07 April 2009

Immunity for mobs in the ‘war on terror’

Within weeks of the Mumbai terrorist attacks, a new anti-terror law was hurriedly passed. But seven years after Gujarat, the promised law to deal with communal violence is nowhere in sight...

7 April 2009
The Hindu

Immunity for mobs in the ‘war on terror’

Siddharth Varadarajan

Despite the arrest of Gujarat minister and BJP leader Mayaben Kodnani for her role in the 2002 mass killing of Muslims in Ahmedabad, the Congress party’s decision to give tickets to Sajjan Kumar and Jagdish Tytler is a reminder of the impunity that is built into the very edifice of Indian politics and law.

Even before the Central Bureau of Investigation gave its predictable “clean chit” to Mr. Tytler and declared there was no evidence to prove his involvement in the November 1984 massacre of Sikhs, the Congress party high command had no qualms about fielding him and Mr. Kumar for the upcoming Lok Sabha elections from Delhi. The relentless passage of time and the willful sabotage of criminal cases at the investigation stage have done for Mr. Tytler what all the perfumes of Arabia could not do for the Macbeths. But for a politician who wants to stand for public office, this is hardly much of an exoneration. It matters not a farthing that 25 years later, the CBI sends detectives across half the world to interview and then discredit a sole surviving witness. What matters is that CBI and Delhi Police investigators were nowhere in sight in the days and weeks following the killing of 3,000 Sikhs in the national capital when the relief camps were full of survivors willing to testify to the involvement of top party bosses. That was the original act of erasure which even the most persistent of criminal investigations will find difficult to undo.

At the same time, it is a measure of how low we have sunk as a nation that we are supposed to feel relieved that a man who might be minister again was apparently not involved in genocide. I do not care how many innocent people might have died as a result of the actions Mr. Tytler is alleged to have committed. The answer to that question involves a burden of proof which is beyond the ken of an average person. The question I want an answer to is this: How many people did you save, Mr. Tytler? You were an important leader of the ruling party at the time and your clout is such that the Congress even today feels obligated to give you a ticket. “If you save one life, it is as if you have saved the world,” the Talmud says. Bearing silent witness to injustice, as Bhishma and Dronacharya did, makes one morally culpable. Modern jurisprudence tells us that allowing the commission of a heinous crime that one was in a position to prevent makes one as guilty of the offence as the actual perpetrator. Throwing a stone at a gurudwara or emptying a jerry can of petrol on a helpless man or inciting others to do these terrible things are not the only ways of committing a crime. Walking away when all of this is happening or about to happen makes a leader or police officer just as guilty. And no matter what the CBI says, Mr. Tytler, the whole world knows that that is what you and your senior colleagues did during those fateful days in November 1984.

In any civilized society, that act of walking away would itself render a politician unfit for elected office. In India, however, every party, barring the Left, sees some political benefit from inciting communal hatred or violence and then deploying mob ringleaders as candidates. If the Congress has its favourites, the Bharatiya Janata Party has no problem fielding Varun Gandhi or Manoj Kumar Pradhan, accused of being one of the ringleaders of the anti-Christian violence in Orissa last year.

The reason our political parties are able to get away with this is because communal violence, or mob terrorism, is not treated by our mass media or civil society as a crime as shocking and monstrous as terrorism perpetrated through bomb blasts and suicide squads. When it comes to terrorism of the latter variety, public sentiment runs so high that lawyers refuse to defend individuals accused of such offences. Within weeks of the November 26-29 terrorist incidents in Mumbai, a media-orchestrated clamour led to the reintroduction of anti-terror laws in India. But individuals accused of instigating and orchestrating the mass murder of religious minorities through the use of mob terror enjoy effective impunity.

Last year, while appointing a Special Investigation Team (SIT) to probe the hundreds of cases of communal violence that still remain unpunished in Gujarat, the Supreme Court made the following observation: “Communal harmony is the hallmark of democracy… If in the name of religion people are killed, that is absolutely a slur and blot on the society governed by the rule of law… Religious fanatics really do not belong to any religion. They are no better than terrorists who kill innocent people for no rhyme or reason.” These remarks were reiterated by the Gujarat High Court recently in its landmark judgment cancelling the anticipatory bail of Mayaben Kodnani.

But if the judiciary is clear about the equivalence of mob terrorism and bomb terrorism, why is there a double standard in both statute and public discourse? In the 2004 elections, the Congress promised to redress this legal lacuna by enacting a new law to deal with communal violence. The draft Bill the Union Home Ministry came up with was so useless that the very activists who earlier wanted the law and who fought hard but unsuccessfully to improve its provisions ended up lobbying the government to kill it. And now, in its latest manifesto, the Congress has completely resiled from its original promise, offering instead “a law that empowers the National Human Rights Commission to monitor investigation and trial in all cases of communal and caste violence.” Such a proposal would be laughable if the lives of our citizens and minorities were not at stake. The NHRC already enjoys enormous powers which it refuses to exercise. On the rare occasions when it acts, the government finds ways to sidestep its orders or recommendations.

The draft communal violence Bill which the United Progressive Alliance government introduced in the Rajya Sabha a few years ago has many infirmities but its single biggest weakness was the non-incorporation of a norm that is today considered an essential part of international humanitarian law – the doctrine of command responsibility. Police officers and politicians either incite violence or walk away from the scene of a crime because they know they will never be held accountable for criminal dereliction of duty. The statute of the International Criminal Court works around this problem by equating the failure to prevent mass crimes with the actual execution of those crimes. In law, then, officials who don’t lift a finger to save the lives of innocent people cannot claim to be innocent. All that is required is that the prosecution be able to prove that the concerned official had reason to assume a crime which he was in a position to prevent was about to occur. Had such a provision been on the Indian statute books in 2002 or 1984, the senior police officer who walked away from Ehsan Jaffrey’s house in Ahmedabad would be in prison rather than lobbying for a comfortable sinecure. And the Member of Parliament who came and saw a mob in 1984 but refused to conquer it by using every bit of influence at his disposal would not be eligible for elected office.



it is the blind obedience towards political parties coupled with mass hysteria and poor reasoning among individuals in this country, that has resulted in Mob behaviors across major incidents. add, to that the inability of Judiciary / executive to use influence rather their political clout over their duties has resulted immunity for mobs (perpetrators).

Alaphia said...

I was watching Pappu Yadav on TV (studios are very egalitarian clearly)as he launched into some flourishes about the merry-go-round of jail terms that politicians subject each other to. What was really sickening was that the audience was lapping it up and applauding as if he was a stand-up comedian merely performing a parody. While some in the audience must have cringed, collectively it appeared as though the audience, which tends to be better educated was content at allowing him to reduce the debate to entertainment. Its frustrating to watch this level of debate in the media. Your articles break through the fog of nonsense news and opinions. Thanks.

Alaphia said...


Alaphia said...

Left a comment earlier but for some reason it didn't stick. Anyway...

I was watching Pappu Yadav on TV a few days ago and he was jawing on about the merry-go-round of jail terms that politicians subject each other to. The audience applauded at many different times during his very facile arguments instead of being revolted by this man convicted for murder.

The media and its audience often misses the clean, sharp ethical logic of most of these debates. Your pieces cut through the noisy din nicely. Thanks.

Anonymous said...

Dude do you have "muslims" in your family or something?

Anonymous said...

I believe an anti-communal violence law should be in place. So should be POTA.

There are now disturbing news reports against Teesta Seetalvad and her NGO for cooking up macabre tales of killings in post-godhra riots in Gujrat. This charges come from the credible Supreme Court’s SIT. Teesta and her cohorts added morbidity to the Gujrat riots by tutoring witnesses and concocting horror stories in a politically charged situation. The SIT's findings are a reminder that the cause of truth cannot be subordinated to any ideology: communal or secular.

It's disturbing to see that charges against Ms Seetalvad are not discussed or debated in the mainstream media. Unlike Ms.Kodnani, Testa Seetalvad is not headline news. Is the crime committed by the accused Ms Kodnani less dangerous than that by Ms Seetalvad? Not in my book, but Siddharth and his cohorts in red knickers will have an opposite view?


Anonymous said...

Nikil - may wish to see:

Teesta's Rebuttal to Times of India report, dated April 14, 2009 The report in the The Times of India, Mumbai edition dated April 14, 2009 and reportedly published prominently in all the newspapers editions titled “NGOS, Teesta spiced up Gujarat riots cases: SIT” is clear example of manipulative reportage. It is also a report aimed to deliberately distort and damage the reputation of a citizens’ legal rights group working assiduously to ensure legal support to victims of the Gujarat carnage of 2002, ( as also the victims of bomb blasts of 2006, 2009 and the Kandhmals victims).

The allegations imputed by reporter Dhananjay Mahapatra who was present in the Supreme Court in the first para of his report to the Special Investigative Team (SIT) appointed by the Supreme Court are in fact extracted from a four page note circulated by Ms Hemantika Wahi for the Gujarat Government, a copy of which is annexed here. It is not a note prepared by the Special Investigation Team led by RK Raghavan. Shri Raghavan was not present in the Supreme Court, yet there is a deliberate attempt by Mahapatra to impute that Raghavan was present in the court and that he as chairperson of SIT, himself, in person, or in writing made these allegations. This is a clever distortion of the proceedings in the Supreme Court aimed to create a public perception that Setalvad and the CJP misled the apex court.

The detailed report of SIT submitted to the Supreme Court on March 6, 2007 has not been available for study either to National Human Rights Commission (NHRC), the petitioners in this case, or the Citizens for Justice and Peace (CJP) who have intervened in this critical matter or to any in the media. In its written note that the Gujarat state circulated in court yesterday, the state has given its brief comments on the SIT report. In para four of this note the Gujarat government note refers to alleged statements made by some witnesses in the Gulberg case before SIT that name accused other than those named by them in the written statements that were (according to the state of Gujarat) given to them by Teesta Setalvad and advocates. This is the version of the Gujarat state. Besides this, Mukhul Rohatgi tried to make a populaist speech in court saying that incidents like the Kauser Bano case etc never happened. Justice Pasiath intervened stating that they were not interested in personal allegations and only ensuring that, like in the course of the Zahira Shaikh case, the trials are fair, the truth comes out and the course of justice is served.

It appears that the reporter spoke to Rohatgi outside the court himself and spiced up the story. The result is a report that especially promotes the case made by the Gujarat government itself, It may have been pertinent for the court reporter of a responsible publication to point out to its readers that:

* The arrests of minister Dr Maya Kodnani and Dr Jaideep Patel in the past weeks were on the basis of SIT re-investigations. Twelve FIRs filed by witnesses naming these accused in 2002 had been clubbed into a magnum FIR by the Ahmedabad crime branch that had dropped the names of these powerful accused;
* The arrests of investigating officer KG Erda in the Gulberg case and of other policemen in the other cases over the past months has meant the claims of witness survivors and legal rights groups, prima facie, are valid;
* That this was one of the issues why the apex court has chosen to appoint SIT, the full scale subversion of the process of justice, from the removal of names of accused who’s names appeared in earlier statements simply because they enjoyed political patronage; the appointment of prosecutors with allegiances to the BJP and VHP which meant instead of promoting fair trial they sided with the politically powerful and protected accused;
* More pertinently the tragic slaying of pregnant Kauser Bano at Naroda Patiya after slitting her womb was reported in Deccan Herald,(April 17, 2004) and The Indian Express, (March 23,2005) among others apart from finding place in innumerable reports including the one authored by the Concerned Citizens Tribunal-Crimes Against Humanity 2002 headed by two Supreme Court judges, Justices Krishna Iyer and PB Sawant. Similarly the British national case was similarly documented apart from being covered in The Pioneer, March 3, 2002 and The Hindu, April 23, 2002.
* Besides several reports on the Gujarat genocide of 2002 showed the high level of state complicity in the violence including the “We Have No Orders To Save You”--State Participation and Complicity in Communal Violence in Gujarat (http://www.hrw.org/reports/2002/india/)
* Identical allegations were made about Teesta Setalvad and the CJP during the course of the Best Bakery Trial following which Setalvad’s application to the apex court for a full fledged inquiry led to a Registrar’s investigation that exonerated Setalvad and the CJP triumphantly;

In the interests of fair reportage and to ensure that the reputation of a citizens group committed to equity and justice is not deliberately vitiated before the trials commence, the newspaper should carry this rebuttal in full. A failure to do so will result in the columns of a national newspaper being used to distort facts, shape public perception and seek to influence the outcome of due process of law and justice to the victims of mass murder.

Citizens for Justice and Peace

Anonymous said...


You've posted Teesta's personal rebuttal to the Times of India report. This may or may not be the truth. That leaves room for debate which is missing.