Memo to PM on Dalit Christians

National Union of Dalit Christians India

H.O: 55 T.B. Road, Madurai 10, Tamil Nadu Email: ismmdu@yahoo.co.

MEMORANDUM

New Delhi, 17 December 2009

To

The Prime Minister of India

And to

The Union Welfare Minister

The Union Law Minister

The Union Minister for Parliamentary Affairs

Sir,

Christians and Muslims of Dalit Origin have agitated now for 59 years urging the Government not to discriminate against them on grounds of their religion, but to once again extend to them the political, economic and development privileges accorded all Dalits by the Constitution of India when it was signed into law on 26^th January 1950. These rights were taken away brutally by the Presidential Order of 1950 which strengthened the right wing fundamentalist religious lobby and which continues to constitute a slur on the Secular foundations of the Indian Nation.

The Government some years ago referred this issue to the Justice Misra National Commission. The Commission has since submitted its report to the Government of India and to our understanding, has recommended, inter alia, that Christians and Muslims of Dalit origin be given all benefits now accorded to Scheduled Castes professing the Hindu, Sikh and Buddhist faiths.

Hon’ble the Prime Minister of India and the Government are on record that the Justice Misra Commission report will be placed before Parliament in the current session.

We, the Dalit Christians together with our brothers and sisters in the Muslim faith, do hereby demand the following:

1. The Government place the Justice Mishra report before Parliament, as promised.
2. The Government inform the Supreme Court of its decision on the report, and
3. The Government through Legislative action or by a Presidential Ordinance entirely scrap the Constitution (Scheduled Castes) Order, 1950.

Thank you

1. Adv Edward Arokio Doss

2. Adv A Arokioswamy

3. Adv Dinesh Ammalan

4. Adv Pattiyani

5. Mr. P Rajan

6. Dr John Dayal, Member, National Integration Council, Govt of India

Justice Misra report recommendations on Dalit Christians

---------- Forwarded message ----------
From: John Dayal
Date: 2009/12/11
Subject: misra report on sc muslims and christians
To: catholicunion@gmail.com, John

Misra Commission report excerpts- home page

CHAPTER 10

RECOMMENDATIONS AND MODALITIES FOR THEIR IMPLEMENTATION

Terms of Reference No. 1

Criteria for Identifying Socially and Economically Backward Classes among the Religious and Linguistic Minorities.

In our considered opinion the ultimate goal should be the evolution for a uniform pattern of criteria for identifying the backward, which should be based only on the educational and economic status of people and not on their caste ore religion, and its application equally to all sections of the citizens irrespective of their caste or religion.

Religious Minorities

… whatever recommendations of a general nature (for all minorities) we are making here are not only for the communities notified as “minorities” by executive action under the National Commission for Minorities Act 1992 but all religious minorities- large or small-including the Hindus in the Union Territory of Lakshadweep and the States of Jammu & Kashmir, Meghalaya, Mizoram, Nagaland and Punjab.

We recommend that in the matter of criteria for identifying backward classes there should be absolutely no discrimination whatsoever between the majority community and the minorities; and, therefore, the criteria now applied for this purpose to the majority community- whatever that criteria may be – must be unreservedly applied also to all the minorities.

… we recommend that all those classes, sections and groups among the minorities should be treated as backward whose counterparts in the majority community are regarded as backward under the present scheme of things.

… all those classes, sections and groups among the various minorities as are generally regarded as ‘inferior’ within the social strata and societal system of those communities= whether called ’zat’ or known by any other synonymous expression- should be treated as backward.

… all those social and vocational groups among the minorities who but for their religious identity would have been covered by the present net of Scheduled Castes should be unquestionably treated as socially backward, irrespective of whether the religion of those other communities recognizes the caste system or not.

… those groups among the minorities whose counterparts in the majority community are at present covered by the net of Scheduled Tribes should also be included in that net; and also, more specifically, members of that minority communities living in any Tribal Area from pre-independence days should be so included irrespective of their ethnic characteristics.

Linguistic Minorities

… the concept of ‘backwardness’ is to be confined in its application to religious minorities as it has no relevance for the linguistic minorities.

Terms of Reference No. II

Measures of Welfare for Minorities including Reservation

As democracy is a game of numbers, the numerically weaker sections of the citizenry in any society may and often do get marginalized by the majority. This is eminently true of the religious minorities in India where the society remains intensively religious and religion-conscious and the religious minorities live with a predominant religious community accounting for over 80 percent of the national population. In such a situation legal protection from the hegemony and preponderance of the majority community becomes a pressing need of the religious minorities as a whole, and not just that of the ‘backward’ sections among them. To provide such necessary protection by law we do have in the Constitution a Directive Principle of State Policy, Article 46, which speaks of “weaker sections of the people” - notably without subjecting them to the condition of backwardness- and mandates the State to “promote with special care” the educational and economic interests of such sections. It is keeping this in mind that we are making certain recommendations for the religious communities as such- though we are, of course, also recommending some special measures for the socially and educationally backward sections among the minorities.

… backwardness- both social and economic- actually emanates from educational backwardness. We are, therefore, making certain measures for the educational advancement of the religious minorities- especially the Muslims and the Neo-Buddhists…

As the meaning and scope of Article 30 of the Constitution has become quite uncertain, complicated and diluted due to their varied and sometimes conflicting judicial interpretations, we recommend that a comprehensive law should be enacted without delay to details all aspects of minorities’ educational rights under that provision with a view to reinforcing its original dictates in letter and spirit.

The statute of the National Minority Educational Institutions Commission should be amended to make it wide-based in its composition, powers, functions and responsibilities and to enable it to work as the watchdog for a meticulous enforcement of all aspects of minorities’ educational rights under the Constitution.

As by the force of judicial decisions the minority intake in minority educational institutions has, in the interest of national integration, been restricted to about 50 percent, thus virtually earmarking the remaining 50 percent or so far the majority community- we strongly recommend that, by the same analogy and for the same purpose, at least 15 percent seats in all non-minority educational institutions should be earmarked by law for the minorities as follows:

(a) The break up within the recommended 15 percent earmarked seats in institutions shall be 10 percent for the Muslims (commensurate with their 73 percent share of the former in the total minority population at the national level) and the remaining 5 percent for the other minorities.
(b) Minor adjustments inter se can be made in the 15 percent earmarked seats. In the case of non-availability of Muslim candidates to fill 10 percent earmarked seats, the remaining vacancies may be given to the other minorities if their members are available over and above their share of 5 percent; but in no case shall any seat within the recommended 15 percent go to the majority community.
(c) As is the case with the Scheduled Castes and Scheduled Tribes at present, those minority community candidate who can compete with others and secure admission on their own merit shall not be included in these 15 percent earmarked seats.

As regards the backward sections among all the minorities, we recommend that the concessions now available in terms of lower eligibility criteria for admission and lower rate of free, now available to the Scheduled Castes and Scheduled Tribes, should be extended also to such sections among the minorities. Since women among some minorities- especially the Muslims and Buddhists- are generally educationally backward, we recommend that the same measure for them as well and suggest that other possible measures be also initiated for their educational advancement.

Misra Commission report excerpts- home page

Last part: Measures for Muslims

In respect of the Muslims – who are the largest minority at the national level with a country-wide presence and yet educationally the most backward of the religious communities- we recommend certain exclusive measures as follows:
(i) Select institutions in the country like the Aligarh Muslim University and the Jamia Millia Islamia should be legally given a special responsibility to promote education at all levels to Muslim students by taking all possible steps for this purpose. At least one such institution should be selected for this purpose in each of those States and Union Territories which has a substantial Muslim population.
(ii) All schools and colleges run by the Muslims should be provided enhanced aid and other logistic facilities adequate enough to raise their standards by all possible means and maintain the same.
(iii) The Madarsa Modernisation Scheme of the government should be suitably revised, strengthened and provided with more funds so that it can provide finances and necessary paraphernalia either (a) for the provision of modern education up to Standard X within those madarsas themselves which are at present imparting only religious education or, alternatively, (b) to enable the students of such madarsas to receive such education simultaneously in the general schools in their neighbourhood. The Madarsa Modernisation Scheme may, for all these purposes, be operated through a central agency like the Central Wakf Council or the proposed Central Madarsa Education Board.
(iv) The rules and process of the Central Wakf Council should be revised in such a way that its main responsibility should be educational development of the Muslims. For this purpose the Council may be legally authorized to collect a special 5 percent educational levy from all wakfs, and to sanction utilization of wakf lands for establishing educational institutions, polytechnics, libraries and hostels.
(v) In the funds to be distributed by the Maulana Azad Educational Foundation a suitable portion should be earmarked for the Muslims proportionate to their share in the total minority population. Out of this portion funds should be provided not only to the existing Muslim Institutions but also for setting up new institutions from nursery to the highest level and for technical and vocational education anywhere in India but especially in the Muslim-concentration areas.
(vi) Anganwaris, Navodaya Vidyalayas and other similar institutions should be opened under their respective schemes especially in each of the Musilm-concentration areas and Muslim families be given suitable incentives to send their children to such institutions.

As regards the linguistic minorities, we recommend the following measure:
(a) The law relating to the Linguistic Minorities Commissioner should be amended so as to make this office responsible for ensuring full implementation of all the relevant Constitutional provisions for the benefit of each such minority in all the State and Union Territories.
(b) The three-language formula should be implemented everywhere in the country making it compulsory for the authorities to include in it the mother-tongue of every child- including, especially, Urdu and Punjabi- and all necessary facilities, financial and logistic, should be provided by the State for education in accordance with this dispensation.
(c) Members of those linguistic minority group whose education is limited to their mother tongue and who do not have adequate knowledge of the majority language of the region should be provided special facilities in the form of scholarships, fee concession and lower eligibility criteria for admission to enable them to acquire proficiency in the regionally dominant language.
(d) Urdu-medium schools should be provided special aid and assistance-financial and otherwise- to enhance and improve their efficiency, standards and results.

As many minority groups specialize in certain household and small scale industries, we recommend that an effective mechanism should be adopted to work for the development and modernization of all such industries and for a proper training of artisans and workmen among the minorities- especially among the Muslims among whom such industries, artisans and workmen are in urgent need of development assistance.

As the largest minority of the country, the Muslims, as also some other minorities have a scant or weak presence in the agrarian sector, we recommend that special schemes should be formulated for the promotion and development of agriculture, agronomy and agricultural trade among them.

We further recommend that effective ways should be adopted to popularize and promote all the self-employment and income-generating schemes among the minorities and to encourage them to benefit from such schemes.

We recommend that the rules, regulations and process of the National Minorities Development and Finance Corporation be overhauled on a priority basis- in the light of the recent report submitted by the NDMFC Review Committee and in consultation with the National Commission for Minorities- with a view to making it more efficient, effective and far-reaching among the minorities.

We further recommend that a 15 percent share be earmarked for the minorities- with a break-up of 10 percent for the Muslims (commensurate with their 73 percent share of the former in the total minority population at the national level)- and 5 percent for the other minorities in all government schemes like Rural Employment Generation Programme, Prime Minister’s Rozgar Yojna, Grameen Rozgar Yojna, etc.

Since the minorities- especially the Muslims- are very much under-represented, in government employment, we recommend that they should be regarded as backward in this respect within the meaning of that term as used in Article 16(4) of the Constitution- notably without qualifying the word ‘backward’ with the words “socially and educationally”- and that 15 percent of posts in all cadres and grades under the Central and State Governments should be earmarked for them as follows:

(a) The break up within the recommended 15 percent shall be 10 percent for the Muslims (commensurate with their 73 percent share of the former in the total minority population at the national level) and the remaining 5 percent for the other minorities.
(b) Minor adjustment inter se can be made within the 15 percent earmarked seats. In the case of non-availability of Muslims to fill 10 percent earmarked seats, the remaining vacancies may be given to other minorities if their members are available over and above their share of 5 percent; but in no case shall any seat within the recommended 15 percent go to the majority community.

We are convinced that the action recommended by us above will have full sanction of Article 16(4) of the Constitution. Yet, should there be some insurmountable difficulty in implementing this recommendation, as an alternative we recommend that since according to the Mandal Commission Report the minorities constitute 8.4 percent of the total OBC population, in the 27 percent OBC quota an 8.4 percent sub-quota should be earmarked for the minorities with an internal break-up of 6 percent for the Muslims (commensurate with their 73 percent share in the total minority population at the national level) and 2.4 percent for the other minorities- with minor adjustment inter se in accordance with population of various minorities in various States and UTs.

We further recommend that the reservation now extended to the Scheduled Tribes, which is a religion-neutral class, should be carefully examined to assess the extent of minority presence in it and remedial measures should be initiated to correct the imbalance, if any. The situation in Meghalaya, Mizoram, Nagaland and Lakshadweep which are minority-dominated and predominantly tribal, as also such tribal areas/districts in Assam and all other States, is to be especially taken into account in this respect.

We recommend that the judicial reservation recently expressed in several cases about the continued inclusion of the creamy layer in various classes enjoying reservation, inclusive of the Scheduled Castes and Scheduled Tribes should be seriously considered for acceptance as a State policy.

Additional Term of Reference

Para 3 of the Constitution (Scheduled Castes) Order 1950

On a careful examination of prevalence of the caste system among various sections of the Indian citizenry we have concluded that caste is in fact a social phenomenon shared by almost all Indian communities irrespective of their religious persuasions. Many of the particular castes are found simultaneously in various religious communities, equally facing problems of social degradation and mistreatment both by their co-religionists and the others.

We are also conscious of the fact that the Constitution of India prohibits any discrimination between the citizens on the basis of caste, and yet it sanctions special affirmative measures for Scheduled Castes. At the same time it prohibits any discrimination on the ground of religion. Reading all these constitutional provisions together, we are convinced that any religion-based discrimination in selecting particular castes for affirmative action will conflict with the letter and spirit of the constitutional provisions. We are accordingly making the following recommendations on this additional Term of Reference added by the government to our original Term of Reference several months after we began our work.

We recommend that the caste system should be recognized as a general social characteristics of the Indian society as a whole, without questioning whether the philosophy and teaching of any particular religion recognize it or not- since the Indian brands of certain faith traditions like Christianity and Islam have never assimilated many puritan principles of those religion, posing the question in respect of the caste system only and singling out for a differential treatment is unreasonable and unrealistic.

We would like this fact to be duly recognized that among the Muslims of India the concepts of zat (caste) and arzal (lower caste) are very much in practice; and even the Muslim law of marriage recognizes the doctrine of kufw- parity in marriage between the parties in all vital respects including social status and descent- which in this country means nothing but caste.

In view of what has been said above, we recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950- which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link the Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.

We further recommend that all those groups and classes among the Muslims and Christians, etc. whose counterparts among the Hindus, Sikhs or Buddhists, are included in the Central or State Scheduled Castes lists should also be covered by the Scheduled Caste net. If any such group or class among the Muslims and Christians, etc. is now included in an OBC list, it should be deleted from there while transferring it to the Scheduled Castes- placing the same persons in the Scheduled Caste list if they are Hindu, Sikh or Buddhist but in the OBC list if they follow any other religion- which is the case in many States- in our opinion clearly amounts to religion-based discrimination.

We further recommend that as the Constitution of India guarantees freedom of conscience and religious freedom as a Fundamental Right, once a person has been included in a Scheduled Caste list a willful change of religion on his part should not affect adversely his or her Scheduled Caste status- as that would in our opinion conflict with the basic constitutional provision relating to equality, justice and non-discrimination on religious grounds; as also with the spirit of the old and time-tested Caste Disabilities Removal Act of 1850.

Term of Reference No. III

Modalities for Implementing Our Recommendations

We have been asked also “to suggest the necessary constitutional, legal and administrative modalities” required for the implementation of our recommendations. In this regard we have to say as follows.

We are not suggesting any amendment in the Constitution- as we are fully convinced that none of our recommendations require for its implementation any amendment of the Constitution and that each of these can be fully implemented by legislative or/and administrative action.

We recommend that all Central and State Acts, Statutory Rules and Regulations be suitably amended to implement those of our recommendations which in the opinion of the Ministry of Law and Justice or any another concerned authority may require such amendments.

More specifically, we recommend the following legislative actions which in our opinion are required either for the implementation of some of our recommendations stated above or otherwise in the interest of the welfare of minorites:
(a) Enactment of a detailed law to enforce the dictates of Article 30 of the Constitution;
(b) Amendment of the National Commission for Backward Classes Act 1993;
(c) Amendment of the Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes ) Order 1951 as also of the Central and State lists of the Scheduled Castes and Scheduled Tribes;
(d) Review of the laws and rules, processes and procedures, relating to selection and notifications of OBCs at the Central and State levels;
(e) Enactment of a law to clothe with statutory status and judicial enforceability the Prime Minster’s 15-Point Programme for Minorities 1983 as modified in 2006;
(f) Amendment of the National Commission for Minorities Act 1992 and the National Commission for Educational Institutions Act 2004 so as to make it necessary for the government to appoint as the chairpersons and members of these bodies- through a Search Committee as in the case of the National Human Rights Commission- only reputed experts in the constitutional, legal, educational and economic matters relating to the minorities;
(g) Necessary amendments in the Wakf Act 1993 and all the Rules framed under its provisions;
(h) Review and necessary overhaul of the laws, rules, regulations, procedures and processes relating to the National Minorities Development and Finance Corporation and the Maulana Azad Education Foundation.

We recommend the following administrative measures which in our opinion are required either for the implementation of some of our recommendations or otherwise in the interest of the welfare of minorites;
(a) Establishment of a Parliamentary Committee to consider and decide in the light of the Constitution policy matters relating to the minorities;
(b) Establishment of a National Committee consisting of Chairpersons of NHRC, NCW, NCBC, NCST, NCSC, NCM, NCMEI, NMDFC, CLM, Central Wakf Council and Maulana Azad Foundation along with nominated experts for mentoring the educational and economic development of the minorities;
(c) Creation of similar bodies in all the States/UTs for the same purpose and consisting of local top-level officials dealing with minority-related matters and independent experts;
(d) Establishment of a National-level Coordination Committee consisting of representatives of all the nationalized banks and other financial institutions to work under the RBI for monitoring credit flow to the minorities;
(e) Establishment of State Minorities Commission and Minority Welfare Departments in all those States and UTs where these do not exist as of now;
(f) Decentralisation of all minority-related schemes, programs and plans so as to create suitable district-level mechanisms for their day-to-day implementation;
(g) Revision of the list of Minority Concentration Districts as suggested by the NCM in 1990s and initiating special educational, economic and general welfare measures there through the local administration;
(h) Appointment of Minority Welfare Committee consisting of officials and local experts in all districts of the country to act the nodal agencies of NCM, State Minorities Commissions and all other Central and State-level bodies working for the minorities.

CHAPTER 9

DEMANDS FOR AMENDING CONSITUTION (SCHEDULED CASTES) ORDER 1950

Constitutional Provisions

The Constitution of India does not restrict the Scheduled Castes class to any select religions. The term “Scheduled Castes” has been defined in Article 366(24) read with Article 341(1) as:

“Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purpose of this Constitution.

(a) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation that State or Union territory, as the case may be.
(b) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Under these provisions a Constitution (Scheduled Castes) Order was issued in 1950. Para 3 in the Order said that any non-Hindu could not be regarded as a Scheduled Caste. Since this Order was amended in 1956 to include Sikhs, and in 1990 the Buddhists, among the Scheduled Castes, since the latter amendment this para says that nobody who is not a Hindu, Sikh or Buddhists can be a Scheduled Caste. The text of the Order is reproduced below.

The Constitution (Scheduled Castes) Order, 1950

In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make the following Order namely:

1. This order may be called the Constitution (Scheduled Castes) Order, 1950.
2. Subject to the provisions of this Order, the castes, races or tribes or parts, or groups within, castes or tribes specified in (Parts to (XXII) of the Scheduled to this Order shall, in relation to the States to which those Parts respectively related, be deemed to be Scheduled Castes so far as regards member thereof resident in localities specified in relation to them in those Parts of what Schedule.
3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhists religion shall be deemed to be a member of a Scheduled Caste.
4. Any reference in this Order to a State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial division as constituted on the 1st day of May, 1976.

Moves to Change by Legislation

Efforts have been made in the past to get the Constitution (Scheduled Caste) Order 1950 amended by legislation so as to make it religion-neutral. A number of Private Members’ Bills have been moved in Parliament, but to no avail. An official Bill called the Constitution (Scheduled Caste) Orders (Amendment) Bill was at last drafted in 1996. The opinions expressed by the State/UT governments on the Bill, obtained by the central government, were divided. The government also took note of the recommendations of the 1983 Gopal Singh Panel and the Central Minorities Commission which were strongly in favour of deleting para 3 of the SC Order of 1950, and of the Scheduled Castes and Scheduled Tribes Commission which was against the same. In view of all this divergence of opinion the Bill was not introduced in the Parliament.

Recent Court Cases

In three different pending petitions before the Supreme Court of India the petitions have challenged paragraph 3 of Constitution (Scheduled Caste) Order 1950 saying that a person not professing the Hindu, Sikh or Buddhist faith cannot be included in the lists Scheduled Castes. They have relied upon the following grounds:

(a) Secularism is a basic feature of the Constitution of India. The denial of equal privileges to persons of Scheduled Caste origin converted to Christianity is in violation of both the basic features enshrined in Article 25 and the preamble of the Constitution.
(b) The Constitution has provided for equality of opportunity to all those who are similarly situated.
(c) Even after conversion, the caste label continues and it is difficult for a person in Indian society to get out of the vice of caste system.
(d) Caste is more a social combination than a religious group and that even though the tenets of Christianity do not recognize caste, it is in fact a reality.
(e) The only available judgment on this issue….Soosai vs. UOI 1985 (Supp) S.C.C. 590. In the Judgment, the Supreme Court had accepted that the caste continued even after conversion. It had, however, sought for more material to show tha the handicap of persons of Scheduled Castes had remained the same even after conversion to Christianity. In the said case, the Court was not satisfied with the material placed before it.
(f) The position of persons of Scheduled Caste origin converted to Christianity remains the same as before. They continue to be forced into the most demeaning occupations…. They continue to be both poor and socially and educationally backward.
(g) The atrocities committed on the Dalits are uniform irrespective of the religions they belong to.

Seven Writ Petitions making the same demand are pending in different High Courts, based mainly on the following pleas:

(a) The Presidential Order of 1950 was issued by the President of India under Article 341 of the Constitution. The power conferred on the President by Public notification is a delegated power which cannot run contrary to Article 13(2) of the Indian Constitution which states as follows: “The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. … So the Presidential Order of 1950 is unconstitutional and it is a black letter written outside the Constitution introduced through the back door by an executive order.
(b) Even under Article 341 the President is not given a power to proclaim to prohibit any citizen from professing any religion of his choice. But the President under Article 341 prescribes indirectly people particularly (Scheduled Caste) not to profess any religion different from Hindu or Sikh religion. In other words to get a benefit under Scheduled Caste Order 1950 a citizen should profess only Hindu or Sikh religion. … Under Article 341 the power given to the President is to specify the Caste and not to specify religion or to identify the Caste by the symbol of religion and hence it is a coloured legislation under guise of Presidential Order.
(c) Para 3 of Scheduled Caste Order of 1950 suffers as it discriminates the citizens of the ground of religion only.
(d) The Apex Court in the said judgment [Indira Sawhney Vs. Union of India Suppl. (3) Supreme Court Case 217] delivered by B. P. Jeevan Reddy (on behalf of Kania C.J., Veykantchalia, Ahmadi, and for himself) in majority view came to the conclusion that the concept of Castes is not confined to Hindu religion only but it extends irrespective of the religious sanction.
(e) That the action of the Government is arbitrary and discriminatory on the ground that on one hand the Muslims have been excluded for the purposes of treating their Caste as Scheduled Caste, but on the other hand the Muslims are included in the list of backwards meaning thereby that the person belonging to a Caste which has been included in the list of Scheduled Caste shall stand excluded from being treated as Scheduled Caste on the simple ground that he is a Muslim.

Conclusion

By all available evidence we do find the caste system to be all-pervading social phenomenon of India shared by almost all Indian communities irrespective of religious persuasions.

It is claimed and agreed to by almost all sections of the society in India, in various context and especially in respect of the issue of reservations, that no special benefits can be given to any community or group on the basis of religion. At the same time, however it is generally insisted upon that the class of Scheduled Castes must remain religion-based. This seems to be illogical and unreasonable.

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Kandhamal victims unite, knock at Government’s doors for justice; action for grassroots reconciliation, security and confidence

A meeting of Priests, Pastors, community leaders and activists held at Berhampur on 7th December 2009 has endorsed the formation of the Sampradayik Hinsa Prapidita Sangathana [Association of Victims of commuinal violence in Kandhamal] formed earlier in Phulbani after a series of meetings in which human rights and civil society activists from Bhubaneswar and Cuttack also took part.

All these meetings were the first of their kind since Hindutva violence against the Christian community in Kandhamal and other districts of Orissa left over 5347 houses looted and burnt, 295 churches destroyed, women and girls raped, and more than 75 people murdered in the name of religion and ethnicity. Large-scale displacement and migrations followed with over 50,000 people becoming refugees in their own motherland.

Two fast track courts set up in the aftermath of the violence have lost the confidence of the people with murderers, one of them a BJP legislator Manoj Pradhan, being released in several cases with eye witnesses too scared to dispose against the culprits. About 2500 complaints had been registered but only 823 FIR have been registered. All the cases were classified into murder (27 cases), attempt to murder cases, rape case, etc.

The major task of the new association, working closely with clergy and civil society activists irrespective of religion, is to restore public confidence and to ensure that the victims and witnesses felt safe enough to depose in court. This grassroots action will also help in the process of reconciliation and hopefully allow people to come back to their villages which are now barred to them by Hindutva activists who are forcing them to first convert to Hinduism before assimilating in the old habitations.

However, the association has expressed its deep distrust in the current justice delivery system, saying the Fast Track Courts are working perhaps too fast in trying to finish off the cases without looking closely at the evidence. Of cases involving 12 murders, there has been conviction just in one case, for instance.

The association has also decided to boycott the Justice Mohapatra commission probing the murder of VHP vice president Lakhmanananda Saraswati and the violence that followed his death at the hands of a Maoist group on 23rd August 2008. They said the commission has preconceived notions and has already formed its conclusions without even waiting for evidence.
The meeting at Berhampur, presided over by Archbishop Cheenath, was also attended by other Bishops and church leaders including Bishop Sarath Nayak of Berhampur and Believers Church bishop Bardhan, National Integration Council Member John Dayal, Human rights activist Dhirendra Panda and senior lawyers from the Christian Law Association, Human Rights Law Network, and the All India Christian Council and all church groups represented in the region.

Meanwhile the Archbishop of Bhubaneswar-Cuttack and Kandhamal, Most Reverend Raphael Cheenath, SVD, has also met the Collector and submitted him a memorandum highlighting the same issues of instilling a sense of security among the villagers and giving them adequate compensation, rehabilitation and employment.

It was made clear at the various meetings that security of the people remained the main concern. The sense of insecurity is also leading to a gross miscarriage of justice in the two Fast Track courts. As victims have complained to the Orissa High Court separately, witnesses are being coerced, threatened, cajoled and sought to be bribed by murderers and arsonists facing trial. Shoddy police investigations have already created a crisis in the dispensation of justice, and even genuine eye witnesses are reneging in court as they see the court premises full of top activists of fundamentalist organisations and often the same persons who had burnt their houses. The police remain mute watchers, as always.

The witnesses are threatened in their homes, and even their distant relatives are being coerced. This requires urgent and immediate action by the District administration and the Police to ensure that the process of justice is not thwarted and sabotaged.

There are major lacunae in the relief and rehabilitation of the victims of mass arson. Not a single Christian place of worship or Christian NGO has been compensated for their tremendous loss, but the poor victims are also being mocked by the inadequate compensation. The violation of principles of rehabilitation is at several levels. The first is in identifying the houses as fully or partially damaged. Secondly, houses by the dozens have not been enumerated by the government surveyors. Thirdly, the victims of the 2007 arson, especially in Barakhama have been criminally left out of the reckoning and for those 225 or so poor families, it has been second year without adequate shelter.

It costs about Rs. 85,000 to reconstruct a house and yet the government gives only Rs 50,000 in separate tranches. It is the duty of the state to give the full money. Just to save the people from the vagaries of the weather, the Church has sought to pitch in, but their resources are meagre and more than 2,500 families cannot be helped by the Church.

There is no information from government or the district administration about the livelihood of those affected by the violence. The administration without delay must conceive and execute a scheme so that every family effected by violence has at least one person, if not more, in gainful employment in government projects so that they can live a life of dignity, and to prevent large scale migration and pauperisation of victim families.

It was felt special projects for the women victims, and especially young girls, are also required urgently in Kandhamal. There are already rumours of human trafficking. I pray they remain rumours.

The administration has to act swiftly on the issue of allotting land for homes to those persons who have fallen into the gap of the Forest Act, and have no land to build their houses. They have to be identified, allotted land so that they can live in peace without facing the perpetual threat of being ousted.

The administration, civil and police, have also to act with their full strength to stop the hate campaign that has been unleashed in the last one year, and which has penetrated distant villages, creating schism and hatred between communities. The law of the land must be implemented severely to contain and deter those indulging in this activity.

Rebuilding Civil Society in Kandhamal for Justice and Reconciliation

4TH DECEMBER 2009

From John Dayal in Kandhamal:

Of the 12 murder cases tried inthe fast Track courts in Phulbani, Kandhamal district or Orissa, India, the accused have been let off in 11 murders, and convicted in just one. A member of the State Legislative assembly on the Bharatiya Janata party ticket, Mr Manoj Pradhan, has been let off in th four cases in which he has been tried so ar. He and his henchmen have been accused by witnesses of terrorising them, or seeking to bribe them.

A belated effort is now being made to revive civil society and the process of justice and reconciliation towards a lasting peace in Kandhamal, which remains the worst single case of persecution of Christians in South Asia. Most of the over 5,000 houses destroyed in the December 2007 and August 24-October 2008 mayhem remain un-built, and several thousand of the 50,000 Christian refugees are still to return home. Many cannot as they have been told they have to convert to Hinduism before they will be accepted in the villages. The threats and coercion continue till today.

The police and administration, as usual, look on. The one change is the Chief Minister, Mr Naveen Patnaik’s acceptance, in an answer in the State legislature, that it was the Rashtriya Swayamsewak Sangh and its sister organisations of the Bajrang Dal and Vishwa Hindu Parishad which were responsible in the anti Christian violence, the first time the government has accepted this reality. Two judicial commissions of enquiry, plodding on in Cuttack and Bhubaneswar, are yet to admit this fact.

The following is an update:

I. The Harsh Reality of Orissa and especially of Kandhamal is:

1. No one raised a voice when violence hit the Christians in December 2007 and August 2008, not even the governments

2. Civil Society in Bhubaneswar and Cuttack, if it existed, played dead, and nation was not moved.

3. Barring a few Left parties who could protest, the Political Apparatus remained silent and invisible, including so called friendly parties and groups

4. The Media was violently biased, specially the Oriya Media

5. Fact Finding groups either misunderstood the causes, or just blamed either Conversions or Dalit-Tribal conflicts as the cause of the violence, and even people’s enquiry commissions incouding An Oriya Judge and Teesta Setalvad have yet to give their reports on the 2007 violence.

6. Post violence, civil society and peace institutions have yet to be revived.

7. Church was shattered, deeply wounded and overwhelmed by the magnitude of the violence. Barring the PILs in the Supreme Court, no real pressure on Government to construct all houses fully, pay sustenance allowances etc, and government jobs.

II. Post Violence;

1. Church is focussed on helping complete houses instead of using the law to let government complete the houses. As a result, though the Catholic Church says it will help complete 1200 houses, Believers Church 900 Houses, Eficor about 300 houses, and CNI a similar number, another 2,500 houses remain without help. Also without help are the 250 or so victims of the 2007 violence, especially in Barakhama, who have been left to thereon devices.

2. Although there has been much work by religious groups in distributing Holy Bibles and clothes, and in counselling victims, there has not been commensurate work in enhancing the sense of security.

3. The result is that complainants and witnesses to violence feel very insecure and are susceptible to coercion, blackmail and perhaps allurement.

4. The result has been that despite the effort of well meaning young lawyers, especially of the CLA and HRLN, not much progress has been made in getting convictions especially in the murder cases involving BJP political leaders.

5. In many villages, refugees have not been able to return because the threat of forcible conversion to Hinduism remains.

6. The government peace committees remain on paper, or are loaded against Christians

7. Not much headway has been made in getting the Collector to secure land for non Tribals so they can construct their houses.

8. No headway has been made at village level towards reconciliation

III. Reviews:

1. Civil Society groups have met sporadically to assess the situation, including those coming from Delhi, but there has not been much sharing of info and concepts.

2. The first major initiative was taken by Fr Ajay and Mr Dhirendra Panda to call a meeting on 3rd November 2009 in Bhubaneswar to assess the satiation. Almost the entire political spectrum, excluding the BJP, BJD and Congress, were present, incouding women groups, tribal and Dalit groups and specialists. Several victims were also present. Dr Dayal, and Advocate Sr Mary Scaria, Ms Lansinglu Rongmei, Mrs Tehmina Ram Arora and Ms Vrinda Grover met several times in New Delhi to discuss the legal issues.

3. As part of the follow up of the decisions and recommendations of those meeting, some activists held meetings in It was also decided o get senior advocates and observers to be present for some time in the Fast Track courts so that grounds could be prepared for intervention in superior courts.

4. As a follow-up of those meetings and after consultations with senior Bishops of Orissa of various denominations, it was felt that the Church had a major role to play at the grassroots level to reconstruct social and civil society structures to give courage and strength to the victims. This can be done only at the homeland village level and not by outsiders from Bhubaneswar or elsewhere in the country.

5. It was therefore decided to call a meeting in Berhampur, the nearest big town, of all religious workers – Priests, pastors, catholic religious, NGO workers, catechists and others – on 7th December 2007 for a full day discussion cum workshop to discuss the issue and to encourage the religious groups to begin grassroots work apart from the religious work and relief they have been doing.

6. It was decided to bring experts to help brief the religious on these issues.

Dalit Christians demonstrate as Sangh launches counter offensive

From John Dayal, New Delhi

18 November 2009

As about a thousand Dalit Christians and Muslims, led by Bishops and several Members of Parliament, demonstrated at Jantar Mantar on Parliament Street today, the Bharatiya Janata party launched a counter offensive to stop converts from the former untouchable castes of Hinduism getting the Constitutional rights so far given to Hindus, and also to those who converted to Buddhist and Sikhs to escape the caste stigma.

The BJP ideology holds Buddhists, Jains and Sikhs to be part of Hinduism, a position rejected by believers of those faiths. The Scheduled Caste affirmative action includes reservations in government jobs and educational institutions, as also representation in Parliament, State legislatures and local self government institutions. There are other legal safeguards to prevent atrocities against Dalits.

The Christian and Muslim Dalit Protest, with people mostly from the Southern States and Punjab softly cautioned the Congress and its allies that the community would look for other political options if their rights were not restored to the January 1950 pristine position – affirmative action without reference to religion. The rally was inaugurated by Delhi Archbishop Vincent Concessao and Catholic Bishops Conference general secretary Abp Stanislaus of Gandhinagar.

Earlier this month, several thousand Muslims had gathered in Patna to make a similar demand, under the leadership of OBC leader Laloo Prasad Yadav and Dalit leader Ram Vilas Paswan, both former Union ministers. The meeting accused the Congress of not being honest in its commitments made over the years to Christians and Muslims of Dalit Origin.

The meeting in New Delhi today saw the Archbishop of Chennai, and even some Congress MPs say they would sharpen the struggle till the rights to Scheduled caste status were restored.

These rights were taken away by a Presidential Order in 1950 which affectively limited political and economic reservations to those Dalits who chose to remain in the Hindu fold. Later, under political pressure, the rights were restored to Dalits an Neo Buddhists, Muslims and Christian continue to be denied rights under upper caste fear of large scale conversions to these “non Indian” religions, and a fear among Hindu Dalits that newcomers to the Scheduled Caste list would eat into their share of the privileges, both arguments affectively denied by the agitators.

On the eve of the Delhi rally, the BJP accused the Congress conspiring to usurp the rights for quota enjoyed by scheduled castes in the Constitution by sticking to its stand on including converted Dalit Christians and Muslims in SC fold."The Congress-led UPA government is adamant to cover the converted minorities and Christians within the quota fixed for scheduled castes under the Constitution," BJP general secretary T C Gehlot told reporters in Patna.

The Press Trust of India quoted Gehlot, also a member of the SC Reservation Rights protection Manch, said the organisation would conduct 'Honour Constitution' functions in every district in the state between November 26, 2009 and January 26, 2010 against the Dalit Christian and Muslim demands.

Miscarriage of Justice in Kandhamal Courts

From John Dayal

12 November 2009

I have just come back from Orissa, very depressed at the way the criminal justice system is working in that benighted state.

I had gone to take part in a rare Civil Society meeting with victims, some law experts and some Human Rights activists on 3rd November 2009 in Bhubaneswar. In truth, barring some leaders of various Left parties and Women’s groups, there is not much of a civil society in Orissa as far as violence on Christians or Muslims is concerned. Fortunately, there are activists – and Dhirendra Panda is one such – who are determined to press for justice. Fortunately again, there are some more activists working in the defence of the rights of Tribals and workers whose very existence is threatened by the entry of global mining giants trying to profit from the underground riches of Orissa. About them, in another note.

Advocate Rasmi Ranjan Jena says “As we know in most of the cases already tried in the Fast Track Courts in Kandhamal the accused persons have been acquitted. This is nothing but a great failure of the criminal justice system which has miserably failed to give justice to the victims of the communal violence. At this juncture there is an urgent need of critical analysis of the factors responsible for the failure. Though nothing much should be expected from a judicial forum in a communal society, but we need to have a self introspection to develop a strategy for the upcoming days.”

The following is a more urgent situation report on meeting convened under the banners of the Common Concern and Orissa Manavik Adhikar Suraksha Abhijan on justice delivery crisis. The report’s authors include Dhirendra Panda and Fr Ajay Singh. While this report is critical of the legal support systems for the victims, I must acknowledge the work done by the Human Rights Law Network and the Christian Law association who have had to work with young local lawyers and limited resources in the face of official machinery that is determined not to pursue justice with honesty.

I quote from the report:

“In the context of regular acquittals of the persons accused of criminal involvement during Kandhamal violence by Fast Track Courts on the ground of non-availability of witnesses, a meeting was held at Lohia Academy, Bhubaneswar to listen the experiences of the victims and their witnesses seeking justice. About seventy five persons including the victims, activists, representatives of left/democratic political parties and civil society organisations, advocates, media persons, civil society

members, church leaders and others participated in the Meeting.

Agenda

• Sharing of experiences/concerns by victims and witnesses in and outside courts

• Sharing on challenges faced by Lawyers and organizations engaged in legal aids

• Observations/Suggestions by the Participants

Among the participants, Prafulla Samantara, renowned activist and an ardent advocate of people’s rights and movements, Radhakant Sethy, former MLA and leader of CPI-ML Liberation, Dr. John Dayal, Member of National Integration Council, Sudhir Patnaik, Editor, ‘Samadrusti’, John Nayak, former DG of Police, Orissa, Prasant Paikray and Ramakrishna Panda – leaders of CPI, Smt. Tapasi Praharaj, CPI-M leader, Smt. Saila Behera, Shanti Ranjan Behera – Senior Social Activist, Ms. Lalita Missal – Woman Rights’ Activist (NAWO), Hemant Nayak – Social Activist, Mahendra Parida - Social Activist and Trade Union leader, Pradip Pradhan – RTI Activist and many others shared their observations regards to the approaches to the problems faced by the victims.

Observations

• Public Prosecutors are mostly found biased against the victims

• In comparison with the skills, influences, clouts, numbers of advocates favoring the accused persons, the strength of advocates need to be improved

• Faulty and biased methods of police investigation, framing the charge sheets and presentations in the Courts weaken the cases

• Absence of social and physical security of the victims and witnesses inside and outside the Court

• The provision that in GR cases only Public Prosecutors can argue, while the victim parties can not appoint their own advocates privately, does not help the victims in cases where PPs are biased.

• Show of extra-favour to the accused ones by some judges harass the victims and their counsels

• Lawyers counseling the victim parties are even persuaded not to continue their legal assistance

• Witnesses are threatened/allured to turn hostile

• Absence of democratic and left parties in comparing to the dominance of BJP and RSS helps the culprits and corrupts the atmosphere of the courts

Suggestions

• Appeal to transfer the cases to outside Kandhamal, preferably to Bhubaneswar and Cuttack courts.

• Christian Lawyers’ Association, Human Rights Law Network and other groups engaged for legal aid should work in a coordinated manner

• Assistance from senior and experienced lawyers should be taken up

• Engagement of other lawyers to assist the P.Ps\A.P.Ps in GR cases and submission of written arguments by other lawyers

• Mobilisation of activists to be present in the court will help in building confidence among the victims and influence the PPs/APPs and judges to be careful to some extent

• A Public Hearing/People’s Tribunal can be organized..

• Lawyers should be smart enough to intervene at the right manner at the time of necessity

• Local people need to create their own defense mechanism

• Secular minded organizations/activists, particularly the people participating in this programme, need to evaluate the ongoing legal actions and decide upon appropriate measures to respond to the current situation collectively.

• At the state level a joint committee involving people from various sectors need to be formed to keep regular watch on legal matters and monitor the actions being taken up by the organizations engaged in legal aids

• It is necessary to document the court proceedings and situation of witnesses and victims, which can be used in future for raising the issue before higher courts and media

• A Kandhamal level committee should be formed for monitoring justice delivery processes and for looking after mobilizing social supports for the victims and witnesses

• Extensive media campaign has to be taken up to expose the illegal and biased behavior and functioning of PPs/APPs and judges.

• Referring to the deposition of Police officers before the Sarat Chandra Mohapatra Commission, information will be collected from their respective offices using RTI and a letter can be sent to the Governor with a copy to the Commission can be sent mentioning the concerns and position of the civil society

Decisions

• An ad hoc state level joint solidarity committee was formed involving the participants to coordinate

o Interaction with political parties for their support for the victims in getting justice

o Media campaigns

o Keeping watch on legal processes

o Documentation of justice delivery processes

o Social Mobilisation for backing the victims inside/outside courts

,;

Footnote:

To understand the different factors responsible for the failure it will be convenient to have a minimum idea on the chain/ stages on which the justice delivery process runs.

The stages of criminal cases in series:

(1)Occurrence of the Incident--- (2)FIR--- (3)Investigation (includes arrest of the accused & Submission of Charge-sheet)--- (4) Magistrate( who commits the case to the competent court)--- (5)Trial (includes Framing of Charges, Summon to Witnesses, Testimony by the witnesses, Argument & Judgment)--- (6) Appeal

Difficulties & Lacunas in different stages

(1) Occurrence of the Incident

- Many of the victims are not eye witnesses as they fled away to the jungle just before the incident happened.

- As the investigation started very late the proofs and marks of violence had disappeared or washed away.

(2) FIR

- Non- registration by the police

- The names of the accused persons are not mentioned

- Delay in filing

- In some FIR the offence in specific is not disclosed

- In most of the cases copies of the FIR not given to the victim

- The informant himself is hostile in some cases.

(3) Investigation

- No proper investigation but a stereotyped process adopted by the police.

- Non-examination of the important witnesses

- Accused examined as the witnesses.

- Non-arrest of the accused persons ( particularly the kingpins) till date

- The property of the absconding accused persons could have been attached ( Sec 83 of Cr.P.C.) which could compel them to surrender.

- Proper sections of IPC not mentioned in the Charge-Sheet

- Delay in filing of Charge-sheet helped the accused persons to get bail.

(4) Magistrate

- The lawyers for the victim could have put their objection before the magistrate, before whom the charge-sheet is submitted, on the non- mentioning of appropriate sections of IPC in the Charge-sheet. ( Section 216 of Cr.P.C)

(5) Trial

- Most of the independent witnesses were hostile as they were threatened by the accused persons in the village.

- The court atmosphere is not conducive for free and fair trial.

- The judge and the public prosecutors lacks judicious mind.

- Deficiency of trained lawyers in comparison to the number of cases.

- Lacuna in the part of the lawyers engaged on behalf of the victim. No effort to build up the case in favor of the victim, only tutoring of the witnesses on their previous statement of the police is done. The lawyers could have done as the following.

- Effort could have been made to cover up the lacuna in the FIR as well as the statement before the police, while giving testimony before the trial court.

- The witness/ victim could have been prepared on the point on which the defense lawyer is striking.

- Proper caution could have been taken to avoid major discrepancy between the testimonies of the major witnesses.

- Petition could have been laid to examine the important witnesses who are not charge-sheeted. ( Section 311 of Cr.P.C)

- Written argument could have been filed in each case at the time of final argument. ( It must be kept in mind that if the lawyer has not filed the Vakalatnama from the initial stage then he may not be allowed to file written argument in the final stage.)

- Even though most of the witnesses are becoming hostile, the victim and the family members could have been properly guided before giving testimony. Because law is well settled, the sole testimony of the victims / the eye witnesses, if inspires confidence and appears to be natural and truthful and also corroborated by the documentary evidences, is enough to convict the accused.

(6) Appeal

- No appeal preferred in most of the cases where the accused were acquitted.

- Appeal should be preferred in conviction cases as in the said case conviction is done for only few accused persons and most of them are acquitted.

-

[PP is Public Prosecutor appointed by the Administration. CrPC is Criminal Procedure Code, IPC is Indian Penal Code, FIR is First Information Report, ]

A cry from Uadaigiri

KUIDINA FORUM FOR PEACE AND JUSTICE
AT-NUA SAHI (KUPANAJU), G.UDAYAGIRI, KANDHAMAL, ORISSA, PIN-762100

Letter No. – 1132/2009 Date – 22.10.2009

To

Sj. Justice R.K. Patra,
Chairperson,
Orissa Human Rights Commission,
Bhubaneswar.

Sub:- Prayer for independent enquiry of case No.472/2009 by OHRC, Bhubaneswar.

Sir,

We express our deepest gratitude for patient hearing of the esteemed members of the Bench on dt.22.10.09 in relation to our case No.472/2009 in the office of the OHRC, Bhubaneswar

That, “Kuidina Forum for Peace and Justice” is a local peoples initiative mostly led by the indigenous women of Kandhamal committed to restore peace and justice and also have been sincerely engaged in peace building processes in almost all the past so called communal violences.

On the petition of “Kuidina Forum for Peace and Justice” dt.28.03.2009, the commission had given a direction to the District Administration for the joint enquiry on the negligence and lapses in the investigation in providing life protection and security arrangement in relation to the victims vide the order dt.05.05.2009 in a joint bench of Hon’ble Justice R.K. Patra, Justice Himadri Mohapatra and Dr. R.N. Bahidar and report back within eight weeks.

Even today after 22 months of major violence took place in Dec. 2007 and the 14 months after the incident took place in the month of August 2008, the victims are still living in a fear of insecurity and terror without any adequate livelihood support system and no enquiry has been made so far to give immediate relief and justice to the victims.

In spite of clear direction of OHRC to give protection to Debendra Nayak of Lingagada vide Case No.549, dt.04.08.08 failed, Issac Digal, G.Udayagiri, Co-ordinator of the Forum was brutally attacked on dt.03.09.09. Karpura Digal, Shankarakhole has not received due compensation for her murdered husband. Attempt to rebuild damaged houses in Dadingia and Gressingia was disturbed due to further attacks as reported (communicated to OHRC on dt.07.09.09). Sumabati Pradhan, Dakedi and Bhabanti Nayak, Godabisa approached His excellency Governor of Orissa but did not get adequate security assistance to return back by the admn. And still facing further attacks. Most of the victims in the petition are facing continuous attacks, threatening and humilitation in different forms even for last seven months since the petition submitted to OHRC. District Administration is very busy in taking up many formal peace initiatives sincerely but the said responsibility seems to be an additional burden.

Large number of complaints are yet to be converted into formal FIRs and even in the justice delivery system Criminals are getting acquitted due to the weaknesses in the investigation and prosecution. There is greater need of protection for the complainants and witnesses in the process. So far 95 persons are acquitted and 24 persons convicted.

The real criminals, the third force, who practically led the violence, supplied all the required financial resources, managed the looted property, supplied explosives, arms, weapons, petrol and cooking gas etc. are still in the dark, not arrested and moving freely to create further violence in future under the defence mechanism of different political parties and organizations, with their predominant, sectarian and divisive attitude.

Though the Govt. has declared the closer of all the relief camps withdrawing the CRPF by the end of August 2009 and claims that the situation in Kandhamal is peaceful and normal, the indigenous women leaders allege that the victims are still not in a position to return back to their native villages, construct their damaged houses and avail the due compensation. The victims are leading a miserable life under the impending fear of death and future attacks deprived of proper security arrangement, Govt. relief and staying in their self managed temporary tents and shelters. 40% of the total agricultural activity has been dropped due to the prevailing chaotic situation and social unrest.

Non-transparent and non-inclusive peace building and rehabilitation process has made the situation more complicated and critical as many agencies and organizations not much familiar with the local egalitarian culture, long standing, symbiotic relationship, traditional non-hostile animistic faith and most importantly the entitlements and the protective constructional provisions and the related rules of all the indigenous forest dwelling communities have started intervening in the process. Resource seems to be mismanaged and underutilized.

The Forum pray your kind self for an appropriate intervention, particularly conduct the enquiry independently through OHRC and advice the concerned authority for an inclusive people based process and due recognition of the voice of the local community leaders without giving further scope to the divisive elements as life of the poorest of the poor is equally important and also requested for displacement of all the officials with sectarian and biased mindset for the greater public interest.


Sd/- Sd/-
(Keshamati Pradhan) (Hemant Naik)
Co-convener Convener
Contact Phone- 9437645267


Dear friends,

Kindly find in attachment the Petition submitted to Orissa Human Rights Commission for intervention in the Peace and Justice restoration process.

Kindly take the necessary action in this regard to strengthen the process collectively.

Yours in solidarity,

Hemant Naik,
Keshamati Pradhan,
Sumabati Pradhan,
Issac Digal,
Debendra Nayak.

Poilice, Media, Maoists

Indian

Police impersonating media persons to reach Maoists, or suspected Maoists, adds a more sinister dimension to the debate on Media and government. This will not only ensure that Media persons are suspect in the rural hinterland, but will seriously expose reporters to risk. This no less critical than media persons being arrested for suspected links with various underground elements

On Murder anniversary in Orissa, , Fast Courts, Faster Acquittals

On Murder anniversary in Orissa, , Fast Courts, Faster Acquittals

Rumours Kandhamal victim was ritually sacrificed.

By John Dayal, with detailed inputs from Ajaya Kumar Singh in Orissa:

September 25, 2009

Why are there so many acquittals in the Fast Track courts trying the cases of murders and arsons in Kandhamal during August-September 2008?

Indian Human Rights groups are aghast at the outcome of murder cases in these courts. In one case the son testified in the court that he was witness to the killing of his father and knows the killers. Yet, the accused were acquitted. And now there are rumours that perhaps it was more than a mere murder – that it was a case of a ritual human sacrifice, for which once Kandhamal was notorious in the country.

In the second murder case, the witness out of intimidation and possibly other considerations including money, turned hostile in court. He was taken to the courts by friends of the accused in their vehicle.

Some families of the victims have in fact been forced to become Hindus and join the RSS, local people say.

In his latest report from Orissa, Ajaya Kumar Singh interviewed the son of the victim who had been dragged from a running public bus full of passengers. At least two witnesses had said he was dragged from the bus only to be found murdered next day by a mob led by the man who later became a BJP legislator. The killer gang and their leader run scot free.

Patently, the police investigation is a sham, so also is the prosecution.

It was an irony that the acquittal came on the first anniversary of the murder. Kantheswar Digal, 60 years, a Catholic Christian of Sankarakhole of Chakapada block was dragged from a public transport and was killed brutally after one month of killing of Swami Laxmanananda allegedly killed by the Maoists.

The judge of the Fast Track court-II C R Das acquitted Pradhan and another accused Mantu Nayak of the murdering Kantheswar Digal.

Manoj Pradhan was arrested in October last year and sent to jail. He, however, won the last State Legislative Assembly election from G Udaygiri segment in Kandhamal from jail. He was released from jail for 15 days in July this year to enable him to take oath as member of the Orissa assembly.

In a separate case, the fast track court acquitted five others accused of setting houses on fire at Tikabali area on August 26, 2008, three days after the killing of Lakhmanananda Saraswati.

With these acquittals of seven persons today, the total number of persons acquitted has risen to 95 while 24 persons have been convicted so far.

Kantheswar left his native village soon after the anti-Christian program along with his wife to escape and stay safely with his only son, Rajendra Digal, 28, in Bhubaneswar. He was a cook in the Parish Catholic Church. All his life time earnings, he invested on a starting of grocery shop. Besides, he was into trading and had a herd of 35 goats. He was enterprising. He could not remain idle in Bhubaneswar as refugee any longer. He had just returned to his village to see his house and livestock presuming normalcy has been restored.

Seeing the violence around, he sold 24 goats for Rs 40,000 in a distress sale and informed his son that he would be returning to Bhubaneswar. He boarded Sagar Suraj Public Bus heading for district headquarter. Public transport is the safest for transportation for the Christian refugees. Hardly, he has travelled a kilometre or so, the hindu radicals allegedly led by Manoj Pradhan stopped the public bus and dragged Mr. Digal in full view of passengers around noon time on 24^th of September 2008.

The old man’s cries went in vain as the attackers dragged him while slashing his leg so that he could not run. They took him to a nearby forest while looting and razing his house and shop to the ground. They took away all 8 goats and feasted the whole night. Digal’s son, Rajendra said, ‘The attackers forced the Christians to become Hindus and join the feast’. Kantheswar was given good feast that night and was taken away to unknown place. Rajendra apprehending danger to his father informed the police and the administration. Thakur Digal filed a missing-personal complaint.

The police did not take interest to look for the missing father, complained the son. ‘After 12 days, Digal’s body was found 40 kilometers away from the village with acid charred face and naked state. The genitals had been chopped off. The body was found along with another Christian couple, who were government officials.

Human Sacrifice?: “I have heard my father was not killed instantly. The fanatics had all the rituals and he was sacrificed”. Rajendra does not know the reasons for all this as his father was a very good person and was close to the church. On being asked about the acquittal of the accused, “ I cannot understand as the attackers are known and there are witnesses, who say that they have seen him being dragged out of the public bus. Yet, they are acquitted”. The lawyer supporting the victim tries to reason out saying the proper investigation and strong prosecution would have made the matter different”.

In another murder related case where a woman was burnt alive in a house while another non-Christian tribal leader was killed for defending the Christians, the five witness families are on the run for testifying the truth while the accused are on a prowl and roaming freely in villages. There are several reports of intimidations and threats for the witnesses against the accused from different villages Dodingia, K. Nuagam, Phiringia and Solesoru testifying before the courts. Police instead of taking action against the people, refused to receive complains.

Dr. Augustine Singh, the psychologist, who had held counsel sessions for the victim’s wife was disappointed at the acquittal. “We need to support the victims’ families and encourage them to keep the fight on so that nobody is denied of justice’.

There is increase demand for protection of the witnesses, strong prosecution and robust investigation before charge sheet of the accused is the unanimous opinions of the Christian communities. “Without these, justice will be derailed, Paul Pradhan, 48, a civil right activist says.