And Justice For All
By Hosbet Suresh
The Little Magazine [India]
25 July, 2003Bombay, 1993. As the riots following the destruction of the Babri
Masjid spread, Fathima, 30, a widow, feared for her two little
children and sent them for safety to Parel. At about midnight, a
group of men - including policemen - broke into her house. She was
violently assaulted, beaten mercilessly, kicked about and gang-raped.
They then scribbled something in Marathi on a piece of paper and
pinned it to her chest. Naked and traumatised, she was finally thrown
out of her own house. Fathima grabbed a bedsheet to cover herself and
somehow managed to reach the police station. The policemen at the
station threw her out as well, and also snatched the bedsheet away.
On the streets, Fathima could get no help, as people shied away from
the naked, hysterical woman, assuming her to be mad. Finally, a Sikh
taxi driver came along, took off his own kurta and gave it to her. He
also gave her five rupees. With that, Fathima set off for her
friend's house in Parel. By the time she got there it was two in the
morning, and she needed to be rushed to a doctor. Her friend, a
Christian, cut Fathima's hair, dressed her up to look like a
Christian woman and took her to a doctor. The next day, she was taken
to Bhabha Hospital for treatment. Since it was a medico-legal case,
the police were called. Curiously enough, the constable who came for
the report was one of the culprits. Fathima recognised him, panicked
and refused to make a statement. After three or four days, a police
officer told her that she would be allowed to return home and live
there only if she did not pursue the case. But when she went home she
found her house almost destroyed, and her attackers roaming free.
Fathima went to a relief camp in Andheri.We came across Fathima while investigating, on behalf of the Indian
People's Human Rights Commission, the communal riots following the
demolition of the Babri Masjid in 1992. We have her story in The
Peoples Verdict[1]. The young widow gave her evidence with tears in
her eyes, saying that she would have committed suicide but for her
two little children. When we asked whether she would file a case in
court, she flatly said that she had neither the strength nor the
courage to proceed against her assailants.Fathima is not alone. In every communal riot, there could be hundreds
of Fathimas, who have neither the strength nor the courage to proceed
against the assailants.Take the recent events in Gujarat. Who can forget the fate of Kauser
Bano, 20, one of the most gruesome cases? She was nine months
pregnant. As the mob came, she and her husband tried to save
themselves. But in her condition, she could not run. So her husband
literally carried her. The mob overtook them and snatched her away.
Then one of the attackers slit her stomach with a sword and wrenched
out her foetus, and with the edge of the sword flung it into the
fire. According to eyewitness accounts, at least two more women were
subjected to a similar fate. Kauser Bano was also burned alive in the
same fire.[2] Would Kauser Bano's 76-year-old-father, who lost seven
members of his family in this spate of violence, get justice? If so,
what justice?If we look at every communal riot that has taken place in India, we
would find hundreds and thousands of such victims. The majority of
such victims belong to the minority community, and they get no
justice. It happened in Delhi in 1984. Officially, the number of
killings was placed at 2,733. It has been almost two decades and none
of the assailants has been convicted. Eyewitnesses were not believed,
nor were the kith and kin of the deceased. And a large number of
cases were just not filed, therefore not investigated. The last of
the cases got over only a few weeks ago, and no one was convicted.It happened in Bombay, after the riots in December 1992 and January
1993. Over two hundred thousand people had to flee the city and many
of them have not come back. The loss of property could be as high as
Rs 4,000 crore. And over one thousand people were killed. Yet, not
one of the culprits has been convicted. Particularly deplorable is
the fact that all those responsible for the violence and atrocities
are walking freely. Though cases had been registered against some of
them, instead of prosecuting them, the government just decided to
quietly close the cases. Nearly 3,000 cases were thus dropped.
------------------------------------------------------------------------The argument that a prosecution of persons responsible for spewing
hatred would rake up past events is totally misconceived because
there has been no rethinking or regret by the authors of the writings
and there is every likelihood of such action being repeated------------------------------------------------------------------------
The Gujarat violence of 2002 was worse. In his foreword to Crime
Against Humanity, Justice V.R.K. Iyer describes it as "a ghastly
sight the like of which, since bleeding Partition days, no Indian eye
had seen, no Indian heart had conceived, and of which no Indian
tongue could adequately tell. Hindutva barbarians came out on the
streets in different parts of Gujarat and, in all flaming fury,
targeted innocent and helpless Muslims who had nothing to do with the
antecedent Godhra event. They were brutalised by miscreants
uninhibited by the police, their women unblushingly molested; and
Muslim men, women and children, in a travesty of justice, were burned
alive."In all these communal riots, the police and the administration
generally identified themselves with the majority community. In
Bombay, the "police officers and constables openly said that they
were Shiv Sainiks at heart and policemen of a supposedly secular
state by accident" (The People's Verdict). They were certain that
they would not be blamed or taken to task for any dereliction of duty.Which is why the then Maharashtra government's reluctance to file any
case against Bal Thackeray - who was regarded by many as directly
responsible for what happened to the thousands of innocent riot
victims - was a particularly irresponsible act. Though the government
did not take any initiative, the police had filed four cases under
Sections 153A and 153B of the Indian Penal Code (IPC), based on four
news reports in Saamna, the Shiv Sena publication, dated January 10,
11, 12 and 21 of 1993. Then they applied to the government for
sanction to prosecute him. The government would not respond.
Meanwhile, the Peoples Union for Civil Liberties (PUCL) filed a
petition in the Bombay High Court for a mandatory order against the
government to launch a prosecution against Bal Thackeray. They cited
nine different editorials from Saamna, each containing patently
inflammatory words. The petition was heard in September 1994, about a
year after it was admitted - not any great delay. Yet the judges
dismissed the petition on the ground that it was unwise to "rake up"
old issues all over again! They also went through the impugned
editorials, and found nothing wrong in them. This implied an
endorsement of the Shiv Sena counsel's argument that Bal Thackeray
had referred only to supposedly "anti-national" Muslims, ignoring the
basic question about who decides who is anti-national. Is it Bal
Thackeray? Is it L.K. Advani? Or is it persons like Praveen Togadia
or Narendra Modi?[3]What is still more shocking is the fact that when the petitioners
moved the Supreme Court, by way of a Special Leave Petition, it was
simply thrown out. Fali S. Nariman, eminent lawyer and now Member of
Parliament, retorted: "Where then, O Lord, shall we turn for the
redressal of palpable wrongs?" Many others expressed their shock and
disappointment. Soli Sorabjee, the present Attorney-General said: "It
is extremely unfortunate that the judiciary has not intervened in
this case where the law has been openly flouted and communal hatred
spread by Bal Thackeray through his mouthpiece, Saamna. History
teaches us that unless these pernicious tendencies are scotched, they
grow to become unmanageable monsters later on. The argument that a
prosecution of persons responsible for spewing hatred would rake up
past events is totally misconceived because there has been no
rethinking or regret by the authors of the writings and there is
every likelihood of such action being repeated."[4]Finally, about two years ago, Bal Thackeray was arrested amidst much
fanfare, only to be released promptly by a magistrate. The government
moved the High Court and the case is pending there. Such is the
concern of the judiciary for the worst violations of human rights in
the city of Bombay!
In our report, Crime Against Humanity, there is a huge compilation of
all the 'hate speeches' of Narendra Modi, Praveen Togadia and several
BJP, VHP and Bajrang Dal members. There is also a chapter on 'hate
writings' by these very members. Any one of these is sufficient to
prosecute and convict them under Section 153A or 153B of the IPC. But
are any of them being prosecuted? Will the government ever give
sanction to prosecute them? The reason one requires this sanction is
to condone a casual aberration in the general interest of the public
at large, and not to endorse regular, recurrent violence offered with
impunity in the firm belief that these inciters of violence are above
the law. In a country where there has been a perceptible increase in
communal violence, refusal to give sanction amounts to connivance
with the crime itself by the government, which has a fundamental duty
to prosecute criminals. Since these very offenders have gained
political power through violence, it is proper that the requirement
of giving sanction to prosecute should be treated as obsolete and
done away with. Refusal to give sanction where the material is clear
and unambiguous is as arbitrary as granting sanction where the
material is inadequate. The requirement of sanction generally
operates as a shield to protect these criminals who have no respect
for human lives or human rights.In almost all the communal riots, it is the minority community that
has suffered the most. Every official Commission of Inquiry appointed
by the concerned governments has, without exception, indicted the
majority community as mainly responsible for the violence. In every
riot, the methodology adopted by the Hindu groups - particularly the
RSS - is the same. This is what the Justice Venugopal Commission says
on the Kanyakumari riots of 1982, between Hindus and Christians: "The
RSS methodology for provoking communal violence is: (a) rousing
communal feelings in the majority community by the propaganda that
Christians are not loyal citizens of the country; (b) deepening the
fear in the majority community by clever propaganda that the
population of the minorities is increasing and that of the Hindus is
decreasing; (c) infiltrating the administration and inducing the
members of the civil and police services by adopting and developing
communal attitudes; (d) training young people of the majority
community in the use of weapons like daggers, swords and spears; (e)
spreading rumours to widen the communal cleavage and deepen communal
feelings by giving a communal colour to trivial incidents."
------------------------------------------------------------------------Time and again over the last three decades, every commission has
recommended various measures to prevent communal violence, to
de-communalise the police, to punish the guilty and to ensure justice
to victims. All these have remained only on paper. No government, be
it the Congress, or the Janata or the BJP, has shown any interest or
inclination in implementing any of the major recommendations------------------------------------------------------------------------
At Jamshedpur in 1979, the method was the same: "to rouse the
sentiments of Hindus to a high pitch and to distort events and show
some actions as attacks on Hindus that appear to be part of a design.
A survey had already established that all policemen, havaldars, home
guards, etc were at heart ready to give support to them (Hindu
communalist organisation)."[5] After more than a decade, the Shiv
Sena indulged in the same modus operandi in Bombay by rousing the
Hindus to "entertain the belief that the Muslims, not content with
having insisted upon the location of the Babri Masjid on Ram
Janmabhoomi, had done the unspeakable by daring to protest against
its demolition" (The People's Verdict, p. 103). And this is what the
Justice Srikrishna Commission Report states: "Shiv Sena and its
leaders continued to whip up communal frenzy by their statements and
acts and writings and directives issued by the Shiv Sena Pramukh Bal
Thackeray. The attitude of Shiv Sena as reflected in the Time
magazine interview given by Bal Thackeray and its doctrine of
retaliation, as expounded by Sri Sarpotdar and Sri Manohar Joshi,
together with the thinking of Shiv Sainiks that Shiv Sena's terror
was the true guarantee of the safety of citizens, were responsible
for the vigilantism of Shiv Sainiks. Because some criminal Muslims
killed innocent Hindus in one corner of the city, the Shiv Sainiks
retaliated against several innocent Muslims in other corners of the
city."[6]And now in Gujarat we have the same methodology executed in the most
horrendous manner on an unprecedented scale. The objective was to
create a situation of extreme violence and polarise people in such a
way that those who protested would be terrorised or dubbed
anti-national, thus legitimising this unpardonable crime. In this,
Godhra became an excuse to attack large numbers of innocent Muslim
men, women and children. Besides, the administration - already
communalised during the long BJP rule - was with them. They also
appeared to be sure of inaction on the part of the central
government, which may have taken an oath on the Constitution of
India, but seems to swear by the RSS ideology.Now they threaten to repeat in other states what they did in Gujarat
- a recognisable threat to indulge in violence, to commit murder and
mayhem, to loot, to rape and burn to death members of the minority
community. They have already identified the targets -- Bhojshala in
Madhya Pradesh, and Bab Budangiri in Karnataka - to incite people and
ignite violence. In all these programmes, the central government
appears to be silently supporting the Sangh Parivar, as if the rule
of law in this country is not their concern.In this vitiated atmosphere, it is unlikely that victims of communal
violence would ever get justice. They did not get it in the past.
They will not get it now. And in future - who knows?What is lacking is the political will to uphold the rule of law, and
not to be subservient to the rule of the jungle. No one should be
made to believe that he is above the law, even if he wins politically
in any election. Victory in any Assembly or Parliamentary election is
no endorsement of crime, nor can it be considered as any condonation
of conduct. The law must take its course, and the guilty must be
punished.Time and again over the last three decades, every commission has
recommended various measures to prevent communal violence, to
de-communalise the police, to punish the guilty and to ensure justice
to victims. All these have remained only on paper. No government, be
it the Congress, or the Janata or the BJP, has shown any interest or
inclination in implementing any of the major recommendations. Our
criminal justice system and our judiciary have not galvanised
themselves to meet this situation and deliver speedy justice.Now the situation has become critical. The central government (it is
the BJP government and not the National Democratic Alliance, for
there is no NDA agenda) and the BJP governments wherever they are,
have openly admitted their disinterest in reining in the Sangh
Parivar in its design to deliberately create violence all over the
country. These elements think that would bring them political gain -
"the harvest of hatred" - as in Gujarat. So one can envisage more
hate speeches and hate writings all over the country, solely with a
view to divide people for political power. That will be an end of all
that our pluralistic, liberal, democratic Constitution stands for.
Should this be allowed to happen?There are still several states where the BJP is not in power. The
governments in those states must seriously consider how to stem this
pernicious poison that is sought to be spread by these elements. Of
course, the Sangh Parivar - particularly the VHP and Bajrang Dal -
could be banned. They would, in fact, fall within the scope of a
'Terrorist Organisation' as defined in POTA. However, banning is not
the solution. They must be made to know that there is still the rule
of law in these states. For every hate speech or hate writing or for
any conduct which is likely to incite people to communal hatred or
violence, there should be prosecution under Section 153A or 153B or
under other provisions of the IPC. The police could be given a
general sanction to arrest and prosecute all such persons, whoever
they may be, the moment they indulge in such acts. Our Constitution
still has its goal of establishing a society where there will be
liberty, equality, fraternity and justice (social, economic and
political) for all, irrespective of caste, community or religion. No
democracy can survive if minorities have to live under a perpetual
threat from the majority community.Notes:
1. The Peoples Verdict is the report authored by this writer with
Justice S.M. Daud (Retired) on behalf of the Indian People's
Human Rights Commission, on the communal riots in Bombay in 1992-1993
after the demolition of the Babri Masjid.
2. See Crime Against Humanity, a report of the Concerned Citizens
Tribunal on Gujarat, 2002.
3. BJP hardliner L.K. Advani, now Deputy Prime Minister and Home
Minister of India, was an accused in the Babri Masjid demolition
case. Praveen Togadia is general secretary of the Vishwa Hindu
Parishad (VHP) and Narendra Modi, chief minister of Gujarat, is
widely believed to be responsible for last year's carnage.
4. A petition is now being filed in the Supreme Court, to dispense
with sanction required to prosecute Praveen Togadia, Narendra
Modi and others under Sections 153A & 153 B I.P.C. Would Mr Sorabjee
support such a petition?
5. Report of Justice J. Narain, 1979.
6. Chapter III, para 1.2, Justice Srikrishna Commission Report, 1998.Justice Hosbet Suresh, retired judge of the Bombay High Court, is a
leading human rights activist and has worked extensively for civil
liberties in India. He lives in Bombay