India needs
a law to check the menace of communal and caste violence. The arguments against
it are spurious
Among free
India’s gravest failures—along with its inability to end hunger, pervasive
poverty and discrimination—is the continued targeting of people with violence
and arson only because of their faith or caste. This periodic blood-letting,
mass sexual assault and arson leaves a trail of great suffering of innocents,
and repeated assaults against the idea of a pluralist and humane India.
Decades of
engagement and study of communal violence in India has convinced me that no
riot can continue beyond a few hours unless state authorities choose to allow
the violence to persist. Despite this, in Nellie in 1983, Delhi in 1984,
Bhagalpur in 1989, Mumbai in 1992-93, Gujarat in 2002, Kandhamal in 2008 and
Muzaffarnagar in 2013, state administrations mostly consented to allow
large-scale targeted massacres to unfold. For people in uniform and magistrates
to take sides in hate battles is a profound crime against humanity. Yet this
still is recognized at best as a moral failure, not a punishable crime.
For this
reason, the centrepiece of the proposed Communal and Targeted Violence Bill
which Parliament may consider this winter session is the creation of a new
crime, of “dereliction of duty by public officials” punishable with up to five
years’ imprisonment. Combined with “command responsibility”, this makes the
senior political or administrative authority who directs officials not to act,
or to act with bias, criminally culpable.
Chief
ministers J. Jayalalithaa and Narendra Modi have argued that this measure will
demoralize officers. This is equivalent to the argument that anti-corruption
laws will cause official paralysis. On the contrary, such laws strengthen and
support officers of moral integrity and fairness, because they shield them from
illicit political pressures and defend them from punitive action. At the Centre
for Equity Studies, our studies of many riots demonstrate empirically that
those rare officers who display exemplary courage by upholding the law with
fairness and firmness are routinely punished, whereas biased officers named
explicitly in the reports of commissions of enquiry in almost every case have
been rewarded. This law will damage the morale only of officers who choose to
ignore their duty under the law and the Constitution.
We also
found in virtually every episode of targeted mass violence the impunity of
those who perpetrate hate atrocities because of the institutional bias of the
criminal justice system. In the way criminal justice procedures are framed, the
victim has virtually no role. It is the state which investigates,
charge-sheets, prosecutes and appeals. This is because it is assumed that the
state will always be on the side of the victim and opposed to the accused. But
in incidents of targeted violence, state institutions—the police, prosecution
and magistracy—may actually be hostile to the victim on communal or caste
grounds, and support the accused. Therefore, the second major pillar of the
Bill is protecting victims’ rights during the justice process, allowing her to
get copies of police statements, adduce her own evidence independent of the
public prosecutor, and appeal in the event of acquittals.
The third
essential pillar of the Bill prescribes national minimum standards for relief
and rehabilitation. In both Gujarat and Muzaffarnagar, state governments
refused to institute relief camps, gave tightfisted support to the camps which
the victimized community was forced to establish, and then prematurely wound up
the camps before the survivors had the confidence to return home. In most
riots, reparation is grossly inadequate to enable the survivors to rebuild
their broken lives, shelters and livelihoods. What is more, compensation rates
differ widely, and are seen as instruments of selective political largesse
rather than the rights of survivors from a caring and just state.
Another
charge against the Bill is that it violates the federal structure because law
and order is the exclusive domain of the states. However, the constitutional
framework does envisage the duty of the Union government to protect the
national integrity which is threatened in times of targeted hate violence.
Still, responding to the sensitivities of any state, the current revised draft
Bill deletes the creation of any overarching central National Authority charged
with ensuring fairness and justice by state governments in communal situations.
Instead, these duties have been conferred on existing institutions: the
National Human Rights Commission and State Human Rights Commissions. The powers
of these commissions under the Bill are no more than what they enjoy today—to
observe, enquire and recommend, but not to encroach on the authority of state
governments.
There is
reason for people to argue that the timing of the Bill—nine years too late and
at the eve of a formidably uphill general election—does render the motives
behind its belated introduction suspect. But I have spent time with survivors
of many episodes of mass communal violence, from Nellie and Tilak Vihar, Delhi
dating back three decades to the recent survivors of the carnages in Lower
Assam and Muzaffarnagar. The enormity of their suffering—as they struggle even
today with unspeakable loss, with permanently broken lives, haunted by memories
of hate and betrayal—makes it imperative for all parties which claim to be
secular to set aside political competitiveness. Let them come together to build
consensus for the passage of a law which could help finally push into history
targeted hate violence.
Harsh Mander
is a former member of the National Advisory Council.
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