of the independentaction taken by a few young officers in Gujarat and neighbouring

Rajasthan during the 2002 crisis itself. Rahul Sharma was posted as theSuperintendent of Police, Bhavnagar for less than a month whenGodhra killings and the subsequent massacre all over Gujarat unfolded.Following the Godhra tragedy, he deployed a strong police contingentfor the Gujarat Bandh called by the VHP the next day on 28 February,2002. Unlike the rest of Gujarat, the day passed off without muchtrouble in Bhavnagar. But the next day, Rahul learned that a mob ofaround 2000 men armed with swords, trishuls (tridents), spears, stones,burning torches, petrol bombs and acid bottles, was about to attack amadrassa with around 400 small Muslim boys between the age of 12and 15. Rahul rushed 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. Assome attackers fell to police bullets, the crowd stopped in its tracks andfaded away.

Rahul then made an entry in the logbook saying that he had firedfrom 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


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lives from a violent mob would be prosecuted for abetting murder. Thisgave a clear signal to the police force that their leader theSuperintendent of Police meant business, was willing to take fullresponsibility for his actions and was prepared to stick out his neck any

distance to uphold his duties. This had an immediate effect on his force,and Bhavnagar was a town where more rioters were killed in policefiring than innocent victims in actual rioting. For this, Rahul wasmoved 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 fromtransfers. I take these things in my stride.

In neighbouring Rajasthan, the Superintendent of Police of Ajmer,Saurabh Srivastava, with a young sub-divisional magistrate in his first

charge and his small force, doused communal fires in Kishangarh onMarch 1, 2002, which had the potential of inflaming the tinder box ofthe entire State. They controlled an enraged armed mob of over athousand men bent on attacking minorities in a pitched battle for overfour hours.

It is sometimes also argued that the entire higher civil and policeservices have become politicised beyond repair, therefore whatevertheir legal and moral duties they today lack the conditions in which they

can reasonably be expected to perform them. Once again, I wouldstrongly contest this alibi. In the twenty years of my life in the civilservice, I always found that despite the decline in all institutions ofpublic life, there continue to survive democratic spaces within it tostruggle to act in accordance with my beliefs without compromise. Onemay be battered and tossed around, in the way that young policeofficers who opposed political dictates to control the recent rioting inGujarat were unjustly transferred. But in the long run, I have notknown upright officers to be terminally suppressed, repressed ormarginalised. On the contrary, I value colleagues, in the civil andpolice services, usually unsung and uncelebrated heroes, who havequietly and resolutely performed their duties with admirable characterand steadfastness. Few in the civil and police services can in all honestytestify to pressure so great that they could not adhere to the call of theirown conscience.

It is not that there are no costs, but then if the performance of dutieswas painless, there would not be many who would fail in the

performance of their duties. The costs are usually of frequent transfers,


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and deprivation of the allurements of some assignments of power andglamour, which are used to devastating effect by our political class toentice a large part of the bureaucracy today.

When I stand witness to the massacre in Gujarat enabled by

spectacular State abdication and connivance or to the nationaldisgrace of the subversion of all civilised norms of relief andrehabilitation I confront the cold truth that the higher civil and policeservices are today in the throes of an unprecedented crisis. Theabsolute minimum that any State must ensure is the survival andsecurity of its people, and elementary justice. If State authoritieswantonly let violent mobs target innocents without restraint orconnive with the most cynical and merciless designs to deny them the

elementary means for human survival and they continue to do thiswith impunity and without remorse or shame, then citizens of thecountry need to resolutely demand accountability and fundamentalreforms. They cannot permit the collapse or subversion of the State,and its metamorphosis from an institution for justice and security, theprotection and welfare of the people, into one that victimises as Statepolicy a segment of its population, treating them as children of a lessergod.

~ ~ ~Many hoped that Independence would progressively bring an end toviolent communal strife and pogroms in India. But after 63 years offreedom, millions of Indian people continue to live with lurking fear intheir hearts: fear of violence which can snuff out their lives and lovedones, violate their bodies, and devastate their homes and livelihoods.Among these are persons of the Scheduled Castes and Tribes, religiousminorities, especially Muslims, and in tribal areas, Christian converts,

and linguistic minorities. I have spoken to ordinary people of Muslimfaith in many corners of the country. When they recall their lives, it isalways as life lived in the space between riots. Each of them negotiateseveryday living with unspoken trepidation that one day any day everything that they love and live for can be destroyed in one briefstorm of hate. And in many tribal areas, communal organisations havesucceeded in driving and deep and dangerous wedge between peoplewho converted to Christianity, and others - often of the same tribe -

who have not. Scheduled Castes and Tribes have lived with subjugationand fear of violence for centuries. And migration has fuelled fear and


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violence against linguistic minorities who travel to other states in searchof dignified work.

Long after the fires of torched homes, looted shops and desecratedplaces of worship are doused and the blood on the streets dries; after

slaughter, rape, plunder and expulsion are accomplished; wounds rarelyheal. Survivors live out their lives haunted by the fear of recurrence, theanguish of betrayal, and the dying of hope and trust.

We have witnessed too often in this country women, men andchildren attacked only because of their identity as dalits or tribals,religious or linguistic minorities. As we have observed in this lecture, arecurring 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 sacredConstitutional duty - to secure equal protection to every citizen,regardless of their caste, faith or linguistic identity. They fail notbecause they lack the mandate, authority or the legal powers. They failbecause they choose to fail; because of the pervasive prejudice and biasagainst these disadvantaged groups which permeates large segments ofthe 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 criminallypunished. Far from it, officials who have been named as guilty of biasand worse in numerous Judicial Commissions of Enquiry have veryrarely been even administratively penalised; contrarily, guilty police andcivil officers have enjoyed illustrious careers, and political leaders underwhose watch such carnages have occurred have reaped rich electoralharvests of hate.

A similar culture of impunity surrounds those who instigate andparticipate in the killings, arson and rape. Impunity is the assurancethat you can openly commit a crime and will not be punished. Thisimpunity admittedly does arise from infirmities in and corrosion of thecriminal justice system, which require long-delayed police and judicialreform. But it is important to recognise that the collapse of the justicemachinery is massively compounded when the victims aredisadvantaged by caste, religion, or minority language. You are morelikely to be punished when you murder a single person in peace-timewith no witnesses, than if you slay ten in broad daylight observed by

hundreds of people.


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We have carefully studied several major episodes of targetedviolence, and discovered that despite these being separated vastly bytime 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 andactive subversion of justice. The impunity of the accused beginsimmediately after the violence. Preventive arrests and searches usuallytarget dalits and minorities. Police refuse to record the names of thekillers, rapists and arsonists, and instead refer to anonymous mobs. Ifvictims assert excessively, cross-cases are registered against them,accusing them of crimes. Arrests are partisan, and the grant of bail evenmore 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 arenot released sometimes for years.

This openly discriminatory treatment of the accused based onwhether they are from dominant or discriminated groups, is one way tocoerce them to compromise. This means extra-legal out-of-courtagreement by victims to turn hostile, to retract from their accusationsin court. To accomplish this, victims are also widely intimidated andthreatened, offered inducements or threatened with exile or social and

economic boycott. Police investigation is deliberately shoddy, and themajority of cases are closed even before they are submitted to trial.Those few cases that reach the court are demolished by prosecutionwho often do not even disguise their aim to protect the accused ratherthan establish their guilt, and judges who often share their bias.

Therefore many in this country pin great hopes on a law whichcould help end communal violence. This Communal Violence Bill hasbeen in incubation for an extended seven years, ever since the UPAgovernment was first elected in 2004 with a mandate to end the politicsof fear, hate and division in the country. But despite two drafts by theGovernment, in 2005 and 2010, there was wide rejection of, anddisappointment with, what the government has on offer. Thegovernment versions of the law had very little in common with whatsecular opinion, and minority leaders, believes are essential to such alaw.

Successive government drafts of the Communal Violence Bill mainlyaim to greatly enhance the powers of the police, on the premise that

these increased powers are needed to enable police and governments to


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take decisive steps to prevent and control mass communal violence. Thedraft Bill provides for governments to declare areas in which communalviolence is imminent, or has actually broken out, as communallysensitive areas. In these areas, for the duration of the notification, the

police would function with expanded powers, and there would beenhanced punishment for crimes committed in this area, and specialcourts would hear the criminal cases that arise.

The assumption of the government drafts is that if only the powersof police and governments are augmented in communally chargedtimes and areas, they would control communal violence effectively anddecisively. This assumption flies in the face of the actual experience ofsuccessive communal pogroms. Did governments in Assam in 1983,

Delhi in 1984, Mumbai in 1992-93, Gujarat in 2002 or Kandhamal in2008 fail to prevent slaughter and arson because they lacked sufficientpowers? Do we really believe that these governments were unable tocontrol violence because they lacked the legal muscle? Or was the truththat they did not want to control the violence; but instead theydeliberately enabled the slaughter? That they wanted to reap politicaladvantage from a violently polarised polity, and were assured that theywould legally be able to get away with such a crime?

If government officials and political leaders wish to act, the law as itstands is more than adequate to empower police and officials to preventand control communal violence. No riot can continue for more than afew hours without the active will of the political leadership ofgovernments that violence should persist and indeed spread; and theactive abetment of police and civil officials to prolong the slaughter andarson. Communal carnages occur because they are systematicallyplanned and executed by communal organisations, and becausegovernments which are legally and morally charged to protect allcitizens, deliberately refuse to douse the fires, and instead allow rivers ofinnocent blood to flow.

As already observed, I regard such abetment of slaughter by publicofficials to be one of the gravest crimes possible in public life. To protectminorities from communal pogroms and mass violence, we do not needa law which adds further to the powers of police, civil authorities andgovernments. Ironically, such a law will achieve the exact reverse ofwhat it claims to seek. The consistent experience of minorities is that

greater powers in the hands of police would only be used againstthem.


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There is great unease with declaring regions as disturbed areas: inlarge swathes of Indias North-East and Kashmir, people have lived inthe shadows of similar declarations, which give extraordinary powers tosecurity forces. These routinely lead to crushing of peoples elementary

democratic freedoms. We need a very different law, not one which makes police and

public officials more powerful, but instead one which forces them to belegally answerable to the people who they are responsible to serve andprotect effectively and impartially. In present law, public officials can atbest be charged with active conspiracy and participation in massviolence (although even this is rarely done). But the worst crimes ofpolice and civil authorities, and those in command positions like Chief

Ministers, are of deliberately and maliciously refusing to take action toprevent and control violence. We need law to recognise such deliberateinaction - because of which killings, rape and violence continueunchecked for days and sometimes weeks - to be grave and punishablecrimes against humanity.

The law also needs to recognise new crimes, especially of forms ofgender violence during communal carnage. The narrow definition ofrape does not envisage the many forms of gendered crimes that are

common in mass violence situations, such as stripping and paradingwomen, mass disrobing by the attacking men, insertion of objects intobodies of women, cutting breasts and killing of children in the womb.The procedures for recording complaints, investigating and trials alsoneed to be sensitive to the suppression, fear and sense of public shamewhich shrouds in silence most such episodes of targeted violence againstwomen.

In most episodes of communal violence, states are partisan also inextending relief and compensation. The survivors of the Nellie massacreof 1983 were paid a mere 5000 rupees for each death, against a total ofaround 7 lakh rupees for the families of those killed in the Sikhmassacre of 1984. Such an implied hierarchy of official valuation ofhuman lives of people of different persuasions and ethnicity isintolerable. The government in Gujarat in 2002 refused even toestablish relief camps, and forced the pre-mature closure of theprivately established camps. The law therefore must establish bindingstandards for awarding compensation after communal violence, and


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duties relating to rescue, relief camps, rebuilding of homes, livelihoodsand places of worship.

The National Advisory Council has produced a draft law to preventcommunal violence and end impunity, by making public officials legally

answerable to the people for their acts and failures to act which leadto the brutal and criminal loss of innocent lives. The NAC draft law iscurrently under debate, and we are sure it can be further improved inmany ways. However, to discourage targeted hate-crimes in future, weare convinced that what is required is a law which creates the offence ofdereliction of duty of public officials who deliberately fail in theirConstitutional duty to protect targeted vulnerable groups. This must becoupled with the principle of command responsibility, which ensures

that responsibility for failing to act is carried to the level from whichorders actually flow. This public accountability is at the heart of theNAC draft Bill. We are convinced that if such a law existed, themassacres at Khairlanji and Chundur, Delhi, Gujarat and Kandhamal,would have been controlled and justice better accomplished.

We also need a law which established binding duties and standardsfor relief and rehabilitation, because these do not exist. Indian criminallaw 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 ofthe accused need to be protected. The State investigates, prosecutes,and also adduces evidence and appeals. The victim has limited rights inthis process. The reality of targeted violence against non-dominantgroups is that a biased State may in these cases be on the side ofaccused and actively hostile to the victim. This Bill seeks to correct thisbias, by incorporating a number of rights and protections of victims inpost-conflict criminal justice.

I have spoken to victims of caste and communal carnages in manyparts of the country, and found that the most important reason thatthey cannot find closure even years later is because legal justice is notdone. How can we forget, even less forgive, if we see every day the manwho raped our daughter or killed our father, walk free; when not oncehas he had to even see the inside of a police station or a court? How canwe believe we are equal citizens of this land?

The Right to Information changed on its head the relationship ofpublic servants with the people, by enabling them to question them for

the probity of their actions. We believe that the Communal Violence


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Bill must carry this further, by enabling them to ask whether themwhether they did all they should to protect all citizens against massviolence, 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 seculardemocracy in India. Only such a law would be a true tribute to thememory of persons like Prof Iqbal Ansari who struggled through theirlives for the dream of an India free from fear and riots.

[Mr. Harsh Mander, a former civil servant who took voluntaryretirement in the wake of the Gujarat Carnage, is an eminent socialactivist, writer and member of National Advisory Council (NAC),Govt. of India. He has founded and works with Aman Biradari, apeoples campaign for secularism, peace and justice; Nyayagrah, forlegal justice and reconciliation for the survivors of communalviolence; and Dil Se, which works with street children, andhomeless people. In addition, Mr Mander is the Special Commissionerto the Supreme Court of India to advise it in the Right to Food caseon hunger and state responsibility, and the Directorof the Centre forEquity Studies (working on public policy for the poor). He isassociated with several social causes and movements, such as forcommunal harmony, tribals, dalits, minorities and disability rights,the right to information, custodial justice, homeless people andbonded labour. His books include Unheard Voices: Stories ofForgotten Lives and Fear and Forgiveness: The Aftermath ofMassacre. He has been awarded with the Rajiv Gandhi NationalSadbhavana Award for peace work, and the M.A. Thomas National

Human Rights Award 2002. He was also a close associate ofProf. Iqbal Ansari and a great admirer of his works. ]


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Towards a Riot and

Terror Free IndiaProf. Iqbal Ansari

[Following is the Draft prepared by Prof. Iqbal Ansari for Inter-Community Peace Initiative (ICPI), which was later presented to thePrime Minister, Union Home Minister and State Chief Ministers withcopy to the President of India jointly signed by the ICPI along with anumber of prominent minority organizations and human rights groups

and concerned citizens of the country.]

We, the following signatories, hold that:

(a) The goal of riot-free India can be achieved by a twofold process of (i)improving inter-community relations through mutual understanding,and peaceful resolution of ethno-religious disputes and (ii) effective

impartial and humane law-enforcement system.

(b) An empowered Community Relations Commission (CRC) isrequired both for promoting peaceful resolution of disputes as well asfor taking preventive legal-administrative measures regarding hatespeech and vicious communal propaganda and audio-visual media and

educational material and menacing processions.

(c) All those entrusted with the responsibility of law-enforcement mustbe held accountable for acts and omissions which lead to violation ofright to life, limb, dignity, and property of citizens and communities ona large scale.

(d) All those who suffer losses must be restored their rights and getcompletely rehabilitated and next of kin of those killed must getadequate compensation.

(e) Impunity which is a major source of recurrence of communalviolence must end--- which requires reform of the criminal justice

system and the judiciary becoming more sensitive, alert and proactive,like it once did in Best Bakery case.


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(f) To be able to effectively deal with situations of genocide and crimesagainst humanity a separate law must be enacted in accordance withinternational human rights norms.

In view of the above we consider that the following measuresmust be taken by the Union and State Governments andUnion Territories to heal the festering wounds of the past andto prevent and suppress any incident of communal violencein future.

IInter- Community Conflict Prevention and Resolution

1. Establishing a statutory Community Relations Commission(CRC) for prevention, resolution and management of all inter-group

ethnic, linguistic and religious conflicts/ disputes (as recommended

by the report on Communal Riots: Prevention and Control by the

National Commission for Minorities (NCM) which it adopted and

sent to Union and State Governments for action in 1999). 1

1.1 The CRC to have a research wing, monitoring mechanism andempowered to bring about conciliation through dialogue and

also empowered to start legal proceedings against erring parties.

1.2 The CRC to be entrusted with the responsibility of enforcinglaws on hate speech and taking other preventive measures like

regulation of activities of political parties, and taking out

processions etc.

1.3 The CRC to be entrusted with the responsibility of reviewingall teaching material and media coverage on issues related to

communal discord and representation of religion, history and

culture of all segments of Indian society and taking steps for

necessary rectification and action under law if and when

required.


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IIPolice and Administrative Reform

2. Reorganization of the police making it function as an independent,

impartial, humane and effective law-enforcement agency usingminimum force appropriate to the situation. It should be accountable tolaw under State Security Commissions, as recommended by theNational Police Commission (1979-81). 2

2.1 Training of the police to eradicate its communal biases andprejudices inculcating values, attitudes and conduct inaccordance with secular human rights norms. 3

2.2 Training of the police in intelligent, humane and effective riotcontrol methods, appropriate to any given situation, seekingcooperation of the civil society organizations especially Mohallaand Zila Ekta/ Peace/ Sadbhavna committees. 4

2.3 Making the composition of the police socially diverse withadequate minority representation in all wings of the system. 5

Political and Administrative Accountability

3. Provision in the service rules of the D.M. and other senior personnelof the district administration and the S.P. and other police officersmaking them responsible for prevention and timely control of anyrioting/ social disorder, failure of which should attract penal provisionsincluding liability to pay compensations. Such action to be taken onlyafter due inquiry by the Standing Inquiry Commission and appeal tothe State Security Commission. 6

4. A Standing Inquiry Commission appointed by a panel of (i)Chairman NHRC (ii) Chairman NCM (iii) Chairman CRC-for fixingresponsibility of the political executive, the administration and thepolice for failure to prevent and control any riot / inter-group massviolence.


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IIIAmendments of Existing Laws and Enactments of Effective

Laws5. Making existing laws on hate speech and writings more effective and

universally applicable. 75.1 Enactment of a law regulating activities of political parties and

social/ cultural organizations for prevention of communaldiscord. 8

5.2 Bringing the media under more effective regulatory procedure onreporting and comments on events and issues having a bearingon communal discord, including amendment of the PressCouncil Act empowering it to initiate legal proceedings against

erring media persons and publications. 95.3 Making the existing provisions under the law regulating

processions more effective, especially those which are likely todisturb communal peace. 10

6. Enactment of a law on the rights of victims of all violence toreparation and complete rehabilitation, and their protection andparticipation in trial, providing for hate motive for violence /crime as

an aggravating factor in sentencing.11

7. Amending the Inquiry Commission Act as applicable to (i) minorcommunal violence (ii) major communal violence and social disorder.

7.1 In the event of major riots and disturbances, the appointingauthority should be a panel comprising the (i) Prime Minister (ii)Leader of the opposition (iii) Chairman of the NHRC (iv)Chairman NCM (v) Chairman CRC. 12

7.2 The findings of the inquiry commission must be (a) time boundand (b) binding on the government and legal proceedings to beundertaken by the commission, including settlement ofcompensation and rehabilitative measures.

8 . Enactment of a central law on Genocide and Crimes AgainstHumanity under Articles 355, 51 (c) and 253 of the Indian Constitutionand Article V of the Convention on the Prevention and Punishment of

the Crime of Genocide and Article 20 of the International Covenant on


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Civil and Political Rights, that India has acceded to providing for (i)accountability of the political executive, the administration and thepolice, (ii) independent investigating agency (iii) independent directorateof prosecutors (iv) special Courts and special procedure (v) rights of the

victims to restitution / reparation and complete rehabilitation and fortheir protection and participation in the trial as witnesses. 13

IVDelivery of Justice

9. The justice administration system to become more sensitive,responsible and accountable while dealing with cases related tocommunal conflicts/disputes and crimes.

9.1 The system to provide for special/specially designated Courts forspeedy disposal of cases in a manner that inspires confidence inall sections of the public, especially the weak and vulnerablegroups.

9.2 The composition of all the wings and components of the justiceadministration system to be socially diverse with adequateminority representation.

9.3 Training of the judicial officers, especially at the lower levels in the

expanding body of human rights law and norms applicable todomestic situations, which require commitment of the institutionsof governance including the judiciary to end xenophobia, neglect,discrimination and intolerance on the basis of race, ethnicity andreligion.

10. The Chief Justice of India to be requested to appoint a Commissionto review the functioning and record of the Judiciary at bothsubordinate and higher levels to ascertain to what extent it has beenresponsible for the pervasive climate of impunity obtaining in thecountry. 14The Commission should be open to the public to submit representations andmemoranda, documents and evidence.

VAction Now

1. It is reassuring to us to note the universal concern expressed duringmonsoon session of the Parliament in August 2005 over the 1984 anti-


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Sikh massacre and the continuing denial of justice to the victims, whichmade the Prime Minister tender apology on behalf of the nation to theoppressed minority Sikh community.

We welcome the assurance given by the Prime Minister to bring theguilty to justice and to take measures for full rehabilitation of all thesufferers of the pogrom and to take action against politicians andofficers indicted by Justice Nanavati Commission. We note withsatisfaction that Shri Jagdish Tytler was made to resign from UnionMinistership and Sajjan Kumar had to step down from theChairmanship of Rural Development Board of the Delhi Government.

Though we note with satisfaction that payment of compensation of

rupees three lakhs and fifty thousand was made to the next of kin of allthose who were killed in Delhi in 1984 in compliance with the

judgment of Justice Anil Dev Singh of the Delhi High Court on 5 July1996, 15 the cases of similar compensation for those killed in Kanpur,Bokaro and Jabalpur etc. in 1984 are still pending. We urge theGovernment of India to get compensation paid uniformly to allsufferers of the Sikh Community in 1984 in all parts of the country.Moreover there is a need for raising the amount of compensation to at

least five lakh rupees. We also note with satisfaction that in compliancewith the recent orders of the Delhi High Court, the Government ofDelhi Administration has agreed to increase ex-gratia compensation tothose injured in 1984 violence to Rs. 1.25 lakhs, besides taking otherrehabilitative measures like compensation for destroyed houses andcommercial property, stipends to children and employment to thevictims.

On this occasion we cannot refrain from expressing ouranguish and concern on the continuing denial of justice to the

victims of other riots and pogroms where largely Muslimshave been the sufferers, like those in Jabalpur (1961), Ranchi(1967), Ahmedabad (1969), Bhiwandi (1970), Jamshedpur(1979), Moradabad (1980), Nellie (1983), Meerut (1982 &1987),Bhagalpur (1989), Aligarh (1978 and 1990) and Mumbaiand other places (1992-93) and finally in Gujarat 2002.


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It is not only that the guilty have been very rarely punished, ex-gratiacompensation paid to those who suffered loss of life and property haveranged between a few thousand rupees to a lakh or so.

The nation need to feel ashamed of the shocking reality that the next ofkin of all those forty one Muslims brutally killed by the PAC inHashimpura, Meerut (1987) have been paid a mere Rs. 40,000/-each. The writ petition for adequate compensation filed by victims in1995 is still lying in the Court and the trial of the indicted PACpersonnel is yet to start.

In case of Gujarat the Apex Court has directed the petitioners to

approach the High Court for settling claims of compensation, althoughit has not set aside Justice Anil Dev Singhs judgment holding the Stateliable to pay adequate compensation to the victims.

The statutory recommendation of the National Commission forMinorities (1997)16 to uniformly apply the ratio of Justice Anil DevSinghs judgment and its direction to pay all victims of similar violencethe same amount of compensation has been disregarded by most states.

Moreover no action was ever taken against politicians and officersindicted by various Inquiry Commissions like Justice MadonCommission on Bhiwandi riots (1970) Justice J.Narain, S.K.Ghosh andS.Q.Rizvi Commission on Jamshedpur riots (1979), Justice RamChandra Prasad and Justice Shamsul Hasans Report on Bhagalpurriots (1989) and Justice Srikrishna Commission on Mumbai riots (1992-93) 17. This has been a frustrating experience for the Muslimcommunity. They are made to feel that they do not enjoy equality of

status as citizens and equal protection of the laws, as guaranteed underthe Constitution. It is bound to cause the greater alienation in generaland desperation in some sections, who may feel tempted to seekdesperate remedies.

In view of this we urge the Government of India and of theStates and Union Territories to appoint a Judicial Tribunalthrough an Ordinance to urgently address the two issues of:(i) Adequate and equal compensation to sufferers of all riots.

Secular justice requires paying compensation and taking


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measures for rehabilitation of surviving sufferers accordingto uniform standards irrespective of faith.(ii) Action against officials and political leaders indicted by all judicialinquiries.

1.1 In case appointing Judicial Tribunal by the CentralGovernment appears problematic, the responsibility ofsettling compensation and legal proceedings against indicted

persons may be entrusted upon the National Human RightsCommission (NHRC).

2. Without waiting for the Report of Justice Nanavati Commission on

Gujarat, 2002 the Modi Government of Gujarat needs to be dismissedon the following grounds.(a) The NHRCs final report (May 2002) holding the State Governmentof Gujarat responsible for failure of governance leading to massivedestruction of life, honour and property during February-March 2002.18(b) The observations of the Supreme Court during the course of thehearing of the Best Bakery case, especially in the judgment of 12 April

2004 severely indicting Narendra Modi Government for subversion ofprocess of justice. 19It needs to be kept in view that all the then opposition parties, nowconstituting the UPA and its supporters had stalled the proceedings ofthe Parliament for a number of days demanding such dismissal underArticle 356.After imposition of Presidents rule in Gujarat, the proposed model lawshould be enforced through a Presidential ordinance for compensating

the victims and punishing the guilty.

We believe in the process of reconciliation. But we considerpunishment of unrepentant guilty and full rehabilitation ofinnocent victims as a precondition of any reconciliation.

Date: 12/Sep/2005


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Notes:

1. See Appendices I and II; the Summary of theRecommendations of the Report on Communal Riots: Prevention

and Control. Iqbal A. Ansari, Minorities Council New Delhi; (1999)and a note on Community Relations Commission.2. See National Police Commission Report II, New Delhi, 1979.

3. Emphasis on secular attitudes and conduct of the police has obviouslyfigured in recommendations of all reports and guidelines from NationalIntegration Committee 1961 to Home Ministrys Guidelines toPromote Communal Harmony, New Delhi 1997, but it is advisable to

focus on norms of human rights of all persons and citizens andcommunities to equality and non-discrimination, freedom and dignity---It will require educational inputs for destereotyping groups andcommunities.

4. If attempt is made during normal peaceful times to involve localpeople of all strata and communities and dedicated social workerswhose stakes in peace are high, cooperative linkages can be effectivelyused for prevention of aggravation of tension.

5.(i) Justice D. Madon in his report on Communal Disturbances atBhiwandi etc. in 1970 observed that it was necessary that inrecruitment to the police adequate representation was given to theminorities.

(ii) In their report on Communal Disturbances at Jamshedpur (1979) Justice J. Narain and others made the observation that thecomposition, training, discipline and leadership in the BiharMilitary Police (BMP) left much to be desired. It advised the

Government to review the composition of BMP and to make it amore discipline force.

(iii) The National Police Commission headed by Dharam Vira inits sixth Report (1981) reiterated its observations made in theThird Report that the composition of the personnel in the policesystem as a whole should reflect the general mix of communities asexists in society so that the system should function impartiallywithout any slant in favour of any community.


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The report agreed that there is a strong case for encouraging therecruitment of members of the minority community and otherweaker sections at various levels in the police force.

(iv) The P.M.s Fifteen Point Programme on Minorities,

1983 also recommends giving special consideration to minorities inthe recruitment of police personnel by States and centralGovernments and suggests that for this purpose the composition ofSelection Committees should be representative.

(v) The National Commission To Review The Working ofthe Constitution (NCRWC) in its Report 2002, has made strongrecommendation for carrying out special recruitment of persons

belonging to the underrepresented minority communities in thepolice forces of the States, paramilitary forces and armed forces.The Commission expressed the view that this will instillconfidence among minority populations as well as help them todevelop responsible attitudes towards security issues confrontingthe nation.

(vi) The Home Ministrys Guidelines to Promote CommunalHarmony issued on 22 October, 1997 makes the following

recommendations.It has been commonly observed that the presence of minoritycommunity members in the police force deployed in communally

sensitive areas goes a long way in winning the confidence of the minoritycommunities. This is of vital importance. The following steps which were

recommended from time to time, should be taken earnestly:-

Launching of Special Campaigns to recruit more members ofminorities in the State Police Force.

Creation of composite battalions of armed police which should

include members of all religious communities including SCs/ STs. forexclusive use in maintaining communal peace and amity in the sensitiveareas.

Starting of special training/ orientations programmes for State Police

Force with a view to maintaining communal harmony.

6. The recommendation for fixing administrative responsibility of theD.M and the S.P figured in 1961 NIC report, which was made morespecific in the NICs recommendations of June 1968 which says thatthe District Magistrates and Superintendents of Police should be madepersonally responsible for prompt action to prevent or stop communal


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disturbances and that failure to take prompt and effective actionshould be considered a dereliction of duty and the officers concernedshould be dealt with accordingly. Service Rules should be amended, ifnecessary. The principle has been reiterated ever since in most official

pronouncements including the Prime Ministers Fifteen PointProgramme on Minorities, 1983.

7. The recommendation for suitably amending provisions like Section153A of the IPC figures in NIC report, 1961.8 to 11. See discussion of desirability of such legal provisions in theNCM Report Communal Riots: Prevention and Control, 1999, written byIqbal A. Ansari.

12. As the pattern of most major riots in the past reveals that it is failureof governance that results in mass communal crimes, the sameGovernment of the State should not have the power to appoint theinquiry commission deciding its composition and terms of reference andthe authority to reject its findings and recommendations.

13. See relevant Appendices on the Draft Bills on Genocide/Communal Crimes and the article Law on Mass Crimes and VictimsRights by Iqbal A. Ansari.

14. This will get illustrated by subjecting to critical scrutiny the role ofthe judiciary in Ayodhya related cases from 1949 attachment order tothe judgment of 1994, and cases related to the demolition of BabriMasjid. Moreover the pattern of dealing with a large number of casesunder 153A, including dismissal by the Bombay High Court and theSupreme Court of the PIL against Bal Thackeray and many cases ofcontempt of court and readiness of law courts to let cases against riotersbe withdrawn by the governments under the plea of communalharmony, would be revealing and instructive.

15. Civil Writ Petition No. 1429 of 1996.

16. The National Commission For Minorities adopted the followingstatutory resolution in November 1997: The Ratio of the Delhi HighCourt Judgment 1996 be treated as the general law for awarding propercompensation to all the victims of all communal riots, whenever inpoint of time, and wherever in the country, they may have occurred.

The Chairman, NCM addressed a letter dated 13 November, 1997 on

the subject to the Union Home Minister and Chief Ministers of theState.


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17. See Appendix.

18. In its final report on Gujarat 2002 carnage released on 31 May2002, the NHRC makes the following observations:

There was a comprehensive failure of the State to protect theConstitutional rights of the people of Gujarat, starting with the tragedy inGodhra on 27 February 2002 and continuing with the violence that

ensued in the weeks that followed. The Commission has also noted in this

connection that, on 6 May 2002, Rajya Sabha adopted with one voice themotion stating That this house expresses its deep sense of anguish at the

persistence of violence in Gujarat for over six weeks, leading to loss of lives

of a large number of persons, destruction of property worth crores ofrupees and urges the Central Government to intervene effectively under

article 355 of the Constitution to protect the lives and property of thecitizens and to provide effective relief and rehabilitation to the victims of

violence.

The following are the concluding observations of the Report:

The tragic events in Gujarat, starting with the Godhra incident andcontinuing with the violence that rocked the State for over two months,

have greatly saddened the nation. There is no doubt, in the opinion of this

Commission, that there was a comprehensive failure on the part of the

State Government to control the persistent violation of the rights to life,liberty, equality and dignity of the people of the State. It is, of course,

essential to heal the wounds and to look to a future of peace and

harmony. But the pursuit of these high objectives must be based on justice

and the upholding of the values of the Constitution of the Republic andthe laws of the land. That is why it remains of fundamental importance

that the measures that require to be taken to bring the violators of human

rights to book are indeed taken.

19. The following are some of the observations of the Supreme Courtsbench comprising Justice Arijit Pasayat and Justice Doraiswami Rajumade in the judgment delivered on 12 April 2004 on Criminal AppealNOS 446-449/2004 arising out of the SLP (Cel.) No. 538-541/2004regarding transfer and retrial of Best-Bakery case of Vadodra, Gujarat2002.

If one even cursorily glances through the records of the case, one gets a

feeling that the justice delivery system was being taken for a ride and

literally allowed to be abused, misused and mutilated by subterfuge. Theinvestigation appears to be perfunctory and anything but impartial


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without any definite object of finding out the truth and bringing to bookthose who were responsible for the crime. The public prosecutor

appears to have acted more as a defence counsel than one whose duty

was to present the truth before the Court. The Court in turn appeared

to be a silent spectator, mute to the manipulations and preferred to beindifferent to sacrilege being committed to justice. The role of the State

Government also leaves much to be desired. One gets a feeling that

there was really no seriousness in the States approach in assailing the

Trial Courts judgment. This is clearly indicated by the fact that the firstmemorandum of appeal filed was an apology for the grounds. A second

amendment was done, that too after this Court expressed its

unhappiness over the perfunctory manner in which the appeal waspresented and challenge made. That also was not the end of the matter.

There was a subsequent petition for amendment. All this sadly reflectson the quality of determination exhibited by the State and the nature ofseriousness shown to pursue the appeal. Criminal trials should not be

reduced to be the mock trials or shadow boxing of fixed trials. Judicial

Criminal Administration System must be kept clean and beyond the

reach of whimsical political wills or agendas and properly insulated from

discriminatory standards or yardsticks of the type prohibited by themandate of the Constitution.

Those who are responsible for protecting life and properties and

ensuring that investigation is fair and proper seem to have shown noreal anxiety. Large number of people had lost their lives. Whether the

accused persons were really assailants or not could have been

established by a fair and impartial investigation. The Modern dayNeros were looking elsewhere when Best Bakery and innocent

children and women were burning, and were probably deliberating how

the perpetrators of the crime can be saved or protected. Law and justice

become files in the hands of these wanton boys. When fences start toswallow the crops, no scope will be left for survival of law and order or

truth and justice. Public order as well as public interest becomes martyrsand monuments.


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About Prof. Iqbal Ansari

(25 February 1935 13 October 2009)

Prof. Ansari was one of the most visible civil liberties activists in India,taking up a variety issues, ranging from communalism, religiousfreedom and communal harmony to minority rights. Having turned into a whole time human rights activist from a Professor of English, healong with another well-known civil libertarian like V M Tarkunde,

Justice Rajendra Sachchar championed the protection of civil rights inIndia. He passed away on 13th October 2009 following a heart-attack inAligarh.

Born in 1935, Prof. Iqbal Ansari served as a teacher of English at theAligarh Muslim University, Aligarh (AMU) for 33 years and retired as a

professor of English in 1995. He was

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Iqbal Ansari Lecture Format Final