India needs a law to check the menace of communal and caste violence. The arguments against it are spurious
Among free India’s gravest failures—along with its inability to end hunger, pervasive poverty and discrimination—is the continued targeting of people with violence and arson only because of their faith or caste. This periodic blood-letting, mass sexual assault and arson leaves a trail of great suffering of innocents, and repeated assaults against the idea of a pluralist and humane India.
Decades of engagement and study of communal violence in India has convinced me that no riot can continue beyond a few hours unless state authorities choose to allow the violence to persist. Despite this, in Nellie in 1983, Delhi in 1984, Bhagalpur in 1989, Mumbai in 1992-93, Gujarat in 2002, Kandhamal in 2008 and Muzaffarnagar in 2013, state administrations mostly consented to allow large-scale targeted massacres to unfold. For people in uniform and magistrates to take sides in hate battles is a profound crime against humanity. Yet this still is recognized at best as a moral failure, not a punishable crime.
For this reason, the centrepiece of the proposed Communal and Targeted Violence Bill which Parliament may consider this winter session is the creation of a new crime, of “dereliction of duty by public officials" punishable with up to five years’ imprisonment. Combined with “command responsibility", this makes the senior political or administrative authority who directs officials not to act, or to act with bias, criminally culpable.
Chief ministers J. Jayalalithaa and Narendra Modi have argued that this measure will demoralize officers. This is equivalent to the argument that anti-corruption laws will cause official paralysis. On the contrary, such laws strengthen and support officers of moral integrity and fairness, because they shield them from illicit political pressures and defend them from punitive action. At the Centre for Equity Studies, our studies of many riots demonstrate empirically that those rare officers who display exemplary courage by upholding the law with fairness and firmness are routinely punished, whereas biased officers named explicitly in the reports of commissions of enquiry in almost every case have been rewarded. This law will damage the morale only of officers who choose to ignore their duty under the law and the Constitution.
We also found in virtually every episode of targeted mass violence the impunity of those who perpetrate hate atrocities because of the institutional bias of the criminal justice system. In the way criminal justice procedures are framed, the victim has virtually no role. It is the state which investigates, charge-sheets, prosecutes and appeals. This is because it is assumed that the state will always be on the side of the victim and opposed to the accused. But in incidents of targeted violence, state institutions—the police, prosecution and magistracy—may actually be hostile to the victim on communal or caste grounds, and support the accused. Therefore, the second major pillar of the Bill is protecting victims’ rights during the justice process, allowing her to get copies of police statements, adduce her own evidence independent of the public prosecutor, and appeal in the event of acquittals.
The third essential pillar of the Bill prescribes national minimum standards for relief and rehabilitation. In both Gujarat and Muzaffarnagar, state governments refused to institute relief camps, gave tightfisted support to the camps which the victimized community was forced to establish, and then prematurely wound up the camps before the survivors had the confidence to return home. In most riots, reparation is grossly inadequate to enable the survivors to rebuild their broken lives, shelters and livelihoods. What is more, compensation rates differ widely, and are seen as instruments of selective political largesse rather than the rights of survivors from a caring and just state.
Another charge against the Bill is that it violates the federal structure because law and order is the exclusive domain of the states. However, the constitutional framework does envisage the duty of the Union government to protect the national integrity which is threatened in times of targeted hate violence. Still, responding to the sensitivities of any state, the current revised draft Bill deletes the creation of any overarching central National Authority charged with ensuring fairness and justice by state governments in communal situations. Instead, these duties have been conferred on existing institutions: the National Human Rights Commission and State Human Rights Commissions. The powers of these commissions under the Bill are no more than what they enjoy today—to observe, enquire and recommend, but not to encroach on the authority of state governments.
There is reason for people to argue that the timing of the Bill—nine years too late and at the eve of a formidably uphill general election—does render the motives behind its belated introduction suspect. But I have spent time with survivors of many episodes of mass communal violence, from Nellie and Tilak Vihar, Delhi dating back three decades to the recent survivors of the carnages in Lower Assam and Muzaffarnagar. The enormity of their suffering—as they struggle even today with unspeakable loss, with permanently broken lives, haunted by memories of hate and betrayal—makes it imperative for all parties which claim to be secular to set aside political competitiveness. Let them come together to build consensus for the passage of a law which could help finally push into history targeted hate violence.
Harsh Mander is a former member of the National Advisory Council. Comments are welcome at firstname.lastname@example.org