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print versionIn the context of the prolonged and horrific violence in Gujarat, there have been numerous calls for the VHP and Bajrang Dal to be banned. For some people, evidently, the well-documented role of these organisations in planning, inciting and perpetrating systematic attacks on Muslims - destroying their livelihoods, driving them out of their homes, raping hundreds of women and girls, and murdering thousands of men, women, children and babies - seems an obvious reason for outlawing them.
Others, however, disagree. Even if we leave aside members and supporters of the VHP and Bajrang Dal, there are objections which can be summarised as follows: (1) Bans are undemocratic. (2) Who will ban them? Not this government! (3) It won’t work - they will go underground, or change their names. (4) Endorsing the use of a ban against them will make it easier for the government to ban organisations and harass individuals engaged in legitimate activities.
Are we defending liberty or license?
A ban is defined as ’an official prohibition or interdiction,’ and in our society, for example, robbery, arson, rape and murder are officially prohibited. People who commit these crimes are arrested if caught, and punished if found guilty. Even people who are staunch advocates of civil liberties do not object to this, provided the punishment is not cruel or inhumane. Why not? Presumably because they do not recognise anyone’s ’right’ to violate the fundamental rights of others. In fact, it makes nonsense of the whole notion of human and democratic rights to say that whoever is powerful enough to rape, kill or generally oppress others should have the ’freedom’ to do so. That kind of ’freedom’ is generally defined as license, not liberty.
When the same person plans and commits a crime, it is relatively easy to identify the criminal. But it becomes more difficult when one person hires another to kill someone, and even more complicated when a whole organisation is involved.
In such cases, the persons who directs the whole operation as well as a large number of people involved in planning and organising the crime may not be the actual perpetrators. Yet they are all responsible for it. The Gujarat carnage is a very good example of this kind of organised action. Participants have been identified as belonging to the VHP, Bajrang Dal and RSS/ BJP. Investigations have shown it was planned meticulously months in advance, with detailed research into the locations where Muslims lived, worked or ran businesses, even into cases where Muslims owned only a small share in a business. Such planning was in evidence even during the massacre, with perpetrators using mobile phones to report back and get orders concerning the next target of violence. The people doing this research, providing information, giving orders, justifying and inciting the violence, etc., are all guilty of the mass rape and murder that took place, even if they were not on the scene of the crime.
Subsequent events, such as the exposure of BJP intentions to conduct elections in the wake of the bloodbath, reveal that the political purpose behind this violence directed at innocent unarmed civilians is the perpetuation and strenghtening of BJP rule in Gujarat. The connection between local events and the nationwide VHP campaign to build a Ram Mandir in Ayodhya, as well as the total backing of Narendra Modi by the Central government, give rise to a very strong suspicion that similar pogroms have been planned in other parts of the country with the intention of bringing the BJP to power on its own at the Centre. The ramifications are not only national but international, since the VHP is an international organisation, and its activities in India are supported by substantial funding from abroad.
It makes no sense to say that an individual who commits murder should be punished, while an organisation that commits mass murder should go scot-free. It is hypocritical to say that an organisation should have the ’democratic right’ to violate the fundamental human and democratic rights of others and destroy democracy itself, because then you are legitimising an attack on democracy while pretending to stand up for it, defending license rather than liberty.
Who will ban them?
Not the BJP - that is absolutely true! But this does not mean that a campaign for a ban is pointless. Firstly, it highlights the fact that these organisations are engaged in criminal rather than religious activities. Many people are confused about this; they are repelled by the atrocities committed in Gujarat, yet hesitate to denounce the organisations committing them, because these organisations claim to be defending Hinduism. A campaign for a ban, which would involve explaining why it is necessary, would help to clarify the distinction between religion and crime, and publicise the fact that terrorist acts, crimes against humanity and genocide are being committed in the name of religion.
Secondly, today the NDA allies which call themselves secular are too unprincipled and self-seeking to quit the alliance, but if they are threatened with losing their secular supporters, they may eventually do so. Even otherwise, there will be elections, and the ban can be made an election issue. It can help to separate those who are truly secular from those who merely claim to be so. More immediately, non-BJP state governments can take steps to clamp down on these organisations if there is pressure on them to do so.
But, some people argue, the Congress and BJP are the same, and the Congress will never ban communal organisations because it is itself communal. There is a fundamental confusion in this argument. It is true that the Congress has acted in a communal manner on numerous occasions, that it is not principled on this issue, and is willing to play the communal card in order to win votes. But strong popular pressure can equally well push it in the opposite direction. Because its basis as a party is not communal, nothing prevents it from being secular. It can ban the RSS, and has in fact done so on two occasions in the past, whereas the BJP can never ban the RSS, because that would be like sticking a knife into its own heart.
It won’t work - they will go underground or change their name
No one is under any illusion that these organisations will cease to exist if they are banned. Yet the loss of legitimacy and of the ability to function openly will hit them hard, especially if it is accompanied by a campaign to get the VHP proscribed as a terrorist organisation internationally. These organisations thrive on publicity, media attention, large crowds, public drills, schools they run, and so on; these activities will cease if they are banned. They also depend on huge donations, most of which would dry up if donors risk being jailed. What if they are reincarnated under new names? As it is, they operate behind the façade of numerous front organisations. If the ban is extended to all organisations that are dedicated to inciting communal hatred and violence, changing names will not protect them for ever.
But won’t they be able to project themselves as martyrs? This depends on the way the ban is carried out. The first ban on the RSS was very successful, partly because it was implemented firmly - e.g. 20,000 RSS members were put behind bars - and partly because of popular revulsion against them after the assassination of Mahatma Gandhi. The second ban, during the Emergency, was not a success, because it was part of an extremely unpopular general attack on democratic rights, and many other organisations and activists were banned and jailed along with the RSS. In the current circumstances, the call for a ban would have to be preceded by widespread publicity of the barbaric acts committed by the VHP/Bajrang Dal/RSS/BJP forces in Gujarat. Only hard-liners would be willing to endorse these sickening atrocities openly.
Bans can be misused against individuals and organisations engaged in legitimate activities
This is a genuine problem, especially in the present context, when POTA has just been passed. The activities of the VHP and Bajrang Dal in Gujarat are certainly terrorist acts according to POTA: for example,
CHAPTER II, 3. (1): Whoever,- (a) with intent to...strike terror in the people or any section of the people does any act or thing by using...inflammable substances or firearms or other lethal weapons...or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property...Commits a terrorist act.
Even according to a less one-sided definition of terrorism as ’the use or threat of violence against unarmed civilans in the pursuit of a political objective’, the VHP and Bajrang Dal actions in Gujarat would certainly count as terrorist. The problem, however, is that POTA is a draconian act which can easily be used against individuals and organisations engaged in perfectly legitimate activities, and it would be inconsistent to use it on the one hand, and advocate its repeal on the other. However, it is still worth emphasising that these are terrorist groups, and that the VHP is in fact an international terrorist group which collects funds to support the families of terrorists and hire lawyers to represent them in court, etc., in exactly the way that is condemned so universally when Muslim groups engage in such activities.
What is the alternative to indicting them under POTO?
One possibility is to use Section 153A of the Indian Penal Code, states that:Whoever,-(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes, or attempts to promote on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b)commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquillity, or (c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity will use or be trained to use criminal force or violence...against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear and alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,shall be punished with imprisonment which may extend to three years, or with fine, or with both.
This is in fact a very important section, which could, if implemented strictly, outlaw hate propaganda and incitement, which play such an important role in the build-up to every instance of genocide, including Gujarat. The Genocide Convention, which India has signed and ratified although a law in accordance with it has not been enacted, should be made into law, and would help in punishing those involved in the Gujarat genocide. But the Convention is stronger on punishing than on preventing genocide, and Section 153A would be an important supplement to it, banning hate propaganda in order to prevent genocide.
The Unlawful Activities (Prevention) Act, 1967, defines an "unlawful association" as, among other things, ’any association-...
(ii) which has for its object any activity which is punishable under section 153A or section 153B of the Indian Penal Code (45 of 1860), or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity.’
Chapter III, Section 10. Penalty for being members of an unlawful association.- states that: ’Whoever is and continues to be a member of an association declared unlawful...or takes part in meetings of any such unlawful association or contributes to, or receives or solicits any contribution for the purpose of, such unlawful association, or in any way assists the operation of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.’
This, of course, refers to those members who have not been involved in any other criminal activity. 13. punishment for unlawful activities.-states that: ’Whoever-(a) takes part in or commits, or(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable for a term which may extend to seven years, and shall also be liable to fine.(2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3,..shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.’
Finally, Section 15. Continuances of association.-states that ’An association shall not be deemed to have ceased to exist by reason only of any formal act of its dissolution or change of name but shall be deemed to continue so long as any actual combination for the purposes of such association continues between any members thereof’, which means that simply changing the name of the association will not get around the ban.
Campaign Needed
The pros and cons of a campaign to ban communal organisations need to be discussed thoroughly amongst those who claim to be secular and democratic. If it is agreed that they do need to be banned, then this could be a demand at the next general elections, and, in the shorter term, could lead to a campaign for booking members of these organisations under Section 153A in non-BJP states. Frivolous arguments against a campaign for a ban need to be combated. Such implicit legitimisation of the most horrific crimes against minorities is what urgently needs to be challenged if we are to avoid the Gujarat genocide from spreading to other parts of the country.
Rohini Hensman is associated with the Trade Union Solidarity Committe, Bombay and Women Working Worldwide.
(The above article first appeared in print in: Combat Law - June - July 2002, pages 30 -32.; It was distributed via e-mail on South Asia Citizens Wire | 24 August, 2004)
