[ The Indian Express - August 27, 2004 | Columns
URL: http://www.indianexpress.com/full_story.php?content_id=53892 ]
Reading the riot act
Is an anti-communal law the answer to the Gujarat violence?
by Pamela Philipose
The voices from the Gujarat abyss are breaking out. They provide valuable clues as to how a situation developed which saw the violation of every canon of civilisation in 16 of the state’s 25 districts. This exercise of exposing to public scrutiny the events of those turbulent days may perhaps never have taken place if it were not for some persistent civil libertarians, a media that was at least partially engaged and a responsive Supreme Court. It is fortuitous, this combination of factors. While the anti-Sikh riots of 84, the ’89 Bhagalpur riots, the Mumbai carnage of ’92-’93 have been allowed to disappear from public view, we have now as a nation — possibly for the first time — a valuable opportunity to understand why Gujarat happened and what we can do to ensure that it does not happen again.
As the trials in the Best Bakery and Bilkis Rasool cases take place in Mumbai; as testimonies before the Nanavati-Shah inquiry commission appointed to look into the Godhra carnage and its aftermath continue; as closed cases are hopefully revived in Gujarat, we may be able to plot the points of constitutional breakdown and hold to account those responsible. For instance, we now know from a former Gujarat additional chief secretary, that the decision to bring the charred remains of the kar sevaks killed in the Godhra outrage to the Sola Civil Hospital in Ahmedabad for the arthi, against the usual procedure of sending bodies back home, was taken by the chief minister himself. We now know, thanks to records maintained by the additional director-general in charge of intelligence and now made public, that FIRs filed by riot-affected Muslims were being systematically suborned by the police. We now know that a senior police officer at the site of Gulbarg Society burning did not call the police control room because he was told not to “clog” up police phone lines and that another thought it fit to burn the bodies of 13 Muslim victims and destroy evidence of a massacre.
The jagged pieces of this complex jigsaw, as they fall into place, will hopefully provide definitive clues to pivotal queries, especially those relating to that crucial first phase which set the stage for what followed: How did coach S-6 of the Sabarmati Express catch fire? Why were just two constables despatched to disperse the mob that had attacked the train, even though Godhra had its own force of railway police numbering over a 100? Why did it take so long for the Modi government to call in the army? What transpired at that meeting the CM held on the evening of February 27 with senior police officers?
To state that Gujarat represents a gigantic failure of the criminal justice system, from the lowliest police chowki to the high court, is to state the obvious. Would an anti-communal law have prevented this? We have at present, according an estimate, no less than 15 different laws applicable in a riot situation. Section 153A of the Penal Code, for instance, specifically bans the promotion of “communal disharmony” and the “disturbance of public peace”. Yet another law may become just a decorative device to testify to the “secular” credentials of a government, at best; or a powerful weapon of control in the hands of the state, at worst. The scope for misuse is always present because all laws cut both ways. Section 153 A has been used more effectively to ban scholarly works than to quell communal disturbances. Besides, a federal law of this nature would be useless if state governments do not enact similar laws since law and order falls under their jurisdiction.
Given these realities, does it still make sense to enact a anti-communal law? The debate on the issue has just begun. A group of citizens has already come out with a Draft Model Law, tentatively termed the ‘Prevention of Genocide and Crimes Against Humanity Act, 2004’ and the Law Commission is possibly working on a draft as well. One argument in favour of such a law is a very obvious lacuna that exists despite our numerous anti-riot laws. Nowhere do existing laws specifically target hate crimes and communal violence. Could a law, for instance, have prevented the forcible displacement of Kashmiri Pandits? The economic boycott of Muslims in Gujarat? The physical and mental torture perpetrated on a group of people who appear “different”, as the forcible tonsuring and killing of Sikhs during the riots of ’84 witnessed? Possibly.
Several international referents exist for such a law. In the US, the Hate Crimes Prevention Act of 1999 seeks to fight crimes motivated by hatred based on race, religion, national origin, or colour. It was the existence of such laws, incidentally, that enabled quick justice to be done in the case of Sikhs who were attacked in the US after the 9/11 strikes.
‘Genocide’, as opposed to ‘hate crimes’, is of course a more substantive categorisation. It was first used by the Nuremberg tribunal. In 1946, the UN General Assembly took up an item entitled ‘Prevention and punishment of the crime of genocide’. It was to result in a Convention that came into force in 1951. Article I of the Convention condemns genocide — in peace or in war. Article II defined it as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethical or religious group”. The definition included “killing” members; causing serious bodily/mental harm to them and deliberately inflicting conditions of life calculated to bring about their physical destruction in whole, or in part. Punishment was to be meted out, not just for the acts themselves but even for those that were preparatory in nature. It upheld the principle of individual criminal responsibility of the “constitutionally responsible rulers”, “public officials” or “private individuals”.
Of course, even the best law is only as good as the institutions that deploy them. Also no law can replace the complex process of building a civil society that is humane and sensitive to human rights. Getting such legislation into the statute books would, without doubt, be an arduous and contentious process. But it would help build a social consensus on the absolute unacceptability of acts such as those Gujarat witnessed so recently. It would signal that India is serious and uncompromising in its intent to fight crimes of hate, crimes against humanity.
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