Communal violence and justice in India

Ten years on from the Gujurat riots, the survivors still do not have justice and the bureaucracies that made them possible remain unchanged. This is not a one-off but a trend, which it will take hard questions and an insistence on answers to reverse.

With the arrest and initiation of trial against Ratko Mladic last year, the arrest of persons named in Carla de Ponte’s list of war criminals in the Balkans is nearly complete. Mladic is being tried at The Hague on charges of war crimes, including the July 1995 Srebenica massacre in which more than 8000 Bosnian Muslims were killed by the forces under his command. Though Carla de Ponte’s tenure as Prosecutor for the International Criminal Tribunal for the former Yugoslavia came to end in the fall of 2007, her meticulous work had made it difficult for the war criminals to escape justice. In her compelling autobiography, Madame Prosecutor, Ponte notes the courage displayed by the victims day after day in The Hague and Arusha testifying against war criminals, from whom she took inspiration.

Indeed, the arrest and trial of Mladic has not only honoured the memory of thousands who were slaughtered in Srebenica, but also those courageous survivors, such as prosecution witness O, who testified against the perpetrators of the massacre. From the recent trials of mass crimes, perhaps the most important lesson to learn is that acknowledgment precedes justice. As the Balkans tries to grapple with its violent and bloody past, we in India have much thinking to do.

Have we in India accounted for our past? Have we acknowledged and brought to justice perpetrators of mass crimes? Or, have we not even stopped to think?

Last February marked the tenth anniversary of the communal carnage perpetrated with the complicity of the government in the western state of Gujarat. In 2002, Gujarat witnessed one of the worst communal rioting in post-independence India.  Over 1,000 people were killed, hundreds injured, and thousands displaced, most of whom belonged to the Muslim community. Until today, however, there has been complete denial of the role of the state government in perpetrating these mass killings, and Narendra Modi, who was the chief minister at the time of the communal carnage, remains in power. Moreover, there is no acknowledgement on the part of the state government led by Narendra Modi that heinous crimes were committed against the Muslims during his tenure.

The denial of a US visa to Narendra Modi to travel to the United States in 2005, under Section 214 (b) of the US Immigration and Nationality Act was a definite blow to his image. According to US law, any foreign government official who was either responsible or directly carried out particularly severe violations of religious freedoms would be barred from entering the country. Nonetheless, in India, he continues to serve as the Chief Minister of Gujarat.  

Ten years later, the victims of the communal carnage in Gujarat are still struggling – legally, socially and financially. Due to the remarkable efforts of the survivors themselves, often supported by public-spirited organizations and individuals, the court cases were kept alive. Yet, in only a handful of instances have the guilty been punished, such as the Sardarpura massacre during which 33 people were burnt alive, or the case of Bilquis Bano, a pregnant woman who was gang raped by rioters. Even in those cases where the rioters have been convicted, the witnesses live under fear of reprisals: no protection was provided by the state.

The Gujarat carnage, however, is only one of the series of communal riots perpetrated against religious minorities in India. In 1989 Bhagalpur, a town in the north Indian state of Bihar, saw unprecedented violence against the Muslim minorities. Even here prosecutions for the massacres have been few and far between. A three member Commission of Inquiry established by the Bihar state government to investigate the Bhagalpur pogrom concluded that the riots were triggered by the Ramshila procession.  Right-wing Hindu activists carried bricks through the town earmarked for Ayodhya, the site where they intended to construct a Ram Temple on the site of an existing Babri mosque. Three years later the demolition of the Babri mosque by Hindu groups did happen.  The complicity of the state police in the Bhagalpur riots was spelt out in the Commission of Inquiry Report, which indicted the local police at various levels. According to the final report, not only did the local police fail to control the communal rioting, in several instances they were actively involved in the rioting against the Muslims.

The Baghalpur riot was in fact only five years after another riot – carried out with full official patronage – against the minuscule minority of Sikhs.  In 1984, immediately after the assassination of the then prime minister Indira Gandhi by her two Sikh bodyguards, the capital city of Delhi was turned into a killing field of its Sikh population. More than 3,000 Sikhs were killed with the active support of the police and the government machinery. Even though ten Commissions of Inquiry and committees have been formed to investigate these riots, two top Congress leaders who were involved in the rioting, Sajjan Kumar and Jagish Tytler, have not yet faced any punishment despite irrefutable evidence documenting their direct roles. In fact, the reaction of Rajiv Gandhi – who had become India's prime minister after his mother’s assassination – to the mass killings of Sikhs in Delhi was telling: ``When a mighty tree falls, it is only natural that the earth around it does shake a little,'' he said. 

In the aftermath of communal riots in India, the government has routinely formed commissions of inquiry to investigate these crimes and submit final reports. However, whether it is the Srikrishna Committee Report on the Bombay (now Mumbai) riots of 1991-92 or the inquiry into the 1979 Jamshedpur riots in Jharkhand, their recommendations have been largely ignored. This has created an environment of impunity, and fuelled further violence in the society.

As survivors in Gujarat and elsewhere remember those who lost their lives in the communal violence perpetrated against minorities in India, the case of Ratko Mladic is of significance, not least because it reiterates the principle of command responsibility. As per the international doctrine of command responsibility, a commander or civilian superior who had effective control over those individuals who committed the crime should also in certain circumstances be responsible for those crimes. The doctrine is not fully developed under Indian law. Investigations into communal violence point towards the complicity of state institutions in these pogroms, making cases such as that of Mladic crucial in giving guidance and demonstrating a way forward.

In these sites of communal violence, a few cases, which were closed because of lack of evidence or the failure of the police to produce witnesses before the court, have been reopened. Among these there were several cases of murder, arson, rioting, and destruction of property. This in itself is a victory, and due to the tireless efforts of survivors and civil society groups. Nonetheless real acknowledgment and closure cannot happen unless civilian and police officials high up in the chain of command are held responsible for acts of omission or commission that allowed for these communal massacres to happen. When we show solidarity with survivors of these massacres let us also hope that, like Mladic, those leaders responsible for communal massacres in India are held accountable. Only then would justice be done.

About the author

Warisha Farasat has worked as a lawyer at the original and appellate levels in the Indian courts, and at the International Center for Transitional Justice in New York. She is currently working with the Centre for Equity Studies in India, on issues of justice and reparations for victims of communal violence in India.