Excerpts from the book “Breathing Life into the Constitution: Human Rights Lawyering in India”, by Arvind Narrain and Saumya Uma, published by Alternative Law Forum – 2
The efforts to bring justice to victims of communal violence face the same challenges as faced in efforts to bring justice to victims of caste violence. Victims face enormous pressure to abandon their quest for justice and the institutional bias of the various stakeholders of the criminal justice system is a deterrent factor in the struggle for justice. One distinguishing feature between caste and communal violence is that communal violence is often perpetrated for political gains – the perpetrators enjoy political clout, have political affiliations, or hold public offices; the struggle for justice in cases of communal violence thus brings the human rights lawyers in direct confrontation with the state and its political might.
Moreover, unlike challenges to Dalit atrocities, where one can work towards the application of a specific law, i.e. the SC/ST Prevention of Atrocities Act, in the context of communal violence, the struggle is made more difficult by the fact that there is no specific law that one can work with. The Indian criminal law is geared towards crimes against individuals rather than crimes against collectivities. Yet communal violence involves criminal offences committed against collectivities, targeted on the basis of religious identity. The provisions of the Indian Penal Code that are applied to murder, rape, riot, unlawful assembly, arson, trespass and other offences committed in contexts of communal violence, fail to capture the gravity of the offences committed against the entire class.
Further, in contexts of communal violence, state institutions abdicate their statutory duty to govern in accordance with their Constitutional mandates. Crucial stages of the criminal justice system – such as registration of complaint, investigation, preparing a charge sheet and prosecution – often stand compromised. In addition, specific evidentiary and procedural hurdles exist, such as an inability to register a complaint with the police and to gain access to medical assistance immediately – which the ordinary criminal law does not take note of. It is for these reasons that human rights defenders and other concerned citizens have been advocating for a special law on communal violence since 2004.
Seen in this light, the practice of using existing criminal law for situations of communal violence reduces criminal trials to a farcical exercise and makes a mockery of justice. Yet, human rights lawyers have persistently worked to hold the perpetrators accountable and secured their convictions.
Relief and Rehabilitation
Gagan Sethi reflected on the interventions made by him and the team of lawyers he had supported through the creation of Centre for Social Justice, Ahmedabad. He said that when the Gujarat pogrom took place in 2002, there were no funds available and yet, relief for the affected people was a dire necessity. He was forced to borrow money from different organizations, based on his personal rapport and credibility of work that he had built up over decades. He spoke of the moral dilemmas faced by him:
“For instance, we worked with Jamaat-e-Islami, a Muslim religious group. Women’s groups were angry with us due to the anti-women and regressive stands taken by the outfit, but then we made sure that the houses built with its money were in the joint names of the husband and wife, insurance and compensation would include women.
“I know that the Jamaat does not believe in gender equality. But at times of crisis, one makes new friends and there are new common spaces. There is usefulness in working on relief and rehabilitation with faith-based organizations such as Jamaate- Islami and Jamiat Ulema-e-Hind as they have tremendous outreach, which was required at that point in time. From being an ideological puritan, I became more strategic and related with a larger space. And this is what I think the communal violence taught me.”
Gagan Sethi and his team’s efforts have also been channeled towards advocating for rights of Internally Displaced Persons (IDPs) and adapting international standards into the Indian law and policy framework.
Gagan Sethi speaks of how his team of lawyers approached the High Court to seek implementation the Prime Minister’s package for compensation, as for about three years after the pogrom the affected people received no compensation from the state government and faced undue hardships from the same. In the High Court, the state government argued that the central government was not sending the financial resources to pay compensation, and the petition was dismissed. Thereafter, on behalf of the survivors, a petition was filed in the Supreme Court, which remains pending today.
Sophia Khan speaks of her work in the relief camps in the initial months after the violence. She says:
“I could not go to work for about three months (after the violence); we used to work in the relief camps. In the camps we used to collect information, lodge FIRs and fill out forms for claims of compensation. The knowledge of law helped in this work. There were many volunteers but there were few Gujarati activists who knew the language of law, and this is where we played a crucial role. I used to have help from many volunteers from outside Gujarat and I was associated with different groups and organizations. We worked with religious organizations as well as relief committees.”
Sophia Khan felt that the equations with Muslim religious organizations changed for the better following the communal carnage. While she has always advocated for Muslim women’s rights, she was not considered a Muslim prior to the pogrom of 2002, as she did not look like a conservative Muslim woman. Further, the Muslim religious organizations were willing to have a dialogue on communalism, but when it came to speaking on Muslim women’s rights within the family, it was “not easily palatable,” and hence Muslim religious groups did not engage with her. However, after the pogrom, Sophia Khan was accepted as a Muslim and trusted by such religious groups including Gujarat Sarwajanik Relief Committee, a group funded and supported by Jamaat-e-Islami. This created space for entering into a dialogue on Muslim women’s rights, she observes.
Sophia Khan further says, many resettlement colonies continue to exist, and rehabilitation of the victim survivors of the carnage remains a major issue. These are colonies where houses were constructed by Muslim religious organizations to provide shelter for Muslims – a large number of who refused to return to their original homes due to fear of further attacks. She continues to engage with the inmates of these resettlement colonies on issues such as water and electricity supply, and negotiate with the government to make these basic facilities available.
As in the case of Gagan Sethi, Sophia Khan too speaks about the dilemma she faces on the issue of education for Muslim girls. In the resettlement colonies, schools were started by religious organizations, which required the girls to be covered from head to toe. When Sophia Khan tried to dialogue with them on that issue, the organizations apparently told her that if she found the dress code objectionable, she should send the children to a convent instead. She says that it is a real dilemma, as on one hand, the schools within the resettlement colonies have adopted an extremely conservative approach towards education of Muslim girls; on the other hand, state apathy has resulted in the existence of no government schools for Muslim girls.
“Religious organizations have their own agenda, and I have to make compromises because education is so important for these children. It is difficult for Muslim children to get into mainstream schools due to the extreme prejudice and ghettoisation, and many of them have to hide their religious identity,” she narrated.
The state bias is evident in its numerous policies. What is only emblematic of this bias is the decision of the Gujarat Government to not implement a central government scheme which gave scholarships to students from minority communities on the ground that implementing them would violate the principle of secularism. It is in this difficult context, wherein state education becomes almost impossible to access for minority students that the dilemmas of Sophia Khan have to be placed.
Justice through Courts of Law
Making legal interventions to ensure unbiased investigation, efficient prosecution and convictions of perpetrators in the context of communal violence is not an easy task. At the institutional level, Gagan Sethi explains his strategy on making legal interventions through the criminal justice system on behalf of victim-survivors of the communal pogrom:
“Our strategy was to shortlist 10-12 cases to closely follow… Naroda Patiya, Sardarpura, Bilkis Bano and Mehsana were some of them… The cases we took were arson, looting and large-scale murder. We covered the more ghastly cases where politicians were involved and the more gruesome instances of rioting. We picked such cases to prove our point (of state culpability and accountability). We only took up a small number of cases as we did not have the resources to take on all cases. I believe that we cannot take cases to just watch them. One has to pick as many cases as one can handle and then work well on them… Our strategy has been much better than promising the world to everyone and not being able to deliver on anything… I am running an institution, and every legal intervention requires huge financial resources as well as the ability to service and handle these cases professionally. It is not a game of numbers. It is unfair to create false hope among the victim-survivors…For example in the Naroda Patiya case, we had over 200 witnesses whom we had to support and protect… I think our strategy worked, and we have achieved some convictions. We have done better than the anti-Sikh violence of 1984 and the Mumbai communal violence of 1992-93 when it comes to making the perpetrators accountable through the law. Considering the working combination of the civil society-State-media, let us celebrate the fact that such impunity can no longer be brushed away so easily. It has also taken [the struggle to ensure accountability] one notch higher.”
However, like many strategies, the strategy followed by Gagan Sethi and his team had a flip side too, as he explains:
“The strategy has also worked against us. The Gujarat government now says that justice has indeed been done! But, at what cost? At every stage we have faced a hostile State. Nobody has the gumption to say that. This hurts deeply. This is ambivalence and ambiguity. The state trumpets that human rights of the IDP’s are protected; heads I win, tails you lose. This is a very sad way of conducting public affairs, because the State, it seems, can never go wrong.”
In order to intervene and monitor numerous criminal cases at the trial court level across the districts of Gujarat, starting from the stage of lodging of the FIR to investigation, to supporting victims and witnesses during the trial to the judgment, and thereafter, at the stage of appeal, a concerted effort of civil society actors was essential. Gagan Sethi explained how a network of activists helped provide ground level support to the victims and witnesses, which complemented the legal interventions made through a collaboration between human rights lawyers from within Gujarat and from outside the state.
Gagan Sethi emphasized that working against the might of the state was not easy, and specific strategies had to be formulated for this. In his words:
“Operating as a human rights lawyer while working within a state and with a state machinery which is so nasty, is very difficult compared to [being outside the system]. The relationships inside the police force and other spaces are very important to build and maintain. We were fortunate to have the cover of the NHRC and that allowed us to operate with less fear, though there were times when we had to face the brunt of the state… As a policy we in CSJ and Janvikas do not come into the media. We have always underplayed our work, as a strategy.”
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