Birthday measure of India at 65

The State of the nation -- Stocktaking on Independence Day
Is being best among the brothers good enough for India at  65?

John Dayal

[Member, national Integration Council, and  National Monitoring Committee on Minority Education]

India is a miracle.

Born in a veritable bloodbath of Partition after a peaceful freedom struggle, it has survived as a strong democracy. It survived the Cold War without having to take sides, and therefore with having either Soviet troops or those of NATO or the US agencies stationed on its soil, or even the US Indian Ocean fleets such as the 8th Fleet really every brining their nuclear weapons into its deep waters. It has survived four  wars with its neighbor, one of which decisively partitioned Pakistan and gave birth to Bangladesh, without allowing it to escalate beyond a limit, showing magnanimity with its adversaries and charity of a rare order in taking care of  the ten million refugees from Bangladesh which would have broken the back of any other social, political and economic dispensation.

It has developed nuclear weaponry in the teeth of opposition from the nuclear powers, but also announced a “no first strike” policy, ensuring that a nuclear South Asian subcontinent does not sit on the brink of an immediate nuclear holocaust. Civil society would maintain, arguably, that India ought never have gone on the nuclear path at all. And above all, it has survived the economic meltdown of the west, though not without some grievous wounds in its rate of growth and its balance of payments account. Perhaps the  lows and highs of the monsoon have been the one thing the country has not been able to control, its agriculture economy and the  life of much of its population remains at the mercy of the rainfall, a shortfall spelling abject misery, an access perhaps even more.

The credit for much of this goes to some basic  foundation work and ideological intervention done by Jawaharlal Nehru and then by Indira Gandhi, India’s first and third prime minister – not counting the two very short interim terms of Gulzarilal Nanda. Nehru’s commitment to secularism, codified together with Dalit rights by Constitution committee chairman Dr Bhimrao Ambedkar --  ensured a cohesive and forward looking country. Nehru's focus on scientific temper and industrialization resulted in the massive engineering powerhouses of the Public sector, and the institutions of higher science and technology which today see India on the verge of manned space flights and self sufficiency in nuclear technology.

Nehru’s, and then Indira Gandhi’s land reforms in abolishing landlordism and the old ruling order, laid the foundations of an egalitarian society. India’s nationalization of  bank and insurance ensured an end to fly by night operators and assured a certain stability which even the post liberalization financial sector has not been able to match. These ensured that the fruits of democracy reached the grassroots, and made  this participatory system the established norm, despite hiccups, corruption, caste politics and other issues that finally ended with the electoral reforms of  the last quarter of a century.  Rajiv Gandhi years later added the Panchayati raj institutions as a logical extension of those reforms, giving sa voice  and local power to rural communities.

Above all, Nehru ensured an apolitical and secular Armed Forces overcoming the inherent disabilities arising from the fact that these services too were partitioned on religious lines and essentially what remained in India was a Hindu-Sikh Army with just a sprinkling of other communities.

India is therefore so different from Pakistan where the massive presence of a landlord community,  and its nexus with a radicalized Army led by scions of the same classes, have ensured a continuous alternating of military and civilian rule which both look alike in their basic policies and preferences. This fatal alliance spells the death or at least incapacitation of genuine democracy. Pakistan has seen more than 40,000 deaths in various forms of violence rooted in communal and class distinctions and in the last decade, in terrorism. The regimes are at the mercy of fundamentalist armed groups within its borders whose pressures on the regime make it incapable of encouraging human rights, for one, and freedom of faith. The Christian and Hindu communities in Pakistan are in a life and death struggle with no  light showing an end to their continuing nightmare.

Another neighbor Bangladesh is less militarist perhaps than Pakistan, though its major party is founded by a  general. The brittleness of democracy in Bangladesh too remains a lesson. The rise of Islamic fundamentalism has kept apace with Pakistan. Sri Lanka perhaps is the worst of the neighbors which has seen a full fled civil war ending in the vanquishing of the Tamil minority which can now see only a second class citizenship in a  country government by a racist regime which is also susceptible to the influence of a militant Buddhism led by a  supremist monastic order. In many ways, all these are failed states. And rogues.

India shines in contrast.

And yet there are raging  contractions in India’s social indices impacting on the life of its religious and social minorities who remain victims of communalism, caste, marginalization,  displacement and State violence. The intricate combination of failed monsoons, usurious money lenders which include banking agencies and seed merchants, have seen unimaginable desperation in the countryside, leading to perhaps as many as 250,000 –a  quarter of a million – farmers committing suicide in 17 years such states as Maharashtra, Andhra Pradesh and Madhya Pradesh.

Recent times have seen the State often at near war with its own people, specially the Tribals, who constitute about ten percent of the population, but live on perhaps twenty percent of forest land under which  lies valuable iron and aluminum ore, and rare earths which the corporate sector in the country and major multinationals from Japan, Koreas, the UK, Europe such as Vedanta and Posco and our own home grown India Incorporated, covet with a vicious licentiousness . This greed ends in the deaths of many innocent men, women and children deep in the forests of Orissa, Andhra, Madhya Pradesh, Chhattisgarh, Jharkhand, which are euphemistically called the Red Corridor, or the centres of Maoists activity over the last ten years.

No less critical has been the virus of communalism. Hindutva elements seeking inspiration from a Hitler-Mussolini Europe of the 20th Century have sought to wreak havoc on Muslims, Sikhs, and finally Christians. The communal criminality is mostly rooted in the wounds of Partition, special in a deep divide between Hindus, specially the upper and middle classes and those who migrated from West Punjab, Multan, and Sindh and the Muslims, now perhaps a full 15 per cent of the population, who chose not to migrate to Pakistan.  As many as 50,000 communal riots against these religious minorities over the last 65 years have seen an officially admitted 17,000 dead, and several tens of thousands wounded.  [This does not include the bleeding in Jammu and Kashmir, victim of mal-governance and ill thought out policies which result in over 500,000 military and paramilitary forces being deployed to keep the piece in what is vigorously asserted as an Indian state and a people our own citizens. These two factors also result in that huge aberration in the northeast which like Kashmir sees the Army and security forces ruling the people under the protection of the Armed Forces Special Powers Act which gives them powers to shoot at sight, and legalizes impunity.]

Muslims will perhaps never forget the violence against them in Gujarat 1969 and 2002 in which gender violence and trial by fire were key components. 1984 saw perhaps more than 5,000 Sikhs burnt alive, most of them in the national Capital of New Delhi, and for Christians, Kandhamal in Orissa in 2007 and 2008 will become part of community memory as the worst violence since Tipu Sultan took the Catholics of the Konkan belt into captivity and a force marched that killed so many.

The wounds may have healed, but  the scars have been kept fresh by an utter miscarriage of justice, rampant impunity and an often bigoted, often corrupt and almost always inefficient criminal justice delivery system.  Reforms in the judicial and police systems  have progressed at snail’s pace despite several commissions of enquiry, the most significant of them the Dharam  Vira commission on Police Reforms and the Justice Sri Krishna Commission on the riots against Muslims in Mumbai in 2002-3, a report whose seminal findings and recommendations  could go far in inducing reforms in the police structure.

A growing middle class has not been able to generate a viable, acceptable and strong civil society that could intervene with the government and which could be bulwark against excesses of the State as seen during the Emergency of  1975-76 in which human rights and civil liberties were suspended. It was, indeed, an attack on the very Constitution of the country and its parliamentary democracy which remained suspended for much of 18 months. In fact, it sometimes seems that the middle class, now as large as 200 million in a population of 1.20 billion, often sides with the state and sometimes goads it into turning against the poor and the angry who perceives it as a threat to its own security and cosy existence. The media, now vastly expanded into corporate owned national satellite television channels and chain newspapers, also sees itself as the voice of this middle class. The result is paid news, imbedded journalism, an utter lack of investigation and no effort to voice the trauma and travails of the poor. This is why there has been no

More severe, social indices remain among the worst in the world – in terms of juvenile mortality, gender rights, untouchability and even manual scavenging, possibly the only incident of this practice in the entire world, an infamy it shares with Pakistan. Hunger and rural poverty coexist with repeated bumper crops and food reserves  which are so huge that there is no place to keep them, and a tenth or more is lost to rats and other pests every year. Food delivery systems remain faulty, specially in deep urban and forest areas, as soon in the data generated by the Planning Commission. Malnutrition is rampant, especially among the very young of rural and marginalized communities. The Right to Food Act remains a matter of protracted debate and political positioning. Despite perhaps the biggest scheme in the world to transfer cash to increase the purchasing power of the most poor, now called the Mahatma Gandhi National Rural Employment  Guarantee programme, a real dent has not been made in rural poverty.

India need not fear an army coup, or indeed an armed rebellion by the rural poor and hungry. Despite the occasional political skirmish, and the current Maoist phenomenon, democratically elected regimes remain safe. This should give them the strength to negotiate with the people directly, without having to take recourse to armed might. The Maoist problem is not without a solution, if there is a political will. Instead of using the Maoist violence as an excuse to deny development while using armed  police to displace Tribals before handing over their sacred groves to developers and mining companies, there is need for a comprehensive policy of resettlement and compensation. Tribal rights have to be protected as any other Constitutional right of the rest of the countrymen.

Hunger, thirst, health, housing ,  and education are to be addressed. The Right to Food Bill has to be passed. It is now clear that Operation Blackboard has not been the success if was designed to be. The RSS has infiltrated areas where government schools did not work, setting up more than 60,000 "Ekal vidyalayas" or forest and village primary schools  where young minds are being poisoned in a highly systemized way. The green revolution too has failed to reach where it should have. Rural disparities have increased. While food grain rots, millions go hungry. Food prices soar, and yet farmers do not get a fair price for their labour. The production-supply-retail line has to be looked at keeping both farmer and consumer as the focus of the policy. Is Foreign Direct Investment the answer? Many think not. Wallmart mega-stores and malls  can hardly bring grains to areas of want. Credit policies for agriculture need urgent reforms to end the sinful deaths in suicides by farmers. The government needs to take a fresh look at village development, integrating all systems in a comprehensive policy which is monitored dispassionately at the block, district, state and central levels on a  real-time basis.

Financial reforms and an industrial policy in the liberalization that was launched by the Narasimha Rao government back in the early 1990s patently needs updating. No one is harking back to the days of licence raj, nor does anyone really wants to cripple the private sector, specially the national and global multinationals. But barring a few, there also would be no one urging a system which spells death of the small scale sector, the weavers, the  village  store and the kirana shops in the neighbourhood. BT Cotton tomato and brinjal cannot be at the cost of the health of the farmers and the consumers. While government designs mechanism to end corruption in the allocation, or auction, of 3 and $ G Spectrums in the communications sector, it must show political will to enunciate policies in business and trade that do not cause misery to large sections of the population.

India also needs a safety net for the vulnerable sections of the population – workers in the private section who do not get a pension like government servants do, for the destitute, the unemployed, and the elderly. Even the capitalist west has such safety nets. President Obama’s Insurance policy is controversial not because the poorer segments will benefit, but because the rich feel they may ah veto pay a bit more. Many feel the government does not show the same concern for the poor as thirty years ago where the slogan “Garibi hatao” though not implemented even in half, still articulated a certain political will and conveyed this message to the villages of the poor.

A safety net of a different sort is needed for India’s many minorities, specially its religious minorities. The 12th Five year plan and the Prime Minister’s Revised 15 Point Programme offer a ray of hope in the distant future. But till they are implemented on the ground, they will be of little solace. The worst case is in terms of law and order, the violence against religious minorities. The government has all but aborted the  anti communal violence bill devised by the National Advisory Council headed by Mrs. Sonia Gandhi. The massive campaign mounted by the BJP and the political right ensured its instant death. It was not a perfect Bill. But it had seeds of reform which gave hope to religious minorities that the regime of impunity would end,. And that the government would be able to curb hate campaigns, profiling, non judicial deaths and torture, and finally communal riots. That would have brought peace to the land. It is not too late. The government must reach into the reservoirs of the goodwill it has with large sections of people and in political courage, enact such a  law

The people of India will thank the government for this.
Published in New Leader, CVhannei in the 15th August 2012 special issue as cover story]

Battle over a Bill

JD For Mainstream June 2011
Sangh strikes to pre-empt effective Prevent Communal Violence Prevention Bill
But civil society and minorities too have issues with components of the draft law
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John Dayal
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Victims have not forgotten these brutal tragedies in the life of Independent India, even if the State and political parties may pretend to have.
1984 Delhi: On October 31, Prime Minister Indira Gandhi was assassinated by her two Sikh bodyguards in revenge for Operation Blue Star. For the next three days, as Doordarshan telecast the lying in state of her body, over 3,000 Sikhs men and boys were burnt alive while policemen, politicians and the world watched. A very few have been prosecuted for India’s biggest communal violence since the Partition riots of 1947. And twenty-five years later, the Government is still to tell the people if there was a mastermind. A small group of Sikh activists and lawyers have kept alive the pursuit of Justice for the widows of 1984. Needless to say, the aggressors were mainly from the majority community, allegedly owing allegiance to the Congress party though quite a few of them from radical right wing groups, including the Sangh Parivar who had done their share of the work in polarising Punjab in those traumatic years of the 1970s.
2002 Gujarat: On 27 February 2002, the Sabarmati Express stopped at the Godhra station, and its Coach Number six was set afire allegedly by a group of Muslims presumably as a continuing response to the demolition of the Babri Masjid by the Sangh Parivar almost ten years earlier on 6th December 1992. The bodies of the 59 Hindu pilgrims from Ajodhya who died in the fire were brought to Ahmedabad in a deliberate political decision. And for the next several days, the city and several other towns burned. In what the President and Prime minister called “a blot on the cultural traditions of India”, the Union government told Parliament that 790 Muslims were killed, 223 more people reported missing and another 2,500 injured. More than 100,000 people fled their homes. Human rights groups feared the toll to be as high as 2,000 Muslims killed. The National Human Rights Commission found evidence of premeditation in the killings by members the Rashtriya Swayamsevak Sangh, Vanvasi Kalyan Ashram, Vishwa Hindu Parishad and Bajrang Dal with a large doze of complicity by the State political and administrative apparatus headed by chief minister Narendra Modi. Many Police officers were named in subsequent enquiry commissions for their role in the violence which spread to 151 towns and 993 villages in fifteen of the state's 25 districts between February 28 and March 3. And after a drop, violence restarted on March 15, continuing sporadically till mid June. Once again, not many have been prosecuted and sentenced for the violence even as Muslims have been sentenced in the train fire. The Supreme Court and special teams are still investigating allegations of mass rape of women, including genital mutilation, and the tearing out of foetus from pregnant women’s bellies.
2008: Kandhamal district, Orissa: The violence in Orissa between 23 August and 1 October 2008 was comparatively on a much smaller scale, but was historically unique in being targeted against the micro-minority Christian community by communal mobs out to avenge the assassination of VHP vice president Lakshmanananda Saraswati in his ashram by self confessed Maoists on 23 August. For almost a month, the district of Kandhamal, on a plateau in the midst of the state of Orissa, was out of bounds even the government’s troops while the killer gangs roamed the countryside, killing perhaps as many as a 100 people – the government acknowledges 37 deaths – burning down 5,600 houses in 300 villages, destroying 257 big and small Churches and forcing as many as 55,000 people to flee their houses. By May 2011, several thousand are still living in make shift huts. They have been barred from their villages by the Hindutva gangs who say quite openly that they will allow the Christians to return only if they convert to Hinduism. Orissa chief minister Naveen Pattnaik, who was in a coalition with the Bharatiya Janata party during the violence, and returned to power after severing relations with that party, told the state legislature that the attacks were mainly led by right-wing outfits such as the Vishwa Hindu Parishad and its youth wing Bajrang Dal.
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The then Union Minister of State for Home Affairs, Ajay Maken, told Parliament there were at least 3,800 communal clashes reported in India between 2004 and 2008, marking a steady rise over the years. The highest incidence of such violence in 2008 was the one in Orissa, of course, followed by Madhya Pradesh with 131, Uttar Pradesh with 114 and Maharashtra with 109 and Karnataka in the south with 108, half of them against Christians and the rest against Muslims. As per the total number of communal incidents in each state during the last five years, Maharashtra is on the top with 681 clashes, followed by Madhya Pradesh with 654 and Uttar Pradesh with 613.
Data shows that barring the occasional incident of retaliation, the Muslims were the overwhelming target in the violence, and yet in the arrests, while 27,901 Hindus were arrested, so were as many as 7,651 Muslims. In firing by the police, again, 93 Muslims were killed as also about 75 Hindus.
Human Rights Watch criticized the administrations for engaging in a cover-up of the state's role in the massacres. .
The Union government finally brought forward a Bill to anticipate and prevent communal violence. The 2005 Bill, which was introduced in the Rajya Sabha – where it still lies – left civil society and specially the Human rights groups aghast. Human rights groups and Muslim intelligentsia – the Church was woefully absent in the exercise – pointed out two major flaws in the Bill. It empowered the state without empowering the victims and their communities. And it left unaddressed the entire question of impunity, how to hold politicians, police and bureaucrats responsible for their acts of commission and inaction before, during and after acts of communal violence. In passing, the Bill was also grossly inadequate in assuring reparations, compensation and rehabilitation of the victims of mass violence. For the Christian community, the 2005 Bill offered nothing. The community is subject to individual and sporadic violence almost every day of the year in some state or the other, and its smaller churches, house-churches and independent pastors, specially those working in small towns or villages in tribal and forest areas are particular targets. But this violence was not even acknowledged or accepted as being communally motivated.
The Bill was rejected out of hand. Though the government has not withdrawn the 2005 Bill, the National Advisory Council headed by United Progressive Alliance chairperson Mrs Sonia Gandhi set up a working group coordinated by two NAC members, journalist-activist Farah Naqvi and former bureaucrat and NGO activist Harsh Mander – with members from the various religious communities. Major activist-members included Shabnam Hashmi of Anhad, Teesta Setalvad of Mumbai, Vrinda Grover and Usha Ramanathan, and both jurists, from Delhi, and this writer. Advocate Sister Mary Scaria and Delhi lawyer P I Jose, senior advocate Muchhala, and leaders of the Jamiat-e-Ulema-i-Hind and the Jamiat-e-Islami-e-Hind were represented. For some time, Solicitor General Subramaniam was also involved. The committee was also noted for several eminent jurists including Prof Upendra Buxi who could not attend a single meeting for personal or health reasons.
After sittings lasting more than a year, the working group came up with a draft. This was sent to Additional Solicitor General Indira Jaisingh for re-formatting. The resultant draft, called the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 has been put on the NAC website and people’s reactions have been sought with a deadline of 10th June 2011. The draft is not the Bill which will be presented in either House of Parliament, presumably later this year in the Monsoon or winter sessions. It still has to be whetted by the Union Home Ministry, which has its own draft ready for which it has been canvassing, and by the Union Law Ministry, the final arbiter of its readiness for Parliament. Even if it clears these two major hurdles and becomes a Bill, chances are it will be subject to a minute examination in a select committee. One does not have to be a parliamentary expert to predict the Bill will have really very difficult passage indeed in the two houses of Parliament, even if the government seems willing to stake its political future in backing the bill.
But long before the processes take place for a sane debate, the Sangh Parivar has launched a pre-emptive offensive. The Bharatiya Janata Party, the political wing of the Rashtriya Swayamsevak Sangh, has held formal press conferences, and its spokespersons have dominated the TV channels in tailor-made debates. Sangh think tanks have called for consultations on the issue, and their most articulate champion, leader of the Opposition in the Rajya Sabha, advocate Arun Jaitely has gone to town saying, as a newspaper headlines screamed, that the “Draft Bill on communal violence [is] more draconian than TADA”. Arun Jaitely wrote an extraordinary public note clearly indicating that not only would the BJP not support it in Parliament but that it would “fall foul of the Constitution as the Centre would have usurped the jurisdiction of the States on law and order, a subject clearly and entirely within their domain.”
Understandably, as the leader of a party repeatedly indicted for spreading hate, Jaitely would be critical of any law that made hate propaganda as an offence and an outbreak of communal violence attracting President's rule in a state, presumably where the party was in power. Jaitely also said the draft Bill was discriminatory as it exclusively dealt with violence targeted against a minority and did not deal with the possibility of minority violence against a majority community. The proposed law was to “fix senior leaders,” the BJP felt. Other aspects he faulted were the presence of four members of the minorities on the proposed 7-member national authority for communal harmony - and similar state authorities.
The Union government fielded HRD minister Kapil Sibal, more eminent a lawyer than perhaps even Jaitely, to counter the BJP. Sibal said the Centre was determined to make State governments and individuals responsible for law and order “accountable” in cases of communal violence. “A polity which is just, fair and equitable needs to protect the weaker sections, minorities, SCs and STs,” Sibal said. The Congress, he said agreed the State governments would have to be on board if the draft Bill was ever to become law. Sibal’s party colleague Manu Singhvi said a special law was needed because the normal provisions were tardy, there were no special courts, and the offense was not described and defined clearly.
National Commission for Minorities chairman Wajahat Habibullah, who had taken over just this year said the existing laws are sufficient because of the fact that they don't deal with prevention. “The Bill is not an Act only to handle communal violence but it is also to prevent it and then to rehabilitate those who are victims.” Habibullah made a critical observation, noting that the important elements, repatriation and rehabilitation, have so far met with a mental block in society. “In our country, it is something that we can be ashamed of, the anti-Sikh riots that took place, what happened in Kandhamal, what happened in 2002. We do need to address these with a sense of urgency and also with an essence of importance,” he said.
Outside of the political posturing of the BJP leadership, many in the NAC and most in civil society the draft is not a perfect one. Its formulation has not been without acrimony and controversy.
Ms Shabnam Hashmi, jurists Vrinda Grover and Usha Ramanathan and this writer issued a press statement resigning from the working group, expressing their own reservations to several aspects of the Bill, especially in areas of Centre-State relations, impunity, and trigger mechanisms to make operative central intervention. We had reservations also about the powers and structures of the Central and State authorities sought to be created to oversee the control of violence and issues of reparation and so on and finally to ensure the empowerment of the victims and ending impunity. There was a sense of shock that the draft as it was finally put on the internet introduced `internal disturbance' as one of the entry points, a matter which in previous consultations had been firmly rejected. “It has a constitutional history, and does things to the nature of state power that we ought never to be endorsing.” The second part of Article 355, which reads "and to ensure that the government of every state is carried on in accordance with the provisions of this Constitution", was to be the entry point for the law.
Several Muslim members have also wanted the draft law to be tweaked in several areas to meet the challenge of hate campaigns, violence, rehabilitation and reparations.
Understandably, again, the NAC is defensive about criticism of the Bill, emanating from within or from political opponents. For one, Mrs Sonia Gandhi ahs identified this issue as one of the major ones the NAC must get the government to act upon, together with issues such as food guarantee, and a life of dignity for domestic workers.
NAC members say the Bill made provision for all minorities — not just religious, but linguistic and regional as well. Seven States — Jammu and Kashmir, Punjab, Mizoram, Manipur, Meghalaya, Nagaland, Arunachal Pradesh and the Union Territory of Lakshadweep Island –have Hindus as a religious minority. The NAC has also made a specific recommendation that the Bill should be extended to Jammu and Kashmir, so that Kashmiri Pandits would also be covered; it also points out that migrants from east Uttar Pradesh and Bihar in Maharashtra — most of who are Hindus — would also be covered by the Bill. I must add that several of us have issues with extending the law to Jammu and Kashmir valley which is beset with so many other issues, including terrorism, the heavy military presence, massive human rights violations, to name the maor ones.
The focus of the Bill is those particularly vulnerable groups of citizens, who are routinely subjected to violence or threats of violence in different forms because of ‘who they are’. The existing provisions of law fail because of a similar systemic bias in the administrative and criminal justice machinery against these most disadvantaged groups. Their vulnerability stands twice enhanced.
An important clause is the Accountability of Public Officials. This is being secured through reiterating the duties of public officials, and defining offences by public officials as the failure to perform those duties. Offences by public officials shall attract penal consequences under this Bill as often the greatest cause for communal and targeted violence is that police and bureaucrats simply do not act. The Bill recognizes the offences of both commission and omission.
Similarly, hate campaigns are sought to be checked in recognizing the creation of a ‘hostile environment against a group’ and the Bill specifically defines a series of acts that amount to creating a intimidating or hostile environment against members of groups, including economic boycott, denial of public services, and forced migration. It defines as the duty of public servants to identify the creation of such a ‘hostile environment’ and to prevent any communal and targeted violence against such members of groups.
Perhaps the one of the most controversial issue is of Command Responsibility. The NAC feels that given the hierarchical nature of administrative systems, the reality is that too often it is those higher up in a chain of administrative or political command that are responsible for failure to perform their duties. Yet, it is only the officer on the ground whose dereliction is visible. This Bill identifies culpability for those who are ‘effectively in-charge,’ through the doctrine of command responsibility. In cases of widespread, mass violence, the command responsibility shall reasonably be presumed to extend to the immediate superior officer who shall be held guilty of such offence. However, the chain of command responsibility may extend to any level where effective decisions to act or not act are taken. This also extends to Non State Actors and any association.
But absolutely the most controversial is the attempt to create a: National Authority for Communal Harmony, Justice & Reparation and State Authorities for Communal Harmony, Justice & Reparation more powerful than any other institution created after the Constitution was promulgated in 1950. NAC defends itself saying the principle behind this Bill is not to supersede the existing law enforcement machinery, nor to disempower or paralyze the existing administrative and justice mechanisms, but rather to strengthen them and make them work by making them more accountable.
The primary monitoring and grievance redressal mechanism laid out in this Bill in the form of the National Authority and State Authorities (NA/SA) do not, in any instance, take over any existing powers of any public official or institution. NAC says their only mandate is to ensure that public functionaries act to prevent and control communal and targeted violence, and to ensure justice and reparation when violence occurs. The National and State authorities will monitor, inquire into complaints, receive or suo moto seek information, and issue advisories and recommendations only when there is alleged inaction or malafide action by public officials and governments.: NAC says through the NA/SA this Bill is seeking to create a mechanism that can make the administrative and criminal justice system work as it should, free from favour or bias or malafide intent. The monitoring mechanism of the National and State Authorities will also provide the ‘paper trail’ to ensure robust accountability of public officials in a court of law. The panels are to be chosen by a Selection Committee for members consisting of the Prime Minister, Chairperson, Leader of the Opposition in the House of the People, Union Minister for Home Affairs, Leader of each recognized national political party in the House of the People. The Selection Committee for members (including Chairperson). In the States, the Chief Minister shall be the Chairperson.
The new Offences of communal and targeted violence, including ‘organized’ communal and targeted violence and mass violence that is widespread or systematic in nature is also defined specifically as ‘organized’ communal and targeted violence.
This Bill recognizes that for rights to relief, reparation, restitution and compensation, there are no statutory norms and provisions for any Indian citizen under present law. Thus, all affected persons (whether or not they belong to a religious or linguistic minority or are SCs or STs) have been given justiciable rights to comprehensive reparations and compensation if they suffer any harm as a result of an incident of communal and targeted violence. So far, governments have been both arbitrary and selective in awarding compensation to different groups of citizens with different standards of generosity. Compensation must not be a matter of charity or largesse, but a justiciable right with a single uniform standard for every Indian citizen. This Bill provides that compensation shall be paid within 30 days from the date of the incident, and in accordance with a schedule, which shall be revised every 3 years. No compensation for death shall be less than Rs. 15 lakhs. No compensation for rape shall be less than 5 lakhs.
Addressing the Arun Jaitely charge of violating the sacred nature of federalism, NAC says the advisories and recommendations of the National Authority are not binding on any State Government, nor does the Bill create any new powers as they are already extant in law.
On our part, working group members have repeatedly reminder the NAC that Communal violence is not inevitable; it is not the norm in a maturing democracy, an economic and political superpower, and a caring multi-cultural society such as India wants to be in the 21st Century. Communal violence can be prevented if pre-emptive action by a non-partisan administration [Intelligence, magistracy and police, as also political leadership from Panchayat head to the Chief Minister of the State] is taken at any stage before it explodes as a full-blown mass murder and arson.
Most of us are sure a democracy needs be vigilant against virulent political processes and entities, penetration of educational systems and politicisation of civil, police and military structures and must take pre-emptive measures. In Europe, Country Laws show they are aware of the menace of Neo Nazism and Anti Semitism and have taken precautions. The CV Bill must articulate this awareness.
Demonising and constructing images of the “Other”, specially of the Christian and Muslim communities, in gossip and political activity in the public domain, in general and political Media including the electronic media and Internet are now routine. Care has to be taken that it is not the victim-survivor who is punished anew by police and administrative action in imposition of curfew, search and arrest operations. Peace with Justice remains the core issue.

Chistian Copmmunity tells Sonia's Council to revise Law against Communal Violence

Observations of the Christian Community on Proposed Communal violence Prevention Bill 2005/10

National Advisory Council meeting 24th June 2010

A. The Christian community, approximately 2.4 per cent of the Indian population, is yet to emerge from the trauma of the violence against it in Kandhamal District of Orissa in 2007 and 2008, which saw mass murder, unprecedented arson, gang rapes and coercive change of religion, among other crimes, and the continuing acts of violence against its members, individual pastors, priests, nuns, institutions, prayer meetings and tract distribution, across the country but more viciously in Karnataka, Orissa, Maharashtra, Andhra Pradesh, Gujarat, Rajasthan, Punjab, Uttarakhand, and occasionally even in the National Capital Region of Delhi. This experience is marked by our understanding of the protection given to the aggressors, issues of command responsibility and impunity, and a callous attitude towards Christianity which is seen even in official circles as an alien religion, and its faithful as so much lesser citizens in the exercise of their Constitutional rights. This experience, as much as our empathy with the experiences of our brothers and sisters in the Dalit community, the Tribal people and members of the Sikh and Muslim faiths, guides our understating of communal violence, and our response to the Communal Violence Control and Prevention Bill through its various incarnations from when it was first moved in Parliament in 2005 till the last Cabinet note of December 2009.


The Catholic Bishops Conference of India gave a detailed note to the Government some time ago. On behalf of the All India Christian Council, its office bearers also conveyed to Government our feelings. Other denominations and groups have also communicated with the government. The Christian community consists of several ecclesiastical groups and denominations, apart from ranging across all linguistic and ethnic groups in the country as is proper for its 2,000 year old history of existence in this great country.


It may be mentioned that we entirely support the major recommendations made by the Muslim community groups and by concerned Civil society. We strongly feel any Law to be relevant must empower the people, specially the survivor-victims. It must in no way further empower the State and the political apparatus to harass religious minorities.


This note therefore covers not just the experience of the Catholic and Episcopal groups in all their diversity as already enunciated by them, but also the experiences and needs if the membership of the All India Christian Council from the Evangelical and Pentecost churches, Independent Church groups and pastors, and above all, the common Christians, specially Tribal and Dalits, who may worship in their house, or go to a Church, and who are untied in their faith in the Salvation assured by Jesus Christ.


B. Needless to say, the proposed CV Bill is ignorant of the diversity of the minority communities, and specifically of the following issues of the Christian Community.


1. Dalit Christians: 60 per cent of all Christians in India trace their origins from the Dalit communities, now called the Scheduled Castes. They live with their fellow Indians in Dalit colonies, semi urban hovels, and village Cheris. They are subject to all atrocities faced by the others. In addition, they are targeted for being Christians, taunted, vilified and subject to sustained hate campaigns. And yet they do not get the hope or the security provided by anti-atrocity laws, or other provisions of the IPC.


2. TRIBALS: A large number of tribals are Christinas in the States of Rajasdthan, Madhya Pradesh, Gujarat, Maharashtra, Andhra, Chhatisgarh, Orissa and Jharkhand, apart from the Tribals of the North-Eastern region. The tribals of the so-called Chhotanagpur region particularly suffer from administrative and communal action, and find little or no recourse in the law. The experience in Kandhamal has brought this to the fore.


3. PLACES OF WORSHIP: While large cathedrals are landmarks in cities, the churches in small towns and villages may be just a kutcha hut or a log cabin. Often, both in Catholic and Protestant traditions, prayers are held within the house together with family members and neighbours. Sometimes, prayers are also held in the open on Sundays and other special days. Increasingly house churches have been targeted and often the police has been a party to the violence.


4. VIOLENCE AGAINST WOMEN: Nuns of the Catholic, Orthodox and of some Episcopal churches, as well as wives of Evangelical and Independent pastors have been particularly targeted in Madhya Pradesh, up to and including gang grape and sexual coercion, with the police entirely inactive, if not complicit. The Nuns can be identified at a distance and are therefore vulnerable all the more.


5. DIFFUSED POPULATION: Apart from certain districts, the Christian population is widely dispersed, and ingle families or a small cluster becomes very vulnerable.


6. PATTERN OF VIOLENCE: Though populations are dispersed in the major states – barring Kerala, Meghalaya, Nagaland and Goa, -- the violence is consistent. And yet authorities, especially the police dismiss it as “sporadic” unrelated and unconnected violence. The overall Pattern of Violence is never taken into account while taking preventive or curative measures.


7. HATE CAMPAIGNS: For the last forty years, there has been a consistent and sustained hate campaign against Christians, often officially supported. Where huge temples exist in government building and even in police stations, it is perhaps difficult to expect a secular approach from subordinate officials and policemen. The hate campaign in media is supported by partisanship in the district administration, further aggravating the communal harmony in those regions. These include refusal to distribute religious tracts and refusal of permission to sell or distribute Bibles, permission for holding Healing Ministries and Prayer meetings on public or private grounds and fields, and mis-reporting in the mass media painting the Christians in a negative light.


The following is an internal commentary by the All India Christian Council and its expert associates, which takes into account the above and assesses the new Bill with its suggestions.


C. OUR OBSERVATIONS ON THE CV BILL


The government has proposed a law to prevent control and deal with the aftermath of communal violence, which would include caste-based or religiously-motivated violence. Communal violence is recognised as a problem which runs deeper than simply undermining law and order. The UN Special Rapporteur on freedom of religion or belief echoed the NCM in emphasising that communal violence is most likely to occur in a situation in which the following elements are present:


• Long-standing antagonism along religious lines;

• A specific occurrence triggering an emotional response among members of religious communities;

• A sense among perpetrators and the religious community to which they belong that communal violence is justifiable;

• A sense among perpetrators that the reaction of police to communal violence would be absent, partisan or ineffective.


The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2009, was first introduced on 26 November 2005, and has undergone a series of revisions, which include the adoption of a number of recommendations issued by the NCM. It is expected to be introduced in the Lok Sabha in 2010, having received Cabinet approval in December 2009.


PROVISIONS:

The purpose of the Bill is outlined in the Statement of Objects and Reasons:

“Communal violence threatens the secular fabric, unity, integrity and internal security of a nation. With a view to empowering the State Governments and the Central Government to take effective measures to provide for the prevention and control of communal violence and to rehabilitate the victims of such violence, for speedy investigation and trial of offences including imposition of enhanced punishments, than those provided in the Indian Penal Code, on persons involved in communal violence and for matters connected therewith, it has been decided to enact a law by Parliament.”


The current version of the Bill sets out a series of measures to these ends, and includes the following provisions:


• Article 3(1) groups a number of offences under the Indian Penal Code (IPC) and other laws in a schedule. If one or more of these offences are committed “in such manner and on such a scale which involves the use of criminal force or violence against any group, caste or community, resulting in grievous hurt, loss of life, or extensive damage or destruction of property” and where “such use of criminal force or violence is committed with a view to create disharmony or feelings of enmity, hatred or ill-will between different groups, castes or communities”, resulting in an imminent “threat to the secular fabric, integrity, unity or internal security of India”, a state government is required to notify this as a “communally disturbed area”.

• Article 4 specifies that a state government may request the central government to deploy armed forces in these circumstances.

• Article 5 provides for preventative measures to be taken by a district magistrate prior to any outbreak of communal violence.

• Articles 6-10 provide for preventative measures to be taken by the “competent authority” after an area has been designated as communally disturbed.

• Articles 11-16 proscribe and stipulate punishments for certain acts associated with communal violence, including possessing weapons or threatening witnesses;

• Article 17 stipulates punishments for public servants or competent authorities who act in a mala fide manner or wilfully fail to exercise lawful authority, and thereby fail to prevent communal violence.

• Article 19 provides that punishments stipulated for scheduled offences must be doubled if the offences are committed on a scale and in a manner which constitute communal violence.

• Article 21 provides for the declaration of police stations within the scheduled area, and for the provision of women police officers to investigate scheduled offences committed against women or children.

• Article 22 provides for the review of cases where the investigating officer does not file a charge sheet within three months of a First Information Report (FIR) being registered.

• Article 23 provides for the constitution of “Special Investigation Teams” if the state government believes the investigation of offences was not carried out in a fair and impartial manner.

• Articles 24-37 provide for the establishment and procedure of “Special Courts” for the trial of scheduled offences, and for the appointment of public prosecutors. Article 32 provides for concealing the identities of witnesses testifying before a special court.

• Articles 38-41 provide for the creation and functions of a “State Communal Disturbance Relief and Rehabilitation Council” by the relevant state government, including several ex officio members and several members nominated by the state government, including representatives of all major religious communities. Article 40 stipulates the functions of the council in planning relief efforts, including advising the state government on compensation and the establishment of relief camps, taking a range of remedial measures for the welfare of victims and the reparation of damage, recommending measures for activating a “district communal harmony committee” and reporting to the government on shortcomings in remedial measures. Article 41 stipulates the preparation of a plan “for promotion of communal harmony and prevention of communal violence” to be recommended for adoption by the council to the state government.

• Articles 42-44 provide for the creation and functions of a district equivalent of the state committee, to act as the implementing body for relief and rehabilitation measures.

• Articles 45-48 provide for the creation and functions of a national equivalent of the state committee, with responsibilities including advising relevant state governments on relief, rehabilitation and compensation and making recommendations to the central government.

• Articles 49-52 provide for state governments to establish schemes for the compensation of victims of communal violence.

• Articles 53-54 provide for the payment of compensation for damages by offenders.

• Articles 55-56 set out special powers of the central government to deal with communal violence. These include directing the
relevant state government to take appropriate measures, and declaring a “communally disturbed area” if the state fails to do so when necessary, and deploying armed forces under the authority of the central government.

• Article 58 provides that there should be no discrimination in the provision of relief or compensation “on the ground of sex, caste, community, descent or religion”.


D. OUR CRITIQUE:


The principle of a CV Bill has been welcomed by religious minorities in India, and it has the potential to add positively to India’s excellent body of legislation protecting against acts of discrimination or prejudicial violence. However, there exist legitimate concerns about the effectiveness of the 2005 and the 2009 drafts of the Bill, which have been voiced by civil society and religious minority organisations, by the NCM and by the UN Special Rapporteur on freedom of religion or belief in the report of her 2008 visit to India. The Special Rapporteur recommended specifically that the legislation “should take into account the concerns of religious minorities” (paragraph 67).


The most serious, substantive and prominent concerns about the Bill in its current form include the following:

1. The Bill does not define “communal violence” adequately, and therefore cannot protect against it effectively. Firstly, it construes communal violence as disharmony between two different communities, or mass rioting by one community against another, but it does not recognise the process by which communal tension or hatred is incited, and it does not recognise the phenomenon of state complicity in the incitement or execution of communal violence. Secondly, the premise of the “communally disturbed area” does not do justice to the reality of communal violence as experienced by some religious minorities, especially Christians: certain states see frequent, well-targeted, single incidents of religiously-motivated violence, which are often orchestrated by extremist organisations, and this pattern of violence would not be addressed under the provisions of the Bill. Thirdly, the Bill inadequately covers the possible range of offences which might constitute “communal violence” (including specific forms of sexual violence), and the implications of this context for evidentiary standards in the investigative process.


2. The Bill does not provide for sufficient safeguards against the poor or discriminatory exercise of power by those responsible for protecting the rights of victims, which is a recurrent problem in cases of communal violence. The Special Rapporteur noted that civil society organisations have “voiced their concern that the sweeping powers given by the Bill to state governments could be misused to intimidate members of the minority community” (paragraph 40). Article 17 provides for the prosecution of public servants for the dereliction of duty, but this requires the prior sanction of the state government, and if the state government is complicit in (or not unfavourable towards) the communal violence, it becomes extremely unlikely that discriminatory behaviour or the dereliction of duty by public servants will be prosecuted. Article 22 of the Bill provides for the review of every case in which the investigating officer does not file a charge sheet within three months of an FIR being registered, but this may be circumvented by the common tactic whereby police officers fail to register FIRs according to proper procedure. Article 57, the so-called “good faith” clause, provides immunity for officials; however, the standard of mens rea, or command responsibility, should be enshrined in the Bill, so that superior authorities are held accountable for the unlawful activities of their subordinates. The NCM made a number of relevant additional recommendations to increase accountability: That the reports of any commissions of inquiry should be made public as a matter of course; that the National Human Rights Commission should be mandated to monitor the performance of special courts; and that those found guilty of involvement in communal violence should be debarred permanently from government jobs and from contesting any office.


3. The Bill should provide additional measures to protect witnesses or victims from intimidation. Article 15 criminalises acts which threaten witnesses, and Article 32 provides that the identity of witnesses may be concealed. However, the Bill should draw upon the guidelines of the Supreme Court and recommendations of the Law Commission. It would be strengthened considerably by providing for the police protection of witnesses at risk of threat or intimidation. Incentivising witnesses by providing travel and maintenance expenses (as recommended in Article 21(2)(ii) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act), would further protect against witnesses preferring to stay silent rather than risking intimidation as a consequence of giving evidence. In addition, the rights of persons displaced into camps as a result of communal violence, as outlined in Article 40(b), should be in line with the UN Guiding Principles on Internal Displacement, including the provision of education to displaced children (principle 23) and ensuring that camps continue until the establishment of suitable conditions and the means for the displaced persons to return voluntarily, in safety and with dignity, to their homes, or to resettle voluntarily (principle 28).


4. The Bill should set out a uniform, binding scheme for the provision of compensation to victims of communal violence, to address the inconsistencies shown in previous cases. It should establish the rights of victims or their dependents to financial compensation, and should also provide compensation to rebuild places of worship damaged or destroyed as a result of communal violence. This was among the recommendations of the NCM not included among the amendments in the 2009 version of the Bill.


E. Aftermath of 2008 anti-Christian violence in Orissa


In August to October 2008, Orissa witnessed the worst spate of communal violence ever faced by the Christian community in post-independence India, including brutal murders and rapes, widespread destruction of churches and property, and forcible conversions to Hinduism. The attacks, centred in Kandhamal district, were catalysed by the assassination on 23 August 2008 of Lakshmananda Saraswati, local head of the radical Hindu nationalist group VHP, by assailants believed to have been Maoists. On 24 August, when his remains were paraded around the district, mobs began setting up roadblocks, shouting Hindu nationalist and violent anti-Christian slogans, openly blaming Christians for the murder and calling for revenge as they attacked Christian targets. Although rural poverty and underlying issues of ethnic tensions over entitlements in Kandhamal played a role in the violence, these were not the primary causes but provided a context for the radicalisation of one community and the incitement of violence. The Orissa chief minister publicly acknowledged the role of extremist Hindu nationalist organisations in the violence in the legislative assembly for the first time in November 2009.


The violence which started in August 2008 continued for over eight weeks. At least 50,000 were displaced and 70 were killed; among the victims were Hindus opposing the rioters. Widespread anti-Christian attacks had also taken place in Kandhamal in December 2007, impunity for which laid the foundations for the second more serious wave of violence in 2008. The state government failed to implement detailed recommendations made by India’s NCM in early 2008.


F. SOCIAL CONTEXT:


Rural poverty is endemic in southern Orissa, the area in which the violence was centred, and the rural poverty ratio actually increased in this area during the period 1983-2000. There exist deep underlying issues of entitlement in Kandhamal, which created a context for the instigation of the 2008 violence: one such issue is the classification of Scheduled Caste and Scheduled Tribe communities, which was formalised in 1950. Both communities trace their ancestry to the indigenous inhabitants of the land, and constitute a single ethnic, linguistic and cultural group. However, Kandhamal is designated as a ‘Scheduled Area’ under the provision of the fifth schedule of the constitution, and as such, certain entitlements are reserved for the Scheduled Tribes, including freehold (patta) ownership of land. This is a potential cause of tension between Scheduled Castes and Scheduled Tribes. Moreover, Christians of Scheduled Caste background or ancestry are not eligible to the same entitlements as Scheduled Castes (see section 4.3 above). It is in the interest of those Scheduled Castes who profess Christianity to be reclassified as Scheduled Tribes, as this would reverse their double disenfranchisement, so tensions among Scheduled Castes and Scheduled Tribes can therefore take on a religious colouring in the right circumstances.


Although these factors of ethnicity and entitlement provided a context for the violence, it is important to emphasise that Christians in the area have been drawn from both Scheduled Caste and Scheduled Tribe communities. During the violence, Christians from both communities were attacked.


The extremist Hindu nationalist presence in Kandhamal has played upon existing sensitivities, and co-opted them onto a religious nationalist template. Extremist Hindu nationalists have been operational in the area for around 40 years, and they originate from a non-indigenous, caste Hindu, trader community. Their agenda has been the preservation of Hindu purity, including the prevention of cow slaughter and of religious conversions. Christians, as the largest religious minority in the area, constitute a threatening ‘other’, and provide a ready scapegoat.


The local prominence of Naxalites, or Maoist insurgents, creates an additional layer of complication. Naxalites were almost certainly responsible for the assassination of Swami Lakshmananda Saraswati, which precipitated the mass violence against Christians. There are numerous theories about the Naxalites’ motivation for the murder, one of which is that it was an act of retribution against his activities, and that it was calculated to gain support from disenfranchised people in the area, including Christians. The palpable absence of state machinery from the area, means that the scene has been set for something of a ‘turf war’ between Hindu extremists and Naxalites.


G. ISSUES ARISING FROM CHRISTIAN EXPERIENCE OF KANDHAMAL FAST TRACK COURTS:


We had welcomed the Fast track courts and had high hopes from the two Additional Sessions Judges and the Public prosecutors. We feel betrayed after the lapse of one year. Out of 12 deaths by murder, where judgement is pronounced, there was only one conviction; and accused in 11 deaths are acquitted. Justice, reconciliation and peace remain an unfulfilled objective. There are legitimate fears of impunity on a large scale. Local lawyers suggest that the majority of crimes have not been registered properly by the police, and the majority of cases which reach the courts have resulted in acquittals. There is also widespread evidence of endemic bias and dereliction of duty in the investigation and prosecution of offences. As of now, lawyers in Kandhamal said that of 3,223 complaints submitted to the police; only 831 had been registered as First Information Reports (FIRs). The judicial system in place has been partially successful, but the realities of trying cases in a rural situation amidst widespread fear, combined with poverty and illiteracy, create special needs which the current system is failing to address adequately. Many witnesses or victims are reluctant to testify in court for fear of retribution and lack of confidence in the efficacy of the system, and they have been intimidated and threatened, sometimes by mobs outside courtrooms;


We suggest that the new CV bill take care of the following issues:


1. The Fast Track courts should be set up outside the affected area, preferably in a neighbouring district, and in special cases, in an adjoining state to remove any inference with the course of justice.


2. The Judges appointed should be subjected to review for their performances by superior courts to weed out bigotry and vested interest, if any


3. Special public prosecutors be appointed at government expense out a panel whetted by civil society and survivors-victims


4. Survivor-victims are allowed to arrange their own lawyers to assist the Special PPs.


5. Survivor Victims be allowed to file additional FIRs other than those filed by police suo motu


6. Survivor-Victims’ lawyers be allowed to cross examine defence witness and intervene properly in the judicial court process.


7. Witnesses security and transport be taken care of by government in a foolproof witness protection programme


8. In case of gender violence cases, in camera proceedings be arranged


9. Adequate security be provided in court premises and environments


10. Legal observers / amicus curie be allowed to monitor the course of the trial


11. Special Investigation Teams be set up in case police investigations are found to be inadequate.


John Dayal

Secretary General, All India Christian Council