- The communal Threat: A Deepening Challenge for the Struggle for Human Rights

-Fifty years down the line has the Indian Constitution proven inadequate?

Teesta Setalvad

Fifty years ago the UN Declaration of Human Rights came into force worldwide. This time frame, give or take a few years also coincided with the birth of fledgling nation states who emerged from centuries of colonial rule in Asia and Africa.

Within these formulations, many of whom consciously, as a result of their individual nationalist struggles chose the democratic option sworn to notions of egalitarianism, the  realisation individual human rights ought to have been more and more assured. India is a classic example. Our Constitution adopted two years later after the Universal Declaration of Human Rights adopted by the UN General Assembly on December 10, 1948, is an admirable sister document, or proud replica of the UN charter reflecting  the same seriousness and commitment to notions of equity and justice in the context of a democratic and secular order.

The  opening declaration of the UDHR compares so closely to the Preamble to the Indian constitution; the UDHR’s Article 2 on non-discrimination on the basis of race, colour, sex, language, language, religion, religion, political or other opinion etc. is ably reflected in our constitution’s Article 15: “Prohibition of discrimination on grounds of religion, race caste, sex or place of birth of any of them.”

Similarly the UDHR’s Article 3 on “everyone has a right of life, liberty and security of person” is reflected in Article 6 of the Indian Constitution: “Every human being has the inherent right to life. The rights shall be protected by law. No one shall be arbitrarily deprived of his life.”

The same comparisons can be found between Articles 7 and 18 of the UDHR that deal with non-discrimination in protection before the law and freedom of religion, thought and conscience and the Indian Constitution’s Articles 14 and 25.

But like in the west where inherent notions of white supremacy and dominance have allowed racism to exist, or subsist, surface and even flourish within western democracies - side by side with the laudable Bill of Rights and other fundamental freedoms -- inherent inequities among the social and economic starts of these fledgling nation states India have seriously hampered the application and  realisation of individual human rights to citizens living under the Indian political dispensation.

Poverty, or economic deprivation is undoubtedly the greatest obstacle in the attainment of  individual freedoms and genuine liberty. The tragic disparities that Indian society not merely always did have, but appears to have enhanced over fifty years’ of independent governance, are clear pointers to this inescapable reality: that economic dignity and independence go a long way towards exercising choices and living lives that are genuine manifestations of lived, personal liberty.

For the purposes of this paper however, I have, while acknowledging at the outset the overriding concern towards increasing poverty in India and suggesting that removal of such should be top priority within the broader struggles for human rights, restricted the subject to the social inequities and realities that have not only seriously hampered the realisation of human rights for hundreds of thousands of Indians, within whom I include dalits, women and the religious minorities, but have in the more recent past, particularly or the latter, have had these rights violently and forcibly taken away. Despite the continued existence, on paper of the secular, democratic Indian constitution, there has been no positive intervention from the state, be it the law and order machinery or the executive.

The denial, or rather violently snatching away of the rights of minorities (religious) to life, protection from the law, access to employment, right or residence in any part of India have been insidiously taking place in the country over the last decade and a half, under the increasing social sway of and credence being given to the majoritarian communal ideology of Hindutva. The successful erosion into the basic ethic and morale of democratic institutions like the law and order machinery -- the police, the executive and even the judiciary has also been by the inroads that this very philosophy/ world view has made into the discourse, formulations and functioning’s of the administration and the executive, of the Indian mainstream. This, therefore, poses the single most serious threat to Indian democracy today.

What exactly am I referring to? Examining today’s India and within that framework the question of human rights, requires at the foremost contextualising the discussion within the context of the political emergence of the ideology of Hindutva, the ideal of a Hindu nation that at its very basic is anti-democratic, anti-socialist and anti-secular. An anathema then to every single provision that the Constitution of India has stood for.

The party that heads the coalition that the Indian Union government today is run by the political party, the Bharatiya Janata Party (BJP), that is sworn to this ideology. Until the elections to many Indian states a fortnight ago, this party was also in the seat of governance in five Indian states. Maharashtra, where I hail from, is still run by the Shiv Sena-BJP alliance that has a Shiv Shahi/Hindutva  dispensation.

It is of no material consequence for the political representatives of these parties to attempt and perpetually reiterate that Hindutva or Hindu Rashtra is inherently secular and democratic. The farthest and crudest justification or reasoning for this is them saying that under their political dispensations, once they come to power, “no riots take place.”

Both in its ideological construct and its actual operation -- now we have had the sorry privilege of Hindutva-inspired Hindu rashtras in many parts of the country-- demonstrate that this ideology is anti-democratic and violative of the basic tenets of the Indian constitution containing as it does the basic human rights of a life of equality, freedom and dignity.

We have seen clear and continuing evidence of this in Gujarat, Rajasthan, Uttar Pradesh and Maharashtra we have had, or still have in these areas that have had saffron dispensations. I shall go into these details but first at the level of ideology.

The ideology of Hindutva can be best summed up in the words of Madhav Sadashiv Golwalkar, the second Sarsanghchalak of the RSS, who wrote in his book, We; or Our Nationhood Defined, in 1939: “The foreign races in Hindustan (read all Muslims and Christian) must either adopt the Hindu culture and language, must learn to respect and hold in reverence (sic) Hindu religion, must entertain no idea but those of the glorification of Hindu race and culture, i.e., of the Hindu nation and must lost their separate existence to merge in the Hindu race, or stay in the country, wholly subordinated to the Hindu Nation, claiming nothing, deserving no privileges far less any preferential treatment - not even citizen’s rights. There is, at least should be, no other course for them to adopt.” (9).

We need to clarify and stress that here was/is not a benevolent philosophy unlike what the Indian Supreme Court has had to say on Hindutva (“calling it a way of life”)this is what ‘Guru’ Golwalkar had to say about the prosecution of the Jews in Nazi Germany:

“German race and pride has now become the topic of the day. To keep up the purity of the Race and its culture, Germany shocked the world by her purging the country of the semitic Races - the Jews. Race pride at its highest has been manifested here. Germany has also shown how well-nigh impossible it is for Races and cultures, having differences going to the root, to be assimilated into one united whole, a good lesson for us in Hindustan to learn and profit by” (10)

For over seven decades since its formation in 1925, the Rashtriya Swayamsevak Sangh (RSS), the organisation founded on this upper-caste Hindu Brahmin ideology, has been working insidiously at its task through varied front organisations, cultural, educational, labour fronts, womens’ organisations all over the country. It is founded on deep-rooted notions of pitrubhoomi (fatherland, land of ancestors/origin) and punyabhoomi (land of faith, worship). Implied in these formulations in the crudest sense is that therefore the “Muslims” and “Christians” are by faith and history, outsiders. So are, of course, the vast majority of other Indians, Dalits, tribals and OBCs, who do not fit into definitions of culture, custom and religion as this rigid outfit sees it, though serious attempts have been made to give this ideology an all-Hindu orientation. Hence the emergence of more vociferous and cruel outfits like the Vishwa Hindu Parishad (VHP) and Bajrang Dal. The basic agenda of this ideology in operation is, however, clearly political: to significantly alter and change the existing Indian democratic order.

Much time and unnecessarily wasteful energy has been spent on discussions of whether or not the Hindutva agenda can be termed fascist. The blatant harking to a superiority of race for one section of the population over others, the artificial “demonising” of the “enemy other” to explain current day problems, wrongs or conflict, the blatant disregard for the rule of law and flaunting violations of it, all through an embracing of violence. What more indicators of fascism do we need?

The crucial difference between today and the situation in India five-ten years ago is this. It is the difference between say, a historical denial of access to resources, employment and self improvement to large sections of our Dalit population (in over 75% of our village even today Dalits cannot draw water from our village wells) and the current day humiliations through acts of targetted violence being perpetuated against Indian Muslims and Christians, and justified by lies, that through mass hysteria become weapons of venom and murder.

This is not more rhetoric. What exactly do I mean ?

Shiv Sainiks in Mumbai and Delhi attack and vandalise theatres showing a film with impunity, despite the fact that its producer has, following the due process of law, obtained an ‘A’ (adult) certificate from the Censor Board. The chief executive of Maharashtra, democratically elected to his chair, applauds the acts of vandalism, violence & unlawful behaviour. The Delhi SS chief , V.  Goel is on record saying that following unconstitutional norms is the philosophy of his party. Madhukar Sarpotdar, another MP of the SS, is on record before the Justice Srikrishna Commission of Inquiry saying that his party “believes in the retaliatory killings of innocents.” He was admitting this in cross-examination when it was stated that the mere rumours of killing of Hindus in one part of Bombay in 1993, had led to SS leaders exhorting their supporters to killing Muslims, and actually doing so, in another part.

This is the blatantly anti-democratic thrust of Hindutva in ideology and in operation.

But friends, we need to look closely at the horror stories emerging out of Gujarat and Uttar Pradesh if we want to truly appreciate the gravity of the situation before us.

Welcome to Hindu Rashtra, are the boards put up by the VHP in over 1,200 Gujarat villages. “Lived fascism is a grim reality in Gujarat today” said a senior activist from the state when I interviewed him. When we investigated the state for our journal, Communalism Combat a shameful and sorry tale unfolded.

* March 5 1998, Vadodara: An assembly of a group of Pentacostal Christians is violently disrupted by the VHP-Bajrang Dal, after incendiary pamphlets are first distributed. The police help the vandals, other  Christians are beaten up.

*April 15, Naroda near Ahmedabad: A Catholic Church is demolished by a violent mob of the BJP,VHP and Bajrang Dal. The attacking mob is given police protection!

*July 8 1998: The body of Samuel, a Methodist Christian is exhumed and dumped outside for 3 days by VHP leaders in a bid to terrorise the small local minority community.

*July 20, 1998: The I.P. Girls Secondary School in Rajkot: 300 copies of the Bible are trampled on and burnt on entirely false allegations of “conversions” dished out by local VHP-Bajrang Dal squads. Incidentally, 90 per cent of the students in this school are Hindus. The school has been in operation for over a century. Human rights group, NISHANT, that met students days after the incident reported for Communalism Combat. The students were in tears. Zala Aruna, a Hindu girl, said, “They snatched the Bible from the primary kids, stepped on the books, danced on them shouting, Jai Sri Ram. Then, sprinkling kerosene on them, they set them on fire. Would they have done it  to the Geeta?” this child innocently asked. Not in BJP’s Hindu Rashtra!

This human rights’ group also interviewed Ilabehn Mehta who passed out of the school in 1960. She said, “We were told about Christianity, but we were never asked to adopt it. I was a Hindu when I entered the school, and a Hindu when I left.”

Over 40 incidents in Gujarat alone since February 1998 since chief minister, Keshubhai Patel’s ministry took over in the state. There has been no action taken in any of the cases. The rape of nuns in Jhabua, the assault on other sisters in Haryana, the blatant attack on ordinary Christians observing Sabbath, praying on Sunday in Mangalore.  Over 131 attacks against Christians in the last year alone. All over India. In each case, goons of the RSS-VHP-Bajrang Dal, even the BJP and the SS in Maharashtra have been indicted. And what does the Home Minister of India have to say ? He is busy trying to convince the Indian Christian leadership that in the Jhabua rape case, 12 of the rapists were Christians!

What about Rajkot, Latur, Maharashtra,  and the case of Father Jesudas in Dhumka, Bihar where the BJP was involved ?

Using this forum, I would like to ask the Home Minister of this country, what is he doing about each of those cases that have been listed out? The questions that we need to ask ourselves are, can we really expect anything from a man who is named as co-conpriator in the criminal act of the demolition of the Babri Masjid on December 6, 1992? Is there not a conflict of interest because of which he should not occupy his chair, until charge-sheets have been filed and the case reaches its conclusion in accordance with the due process of law ? Is this not necessary given the magnitude of the crime?

Thanks to consistent public pressure in Mumbai, at least the Justice B.N. Srikrishna Commission report has become what every government investigation into mass murder should become -- a public document. What, Mr. Advani, has happened to the Liberhans Commission inquiring into the Babri Masjid demolition other Inquiry Commission into the violence that racked Ayodhya in 1992? Have these judicial probes completed their tasks?  Have they been disbanded? The nation demands that these reports be made public. And thereafter action into each one of them.

The story of Gujarat, however remains incomplete without more sordid details.

Randhikpur village Panchmahal district (July 1998): 60  Muslims families are forced to free from their villages following mass hysteria whipped up through pamphlets distributed and public meetings held by the VHP and the Bajrang Dal, alleging that Muslim boys were kidnapping Hindu girls. The charges were false. Over four months later, not all the families are back. They have been terrorised into giving up control over their local business by the VHP and the BJP leadership.

Sanjeli village, in Rajkot district. A similar tale. Over 100 families are forcibly evicted from their homes. Terrorised, they had to flee to neighbouring villages, following which their transport businesses have been appropriated by VHP-Bajrang Dal youth who allow only jeeps with a saffron branding to ply the roads. Apart from the gross violence it appears to be as clear attempt to economically cripple the minority community.

So friends, to comprehend the full flow of Hindutva ideology in operation, we need to closely analyse how locally the VHP-Bajrang Dal brigade fully utilises Hindutva’s exclusivist ideology to whip up mass local sentiment against the minorities while a silent administration looks on. The prevarications  that “Muslim boys are marrying Hindu girls” to convert them and thereby increase their population and Christian minorities are going about their evil designs of “forcibly converting” local populations are the two lies currently being used by VHP_Bajrang Dal squads in Gujarat to whip up mass justification of brutal acts against a section of our own population.

They prepare the ground carefully, friends. They distribute pamphlets. These contain crude and provocative language against Muslims and Christians. No action is taken against them by the police for these violations of the law. They create a silent support for their prevarications. These prevarications are baseless but let’s not deny that they win a silence from the rest of us. And there, then, is where the power of the genocide comes from. From  the silent support of a vast majority of the population. That is what lived fascism is all about. It exists among us today. It happened in Mumbai in 1992-1993. It is happening in Gujarat right now.

In the state’s Dangs district, Christian and Muslim places of worship have been attacked and pulled down. A shuddhikaran (purification) ceremony has been performed on the person of every single minority community member at the local Unnai temple. Following the “purification”, the local sarpanch has decreed that these sections cannot drink water from the village well nor use the common grazing lands for their cattle. Relegating our religious minorities to how we treat our Dalits, what?

The Gujarat DGP in an exclusive interview to our journal proclaimed two things. One, that it was the activists of the VHP and Bajrang Dal who were taking law and order into their own hands in Gujarat. And, two, that  the allegations of forced abductions/marriages or conversions, after investigations by the police have been found, to be entirely baseless.

But what does the police do?

The local police in Gujarat watches as more & more incidents are reported. In the Randhikpur and Sanjeli incidents (wherein Muslims were forcibly evicted from their villages) these actions were preceded by Dharamsabhas held by the VHP-Bajrang Dal in full public view. Publicly-reported documents and police station records reveal what was said by these leaders at these Dharamsabhas. “If Muslims want to live here they must live as Hindus!”  And to any member of the police who dare to speak up: “Both here (in the state of Gujarat) and in Dilli (Delhi) amari sarkar che (it is our government). Your silence would be your best friend.” To a sole officer who tried to uphold the basic duties of his uniform VHP leaders threatened, “we will strip you of your vardi (uniform) in public”.

Journalists were embargoed form visiting Sanjeli & Randhikpur. The Indian Express, July 1998, reported: “On Sunday evening, Bhupendra a freelance photographer went to Randhikpur accompaning this reporter (Darshan Desai). There he was trailed by a group of 10 people who heckled and abused him as he entered. He was gheraoed by at least 100 people, led by Shailesh Bhatt of the VHP. He was abused, pushed around, slapped on the face and asked to leave. Patel says he saw a sub-inspector hiding his nameplate before entering the scene and also asking him to leave for his own good. When they told him he should be protecting Patel, he said ‘Don’t be oversmart, I will slap you if you teach me my job. Now get out.” The reporter left. Gujarat Today’s Yunus Gujiwala was detained for several hours at the local police station when he tried to visit Randhikpur.

This then is lived fascism in Gujarat today.

The alleged “forced” conversions by Christians is also a myth that is a duty of every rational-minded Indian to explode. What is the reality?

How many of us know that Christians who formed 2.6% of population in 1961, 2.4% in 1981 constitute only 2.3% of our population today? These are census figures given in the Tata Statistical Handbook. How many of us know that both states of Orissa & Madhya Pradesh have in existence, legislations, ironically called the Freedom of Religions Act, passed between 1967-68. The basic thrust of these is that any conversion that takes place in these states has to be reported to the local district magistrate within 48 hours. The underlying assumption, of course, being that conversions are coerced or forced !

In the case of Orissa, no single case of violation of the act has ever been reported in the 30 years of the act’s existence. In MP, of 40 cases registered in the same period, 37 have been dismissed by the courts as superfluous. These have been cases registered to harrass, with no shred of evidence to back them. Three have not yet come up for trial.

Ironically, all the cases in MP have been concentrated in the area under the sway of Dilip Singh Judeo (BJP MP from Jaspur) and the Vice President of the RSS-run Vanvasi Kalyan Ashram.

How many of us know that the same Gujarat police whose chief proclaims that all rumours of forced marriages (with the motive for conversion behind them) were and are blatant falsehood, has set up a police cell to investigate each & every case of inter-community marriage in the state. Is not this the grossest denial of a citizen’s personal liberty as guaranteed under the Indian Constitution? What is the judiciary doing about this?

Let’s now take a look at Uttar Pradesh.

On November 2, 1997 at a public meeting at Kaushambi in Manjhanpur, the chief minister, Kalyan Singh, openly declared that “whenever the police apprehends a criminal, he should be disabled by hurting the lower half of his body by any means whatever, so that they may not thereafter be able to have a normal life.” This passage is quoted from a public interest petition filed before the Allahabad High Court by the state unit of the People’s Union for Civil Liberties (PUCL) that has demanded, on grounds of violation of fundamental rights, the dismissal of the UP government. 

On April 30 this year, in a much-publicised speech to the UP state police on the occasion of a law & order review meeting, chief minister Kalyan Singh said : “I want performance, results. I want you to create a dhamaka (impact). If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the life of 10 others, then people will praise you. And I am here to protect you.”

But who has the UP police -- following the adesh (directive) of Kalyan Singh killed? Sourcing a list methodically compiled by two Indian journals, India Today  (Aug 98) and Teesri Duniya (Sept 1998), I quote some examples. These show that a majority of the victims are Dalits and Muslims. Senior policemen concerned with the situation in the state now reveal that “the conditions are worse than Bihar.” They have given confidential reports suggesting that today 32% of UP’s policemen have criminal backgrounds and 16 % of these actually have criminal cases pending against them. When independent Rajya Sabha MP and veteran civil rights activist, Kuldip Nayyar, led a protest dharna in Lucknow barely a few months ago, he and the local activists were forcibly stopped from demonstrating at the venue which they had arranged for the protest.

Some of the hair-raising killings need to be highlighted for us all to recognise the magnitude of the problem :

*August 9, 1998: A woman, Ramkeshi, was shot dead in a police encounter in Bakevar near Ittava after which the police tried to fabricate the theory that she was a dacoit. Following a strong public protest, 15 men have been suspended from service.

*Aug 25 1998: Five dehadi Muslim workers -- Saleem, Nafeez, SajidNanhe and Farmood -- were shot dead, one after another, at Lodhpur village near Muzaffarnagar. Hailing from Meerut, they were headed for Balipura village when the truck they were travelling in broke down. Near Lodhpur (a village notorious for dacoits) villagers mobed them and informed local police. A police patrol led by inspector K.K. Gautam which was passing by promptly swing into action, took the youth to a deserted spot and shot them down, one by one, at point black range. None, except Salim has any police record.

 *July 8 1998: Following inquiries made by the father of 14-year-old Sunil from the local police after he was found missing, it transpried that the teenager had been tortured to death by police. The father, a garbage picker died of grief two days later, on July 10, 1998.

The list goes on. Five Dalits were killed in a police encounter in June 1998. Despite the fact that presently UP has the poorest human rights record in the country (the NHRC has recorded that over 46% of the cases of human rights violations received by it during 96-97 were from here, the state government is adamant against setting up a state Human Rights Commission. For the information of this gathering, the state unit of the PUCL is battling this issue through the courts as well.

Which brings me towards another crucial point. This is also a fervent plea to both the Indian legislature and the judiciary. In an executive controlled by the BJP, I have no hope.

The legislature, presently at least, is multi-tiered. This forum must be used for the high ideals with which it has been instituted. It was in those very seats that members of our Constituent Assembly in their ultimate sanity and wisdom, charted India’s future respecting her multi-cultural, multi-dimensional reality. It was not merely the most ideal way, it remains today the only practicable way that this country can hope to survive as one nation. Tampering with that diversity, attempting to impose a hegemony, a rigidity on this vast canvas, snatching people’s lives, property and livelihoods by force; denying them access to employment, forcing them into ghettos by simply not leasing, renting or selling  properties to some segments in some areas, is not merely Hindutva in operation. It is a recipe that is inviting retaliation –increasingly, as more and more systematic attacks and pogroms take place -- inviting violent retaliation. 

Bombay 1992-1993 was followed by March 1993, the serial bomb blasts. Coimbatore November ’97 was followed by February ’98. And what did the local leaders of the BJP from Coimbatore say in their official deposition before Justice Hosbet Suresh investigating the tragedy for a human rights tribunal: “We want more bomb blasts. Everywhere there are such actions, we win seats.” How much more cynical can you get?

In report after report of every investigation into post-partition communal riots -- since Jabalpur in 1961—the judiciary has identified right-wing, Hindu exclusivist organisations as responsible for repeated provocation that finally, after weeks of simmering, erupt into violent outbursts. And these very forces are the ones that want the victims to retaliate, brutally, violently. So that the schisms that run central to their politics are driven in finally and become complete among the people, irreversible.

When are the rest of us going to see the writing on the wall?

This presentation would be incomplete without a serious introspection into the analysis and response of the Indian judiciary, the last bastion of Indian democracy to the insidious and overt perversions and subversions of the law and the Indian Constitution by these majoritation forces of Hindutva.

Barring some noble exceptions, it is my humble submission that the Indian judiciary, the last bastion of Indian democracy has proved itself entirely inept, so far, in containing the spread of this communal poison even in clear-cut cases where the law and provisions of it, inviting strict penal actions, have been violated.

We have in existence today on our annals a judgment from the apex court giving a clean chit to the philosophy of Hindutva, describing it as a “way of life.” This decree has been recently challenged by several organisations.

But where was the Indian judiciary in the run-up to Dec. 6, 1992, before the demolition took place at Ayodhya and after violence was unleashed systematically in many Indian towns and villages? On November 30, 1992, a conscientious citizen, through a public interest petition, earnestly pleaded before the Supreme Court of India: Do not turn a blind eye, My Lordships, he said. The Kar Sevaks are arriving in their hundreds of thousands at Ayodhya. Look at the kind of speeches being made to mobilise these crowds along the way, whether it is Sadhvi Rithambara or Lal Krishna Advani. (The latter, India’s Home Minister today, if you recall, had exhorted crowds en route to Ayodhya, in Kashi and  Mathura that, “the kar seva shall be performed with bricks and stones, not bhajans and  kirtans this time.”) The petitioner brought these points before the apex count, urging the judges to intervene, to be more pro-active, saying it would be naïve to believe that the kar seva could –under all these circumstances-- be peaceful. What did the SC do? It  sent an “observer” to watch, who could only have been sorry witness  to the demolition, not much else.

Within eight months of this, more committed citizens and lawyers from Mumbai filed another path-breaking, historic, writ petition. Quoting extensively from writings in Shiv Sena chief Bal Thackeray’s mouthpiece, the Saamna, written before and at the height of violence in 1992-93, the petitioners demanded his arrest by the state. Their grounds?

Serious and consistent violation of sections 153 a and 153b of the IPC that relate to the offence of promoting enmity, hatred and incitement of violence against certain groups. Among the reams of vitriol reeled of by Thackeray through the Saamna is this: “Muslims should draw a lesson from the demolition of the Babri Masjid. Muslims who criticise the demolition are without religion, without a nation.” (Saamna, December 8, 1992).

What was the Mumbai High Court’s response?  Justices Majithia and Dudhat dismissing the petition commented,  “These articles refer to the fissiparous tendencies among Muslims…these articles do not criticise Muslims as a whole but Muslims who are traitors to India.”

The High Court did not recognise that these statements constitute violations of 153a and 153b despite the fact that Bal Thackeray had made a public statement in course of these hearings (he was quoted in his own paper and in the Loksatta on June 28, 1993): “Mein adalat ke faislon par laghushanka karta hoon. (I piss on the judgments of the courts)”. But what does the High Court do? Dismiss the petition. And the Supreme Court? Dismiss the special leave petition challenging the High Court’s dismissal and asking for a judicial review.

Eminent jurists, the late H. M. Seervai, Soli Sorabjee, Nani Palkhiwala, Fali S. Nariman, Justice Suresh, opined (in CC, Jnauary 1995) that the judgement of the apex court was wrong in law, a dangerous precedent and should be taken up for review. A 50 page legal opinion was exclusively authored by the late justice H.M. Seervai for CC to establish his point.

Fali S. Nariman, a senior lawyer, was constrained to observe and I quote, “When Judges speak, what they say (and, significantly, what they, do not say) sends down strong signals. People listen and shape their actions accordingly. The message conveyed by the judgement lies as much in what it does not say as in what it does. The message clearly is that the intemperate words (of Thackeray) against a particular community likely to cause disharmony will now not only go unpunished, but will not ever suffer a judicial rebuke. This is the single most sinister, most deplorable fallout of the judgement of Justices Majithia and Dudhat (of the Bombay High Court). That all this should not have seen fit to be corrected by the Supreme Court of India when its jurisdiction was invoked, prompts only a plaintive prayer, “Where then, O Lord, shall we turn for the redressal of palpable wrongs?”

I have carried out the rather sordid task of investigating every single post-Independence Judicial Inquiry Commission Report into bouts of communal violence:

* Jabalpur Riots. 1961. Justice Shivdayal Srivastava’s Report.

* Ranchi Riots. 1967. Justice Raghubar Dayal’s Report.

* Ahmedabad Riots. 1969. Justice Jagmohan Reddy’s report.

* Bombay-Bhiwandi Riots. 1970. Justice D.P. Madon’s Report.

* Tellicherry Riots. 1971. Justice Joseph Vidyathils Report.

* Jamshedpur Riots. 1979. Justice Narain Ghosh and Justice Rizvi’s Report.

   The list in endless. Kanyakumari riots. Meerut-Maliana. Bhagalpur (1989).

   Delhi Riots (1984). Justice Ranganath Mishra Commission.

* Now Justice B.N. Srikrishna Report.  Bombay riots (1992-93).

What do these investigations reveal?  That a pattern is clearly discernible.

These judicial investigations have revealed that in riot after riot the reports have identified the systematic vitiation and poisoning of the atmosphere has always been through the provocative acts of Hindu communal organisations like the RSS, Jana Sangh, SS, Hindu Munnani, VHP, or Bajrang Dal. These outfits through incendiary propaganda for weeks, or months, before the first visible outburst not only inject the poison of communalism into the local atmosphere but have successfully for the public consciousness manufactured and disseminated the myth that it is always “the Muslims who cast the first stone.”

Not only is every riot a replay of these orchestrated lies. The guilty -- though identified by all these wonderful, historic documents, the reports of inquiry commissions -- have gone unpunished.

My analysis has also revealed that each of these judicial investigations have identified, and strongly criticised the conduct of senior officers in uniform who have acted in an utterly partisan way. The Justice Srikrishna report, the most recent document of its kind, has named 15 senior police officers, including one as high-up as the then Joint Police Commissioner, R.D. Tyagi. Incidentally, this officer was rewarded for his conduct during the riots by the SS-BJP combine who made him Mumbai’s police commissioner in October 1995!  On retirement early this year, he joined the SS, publicly declaring, “I am a loyal soldier of Balasaheb.”

Apart from this, most recent such indictment, every riot report since 1961 has castigated the complicity and bias visible in the state machinery. Justice Jagmohan Reddy, commenting on the situation in Ahmedabad as far back as 1969 says that while more than half a dozen Muslim places of worship were attacked though they were actually adjoining police lines or police stations whereas not a single Hindu place of worship was similarly destroyed. Or take the comments of Justice Madon on police conduct during the Bhiwandi riots in 1970: “The working of the special investigation squad was a study in discrimination. ”

Every example fits in. The Justice Vidyathil inquiry into the Tellichery riots of 1971 has observed how in the heat of the moment, two constables in a complete state of frenzy yelled to the Muslim victim: “Go to Pakistan” with two of them getting so carried away as to enter a mosque, beat up the elderly Usmankutty Haji and shatter the tubelight, chandelier inside. Meerut, Maliana, Bhagalpur. Same story. The height of course was Mumbai rioters. In the taped wireless messages intercepted by this speaker, policemen were intercepting official communication exhorting their officers not to go to save “landya” areas, not to reach relief there.

After the bomb blasts, things only got worse. In the guise of a displaced national honour, several hundred Muslim families were illegally detained – often women members of alleged accused in the bomb blasts – and then physically stripped and humiliated at the Mahim police station and along the Konkan coast where the RDX was purportedly smuggled in. I have personally recorded video-taped interviewed with the victims. The torture was systematic. Young men, but women too. Physical assaults and the taunts that accompanied these assaults were, “Where is your Allah now? Learn to say He Ram.”

Over the past decade, responding to this acute bias displaying itself in the conduct of our police forces, senior policemen have been speaking out, boldly identifying the problem and suggesting systemic remedies.

The crux of the analysis of members of the IPS like Mr. Vibhuti Rai (IG, BSF), Padma Rosha, former DG, Jammu and Kashmir, Julio Ribeiro, former DG, Punjab, Shankar Sen, former chairperson of the National Human Rights Commission is that where communal riots are not put down firmly within a few hours, it must be accepted as a major failure of the state administration and the state must accept responsibility for fully compensating the loss and injury to innocent victims of communal rioting and restoration of their homes and sources of livelihood. This must be done not as an ad hoc disbursal of charity but as something which citizens are entitled to as of right and according to certain norms laid down beforehand. Indian citizens must have the security of feeling that they are insured against injury. The rationale for this sound argument, being articulated by senior echelons of the police force is that –

Firstly, mob violence takes place more or less openly in public spaces where the mobs go on the rampage looting, burning, killing, often with live coverage by the media. Secondly, such mobs include large numbers of the inhabitants of those areas. The whole process of inflaming passions of sections of the populace, bringing them out, working them into a frenzy, and then pushing them over the threshold of violence, allows ample opportunity to the administration at every stage. There is nothing covert or surreptitious in such mob violence.

The immediate transfer of the SP or the CP responsible for laxity of control in a riot in the area in his jurisdiction and strict punitive action for the failure in containing the violence are also among the suggestions that have emerged. Punishment of the guilty, whether they be the masterminds behind communal outfits who fuel and fan the flames of violence,  the individual rioters themselves or guilty men in uniform is a must if society needs to be given a message that the guilty will be punished, justice will be done and the peace and reconciliation process initiated, facilitated by the political will of the state.

Or else, with these growing incidents nationwide, some festering as wounds for decades, others making a mockery of our fundamental rights, the only sorry conclusion one will be forced to draw is that the writ of the Indian Constitution sways this country no more. That admirable and worthy as every one of the fundamental human rights and liberties enshrined within it are – the right to life, liberty, property, dignity; the right to freedom of expression, to freely propagate, preach and practice my religion or to peacably denounce it if I am a non-believer are, these are only rights on paper. And the deathly tentacles of communal politics and propaganda have irretrievably corroded all our democratic institutions. That will be a sorry day, friends. It is not that far away if the rot is not stemmed right now.

Before we conclude, we must remember that this erosion began its destructive course even under previous governments ruled by avowedly secular parties like the Congress (I), Janata party and the United Front. The Congress (I) in fact, with its cynical disregard to the systemic blows being perpetrated by the venomous leaders outits sworn to the Hindutva  world view, ignored, pampered and fondled these tendencies allowing them greater and greater legitimacy and sway in civil society each time. No better example of this can be found than the manner in which the party, in Maharashtra encouraged the shrewd shaninigans of the Shiv Sena and its chief, Bal Thackeray, who from the launch of his notorious political career, ridiculed democracy as a political choice, scorned debate and dialogue, eschewed violence and just by the way, in the course of his unhindered political career, activity fermented hatred among his followers, urging them through persistent hate propaganda, to kill, attack and loot the homes of first south Indians, then Gujaratis and now, Muslims.

Thackeray and his senior partymen stand seriously exposed for their techniques of operation most recently in the Justice B.N.Srikrishna Commission report of Inquiry into the Mumbai riots of December 1992- January 1993. Yet no action was taken against them by the Congress dispensation in the state between 1993 and 1995? This document, the Justice Srikrishna report, is one of the finest analyses from a member of the Indian judiciary, a sitting member of the Mumbai High Court of how the politics of hate-mongering actually works. It elaborates in detail how the systematic whipping up of sectarian, communal sentiments among the majority community creates a climate conducive for the complete failure of the state administration -- because the administration  itself has become victim of a certain malicious propaganda based on lies and myths, and therefore an agent provocateur in the violence itself --- to intervene and protect lives and property of minorities.  That is how a minor or major incident of communal violence swiftly transforms itself into an all-out, full-fledged pogrom against the minorities.

It happened under a Congress (I) regime here in New Delhi in 1984 when senior Congress leaders were found leading mobs and policemen to attack and kill over 3,000 Sikhs following the assassination of prime minister Indira Gandhi, simply because her assassin belonged to the same religious community. It happened in Mumbai in 1992-93 too.

But let’s not forget that the signals were also there, the same patterns were also emerging especially in the Meerut-Malliana massacres in Uttar Pradesh in 1987 ( when the UP state Provincial Armed Constabulary cold-bloodedly gunned down 17 Muslim youths) and thereafter in Bhagalpur a few years later. Here, corpses of over 100 Muslim bodies were hurriedly buried and cauliflower planted over them to obliterate the crime!

It is interesting to see, how, in every single post-Independence (and therefore post-Partition) communal riot on Indian soil as mentioned before, the pattern has been clear.

Despite the clear-cut evidence through this analysis that exposes that most often, these perpetrators of violence and hatred belonged largely to majority communal outfits, the Indian executive ruled by a “secular” Congress has also shown a singular  reluctance to act against them or those men in uniform found prime facie guilty of biased conduct. The laxity of the state involves a reluctance to:

a) putting down the violence;

b) punishing those guilty of blatantly communal activity that prepares fertile ground for the spark to ignite and

c) punishing those guilty men in uniform with proven criminal and biased conduct and

d) rewarding the rarer examples of brave and exemplary conduct.

A sorry record for any society or polity interested in strengthening or deepening the values of justice, equality and fairplay in its midst.

Before I conclude, I would like to express my gratitude to the Champa Foundation . I was privileged to be invited as the participant from India. I was happier still when the topic was broadly formulated for me, “Communalism and human rights”. But my delight was truly complete when I saw the genuine attempt made to formulate this in a sub-continental context. Communalism and human rights in India, Pakistan and Bangladesh. This focus or perspective is vital friends if we are genuinely looking towards reconciling these three edgy neighbours and slaying our individual communal demons.

The lead up to Partition and the brutal trauma itself was a powerful play of how different communalisms fuel each others’ tendencies. Muslim communalism, Hindu communalism, others. Partition cost us hundreds of thousands of lives. Over 800,000 were forced to migrate.

The trauma and memories still gnaw within the collective psyche, non-catharsised. That is why each and every post-partition on the Indian side witnesses this subterranean dialogue tacitly played out by many , even if they are not in the majority – “that since it was the Muslim who was responsible for the Partition, it is the Indian Muslims who have stayed behind ‘must pay the price’.”

Similar cynical re-runs have played themselves out in the brutal acts against Pakistan’s and Bangladesh’s minorities. (Remember the temples being attacked and homes of Hindus being attacked in these countries after December 6, 1992 took place in India?)

Therefore it becomes all the more imperative that through for a  such as these, other linkages, between groups here and in Pakistan and Bangladesh – also struggling for the fundamental rights of their religious minorities – we need to urgently join hands. Not only in keeping with the general maxim so beautifully articulated by Martin Luther King that “ Injustice anywhere is a threat to justice everywhere.” But, because, in the contexts of all of our three countries, chained to shackles of brutalised memories, such linkages are vital strategy. To win over and convince large sections of each of our populations that there are individuals in Pakistan, in Bangladesh and in India struggling for the fundamental rights of each of their minorities. Because that is the only path for real, breathing democracies to take.

Thank You.

(The writer is a human rights activist and writer, editor of Communalism Combat).

(This lecture was delivered at the Champa Foundation Annual Lecture, Constitutional Club, New Delhi on December 12, 1998)