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Democracy's Bilkis Test

By Ajay K. Mehra

24 January, 2008
Indian Express

The judgment on the Bilkis Bano case provides an opportunity to reflect on a range of issues relating to inter-community relations as well as the state and legal mechanisms available to deal with riots in India. Above all, an increasing political patronage to rioters and political justification of organised collective violence of a majority community against a minority, and the abuse of power and state-machinery by a ruling party, deserve debate. But the question is: will a law against communal riots, like the one contemplated by the UPA, solve this complex problem?

That the Bilkis Bano case was shifted out of Gujarat, where her family fleeing from the brutal riots in 2002 was murdered by a frenzied mob and that she was gang-raped, is a stark reminder of the collapse of the criminal justice system and lower judiciary in the country. The police not only cheated an illiterate Bilkis in registering the FIR, they also tampered with the evidence in the cruelest fashion by severing the heads of the victims after post-mortem.

While there is a reason to celebrate in Bilkis's resolute and successful fight for justice, there is equally a reason to introspect whether it is possible to shift a case to another state every time a case of this kind comes up. The partisanship and disregard for the rule of law injected into an already politicised and incompetent police in this case may lead to more violence against minority communities. The judgment in the Bilkis Bano case has laid bare the soft underbelly of democracy, which has virtually justified the communalisation of state and society and subverted the rule of law. In a sense, the justification of this social and ethical aberration, which appears to have been institutionalised in Gujarat, has economic underpinnings. The middle class that has gone gaga over 'development' has no time to ask whether these newfound opportunities are available for every citizen, or how the deep-seated animus, now perpetuated through a 'majoritarian' politics, is aggravating the divides.

Communal riots in India over the years have turned from spontaneous manifestations of local conflict between communities over resources, faith or politics to more organised political pogroms against a minority community. The 1984 riots against the Sikhs soon turned into a violence that was politically instigated and supported, and finally explained away by Rajiv Gandhi in the most cavalier fashion. The intermittent violence as the Hindutva campaign of the BJP/VHP built up momentum with L.K. Advani's rath yatra and culminated in the demolition of the Babri Masjid, was politically backed. Whether initially spontaneous or planned, they all eventually showed a macabre preparation that came into play. Those like Bilkis may show determination to fight the system and find justice, but can individual grit alone reverse this dreadful situation?

Finally, as we grope for solutions to the hydra-headed monster of communal riots, the question remains: Will a law on communal riots help us tackle the menace? This leads us to another question: What is required to tackle collective and communal violence?

Communal riots can normally be treated as a social aberration, and the local administration is responsible for tackling it. When it acquires a political hue, which it has lately, then it is wholly different in scale and implication. The local administration in such a case is handling a double-edged weapon, which is sharp enough to cut them both ways. Obviously, in such a case, any law could become toothless.

However, in the first case, the local administration, and the police in particular, has sufficient legal instruments both in the Cr PC and the IPC. Sections 41 (arrest without warrant), 42 (refusal to give name and address), 46 (use of necessary force for arrest if required), 149 (prevention of cognisable offence), 151 (preventive arrest on knowing of a design) and others are effective instruments in the Cr PC. Sections in chapter 6 of the IPC make waging war against the state, conspiracy and sedition a cognisable offence. Sections 120 A & B as well as 153 A are harsh enough against those promoting disunity in society as well as hatching criminal conspiracy to create communal disharmony. Then there are provisions against offences at places of worship.

Indeed, a new law can be framed, but we need to use the available instruments first. The lessons offered by judgments in cases such as this must not be lost in politics.

The writer is Ford Foundation Professor, Centre for Dalit and Minorities Studies, Jamia Millia Islamia

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