Many hoped that Independence would progressively bring an end to violent communal strife and pogroms in India. But after 63 years of freedom, millions of Indian people continue to live with lurking fear in their hearts: fear of violence which can snuff out their lives and loved ones, violate their bodies, and devastate their homes and livelihoods. Among these are religious minorities, especially Muslims, and in tribal areas, Christian converts. I have spoken to ordinary people of Muslim faith in many corners of the country. When they recall their lives, it is always as life lived in the space between riots. Each of them negotiates everyday living with unspoken trepidation that one day everything that they love and live for can be destroyed in one brief storm of hate. And in many tribal areas, communal organisations have succeeded in driving a deep and dangerous wedge between people who converted to Christianity, and others — often of the same tribe — who have not.
Therefore many in this country pin great hopes on a law which could help end communal violence. This Communal Violence Bill has been in incubation for an extended six years, ever since the UPA government was first elected in 2004 with a mandate to end the politics of fear, hate and division in the country. But despite two drafts by the Government, in 2005 and 2010, there is wide rejection of, and disappointment with, what the government has on offer. The government version of the law has very little in common with what secular opinion, and minority leaders, believe are essential to such a law.
Successive government drafts of the Communal Violence Bill mainly aim to greatly enhance the powers of the police, on the premise that these increased powers are needed to enable police and governments to take decisive steps to prevent and control mass communal violence. The draft Bill provides for governments to declare areas in which communal violence is imminent, or has actually broken out, as ‘communally sensitive' areas. In these areas, for the duration of the notification, the police would function with expanded powers, and there would be enhanced punishment for crimes committed in this area, and special courts would hear the criminal cases that arise.
The assumption of the government drafts is that if only the powers of police and governments are augmented in communally charged times and areas, they would control communal violence effectively and decisively. This assumption flies in the face of the actual experience of successive communal pogroms. Did governments in Assam in 1983, Delhi in 1984, Mumbai in 1992-93, Gujarat in 2002 or Kandhamal in 2008 fail to prevent slaughter and arson because they lacked sufficient powers? Do we really believe that these governments were unable to control violence because they lacked the legal muscle? Or was the truth that they did not want to control the violence; but instead they deliberately enabled the slaughter? That they wanted to reap political advantage from a violently polarised polity, and were assured that they would legally be able to get away with such a crime?
If government officials and political leaders wish to act, the law as it stands is more than adequate to empower police and officials to prevent and control communal violence. No riot can continue for more than a few hours without the active will of the political leadership of governments that violence should persist and indeed spread; and the active abetment of police and civil officials to prolong the slaughter and arson. Communal carnages occur because they are systematically planned and executed by communal organisations, and because governments which are legally and morally charged to protect all citizens, deliberately refuse to douse the fires, and instead allow rivers of innocent blood to flow.
I regard such abetment of slaughter by public officials to be one of the gravest crimes possible in public life. To protect minorities from communal pogroms and mass violence, we do not need a law which adds further to the powers of police, civil authorities and governments. Ironically, such a law will achieve the exact reverse of what it claims to seek. The consistent experience of minorities is that greater powers in the hands of police would only be used against them. There is great unease with declaring regions as ‘disturbed areas': in large swathes of India's North-East and Kashmir, people have lived in the shadows of similar declarations, which give extraordinary powers to security forces. These routinely lead to crushing of people's elementary democratic freedoms.
We need a very different law, not one which makes police and public officials more powerful, but instead one which forces them to be legally answerable to the people who they are responsible to serve and protect effectively and impartially. In present law, public officials can at best be charged with active conspiracy and participation in mass violence (although even this is rarely done). But the worst crimes of police and civil authorities, and those in command positions like Chief Ministers, are of deliberately and maliciously refusing to take action to prevent and control violence. We need law to recognise such deliberate inaction - because of which killings, rape and violence continue unchecked for days and sometimes weeks - to be grave and punishable crimes against humanity.
The law also needs to recognise new crimes, especially of forms of gender violence during communal carnage. The narrow definition of rape does not envisage the many forms of gendered crimes that are common in mass violence situations, such as stripping and parading women, mass disrobing by the attacking men, insertion of objects into bodies of women, cutting breasts and killing of children in the womb. The procedures for recording complaints, investigating and trials also need to be sensitive to the suppression, fear and sense of public shame which shrouds in silence most such episodes of targeted violence against women.
In most episodes of communal violence, states are partisan also in extending relief and compensation. The survivors of the Nellie massacre of 1983 were paid a mere Rs. 5000 for each death, against a total of around Rs. 7,00,000 for the families of those killed in the Sikh massacre of 1984. Such an implied hierarchy of official valuation of human lives of people of different persuasions and ethnicity is intolerable. The government in Gujarat in 2002 refused even to establish relief camps, and forced the pre-mature closure of the privately established camps. The law therefore must establish binding standards for awarding compensation after communal violence, and duties relating to rescue, relief camps, rebuilding of homes, livelihoods and places of worship.
At present, there is an unbridgeable chasm between the government's conception of law to prevent communal violence, and what people seek from it. It is not surprising that Home Ministry officials have refused to produce a draft which makes public officials legally answerable to the people for their acts — and failures to act — which lead to the brutal and criminal loss of innocent lives.The Right to Information stood on its head the relationship between public servants and the people by enabling the latter to question former. for the probity of their actions. The Communal Violence Bill must carry this further, by enabling them to ask whether they did all they should to protect all citizens against mass violence, regardless of their religious faith, gender, caste and ethnicity. Only such a law can stem the rivers of innocent blood that flow periodically across this land. Only such a law can secure secular democracy in India.