POLITICS OF MAJORITY & MASSACRE: A BLOT ON INDIAN DEMOCRACY

Simran khurana, Law Student, 5thyear student, Amity Law School, Noida.

Abstract

Violence in all forms is horrendous & ghastly, disregarding whether done by those who have the majority or by a religion or ideology which we validate. Despite encountering the widespread butchering of Hindus, Muslims & Sikhs as a part of India’s partition process, the succeeding years have not been peaceful either & it almost appears that barbarity & strife have become a part of our daily grind.With blatant inequalities, increasing poverty & highly corrupt social & political climate, friction & conflicts between various communal groups have been inflated. No riot is carried out without one group using its numerical majority to ‘settle scores’ & accordingly we view the turmoil through a partisan political prism which lacks universal humanism. The frequency with which communal conflagration have been unrolling in our countryclearly demonstrates that something is fundamentally wrong with our political system & secular government. Over the years the mindset of the majoritarian have developed in such a way that they seek to divide populations into ‘us’ & ‘them’, questioning not only the loyalty of minorities towards India but also considering them fundamentalist & fanatical. It is imperative to note that religion does not generate communalism per se, instead it is the competitive machinationamong the elite of two or more communities along with the law enforcement agencies which have been fairly ineffective & biased against the poor& minority. In this context, the Author through this paper attempts to scrutinize the case of North-East Delhi riots, 2020, which appears to be a part of the modern formula of violence, recalling the carnage of 1984 & 2002. Furthermore, the paper also highlights the legal provisions for regulating riots & answers the issues that arise in such a mayhem by corroborating different sets of data to arrive at a certainty as well as emphasizes the access of victims to protection, justice&redemption after the atrocities.

Key words:Communalism, Religion, Majoritarianism, Minorities, Riots

Chapter -1

Introduction

Communal violence has outgrown as a consequence of manipulation of the religious sentiments of the people for achieving political gains. In spite of adopting the Constitution of India on the principleof secularism, communal bloodshed continues to haunt & distress both our society & polity, torching innocent lives in its fire. Communalism can be recounted as an ideology that considers one’s religious culture as the fundamental social & political category to which one belongs & proliferates against another community, triggering a series of disputes that have developed a history of their own, well established as religious riots. It is a political status vis-à-vis the minorities, generally referred to as majoritarianism. It can be seen as lack of education or rationality that tends to display an overage of religiosity & hence intolerance towards other groups[1]. Outright commitment & adherence towards one’s own religion does not engender disbelief &acrimony towards other religions, however, when religious leaders stimulate their conservative, illiterate & gullible devotee’s emotion’s, such nefarious tactics results into charged feelings of the followers, giving rise to communalism[2].The inability of the authorities to deter & prosecute against minorities has created an atmosphere of impunity that is likely to facilitate repeated attacks unless urgently addressed. Moreover, concerns have also been raised regarding whether ‘Hindutva’ defined as a ‘way of life &not a religion in India[3]’, may act as an advancement for exclusionary political approaches that are often central in promoting communal violence against the other communities.It is not surprising to note that communal riots in the last two decades have generated a number of questions on the ability of the Indian State to protect its minorities as there is not even a single instance in which the government brought any decisive action on the recommendations of the Commissions formed for the post-riot inquiry. The Ranganath Mishra Commission for concerns related to linguistic & religious minorities,Nanavati Commission Report on the anti-Sikh riots of 1984 &Shri Krishna Commission Report on the 1992-93 Mumbai riots are recent examples. As a result, the practice of communalism has continuously remained under the radar & has become an effective instrument for strengthening of the vote banks as these reports had no influence on the political leadership & no stringent measure have been taken against the persons charged. The present work by the Author is an attempt to sketch an outline of the North-East Delhi riots, 2020 by recognizing the linkages between the majority & minority communities & circumstances responsible for its mass eruption, state accountability and has critically analysed the systematic examination of the post-riot inquiry.  This study is divided into five chapters where the first chapter introduces the subject by tracing the growth of communal trend in historical perspective. The second chapter provides a detailed study of the North-East Delhi riots, 2020, clearing the brawl between freedom of speech & expression of hatred as well as probes into the basic attributes that is expected from the administration of the criminal justice system. The third chapter sets out an overall understanding of the statutory provisions present in India in order to prosecute the guilty for the offence of rioting. The fourth chapter portrays the difficulties faced by the survivors of communal violence & the international standards that are proposed for their redressal. The final chapter of this work deals with how the State should respond to such communal uprisings & the subsequent need for an alternate means to address justice to the minority community & summarizes the findings of the study.

1.1 Research Methodology

In order to attain the objectives of this research paper, the author has adopted a doctrinal method of research where the basic tools available are the statutory materials & the cases decided by the courts. Further, various secondary sources such as books, journals, seminar papers, articles from newspapers& magazines including reports of multifaceted inquiry commissions have also provided information for the present study. The research is proposed to provide a better understanding of the processes leading to and resulting from communal violence in India.

1.2 Historical Overview

India has witnessed radical shifts from spontaneous ebullition of riots to well planned pogroms & from criticizing the colonial enemy to being the enemy. Communal differences have always been an important aspect of the Indian society & it is untrue to say that communalism was drawn up only after the British appearance in India. Jawaharlal Nehru & Prof. Donald E. Smith share a similar view that Britisher’s obviously did not develop the Hindu-Muslim animosity; they did it for their own objective from time to time[4]. Discovering the unity shown by the two communities throughout the revolt of 1857 whichbecame an eyesore to the British, they adopted the policy of ‘divide and rule’ by playing off one party against the other & emphasizing on the differences rather than the similarities, cutting the very source of Indian nationalism. Despite the antagonism created between Hindus & Muslims by the Britisher’s, it was not a probable cause for the communal violence that followed with the appearance of India & Pakistan as new nations[5].

 According to the Report of Srikrishna Commission (1998), during the freedom struggle, the two groups were found to be united, however, by the end the ‘two-nation theory’ of Jinnah resulted to the country’s vivisection & heightened the communal hatred[6]. With the support & resilience of those masses which had suffered damage the most during the partition period, Hinduism became a foundation of inspiration for political reorganization. For political benefits, the Muslim votes provided a window to extremist Hindus for arousing friction among a section of population, changing the route from sporadic & controllable riots to an era of gruesome disruption. Communal propaganda & repression became  significantly exacerbating& assumed serious proportion in India during the 1980s as it witnessed the ‘Assam Students Movement’ against the immigrants of ambiguous citizens in Assam which gradually turned into theNellie massacre where more than 2,100 men, women, & children were killed, most of whom had been born in Assam to Muslim parents, followed by the Assam Accord&the ‘Khalistan Movement’ which resulted in anti-Sikh riots of 1984 where nearly 3,000 people were killed after the assassination of the then Prime Minister Indira Gandhi by her Sikh bodyguards[7], portraying aparadigm of high handedness misguidance of the majority community. Subsequently, the ‘Shah Bano[8] case garnered attention as a large number of Muslims petitioned that theSC judgement should be overturned as it misinterpreted the Shariah law & relations between the communities were redefined over the controversy of Mandir-Masjid at Ayodhya. With the government’s move to undo the SC judgement by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986&the opening of the locks of Babri Masjid to allow Hindus to offer prayer in its territory in anticipation of a possible counteraction from the Hindu orthodox organizations further led to the deterioration of the situation[9]. Thereupon, the movement for the construction of the ‘Ram Temple’ & the collective hate psychology against the Muslims attributed to the demolition of the ‘Babri Masjid’. Moving forward, the burning of the Sabarmati Express in Gujarat created a mass hysteria which ultimately lead to the Godhra riots in 2002 where around 2,000 Muslims were brutally killed. This referred carnage was not sudden, but it was a result of the persistent modus operandi of Hindutva ideology &action which caused severe consequences on Gujarat’s public life as well as created a feeling of insecurity amongst the minorities. Another instance that exemplifies the theory of ‘institutionalized riot systems’ is the Muzaffarnagar riots of 2013which resulted into the death & displacement of the minorities including high level of sexual violence against women of minority community that demonstrated not only the majoritarian-communal nature of Hindutva politics but also entrenched upon the patriarchal and sexist vision of it. The Indian society is suffering from the disease of communalism by way of distortion of Indian history, philosophy and its culture[10]. The recurring episodes of communal violence in post-independent India is a potent threat to its very existence & it has assumed an untameable proportion. The state authorities & the political parties have more often than not shrugged off their shoulders of any responsibility, overlooking the endless sufferings of the innocents in the name of religion.

Chapter -2

The Anatomy of North-East Delhi Riots, 2020

The notion of vengeance & retaliation draws our attention back to the killings of 1984 &2002. The gravity of Delhi riots might be different, but its consequences in terms of marginalization will certainly be equally strong. Moreover, as it coincided with a high-profile visit by the US President Mr. Donald Trump, which was supposed to demonstrate the strategic relationship between the two nations, the timings of the uproar could not be worse.

The genesis of the Delhi riots that lasted from 23rd to 25th February, 2020 started with the eruption of protests in December 2019 in response to the enactment of the Citizenship (Amendment) Act, 2019 (CAA) which paved the way for grant of citizenship to Hindu, Sikhs, Parsis, Jains, Buddhists& Christians who took refuge in Pakistan, Bangladesh & Afghanistan in or before December 2014. The protestors perceived the Act as discriminatory to Muslims as it threatened their very existence in India when combined with the National Register of Citizens (NRC). Delhi’s Shaheen Bagh, a Muslim working class neighbourhoodbecame the epicentre for anti-CAA protest as it witnessed demonstrations, led mostly by women, with the number of protestors reaching as high as around 100,000, becoming one of the longest peaceful protests of its magnitude in modern India. At the same time, instances of stone-pelting, burning of vehicles & road blockage were also reported.Further, in an unprecedented confrontation with the Delhi Police, students of Jamia Millia Islamia University (JMI) were wounded& abused as Police officers & the CRPF forcefully entered the campus, lobbed teargas shells& detained more than hundred students, eventually which triggered nationwide protests. The SC in the case of Amit Sahni v. Commissioner of Police[11] recognized the rights of the protestors peacefully protesting at Shaheen Bagh, however, concern was also expressed over the blocking of public areas. For this reason, it designated two interlocutors to put forward its apprehension & suggested the protestors to move to an area where no inconvenience can be caused.

Following the Delhi Assembly election 2020, several political leaders sparked controversies concerning anti-CAA Shaheen Bagh protests by using inflammatory &provocative slogans & equating protesters to anti-national elements. BJP was seen creating a divide between the two-religious communities by instigating Hindus & Muslims against one another.  During an election rally, BJP leader Anurag Thakur, MP, Hamirpur Lok Sabha Constituency &Minister of State for Finance and Corporate Affairs, urged &supported a crowd to chant“deshkegaddaron ko golimaarosaalon ko (shoot the traitors of the nation)”, consequently which instantly lead to at least three incidents of firing  near the protest sites. Soon afterwards, Parvesh Verma, BJP MP from West Delhi alleged that Delhi will face a Kashmir-like situation & that protestors at Shaheen Bagh will break into homes & rape our sisters & daughters & eventually kill them.Consequently, the Election Commission of India ordered the suspension of Anurag Thakur & Parvesh Verma from the BJP’s list of star campaigners for the Delhi Assembly Elections as the statements & speeches made by them had the potential to disrupt the peace of the society & exacerbate the current gaps between social & religious groups, thereby violating the Model Code of Conduct & Sec. 123 & 125 of the Representation of the People Act 1951.Despite such an order, in the stir of politics & communalism, the protest location was alleged to become a mini Pakistan, where the law of the land was not followed, as was claimed by BJP leader Kapil Mishra, thereupon issuing a final intense warning to the police to either clear out the demonstrators, or his followers would do it themselves. Likewise, APP’s Councillor Tahir Hussain is alleged to be one of the main perpetrators who conspired the Delhi riots as it was discovered that stones & petrol bombs were thrown from his house, also, he has been charge sheeted for the murder of an Intelligence Bureau officer whose body was later dumped into a nearby drain.

Within hours, Delhi was found burning in the heat of enmity between the two communities as brutal violence exploded in several areas of Northeast Delhi, marked by arson, devastation of property, stone pelting and burning of places of worship. As the violence unfolded, the DHC in the case of Harsh Mander v. Government of NCT Delhi &Ors.[12], instructed the Delhi police to “take a conscious decision” on filing a FIR against Kapil Mishra, Parvesh Verma, Anurag Thakur & others who made hate speeches & incited people to warfare, however, despite of such a direction, no FIR has been registered against the political leaders so far.Muslims largely bore the brunt of brutality as the Police struggled to stop the mob attacksover the three days of communal violence that broke out in India’s capital, where many Hindus were also killed, including a policeman & a government official. Witness accounts and video evidences show police complicity, for instance, a group of five Muslim men who had been injured during the mob violence were severely beaten by several Policemen & forced to sing the Indian national anthem as a form of disparagement& where one of these men later, died.  At least 53 people were slaughtered &over 200 sustained serious injuries, however, ironically, the Delhi police was acknowledged for competently containing the riots within 36 hours by the Union Home Minister Amit Shah, who was in charge for law and order in Delhi.

2.1 The Conflict Between Hate Speech & Freedom of Expression

A certain level of emotional connection is built by a crowd through psychological interaction.  With a view to find relief, it will follow any person, idea or even knuckle down to attack so that its uptight emotions could be released. Consequently, law, order & propriety becomes alien matters for such an emotionally impulsive crowd as it is vulnerable to loose its command over to hooligans or other malevolent persons. The philosophy of hate produces a “social common sense” which ultimately becomes the perception of large sections of the society & frequently manifests itself in the form of hate speech, thereby providing the basis for the fostering of group violence. The Constitution of India under Art. 19 (1)(a) provides the fundamental right to speech & expression which is paramount for sustaining democracy since it enables the exchange of distinct opinions & maintains personal autonomy.

On the contrary, nurturing feelings of animosity, resentment or ill will between two communities in order to cause disorder or incite people to violence constitutes a criminal offence of hate speech[13]under Sec. 153A& 153B of Indian Penal Code, 1860 (hereinafter “IPC”)thereby placing a reasonable restriction under Article 19(2) of the Constitution of India on the fundamental right of speech & expression. It is further ruled that Sec. 295A IPC does not penalise very act of insult to or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalises only those acts which are committed with the deliberate and malicious intention of outraging the religious feelings of that class, thus upholding its constitutional validity[14]. The SC has observed that hate speech seeks to disempower individuals on the basis of their membership in a group, subsequently diminishing their social standing &acceptance within society. The Court further noted that the root of the difficulty is not the inadequacy of laws since the existing laws were sufficient to tackle the problem of hate mongering but rather a lack of their efficacious execution. Therefore, both the executive & the civil society must perform their role in upholding the current legal regime[15]

The communal propaganda & messages were widely being circulated due to the run up to the Delhi Assembly elections, for instance, “Bajrang Bali todenge Ali kinaali, Jab hogashorbhajpaki jeet ka gaali, gaali (Hanuman will break Ali’s drain when there will be noise of BJP’s victory in the streets)”, hence advocating religious hatred, constituting incitement to discrimination, hostility & violence that ultimately led to the North-East Delhi riots. The provocative nature of the speeches made by various political leaders in Delhi in the turbulent social & political context, calling for direct violence upon the protesters point towards their culpability. However, despite exchanging a series of hate speeches, people from the political fraternity have gone scot-free. The law empowers the State to fully deal with such expressions of hate, however, at the same time, it is the absence of political will & administrative commitment that explains why the law has remained a dead letter.

2.2 The Role of Criminal Justice System

The DHC in the case of Bhajan Kaur v. Delhi Administration[16] expressed that “riots, more often than not, take place due to weakness, laxity &indifference of the administration in enforcing law and order”& held that the State is under an obligation to protect & safeguard life & liberty, as enshrined under Article 21[17] of persons from mass unrest.The first organised institution to confront the brunt of communal brutality is the Police force, State or Central, actively involved in all the three phases of incitement, violence & rehabilitation of victims.The regulatory law under the Police Act 1861 ranges from providing regulations for processions & assemblies, maintenance of order on public roads to provisions for the quartering of additional force in sensitive & volatile areas as well as providing compensation to sufferers of misconduct. The Commissioner of Police under Sec. 33 of the Delhi Police Act, 1978 have specific powers to issue orders towards preventing a riot or in a situation where there is grave disturbance of peace, however, in the Delhi riots, 2020, prohibitory orders were either not enforced, or were only in name with no public notification. By weeding out vital documents & not obtaining evidence in a timely manner, law enforcement officers have frustrated the cause of justice by creating serious questions about their capacity to carry out an impartial & independent investigation. In the case of Prakash Singh vUnion of India[18], the SC urged the separation of the police machinery from political & executive influence, however, no concrete measures have been taken to put in place a mechanism for such nonpartisan investigation. The SC in the case of Harendra Sarkar v. State of Assam[19] stipulated an instructive list of ‘broad principles’ with regard to state complicity which continues to be one of the detrimental features in relation to communal violence that police personnel by choice makes no attempt to prevent the collection of crowds; the investigation is unsatisfactory as victims rather than the assailants are largely picked up or loopholes are provided intentionally by producing distorted evidence so as to ensure the acquittal of the accused.

The glaring occurrence of the Delhi riots pictures that in most of the cases police have first filed charges against the Muslim suspects instead of the masked attackers who came from different localities & the whole narrative has been changed to abuse from both sides, rather than a pogrom that was in fact carried out. Further, it becomes important to highlight that a plea[20] for seeking registration of FIRs against BJP leaders Anurag Thakur & Parvesh Verma for hate speech under Sec. 153A, 153B & 295A IPC was dismissed due to lack of previous sanction from the competent authority i.e., the Central governmenteven after having clear evidence of sloganeering where provocative & communal statements were made against the members of the minority community. The FIR is one of the most critical instruments by which the police can monitor what is perceived to be the truth, as it is the first document through which a crime is recognized. In different accounts, victims of violence have demonstrated that considering the serious nature of concerns FIRs have either been postponed or have not been acted upon. Owing to the fear of being wrongly implicated, Muslim complainants are reluctant to visit police stations to investigate their grievances as well as those who endured police intervention or inaction during violence are averse to approach the police for any remedy. However, few accounts also state’s how the police & paramilitary officials safely escorted the crowds out of the area once the attack was over. The degree of uncontrolled violence in North-East Delhi hardly fosters trust in Police personnel, as its inaction can be can be characterised as incompetent at best, or as complicit at worst. The State government should examine & establish the causes of such community unrest & reinforce the fabric of society & take steps for peace- building at the same time[21].

Chapter -3

Legal Framework for Inspecting Riots

Art. 19 (1) (b) of the Indian Constitution lays down the fundamental right to organize meetings&take out processions, subject to the prerequisite that the assembly is peaceful & unarmed. At the same time, this right is precedented by public order as Art. 19 (3) empowers the government to impose reasonable restrictions when it is of the view that such an assembly is likely to lead to disruption of public tranquillity.The citizen’s right to protest which is a cornerstone of Indian democracy takes a violent turn when a peaceful assembly grows into a mob violence, creating an atmosphere of havoc & disruption. Chapter VIII (Sections 141 to 160) ofIPC& Sec. 149 to 152 of CrPCprovides a vast range of preventive & punitive measures against those who participate in unlawful assemblies. The fundamental requirements for the offence of rioting stipulates that there should be an assembly of at least five or more persons[22] that uses force in order to prosecute a common object which need not require prior concert and a common meeting of minds before the attack[23]. Besides, every unlawful assembly may not turn into a riot, however, every riot at its inception will be an unlawful assembly. Another notable element of rioting is that Sec. 149 IPC creates a constructive responsibility of all members of an unlawful assembly, even though the said individual may have had no intention of committing the offence & had done no overt act except to have his presence in the assembly & to share its common object. In addition, the law also provides for collective preventive & punitive action as often it becomes impossible to prevent the formation of an unlawful assembly or to secure its easy dispersal.

Sec. 144 of the Code of Criminal Procedure, 1973 (hereinafter CrPC”) offers for a preventive action through a general notice prohibiting such an assembly, providing wide applicability as curfew orders are also promulgated under this section. The intention is to prevent acts which has the potential to give rise to apprehended danger, prohibiting any objectionable activity in the interest of maintenance of peace. Alternatively, section 129 CrPC imparts punitive action as it empowers a magistrate or a police officer to command an assembly likely to distress the public tranquillity & to disperse it by using force if it does not pay heed to the same. Likewise, the magistrate is authorized to use the armed forces for the dispersal of unlawful assemblies under Sec. 130 CrPC.Notwithstanding the foregoing, the Unlawful Activities Prevention Act, 1967 (UAPA) was introduced in order to provide an effective way to prevent unlawful activities of individuals, associations & to deal with terrorist activities. It provides the investigating agencies with sweeping powers to arrest, search, & detain suspects based merely on “personal information.” Also, for up to 180 days i.e., three times the length of ordinary cases, an accused may be held under arrest without charge. Further, UAPA loosely holds that the government has the discretion to designate any organization as unlawful if it is of the view that the organization threatens or has the potential threat to the country’s “sovereignty & integrity,” or as promotes “enmity between dissimilar groups or as making “imputations prejudicial to national integration”. Consequently, in the first place itdoes provide excessive powers in the hands of the officials, moreover, it incriminates the fundamental right of association as well as by criminalising dissident voices & activities, the distinction between political opposition & criminal activity is diluted & as a result, contrasting ideologies, groups & beliefs are portrayed as the perpetrators.The SC, time after time has gone into the issue of whether these laws comply with the criterion of ‘reasonableness’ as mentioned under Article 19 of the Indian Constitution &is procedurally fair & adheres to the principle of natural justice. For instance, the Criminal Law Amendment (Madras) Act was declared unconstitutional by virtue of the fact that organisations that were proclaimed unlawful under the said Act were not provided an opportunity to defend themselves before an independent judicial authority[24].Conversely, it was held in the case of Jamaat-E-Islami Hind v. Union of India[25] that the existence of the statutory tribunals in the UAPA was an appropriate procedural safeguard that met the criteria of ‘reasonableness’ under Art. 19(4). However, alternatively, many infirmities as well have been recognised by the courts in these laws, though the same has not been addressed.

Another special legislation is the Prevention of Damage to Public Property Act, 1984 (PDPP Act) which calls for criminal prosecution for the damage caused to the public property. It establishes only individual liability &does not inflict any form of collective liability on groups for causing such damage. In the light of legislative vacuum which was created when the SC was confronted with the question of destruction of public property during political mobilisations, the court proposed several amendments to the PDPP Act, such as, to incorporate a rebuttable presumption, to hold leaders of the organization who calls for such an action guilty of abetment & to facilitate the police personnel to organise for videography of the activities damaging public property[26]. It further recommended that the route taken to conduct peaceful march or protest should be reviewed & revised by the police & the organizers & was of the view that both the participants as well as the organisers be made liable for civil& punitive damages.

3.1 Legislative Bills & Amendments

While Delhi was set ablaze in the heat of repulsion, the shielding of the perpetrators reflected the poor status of our country’s democracy. A Bill on the Prevention & Control of Communal Violence & speedy investigation into such incidents continued to stagnate in the Parliament for nine years between 2005 to 2014 until the UPA government unfortunately withdrew it. The Bill not only provided for a wider definition of communal violence, but also aimed for speedy trials, rehabilitation of victims by calling for Communal Disturbance Relief & Rehabilitation Council in every state along with providing double punishment & holding officials accountable for such instances. It would have also empowered the State governments to declare an area as communally disturbed under certain conditions as well as a district magistrate or any competent authority as appointed by the State government to take such measures for regulating unlawful assembly, directing the deposition of arms, orders for searching premises etc., in order to restrict the violence.

However, this bill could never see the light of the day as the parliamentary standing committee was of the view thatit violated the federal principle of the Indian Constitution as it would have created confusion in a State of turmoil. The Author here is not advocating that this Bill should have been approved in all circumstances, however, is of the view that with certain deliberations & amendments, the bill if would have become an Act would have provided an encumbrance on the future agitations. Furthermore, the Parliament passed the Unlawful Activities Prevention (Amendment) Act, 2019which conferred the Central Government to categorize an individual as a “terrorist” if they are found committing, preparing for, promoting, or involved in an act of terror. Moreover, it confers the National Investigation Agency (NIA) to take control of cases that would otherwise fall under the ambit of the police in individual States, concentrating greater powers in the hands of the Central government & weaking the federal structure. Also, a Review Committee shall be formulated by the Central government that will de-notify the individual earlier notified as a terrorist, thus, demounting the chances of any institutional mechanism for judicial review.Of lately, UAPA has been used as a tool to prosecute shaky and insubstantial cases & are deliberately targeted towards the minority communities along with dedicated human rights activists & NGOs.Since the scope of this Act is too broad, the greatest problem seems to be limiting or specifying certain basic requirements.

Chapter-4

The Paradox of Justice to the Victims of Communal Riots

“This Court is of the view that the mass killings of Sikhs in Delhi & elsewhere in November 1984 were in fact ‘crimes against humanity’. They will continue to shock the collective conscience of society for a long time to come. While it is undeniable that it has taken over three decades to bring the accused in this case to justice, & that our criminal justice system stands severely tested in that process, it is essential, in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes. It is important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done.”[27]

States owe victims of gross human rights violations reparation[28] which includes access to truth & justice in the form criminal prosecution along with material & non-material restitution.The fact is what the riot victims really aspires is accountabilityalong with submissiveness of governments to face up the inconvenient truths& not merely a ritualistic apology. By & large, the riot victims are efficaciously left to fend for themselves as official agencies relinquish their duties to keep people safe &help them reorganize their lives. Even after frequent episodes of mass violence, it is not uncommon to hear victims being encouraged to move on, or liability being pressed many years after the bloodshed, ultimately disturbing the peace & tranquillity. Authentic harmony is unachievable unless it is built upon a substantial measure of truth and justice.The obstacles that hinder attempts to ensure justice to those who have been victims of community violence in spite of having the provisions in place includes,the postponement by police inlodging First Information Reports (FIRs) & thefallacies it carries, postponed hearings & eventually laying down constrain on victims to discard their cases much before they achieve their conclusion[29]. Among other things, the assistance allocated to victims of mass violence has been listed as ‘ex-gratia’& is thus voluntary, without State’s legal duty to include appropriate, efficient, timely & adequate remedies, including reparation as per the international standards. For instance, the amount of assistance obtained by the victims of collective violence such as Nellie (1983), Delhi (1994), Gujarat (2002), & Muzaffarnagar (2013) have been considerably different, altogether being grossly insufficient to meet the needs of the victims, non-compensatory, and slow to dispense, ensuing long-term inter-generational implications[30].

The unfortunate North-East Delhi Riots where many lost their lives, hundreds got wounded, property looted & put to flames, the Government of Delhi declared an Assistance Scheme for the Riot victims. Around 700 applications for compensation were scrutinized, however, only meagre amounts of interim payment were made. Furthermore, the verification of the actual damaged site has not been conducted & as a result no remedy has been provided for the same. In addition, many victims had left Delhi immediately after the riots in view of which many applications for compensation were not filed contemporaneously & neither were the FIRs lodged. It is also important to note that the disparity in compensation between the public officers who died in the violence & civilians who lost their lives in the same is arbitrary&warrants urgent attention. Also, despite the fact that law &order in Delhi comes under the purview of the Central government, no scheme or assistance has been declared by the Centre either in the form of one-time compensation or by extending any support in their rehabilitation process.

4.1 The Destruction of Identity in the absence of law on Genocide

The lacuna of not having crimes against humanity or genocide as a part of the Indian criminal law needs to be addressed urgently. As we continue to live in a polarized country, humanity shall be put to shame time & again except the offenders as the bomb of holocaust is to explode again & again. The International Criminal Tribunal for Yugoslavia (ICTY) in Jelisic Case[31]& International Criminal Tribunal for Rwanda (ICTR) in the case of Akayesu[32] noted that that it is the MensRea that distinguishes genocide from other ordinary crimes against international humanitarian law as the constitutive element of specific intent shows that the perpetrator specifically attempts to fulfil the crime alleged by his conduct. The Convention on the Prevention&Punishment of Genocide was adopted by the United Nations General Assembly Resolution 96(I) in 1946 which states genocide as a crime under International law as it has wreaked havoc on humanity& therefore international cooperation becomes indispensable. India had ratified the Genocide Convention on August 27th, 1959 & hence is bound by the obligation to prevent &punish genocide by enacting appropriate & vital legislation to give effect to the arrangements of the Convention. However, despite ratifying the Convention & being a member of the United Nations (UN), India has been ineffective to draw up any legislation on genocide & to comply with its duty within Art.51(c) of theConstitutionof India which “fosters respect for international law& treaty obligations”.

The shortcoming of not have a domestic law on genocide is that it becomes more challenging for the victims to secure justice as the violence assailed on a group is not seen as a larger picture but as mere individual offences such as murder coupled with criminal conspiracy, unlawful assembly & rioting if carried out by a mob of people, making it difficult to book the perpetrators for their actual acts of barbarity. Further, since the Actus Reus of these crimes are not carried out by the actual malefactors but by local goons, it becomes hard to prove their complicity due to lack of evidences. Accepting the recognition of the crime of genocide is a healing closure to an open wound. The denial of past genocide coupled with impunity for its perpetrators is a strong forewarning for future genocides. India will always remain responsible for evading its obligation of admitting the gruesome acts of genocide that were penetrated against its victims in various riots. By refusing to recognise such violence as genocide, justice shall continue to remain elusive to all future victims and the feelings of hatred& revenge will continue to be engrained in the society without any deterrence.

Chapter – 5

Conclusion and Suggestions

When the wheels of justice stand still & the government appears to be prejudiced, a cliché-ridden statement is pressed that the matter is sub-judice & will take its own course. From the deliberations made hereinbefore, the Author is of the view that both the Union & the State governments have failed to safeguard Delhi, a Union Territory from the brutal riots of 2020. Given the State’s failure of governance either due to partisan law enforcement or inefficiency or jurisdictional conflict, the function of the Union as stipulated within Art. 355 of the Constitution to protect the States from external belligerence& internal disruption as well as to ensure that the Governments of the States are followed in line with the provisions of the Constitution was also not executed. It is significant to state that in the case of Rangnath Mishra v. Union of India[33], the SC asserted that “the highest office in our democracy is the office of citizens; this is not only a platitude, it must translate into reality”, stressing on State’s responsibility to operate effectively on rule of law in order to prove this metaphorical highest office – the people, with stability, prosperity & justice.To bring an end to communal barbarism, it is utmost important that people of India uphold ideals such as compassion & shared respect for one another. A significant societal change through education & awareness is needed as a long-term measure to curb such crimes. No compensation can be proper & corrective for the victims, but as the State has been unsuccessful to secure severe infringements of fundamental rights, the State is duty-bound to offer compensation that may assist the victims in their recovery[34]. Besides, the government should strengthen the maintenance of law & order by adopting the three ways policy where firstly a pre-control of communal riots is carried out, including an active intelligence agency in affected areas, check over circulation of rumours; secondly the police forces should be immediately deputed in all the areas adversely damaged with instant guidelines to regulate the turbulence without stomping over its powers & all the necessary action according to the rule of law should be encouraged, without any favouritism. Lastly, all possible assistance should be provided to the victims which shall include their proper investigations, medical facilities, timely allowances & supply of basic necessities. The Delhi riots calls for a prompt, independent & impartial investigation into all matters regarding human rights violations where excessive use of force, torture, inhuman & degrading treatment has been meted out along with unlawful use of firearms by the law enforcement officials. It is relatively uncommon that police officers are considered accountable for their role in the nation’s communal abuse. For instance, it was after three decades that 16 officers were convicted & ordered life imprisonment by the DHC in the 1987 Hashimpura massacre case[35].In addition, by introducing such arrangements to ensure that the occurrence of cases involving religious violence is processed & resolved in a timely manner & victims are made aware of their rights & avenues for legal remedy by providing free or low-cost community legal assistance clinics in riot hit areas, the State & Central judiciary should accordingly be strengthened. Mob attacks & vandalism can be thwarted by the Governments by undertaking concrete measures as well as by casting a duty upon the vigil society who ought to report such instances to the State machinery in contrast of taking the law into their own hands. It is inconceivable to visualize increasing intolerance & growing polarisation recorded through spate of incidents to become the usual state of law & order. Therefrom, the State has a sacrosanct mandate to protect its citizens with utmost sincerity from unruly elements & perpetrators of abuse & its policies & processes must represent the determination to resolve & quell such incidents.

A state that draws consensus only on a point of abhorrence rather than harmony, is convening its own suicide pact. Sooner than later, it is vital to understand that the cornerstone for the survival of India is national integration. It is best to monitor & exterminate the infiltration of communal ideology as if it is found active, communal savagery can be provoked anywhere, whenever needed. We live in a political environment where a disclaimer or a caveat that prevents us from getting into trouble has to come with everything we say. It is a time when society’s intellectuals have appropriated the sole monopoly of reality, & have determined it with certainty, with little space for any nuance. True secularism that makes sense in the Indian context would continue to escape us unless we resuscitate an idiom that resonates with a fairer & more complex expression of equality.

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[1]Sufiya Pathan, A Historical & Theoretical Investigation into ‘Communalism’, (March 2009), (Ph.D thesis,  Centre for the study of Culture & Society).

[2]Rasheeduddin Khan, “Communalism and Secularism in Indian Politics”, Mainstream, Vol XXV, No.13, pp.1213 (February 1987).

[3]Ramesh YeshwantPrabhoo (Dr) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130.

[4]Anamika Shrivastava, Communal Violence & Administration, P.No.86 (Rawat Publications, Jaipur, 1999).

[5] Zakaria Siddiqui, “The Problem of Communal Violence and Communalism in India: Some Theoretical Explanations”, 12 ALJ 122 (1997).

[6] The Deccan Herald, August 8, 1998.

[7]Shezad Ahmed, “Communalism and Communal riots in India since 1984: An Analytical Study”, Department of Politcal Science, AMU, Aligarh-202002, India (2019).

[8]Mohammed Ahmed v. Shah Bano Begum, AIR 1985 SC 945 (The SC had adjudged that a divorced Muslim woman was eligible to get maintenance under the IPC, while the Islamic Law had approved her much smaller allowances. It raised a storm of protests among the Muslims throughout India as they considered the judgement to be anti- Islamic law & perceived it as an intervention by the judiciary in their personal law).

[9] Zoya Hassan, “Quest for Power: Oppositional Movement& Post-Congress Politics in Uttar Pradesh”, (1998).

[10] Upadhyay Robinson, “Revisiting Communalism”, pp.48.

[11]SLP (C) No. 2456/2020.

[12] W.P.(Crl.) 565/2020.

[13]Manzar Sayeed Khan vs. State of Maharashtra &Anr., (2007) 5 SCC 1.

[14]Ramji Lal Modi v. State of U.P, AIR 1957 SC 620.

[15]PravasiBhalaiSangathan v. Union of India (2014) 11 SCC 477.

[16]1996 SCC OnLine Del 484.

[17]Md. Ankoos&Ors. vs. The Public Prosecutor AIR 2010 SC 566.

[18](2006) 8 SCC 1.

[19] 2008 (9) SCC 204.

[20]Brinda Karat &Anr. vs. State Case No. 04/2020.

[21](2016) 9 SCC 682.

[22]Ramvir vs. State of Uttar Pradesh (2019) 2 SCC 237.

[23]Rabindra Mahto vs. State of Jharkhand AIR 2006 SC 887.

[24]VG Row v Union of India, 1952 SCR 597.

[25] 1995 SCC (1) 428.

[26]Re: Destruction of Public Property vs State of Andhra Pradesh, (2009) SCC 212.

[27]State vs. Sajjan Kumar &Ors.2018 SCC OnLine Del 12930.

[28]UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International.

[29]Farasat, Warisha and Prita Jha, “Splintered Justice: Living the Horror of Mass Communal Violence inBhagalpur and Gujarat”, Centre for Equity Studies & Three Essays Collective, Delhi, pg. 13 (2016).

[30] Chopra, S., ‘Massacres, majorities and money: Reparation after sectarian violence in India’, Asian Journal of Law and Society, pp. 157–190 (2017).

[31]Prosecutor vs. Jelisic, Judgment, IT-95-10-T, 14 December 1999.

[32]Prosecutor vs.Akayesu, Judgment, ICTR-96-4-T, June 2001.

[33] (2003) 7 SCC 137.

[34]Mohd. Haroon v. Union of India, (2014) 5 SCC 252.

[35]Zulfikar Nasir &Ors. v. State of Uttar Pradesh &Ors., 2018 SCC Online Del 1213.

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