Righting Institutional Bias 27.10.2013

Righting Institutional Bias

Teesta Setalvad

Six days into 2013, about a 1,000 kilometres away from the nation’s capital, in the faraway north Maharashtrian town of Dhule, a brutal police action, videographed in evidence, has documented the shameful killing of 6 innocent young Muslims, by men in uniform. Though these deaths amounted to crimes by protectors of the law, they have hardly registered on the nation’s psyche. Months before that, in September 2012, four Gujarat police officers had shot dead three Dalits, including a 17 year old, using AK 47s on the night of September 22-23 2012 at Thangadh in Surendranagar district, not far from Ahmedabad.  In early September 2013, perpetrated violence in four districts of Muzaffarnagar, Baghpat, Shamli and Meerut has, once again, documented even more crude cases of police complicity.

The script that was being played out in western UP, Dhule and Thangadh is a familiar re-run of what the country has witnessed since the late 1980s, when evidence of deviant conduct by men in uniform surfaced from several bouts of targeted violence countrywide (Nellie, Assam 1983- 3,000 Muslims massacred in Assam; Delhi 1984 – over 3,000 Sikhs systematically killed; Hashimpura, Uttar Pradesh 1987--51 Muslims shot dead by the PAC of Uttar Pradesh; Bhagalpur, Bihar, 1989 -- a massacre that left thousands dead and evidence buried below a hastily planted cauliflower field; Over 1,00,000 Kashmiri Pandits forcibly displaced from the Kashmir Valley; Bombay 1992-1993 – over 1,200 dead; Kandhmals, Orissa 2008 – nearly 100 Christians; Gujarat 2002 – over 2,000 Muslims massacred) courts and Judicial Commissions have strongly indicted India’s police for harbouring a distinct anti-minority bias, committing crimes through manifestation of this hatred and not being punished for it.  In Gujarat, the violence that lasted from February 27 to early May 2002 , saw institutional resistance to vile political diktats from about eleven districts and commissionerates where the police chiefs and administrative heads refused to bend to the criminal intent of their political superiors, and were made to pay for it.

If Article 14 and 21 gives every Indian the right to life and equality before the law, Article 15(1) of the Constitution guarantees that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. If, as repeated bouts of targeted and communal violence in the country have shown, regardless of who casts the first stone, the logic of identity driven majoritarian institutional functioning is, that the minority (linguistic or religious, Dalit, or Adivasi) suffers most in terms of loss of life, livelihood and property, should there not be legal measures to remedy this? Laws to protect women have been termed discriminatory and anti-family by many who would prefer women not complain about violence and abuse. Opposition to the  1989Atrocities law that seeks to prosecute crimes driven by a deep caste ridden mindset is no less widespread though muted.

A candid look at the trajectory of communal and targeted violence in the country will lead us to several reports of judicial commissions of enquiry appointed by different state governments in response to major communal carnages – Jagmohan Reddy Commission (Ahmedabad, 1969), D.P. Madon Commission (Bhiwandi, Jalgaon and Mahad, 1970), Joseph Vithayathil Commission (Tellicherry, 1971), Venugopal Commission (Kanyakumari, 1982), Jitendra Narain Commission (Jamshedpur, 1979), the

B.N. Srikrishna Commission (Mumbai, 1992-93), reveal two common threads that run through all these reports: one, the criminal role of Hindutva organisations in masterminding the violence; two, the partisan, anti-minority (Muslim, Christian, Sikh) conduct of the police. Just two examples: “Here was not only a failure of intelligence and culpable failure to suppress the outbreak of violence but (also) deliberate attempts to suppress the truth from the Commission, especially the active participation in the riots of some RSS and Jana Sangh leaders.“ -Justice Jagmohan Reddy Commission on the Hindu-Muslim Ahmedabad riots, 1969 “The RSS sets itself up as the champion of what it considers to be the rights of Hindus against minorities. It has taken upon itself to teach the minorities their place and if they are not willing to learn their place to teach them a lesson.”Justice Venugopal Commission on the HinduChristian Tellicherry riots of 1971. An obvious exception to the above was the 1984 massacre of Sikhs in Delhi. It was spearheaded by Congress leaders where, as always, the police either remained passive and indifferent or sided with the murderous mobs.

Institutional correction that should follow such institutional acknowledgement of a deep-rooted bias within police functioning has been absent. Such correction is only possible if the malaise is first widely recognized, and that too with some candour and detatchment.

Which is not to argue that none from the minority be he or she a Muslim, Sikh, Bihari, Christian, Dalit or Tamilian are incapable of the first act of violence. They are. When such acts take place, however as they have done, in Malegaon and Mallapuram among others, the police and administration have acted swiftly and firmly. When minorities, linguistic or religious, Adivasis or Dalits, have been the specific target, however, the functioning of the police and administration, has been observed to have turned partisan bending towards the numerically and otherwise, more powerful. The loss of lives, livelihood and properties of these sections is therefore invariably and proportionately much greater. It is a recognition of this unbalanced and partisan functioning of institutions of governance that the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 seeks to acknowledge and remedy.

Why and how are policemen and administrators, as also elected representatives and non-state actors able to commit such crimes, again and again, with impunity ?  Because they live secure in the knowledge that the law will not act against them. Their superiors too sit pretty, never being held to count for the failure to protect the loss of lives , homes and businesses. The PCTV Bill has proposed therefore broadening the definition of dereliction of duty — which is already a crime — and, for the first time in India, added offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch. It is draft that proposes accountability of the most profound kind from a public servant.

Section 197 of the CrPC is a provision of law, bestowed by the British, through which errant governments have refused to give sanction to prosecute offenders. Leave aside the public servant, absence of sanction has prevented a Thackeray, Togadia and Modi, equally, from being hauled to court in a private complaint under sections 153a, 153b, 505 of the Indian Penal Code and 295 of the CrPC for spewing hatred and venom. The proposed law removes the barrier of sanction when officials officials are to be charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute is required to be given or denied within 30 days, failing which it is deemed to have been given. Reparation and compensation for loss, not limited to “majority” or “minority” has been standardised and related to a rational scheme related to the cost price index, not left to the whims of a particular government.

It is no wonder then that such a proposed law that recognises the corrosive ill of majoritarian, communal and caste bias has generated more heat than reason. The most hysterical criticism has come from outfits that have benefitted politically from fuelling a majoriatrian and supremacist bias, often being perpetrators and agent provocateurs of violence themselves. Representatives of these outfits have gone to the extent of imposing brute will on police stations when officers of the law have tried to constrain them during bouts of communal conflict. The Shiv Sena, Bajrang Dal, Vishwa Hindu Parishad and BJP are equally guilty of attempting to bully local police stations to paralysis and inaction at such times. It is the same bullying tactics that is precluding any rational discussion on a long overdue measure that signifies mature institutional correction of anti-minority bias and partisan administrative and police functioning. Fortunately this time round, other political players like the Left, the JD(U), the National Conference and the Samajwadi Party have greeted the tabling of the Bill with cautious enthusiasm.

Finally another caveat. A Bill, once it gets tabled, always goes to a Standing Committee, before and after which amendments can and will be tabled, shaping and re-shaping the draft. The RTI of 2005 went into over 180 amendments after coming in draft form to Parliament. This will and must happen with the PCTVB also. Once it is tabled in the Rajya Sabha however, regardless of the shape and colour of the next Parliament, it will be a step on the verge of being taken. No wonder than it is the very forces that have been the political beneficiaries of communal violence that are preventing Indian lawmakers from taking this quantum leap.

Ends

(The  writer is an activist, educationist and journalist who was associated with the drafting of the Bill)