Justice Somasekhara Commission report on church attacks in Karnataka: A critique

From Kafila.org

Somasekhara Commission Report: Inconsistencies, contradictions and a failure of public reasoning: Arvind Narrain and BN Jagadeesha

Guest post by ARVIND NARRAIN and BN JAGADEESHA

When the Justice Somasekhara Commission was constituted to inquire into the church attacks in Karnataka in September,2008, it was seen as a move to ward of criticism of the BJP administration. Today, well over two years after the attacks, when the key findings of the Report have been made public by Justice Somasekhara himself, the findings prepare the ground for further action against the victims of the church attacks, while absolving the masterminds behind the crime of all blame. Naomi Klein in her book, Shock Doctrine analyses how the period of shock which a community experiences with the imposition of a military dictatorship is what is used to push through far reaching changes such as radical free market policies. Similarly, post the shock of the church attacks, the Christian community was hopeful of justice through the Commission but instead the proceedings and the findings of the Commission really prepare the way for continued harassment of the Christian community under the garb of law.

Persons and organizations responsible for the above incidents:

On the fundamental question of who was behind the attacks, the Commission finds that, ‘there is no basis to the apprehension of Christian Petitioners that the politicians, BJP, mainstream Sangh Parivar and State Govt., directly or indirectly, are involved in the attacks.’

However later on the Report observes, ‘the plea of many Christian memorialists for taking action as per law against Mr. Mahendra Kumar, the then Convenor of Bajrangdal who publicly sought to justify the attacks on Churches is totally justified.’ The Report then goes on to note that, ‘the plea that the organizations like Bajrang Dal needs identification and registration for legal control deserves acceptance’

Further the Annexure XLVII of the Report which lists 56 churches which were attacked, specifically names Hindu fundamentalist organisations which were involved in the attacks on the following churches:
SL Name Dist Organization
1 Christian Believers Prayer Hall Chikmanglur Bajrang Dal
2 Jagadeshawara Church Mudigere Chikmanglur Bajrang Dal
3 Carmel Mathe Devalaya,Kudremukh Chikmanglur Bajrang Dal
4 Adoration Monastery, Mangalore Bajrang Dal
5 Mandyantar Mahima Prartana Mandir Belthangadi Bajrang Dal
6 St Sebastian Church Permanur Bajrang Dal
7 DHM Pratana Mandira Nittuvali, Davangere Hindu Jagarana Vedike
8 Eternal Life Church Nittuvali, Davanagere Hindu Jagarana Vedike
9 Full Gospel Assembly Harapanahalli, Davangere Sangh Parivar
10 Jesus Prayer Hall Davanagere Hindu Jagran Vedike
11 New Life Fellowship Udupi Bajrang Dal
12 Life and Light Ministries Shiroor, Udupi Bajrang Dal
13 Kapitanio High School Mangalore Bajrang Dal
14 Anagodu Church Davangere Fundamentalist miscreants
15 Jesu Krupalaya Bada Davangere Hindu fundamentalists

In particular Bajrang Dal has been named as being behind the attacks on 9 churches, Hindu Jagarana Vedike as being behind the attacks on 3 churches, Sangh Parivar on one church and unnamed Hindu fundamentalists on two churches. In the face of this Annexure of his own Report, as well as the detailed Churchwise Findings released by the commission, the question to ask is whether the commission is at all justified in giving a clean chit to the Sangh Parivar? The only way, the commission can do that is by concluding that neither the Bajrang Dal nor the Hindu Jagran Vedike are members of the Sangh Parivar.

The material before the Commission itself both in terms of submissions made before it as well as the cross examination of Mahendra Kumar indicates the linkages between the Bajrang Dal and the VHP and the link to the RSS.

What emerges clearly in the material before the Commission is that the Bajrang Dal does not act independently but is really a part of a larger parivar or family which controls and directs their actions. In the cross examination by Mr. Ibrahim, Mahendra Kumar, the then Convenor of the Bajrang Dal, states that the Bajrang Dal is the youth wing of the Vishwa Hindu Parishad and is a part of the VHP.

This admission by Mahendra Kumar, one of the key witnesses before the Commission, of the relationship between the Bajrang Dal and the VHP must be read in the context of the conclusions of the Liberhan Commission which were also placed before the Commission. It should be noted that when the Liberhan Report was sought to be placed before the Commission by the Counsel for the Christian priests, Justice Somasekhara vociferously objected that the Report was not necessary as he was going to understand what happened in Karnataka as a sui generis event with no linkages or connections to any past events. However the Counsel for the Christian priests argued that one cannot understand the church attacks as a one off event and it had to be seen as linked to the ideology of Hindutva and the organisational structure of the RSS. The extracts from the Liberhan Commission cited below were placed before the Commission in the form of written arguments.

The Liberhan Commission noted that:

The RSS, Shiv Sena, Bajrang Dal, BJP e.t.c, and their inter se relationship have been subjected to a detailed study in my Report and their relationship with the de jure powers. These organisations are collectively an immense and awesome entity with a shrewd brain, a wide encompassing sweep and the crushing strength of the mob. The leadership provided by the RSS, BJP, VHP and the other mutating and constantly transforming organisations like the Hindu Mahasabha and the Jan Sangh, in furtherance of the suspect theories of the founders of these organisations was consistent and unabashed. The ends are all that matter to the core group of thinkers and the destruction of the disputed structure was only one victorious battle in their ongoing campaign against secularism and the multicultural society, clothed in the garb of religion etc… (para 160.10)

In a specific chapter IX called, Organisations and their Inter Se links, J. Liberhan noted that:

Throughout this report the term Sangh Parivar has the same connotation and has been used interchangeably with the phrases, founders or authors or leaders etc of the temple construction movement. Some of the organisations which form a prominent part of the Parivar are:-

109.1.1 RSS,

109.1.2 BJP,

109.1.3 Rashriya Sevika Samithi,

109.1.4 Vishwa Hindu Parishad,

109.1.5 Bajrang Dal.

Based on the material placed before the commission as well as the content of the commission’s own report in the form of Annexure XLVII and the Churchwise Finding, what is clear is the role of the Sangh Parivar in the attacks on churches. Why then does the commission conclude that the Sangh Parivar has no role in the attacks? What paralysed the commission from drawing what appear to be logical and necessary inferences?

The question of the responsibility of the government of Karnataka for the church attacks:-

On the question of state responsibility the Report concludes that, ‘the impression and allegation that the top police officers and the district administration had colluded with attackers in attacking the church or places of worship had no merit.’ The Report also concludes that, ‘the police action against the Christian protesters in several incidents were justified except at St Sebastian Church, Permanur, unexplainably excessive and unreasonable and is in violation of the expected norms prescribed. But the same cannot be generalised for all police actions at different locations.’ However in the very next para the Report states, ‘it was imprudent, unreasonable and inexperienced act on the part of the police to enter into the premises of some churches in Dakshina Kannada without following legal requirements amounting to violation of religious interests and human rights protected under the Constitution of India.’ The commission concedes that the district administration failed particularly in Davangere describing the actions of the district administration as ‘unreasonably cruel and illegal’ and recommended initiation of action against all top police officers above the rank of a Police Sub Inspector with respect to the actions on a church in Mangalore.

If the Commission can recognise even if in a half hearted fashion, the failures of the district administration as well as the police, one fails to see how the Commission gives a clean chit to the state government. Clearly the district administration and the police are arms of the state administration and the State government is vicariously responsible for any dereliction of duty. The significance of this cannot be overstated particularly as in Davangere, the first attacks began as early as 2007, and continued till the end of 2008 without any action by the state government despite numerous complaints. However, the commission refuses to attribute any vicarious liability to the state government. In fact it should be noted that an application by an advocate for the Christian priests to summon the Home Minister,V.S Acharya before the commission was just kept pending and not decided upon by the commission. By not allowing this application, the commission did not give the counsel for the Christian priests an opportunity to establish the responsibility of the state government including the Home Minister for the attacks. Thus the fact that the Christian community submitted many memorandums during the course of the attacks and the fact that neither the Home Minister or Chief Minister took any action to prevent the attacks could not be made a part of the evidence.

The Report also goes out of its way to explicitly state that neither the BJP nor the ruling party had any role in the attacks. Neither the state nor the BJP filed any affidavit before the commission and in-spite of allegations against the BJP as well as the ruling government, no BJP leader was issued summons by the commission. The commission failed to utilize its investigative powers under Section 5 of the Commissions of Inquiry Act. The scope of the inquiry under the Commission of Inquiry Act is wider than the scope of a normal trial with the judge being mandated to adopt a more inquisitorial role. However this scope was woefully underused with the commission doing no investigative work to unearth the conspiracy which resulted in simultaneous attacks on churches across Karnataka.

In fact the failure to examine a single state authority and a single member of the RSS or the Bajrang Dal other than Mahendra Kumar, forms an instructive contrast to the proceedings before the Liberhan Commission. The Liberhan Commission examined on oath a range of luminaries including the then Prime Minister P.V. Narasimha Rao, the leader of the main opposition party L.K. Advani and the then Chief Minister of Uttar Pradesh Kalyan Singh as well as leaders of the Bajrang Dal and Vishwa Hindu Parishad. By contrast, the Justice Somasekhara Commission shied away from putting on the stand either the Home Minister, V.S. Acharya or any of the top leaders of the RSS and the VHP in Karnataka.

Going after the innocent: Priests and human rights activists:-

The commission concluded that there were no instances of forcible or fraudulent conversion, however there were instances of conversion by inducements. The conclusion of the commission seems to be that it is conversion by inducements which may have resulted in the attacks. For example, Pastor Rajshekar of the Full Gospel Church at Harapanahalli’s activities require to be checked by the District Administration as, ‘there are indications of attempted conversion by Pastor Rajshekar under the guise of holding prayers attracting Hindus. ‘With respect to Chikballapur, the churchwise findings note that, ‘government may enquire and withdraw the privileges to every person who is indulging or getting converted in such illegal activities of conversion commercially.’

Conversion is manufactured as the reason for the attacks before the Commission, particularly by the lawyers representing Hindutva interests. (As an aside one should note that the strategy of the Hindutva groups is to ensure that Bajrang Dal, VHP ,RSS were not officially represented, but their interests were effectively canvassed by lawyers claiming to represent individual Hindu petitioners.)

The question to be posed would be, was there material before the Commission to indicate that conversion was on such a large scale as to ignite spontaneous anger of Hindus to attack churches across the state on September 14 and September 15, 2008 and the months thereafter and continuing attacks at Davangere ever since 2007.

On a rigorous fact analysis what emerges is that in the affidavits before the commission, each allegation of conversion is a purely local affair with no larger ramifications. Even within the terms of those making the allegation of conversion, the material before the commission does not indicate that there was incidents of conversion with district level ramifications let along state level ramifications, leave along the ability to incite spontaneous anger across the state resulting in the church attacks. As such the issue of conversion was a red herring, which plays no role in explaining the planned and targetted church attacks.

In fact the cynical deployment of the trumped up charge of conversion as a justification for the church attacks bear close parallel to the Nazi manufacture of the Riechstag fire to unleash a pogrom upon the Communists and the Jews. Closer home It has been a well established practice of Hindutva groups to justify illegal actions carried out by them based upon the logic of an earlier harm which has supposedly been inflicted upon the Hindu community. The best illustration of this form of ex post factu reasoning is the justification for the demolition of the Babri Masjid. The roots of the justification lie is the historical hurt suffered by Hindus when the Babri Masjid was supposedly erected after demolishing a Hindu shrine. The invocation of this historical hurt mitigates the patent illegality of the act of demolition. This method of reasoning is what is employed to justify the attacks on the churches with the supposed provocation being conversion.

Disregarding all the gaps in evidence and the fact that allegations of conversion remain unproved, the commission not only concludes that conversion has happened but goes on to pass severe strictures against priests in various districts, asking the police and district administration to monitor the activities of the priests and take appropriate action. The commission also recommends that the financial activities of some of the petitioner priests be regulated. In the case of the church at Yedavanahalli, the commission unreasonably concludes that the main culprits in the burning of the church are the parish priest, Father Santhosh and his men. While the commission is very severe on the priests, the Bajrang Dal and Hindu Jagran Vedike is let off easily with no questions as to where they get their funds from or recommendations to the state government to take stern action against these groups who are involved in the attacks on the churches.

The strictures passed by the Commission is not limited to priests whose churches were desecrated but also to public spirited individuals who filed affidavits alleging the serious violations of constitutional rights. Melvil Pinto a member of the PUCL Janadhwani, who filed an affidavit is accused of having a ‘cynical, cryptic and vilifying attitude towards the BJP and ruling government and the Commission recommends that the government should take ‘serious action against Melvil Pinto for his blasphemous expressions against them’. The Commission recommends that existing proceedings against Melvil Pinto under the Goondas Act be pursued or initiated. Similarly another public spirited citizen who produced detailed documentary evidence of the involvement of Mahendra Kumar in the church attacks, Mr Anil Colaco, the one who produces evidence of the attacks on the churches by Mahendra Kumar is perversely held jointly responsible for the attacks on Christian Believers Prayer Hall in Chickmanglur. Of course similar harsh language is never employed when it comes to Mahendra Kumar, who openly proclaimed his role in the church attack before the TV cameras. The commission does not recommend that action be taken against Mahendra Kumar under the Goondas Act, though this was a measure recommended by the Superintendent of Police of Chickmanglur in a Report to the District Collector.

The commission launches a tirade against the two enemies of the Sangh Parivar, namely the Christian priests and the human rights activists. In effect the message being conveyed is that any criticism of the BJP government is akin to blasphemy and criticise at your own peril.

The equation of the criticism of the BJP to blasphemous expressions runs contrary to the observations of the Supreme Court in S.R. Bommai v. Union of India:

Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of the state, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally. In matters of state, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any state government which pursues unsecular policies or unsecular course of action acts contrary to the Constitutional mandate and renders itself amenable to action under Art 356.[i]

In a context where all state authorities work within the framework of secularism as defined by the Supreme Court criticising the BJP is a right of all citizens of India. Religion and politics are separate and by no stretch of imagination can be any criticism of the BJP be described as blasphemous. While in a future constitution authored by the Sangh Parivar, criticism of the BJP may indeed be blasphemy, under the Indian Constitution, it would be a grievous error undermining the secular foundations of the state to describe criticism as blasphemous remarks. Such phrases are more suited to a theocracy rather than a secular democracy like India.

The final denouement of the report had its birth in the proceedings before the Commission. The red herring of conversion, finances of the priests, and so called denigration of Hindu Gods, formed the staple of the Commission hearings for over two years with Pastors and priests who had suffered attacks being repeatedly and aggressively questioned on these points, almost making it seem that the attacks were justified. What was stunning was the complete failure to put on the stand even one person other than Mahendra Kumar who were behind the attacks. As such the Commission merely accepted affidavits and endlessly cross examining the victims as to conversion thereby furthering the RSS agenda of tarnishing the Christian community. The commission showed little inclination and in fact was quite resistant to examining both Hindutva ideology as well as the role of the RSS and its affiliates in the attack.

Flawed diagnosis and wrong medicine:-

The commission fundamentally misdiagnoses the problem as a conflict between religions, with the reason for the attacks being the denigration of Hindu Gods as well as conversions. Based on this flawed understanding the commission makes a series of recommendations aimed at curbing religions expression. The commission proposes that the offences against religion chapter be enlarged with a special law with ‘stringent sentences of minimum period of punishment with no bail and no right of appeal’. Similarly the commission recommends that ‘all organisations preaching any activity against any religion should be subject to stringent punishments as above. The commission also recommends that a new law to be called, ‘Prevention and punishments for atrocities on the religions and the faiths Act ,2011′ be passed. There is also a proposal to set up a Commission of religions to ‘eliminate fraudulent methods of misusing a religious tag for selfish purposes detriment to the religious interests of the country’. There are a couple of anodyne recommendations to make the district administration liable for all violations and to set up special police to deal with religious matters. As if to specifically address the victim priests, the commission orders compensation to be paid by the District Authorities for the damages to person and property.

The tenor of the decidedly constitutional rights unfriendly recommendations,seems to buy into the theory of the Hindutva advocates before the Commission that it is the religious excesses of the Christian community which has resulted in the attacks. Therefore, the recommendations are tailored towards a greater control of religious expression with the implicit promise that then unconstitutional attacks will not happen. This of course begs the question as to what is being done about those groups who took the law into their own hands and perpetrated the attacks? Surely the Christian community cannot be implicitly held responsible for the attacks on their own churches and told to contain their religious expression? The report assumes that the hurt of the Christian community will be assuaged by compensation, fundamentally missing the point that the hurt of desecration cannot be assuaged by money, but only by recommendations of firm and impartial action to make the perpetrators accountable. The recommendations also miss the point that what is needed is not new laws with serious constitutional infirmities but rather the impartial implementation of the laws which already exist on the statute books.

Conclusion:-

With all these criticisms, the one point which needs to be highlighted is that the Bajrang Dal, Hindu Jagran Vedike as well as Hindu fundamentalist groups do not as the media has reported get a ‘clean chit’ with the commission finding that they were behind the attacks of fifteen churches. The identified groups need to be made accountable for their criminal actions. Where the Commission fails is in making the linkages between the various attacks, understanding the underlying pattern and pinning responsibility on the Sangh Parivar as well as the State government. The wilful blindness of the Commission to the pattern of attack, marks out the Commission as particularly unwilling to finding out the ‘truth’.

A summation of the contradictions that mark this Report is available through the words of the commission itself in its clarificatory remarks:

It has examined the truth or otherwise of the alleged attacks regarding each Church involved, identified the miscreants, indicated the failures of District Administration and others, suggested action against them as per law and recommended reliefs to the victims in clear terms and equally exonerated the Govt. and others on merits.

As the clarification makes clear, the district administration has failed but not the state government, the miscreants have been identified as the Bajrang Dal and the Hindu Jagran Vedike but the Sangh Parivar has been explicitly exonerated. The clarificatory note succinctly summarises the many failures of the report.

The public response to the findings of the Justice Somasekhara Commission has been harshly critical of its many failures. The unfortunate response by the commission to this joining of public debate on a matter of national importance is to try and stem the tide of public criticism by threatening action under Section 10 A of the Commissions of Inquiry Act for any words either spoken or statements which is calculated to bring the Commission into disrepute. This directly hits at the basic freedom of discussing issues without fear and favour and essential to a functioning democracy.

The report of a commission of inquiry is an exercise in persuading the public of the truth of what had actually happened. The mode of reasoning employed by the commission, its ability to pay attention to historical patterns and its empathy for its victims even as it comes to its conclusions are all important for a report to make an impact as an example of ‘truth telling’.

If the commission findings fail to persuade the public of the ‘truth’ of its claims, it should be a moment of self reflection for the commission as to the inconsistencies and contradictions in its own report and raise the question as to why its form of public reasoning fails to persuade that the Sangh Parivar had nothing to do with the church attacks or that the BJP administration is not criminally liable for allowing the attacks to happen.

[i] S.R. Bommai v Union of India, AIR SC 1918 at para 365.