www.sacw.net | August 13, 2004
State Accountability in Communal Riots:
Proposed Law on Duties of State Authorities
by Harsh Mander
The many hued Indian social fabric is brutally torn apart from time to time by blood- drenched communal riots, fostered by the politics of sectarian hatred. It is in these moments of the most intense public peril that the state faces its severest test. There have been several instances since Independence of unconscionable state failures during sectarian violence against minorities and dalits. However in the past, despite the absence of an explicit law, there was never a serious challenge to the principle that the paramount duty of state authorities in such situations was to impartially and resolutely protect and secure all its citizens without discrimination, compensate and assist them to rebuild their homes and livelihoods destroyed by sectarian violence, and to ensure legal justice and accountability of derelict public officials.
All this changed as a shamed nation plummeted the low watershed of the Gujarat carnage of 2002. The unashamed hostility of the government to a profoundly beleaguered and battered segment of its own people, alerted secular and democratic opinion to the need for a comprehensive law that makes it not just morally but legally untenable for any government in the future to abdicate its duties to its citizens in times of sectarian discord. It is welcome that such a law is promised in the common minimum programme of the UPA government.
It is not as if the existing law of the land is silent about the duties of the state in times of communal clashes. The Criminal Procedure Code does contain provisions that extensively empower civil and police officers to use force and even take the assistance of the armed forces, to control 'public disorders'. The amended Indian Penal Code includes the instigation of hatred against communities as a grave crime, apart from offences like rape, arson, dacoity and murder. However, there is no comprehensive law in Indiaís statute books that encodes in unambiguous detail the powers and duties of state authorities to prevent and control communal violence, to protect victims and to organize, as the inalienable rights of the survivors, relief, compensation and rehabilitation.
In the first place, the law should provide for stringent punishment of all kinds of communal mobilisation, such as hate speeches, pamphlets, writings, and the mischievous misuse of psuedo-religious and cultural symbols like trishuls, maha aartis and namaaz on the streets, and paramilitary displays in religious processions. All of these need to be unambiguously defined in terms of their capacity to incite sectarian violence and hatred. Also punishable should be promoting communal ideologies through textbooks or other transactions between teachers and students, or through the mass media.
In the event of the actual out break of communal violence, the law already empowers local police and civil authorities adequately to mobilise and deploy the legitimate force of the state, including the armed forces, to control and protect innocent citizens. However, we have repeatedly witnessed that officers abjectly await political directions before they exercise their powers, and their wanton delays exact a reprehensible toll of many more innocent lives and properties. Repeated commissions of enquiry have also established a consistent pattern that where force is used by the state, it is used highly disproportionately against the minorities, even in the majority of cases where they are clearly the victims. Increasingly, we have moved from individual aberrations to a more generalized and dangerous institutional collapse.
What the law requires, therefore, is that it should be the explicitly codified statutorily binding paramount duty of public authorities to do all they can to control communal violence in the shortest possible time, and to impartially protect citizen lives and properties. Their failures to do this must be accountable and severely punished as their personal liability under the law. For this, it must be a statutory requirement to institute an independent judicial commission after every major sectarian clash, with the exclusive terms of reference of whether public authorities at all levels performed their duties as codified in the act, impartially, justly and promptly. It must be mandatory for the state government to act on the findings of this commission, and the severity of punishment should be proportionately higher for senior officials and elected authorities.
In the immediate aftermath of communal violence, state authorities must be responsible by law to establish relief camps of all survivors who either have lost their homes, or fled from these in fear. The facilities in these camps must meet the minimum UN standards for internally displaced persons. The state government must be bound to continue these relief camps, and pay a monthly survival pension, for as long as the survivors do not feel secure and confident to return to their original homes, or alternative settlements that they choose. However, the government should do all it can to create conditions is which the survivors can voluntarily and expeditiously return to their normal life situations.
There should be an independent standing commission to periodically fix rates of compensation for loss of life, limb, sexual assault, and destruction of shelters and livelihoods and in all disasters, both human and natural. These rates should be binding as a floor or minimum standard on all governments, so as to not permit openly discriminatory policies such as those applied by the Gujarat government to the survivors of the 2001 earthquake and 2002 carnage respectively.
The core principle of rehabilitation should be that the state government must ensure that survivors are restored at least to the situation they were in before the riots, and preferably that they are better off. This would involve generous packages of grants, subsidies and soft loans, for house repair and building and livelihoods. Since the large majority of people hit by communal violence are usually the poorest residents of cities and towns, mostly without legal title to their slums or their street livelihoods, their legal status should not be a barrier for them to be eligible for state assistance on the same terms.
In most communal riots since Independence, the guilty are rarely punished. Not only are they therefore emboldened to continue to terrorise the survivors and incite renewed communal violence, but also the wounds of the survivors can never heal without justice being seen to be done.
The consistent collapse of criminal justice to punish the guilty, and the deliberate and comprehensive subversion of justice systems by the Gujarat state government, underlines the urgency to establish extraordinary systems for recording complaints investigation, evidence, prosecutions and trial, for all crimes committed in communal riots. The machinery for each of these must be autonomous and uncompromisingly protected from political influences, including fast track special courts, and should also incorporate provisions for the protection of witnesses. The police officials responsible for the control of the riots, should in no case be charged with investigation. A failed investigation leading to summary closure without trial or acquittal in the trial court should be recorded as a demerit of the investigating officer. Minimum punishment must be prescribed for crimes in riots and the scale of punishment significantly higher that for the same crimes committed in normal times. The law should create spaces for countervailing oversight institutions of civil society.
Women and girls are among the most vulnerable of the survivors of communal violence, and their bodies have long been brutally abused as battlefields in the war between bigots of both communities. There must be special cells run exclusively by women, to assist and counsel these women survivors of violence, and to record and investigate their complaints. Circumstantial rather than medical evidence should suffice to establish sexual assault. Trials must be conducted in camera, protecting the confidentiality of the victims of sexual violence in riots.
Today in India, we live in troubled times, in which one of the two major political formations competing for political leadership of the nation and many state governments, regards it legitimate to use communal imagery, propaganda, mobilisation and political discourse, to demonise minorities, breed insecurities and terrorise segments of people, to acquire state power. In such times, this proposed law is imperative, not because it will in itself end the politics of hatred. But in those dark hours of our history when the country and its people are convulsed and imperiled by the politics of hatred, it will lay down legal standards of responsible, impartial, humane state action.
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