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A Seminar on “Towards an Effective Law to Prevent Communal and Sectarian Violence” was organised by the Lok Raj Sangathan, Better Sikh Schools, Sikh Forum, Bachpan Bachao Andolan, Sikhi Sidak, Socialist Yuvajan Sabha in the Indian Law Institute on 4th November 2012. Many eminent jurists and activists participated in the Seminar and made valuable contributions.

 

In his opening remarks, the President of LRS, Shri S. Raghavan said that this Seminar was culmination of the “Forgotten Citizens” campaign to punish those who were guilty of organising the 1984 massacre. This campaign was kicked off from the Jalianwala Bagh in Amritsar on 21st October with the opening of a mobile photo exhibition depicting the gruesome events 28 years ago. The mobile exhibition traveled through several towns of Punjab and numerous localities throughout Delhi to end at Jantar Mantar on 3rd November where a candle light vigil attended by over ten thousand people was held. A petition, expressing disappointment with the failure of the Manmohan Singh government and the state agencies to book the guilty and demanding the opening of the old cases so that the guilty may be punished, has been signed by more than 40,000 people during the campaign. He related the heart rending stories of the victims who came to see the exhibition.
Shri Raghavan pointed out that the dharma of the state is to provide sukh and suraksha to the people. Time and again, the Indian state has not only failed in this duty but has actively carried out genocidal crimes against the people of different communities. According to ancient Indian thinking, it becomes the dharma of the people to get rid of such a rule. He was confident that the learned views of our panelists on this serious issue will be a tremendous step in understanding the underpinnings of state-organised communal violence and pave the way for an effective legislation to prevent such genocides in future.

Justice Hosbet Suresh said that the Indian state has been behind all cases of genocidal violence, including the violence against Tamilians in the Cauvery water dispute. He strongly advocated a special law to deal with such crimes based on the International UN Convention on Genocide, which was signed by India in 1959. He highlighted the important principles of this Convention, such as no immunity for crimes of genocide, punishment to the guilty even if there was no law at the time of the crime, no statutes of limitation, no limitation of time, no prior sanction to prosecute, no need for a complaint from the victim to investigate the crime, etc.

He, along with Justice Savant and Teesta Setalvad had prepared a draft of such a law ten years ago and submitted to the Manmohan Singh government, however, the government has not bothered to take it up for approval in the Parliament. Instead, former Home Minister, Shivraj Patil brought another draft which was full of defects. Justice Suresh emphasized that the UN Convention on Genocide was an excellent base to make the law and could be directly used by the central government. He pointed out that this clearly shows that the government has no political will to act against crimes like genocide. We are still demanding justice for the victims of 1984; even after 28 years, we are demanding that guilty must be punished; Justice has to be done. Justice Suresh opined that the UPA government will not pass the 2011 draft law. He agreed with Shri Raghavan that people themselves will have to organise and force the government to punish the guilty of such crimes.

Shri Shanti Bhushan, former Law Minister, strongly agreed with enacting a law to prevent genocides like the ones in 1984 and 2002. He opined that the Bill can say that it will be the duty of all levels of administration to make all efforts to put a stop to such occurrences immediately. If such a genocide continues beyond 12 hours, the PM, Home Minister, CM, DIG, Chief Inspector of Police, Station House Superintendent will all be held guilty and sentenced to minimum five years in prison, unless they can show that such violence could have continued despite all their efforts to stop the violence. The onus of proving this should be on them. The law is not just to punish but to deter such offences from being repeated in the future. Shri Shanti Bhushan pointed out that he had met the then Home Minister Narasimha Rao on the morning of November 1, 1984 demanding action to protect the Sikhs. He was convinced that the then Prime Minister Rajiv Gandhi had told the Home Minister not to take any action. Shri Shanti Bhushan felt that the UPA government was least interested in passing any law that would deal with state organised communal genocides.

Ms. Teesta Setalvad said that there have been major communal massacres before and after the 1984 genocide, however, 1984 is special because it took place in the capital and the party in power at the centre was involved. The problem in getting justice for the victims is that there is very little documentation of what happened. First time evidence was taken by the Nanavati commission after 2002. Evidence should be taken right away and not after so many years. The victims were totally crushed by the administration and the government. Their community and support system were demolished. The police officers who actively abetted the massacre were promoted.
It is important to understand that such massacres do not take place without preparation. The first thing that organisers of the massacre do is to alienate the victimised population through propaganda and mobilize support from the majority community. For example, she said that once when she was traveling from Jaipur to Delhi in 1981 the bus was stopped and all the Sikhs were selectively asked to get down for checking. Destruction of evidence is another important weapon. For example, there was a 9 hour recording of the Ayodhya demolition which was not given to the Lieberhan commission. Similarly in 1984, a lot of evidence was destroyed due to delay. She explained that we get the evidence only when Supreme Court gets involved.

Another disturbing trend is that those who are seen to be organising the communal violence are given tickets to stand in the election by these parties. For example, 4 out of 7 leaders of the Congress party were given tickets to stand in the elections. Courts also have power to take suo moto action. However, no such action was taken in 1984 case. It is very important for us to share our experiences. Regarding the new law, she felt that while there were disagreements on the features of the law among activists, we should reserve our differences to strive to get it passed by the Standing Committee, otherwise the government will use our differences to not pass any law.

Ms. Vrinda Grover said that our experience with the democratic system raises serious questions when the parties which are seen to be organising communal violence win subsequent elections with landslide victories. It is a real challenge for us to bring them to trial and punish the guilty when there is not even a recognition of state organised violence in the Indian Penal Code. The investigative agencies work under the direction of government and make a mockery of the trial when they negate the testimony of a witness of crime by producing other “witnesses” who say that they did not see the crime being committed. She talked about her study of some 100 trials relating to 1984 massacre; how cases are deliberately botched up by late filing of FIRs, calling witnesses to testify after 10 to 15 years, ignoring some testimonies, etc. She supported the need for a special law to effectively deal with cases of communal and targeted violence, which may or may not fall under the category of genocide. She doubted if a strong law can be passed by the parliament, which is dominated by political parties who use communal violence to further their own narrow agenda.

Justice Rajinder Sachar gave numerous examples that illustrate how government can obstruct justice. PUCL had more than a 1000 FIRs to file pertaining to 1984 massacre. The government, however, did not accede to their request to designate a police station where these could be filed. Various Ministers, including the Prime Minister, ignored several requests of prominent citizens for even an audience. He was even shunted to another court when the government had to constitute the commission of enquiry to look into the 1984 violence. Justice Sachar felt that people’s efforts were indispensable for any kind of solution to the problem of communal violence and punishment to the guilty.

Senior Advocate H S Phoolka said that the enormity of the killings was unimaginable. Even according to the government’s statistics, in the 48 hours from 1st November to 3rd November, one Sikh was being killed every minute in Delhi.

Talking about his experience with the judiciary of fighting for justice for the victims of 1984 genocide, he said that the government did everything to prevent justice. A petition for commission of enquiry was transferred from Justice Sachar to Justice Yogeshwar Dayal and Justice B N Kirpal who promptly dismissed it. Subsequently, Justice Dayal was promoted to become High Court Chief Justice and Judge of the Supreme Court and Justice Kirpal became the Chief Justice of India. Journalist Rahul Bedi who had witnessed killings in Trilokpuri filed a petition in the High Court against the ACP and other police officers for not taking action and saving the lives of 400 victims but his evidence was rejected by the court. Rahul Bedi presented his evidence regarding the police role to the Marwah Commission but Ved Marwah was asked to hand over all evidence to Justice Mishra just as he was ready to file his report in 1985. In 1987 Mishra Commission washed its hands off this saying it was not empowered to deal with the role of police and asked the government to form another committee to look at the case of guilty police officers. Kapur-Mittal committee was appointed and they identified 72 police officers who were guilty of dereliction of duty and half of them had actively taken part in the killings. Not one of these officers was suspended or dismissed but were given multiple promotions. The DCP East Delhi was given three promotions.

The Jain-Bannerjee committee was formed in 1987 to recommend registration of cases. But the High Court ruled that none of the cases recommended by Jain-Bannerjee committee should be registered. This was done on the petition filed by Brahmanand Gupta against whom there were at least 50 cases of rape and murder pending! Later Justice Brar allowed the case to be registered, however, the government appointed a special Chief justice who took over the case and quashed the formation of the Committee itself.

In VP Singh’s regime, one of the organisers of the Sikhs pogrom, Sajjan Kumar was arrested in the evening. The very next morning, on mere oral petition to the Chief Justice, Justice M K Chawla gave Sajjan Kumar anticipatory bail, even though he had already been arrested and there is no provision for giving anticipatory bails after the arrest.

Jain-Aggarwal Committee had made a report which recommended registration of cases that had not been registered so far and had named 280 police officers for deliberately doing defective investigations to shield the guilty. Activists filed this report in the Supreme Court and Justice Sujata Manohar wanted to know why no action was taken. Then this bench of the Supreme Court was changed and another bench under Justice Punchhi threatened the activists with breach of Official Secrets Act and they had to withdraw the case so as not to jeopardize the other case involving H K L Bhagat.

With this history, Shri Phoolka questioned how can we expect people in the Sikh community to have faith in law and the justice system? There are no two views about the need for a new law. There are petitions in front of Canadian, English and Australian courts since many people in the community don’t have faith that justice will be delivered in the Indian courts. There is no question of forgiving the guilty of such heinous crimes. As long as there are witnesses alive and as long as the criminals of 84 are alive and free, the struggle for justice has to continue, he concluded.

Comrade Prakash Rao, Spokesperson of Communist Ghadar Party of India said that we have to look at the problem dispassionately and draw the necessary conclusions, otherwise, we will not be able to go towards the solution. Communal massacres take place again and again in India because somebody benefits from them. He mentioned the political mileage the Congress Party gained out of the communal campaign against Sikhs, portraying them as the killers of their leader, and as enemies of the nation. Similarly, BJP also gained in electoral terms both from the demolition of the Babri Masjid and from the 2002 Gujarat genocide. There are others who benefited too – those who wanted to push the economic reforms. He said it was not a coincidence that each of three stages of economic reforms – the Modernisation drive of Rajiv Gandhi government, the New Economic policy of Narasimha Rao government and the Second Generation reforms of the Vajpayee governments was accompanied by a communal massacre. Today too, the danger of another communal massacre is visible in the events of Kokrajhar and the Northeast for pushing ahead the unpopular reforms of Manmohan Singh government.

The experience of the last 28 years has shown that the various organs of the State and the governments have prevented justice from being delivered. It clearly shows that the very foundation of the Indian State is communal. He pointed out that the Indian Constitution, which borrows heavily from the Government of Indian Acts of the British parliament, is a colonial legacy. The secularism of the Indian Constitution is such that it divides people on the basis of religion and caste, and does not guarantee human rights including the right to conscience to anyone. The political process in the existing system of democracy keeps the vast majority of people completely powerless. The system enables elected people’s representatives to use state power to organise communal violence, and the people have no means to do anything about it.

In conclusion, Prakash Rao said that the struggle for justice and for preventing communal massacres poses sharply before us the necessity to establish a new state on the basis of a new constitution, i.e, Navnirman of India. The new state must guarantee human, democratic and national rights, including the right to conscience, with enforceable mechanisms. The very Constitution of the state must ensure that all institutions of the state are accountable to the people at all times.

Jarnail Singh started his talk by asking, if Salman Khan could be punished for killing a deer, how is it that the massacre of 3000 Sikhs remains unpunished till date. He pointed to the tight control of the media from the top by pointing out that newspapers of 1-3 November 1984 did not report on the massacre. Nine commissions of enquiry had resulted only in one report being tabled in Parliament. In 2009 CBI gave a clean chit to Jagdish Tytler and dismissed cases against Sajjan Kumar. Congress gave them tickets for standing in the elections and the matter was closed as far as government was concerned. But there is no justice for ordinary innocent citizens. He concluded that he accuses the Congress party for being responsible for the pogrom of the Sikhs just like the Nazi party was responsible for pogrom of the Jews.

Rajvinder Singh Bains said that the biggest mistake that the victims made was that they relied on the government and the police. Had they organised their own self defence then many would not have fallen victim to the attacks. He gave several examples of state organised violence in Punjab. He felt that a new law is necessary and worth fighting for.

Madhu Kishwar questioned how the massacre of 1984 could be called Hindu-Sikh riots by the media. Vast majority of those who were killed were Sikhs and it was a massacre, not a riot. She cautioned that merely a new special law is not the solution. Various laws passed and special authority set up for supposedly protecting women or minorities are being misused also. Special authority can solve the problem only if it is accountable to the people. She said that there is no spontaneous communal violence; all of them are politically engineered abetted by the police and administration. Another law will not solve the problem in this situation. What is needed is correct handling of the situation politically, not another harsh law.

Shri Om Prakash of Bachpan Bachao Andolan said that Delhi, Mumbai and Gujarat were not communal riots but state organised communal genocides. No mass violence can continue beyond a few hours without the sponsorship of the state. Since communal violence is born out of the state, we will have to think of how the new law will relate to the pillars of this democracy. Om Prakash said that law must cover media and should hold the Home Minister accountable. It must have mechanisms for implementation.

Several people intervened after the panellists expressed their views. Ms. Sonali Bose, Director of the film, Amu, talked about the deliberate rumours spread after the assassination of Indira Gandhi. She passionately talked about the hundreds of cases where people supported and protected their Sikh neighbours. She pointed out that the Censor Board gave an adult only certificate, saying “Why do you want children to see a part of history that is best forgotten”, although the film had no scenes unsuitable for universal viewing. Another member of the audience talked about the need for taking up the democratic renewal of India to empower the people and to eliminate the curse of communal massacre. Guruji Hanumanprasad Sharma said that some people wrongly say that the basic legislative structure is all right in India and only its implementation is the problem. He strongly felt that genocides can be ended only through the empowerment of people. On what foundations can a new India be established in which people will be empowered, he asked. He opined that a Constituent Committee has to be established from among the people, to widely debate and decide on how our country and our Constitution can be renewed.

Concluding the Seminar, Shri Raghavan said that there was consensus that 1984, 1992-93, and 2002 all were state organised genocides. They were not riots, not danga fasad. Various learned speakers have helped us to understand who were responsible for these genocides, why do they happen again and again, what were their root cause and what we can we do about it. The question has also arisen whether an effective law can be made to prevent communal violence within the confines of the present Constitution and political process.

On this question we are facing a dilemma, a duvida – some people feel that we can make a good legislation within this system, if only “good people” are available to implement it; but we have also seen that all these cases of violence were organised by the ruling establishment itself and that nothing happened with respect to protection of the victims, their rehabilitation, and the punishment of guilty. People who demanded justice were ignored and marginalized. So, how can we have an effective legislation within the current dispensation. Therefore, we have to see in greater detail how this system, this Constitution, this state allows all of this to happen. There are genuine apprehensions that one more strong law will be only used to suppress the people even more and be used against people of states by the centre just like earlier laws. It is also imperative to consider what kind of political system we need – what kind of power should the people have, what kind of Constitution we need, etc.
The main message of the Forgotten Citizens campaign was that people have to get organised and wage the struggle for justice and for punishment of guilty, and for a society in which genocide could not be organised. The most important issue today is to build on this initiative and take our struggle against state-organised communal violence forward. We have had a very good discussion today. Our intention in organising this discussion was not to come up with a blueprint of a new Law. We wanted to find answers to the question — why do such massacres take place again and again? We have all been involved in this very important struggle for years. There could be differences in views amongst us, but this should never affect our unity in taking the struggle forward.

 

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1. Justice Sachar addressing the gathering at the Indian Law Institute on 4-Nov-12

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