Wednesday, December 21, 2011
REMEMBER KANDHAMAL THIS CHRISTMAS
GOVERNMENT DOES NOT CARE JUST HOW MANY WILL SLEEP UNDER THE STARS ON CHRISTMAS IN KANDHAMAL, BUT HAVE WE FORGOTTEN?
AN UPDATE
BY JOHN DAYAL
22 December 2011
This is the fourth Christmas that many people of Kandhamal in Orissa will “celebrate” in terror, a few thousand of them without a real roof over their head, scores of widows and orphans remembering the denial of justice which has seen the killers of the head of the family walk away merrily after being set free by the sop called Fast Track Courts
Justice still remains an overwhelming issue for about everyone of the 56,000 people who had to run for their lives first on 24th December 2007 and then again from 24th August 2008. They need not have had to flee if they had obeyed their attackers, changed their faith to Hinduism and burnt a Bible as a token of their leaving Christianity. They did not. Four hundred villages were purged of all Christians, more than 5600 houses and about 295 or so churches burnt, a hundred or more killed -- the exact number will never be known -- some women, including at least one nun raped.
The tension remains, exacerbated this season with the murder of a law assistant who was uninvolved in protecting witnesses. In another tribal district, Keonjhar, twelve houses were burnt in a scenario eerily, and frighteningly, similar to the one in 2007 and 2008. Adding to the apprehension is the call by a local group for an agitation, a Bandh, during Christmas week.
A few days ago, in Bujlimendi village, Arabbakka gram panchayat, Tikkabali block of G Udayagiri Tehsil, the house of Kaleswar Digal, 45, was sleeping with his family which includes three children, when his house was set on fire just after midnight. The family escaped, but the house, including their animals, were destroyed. There are 25 Christian families in this village of 100 houses, now living in palpable fear.
The murder was of Rabindra Parichha, a legal activist who had been working with the Evangelical Fellowship of India for justice in Kandhamal. He was killed on 15th December evening at Bhanjanagar, Ganjam District, which adjoins Kandhamal. A former village chief and a local leader, Rabindra was a popular figure in the region. His family lives in their home in Bhaliapara, in Raikia block of Kandhamal. The police have not been able to say why he was killed. His body bore multiple injuries. Cause of his murder is not known.
Rabindra Parichha is the third Christian leader to be killed during this year. Pastor Saul Pradhan of Banjamaha (Raikia) was the first Christian killed during 2011. The police version is that he died of too much liquor and the cold. Pastor Minoketan Nayak of Midiakia (Baliguda) was killed on 26 July. Police say that he died in a bike accident.
The police have not acted on reports that Manoj Pradhan, member of the state legislative assembly and prime accused in several cases of murder has been moving from village to village instigating anti-social elements and allegedly urging them to “finish off” all Christian leaders of Kandhamal.
The police are also deaf to reports of hate speech. On 23 July, a large rally at Phulbani saw a lot of hate speech, and slogans such as "Hindu-Hindu: bhai-bhai _ Anya sab desh-drohi" [Hindus are brothers. Everyone else is a traitor]. The police was present, but took no action.
The "Kui Samaj", a front organisation of the right wing hyper nationalist Bharatiya Janata Party which was once in an alliance in the State government, has called for Kandhamal bandh for five days from 23 to 27 December, throwing the Christians into a state of panic. They have memories of the 2007 violence which also took place in the backdrop of another such strike, or bandh. Bipra Charan Nayak, convener of the Survivors’ Associations of Communal Violence, has demanded that the district and state authorities take note of the latest strike call and act swiftly and sternly. The memorandum, to the government said “We remind you that every year, Kui Samanyaya Samittee in nexus with extreme element of Sangh Parivar gives Bandh Call creating mental trauma among the peace loving Christians of Kandhamal. We demand that such practice be stopped.”
The All India Christian Council, one of the several groups working in rehab and justice issues said “Although we are for the freedom of expression and do not wish to curb demonstrations and political activity by any group, even by those who are against Christianity and the Christian people, it is the duty of the government to ensure that there is no excuse for confrontation or violence. In Kandhamal, we have had bitter experience. Out community has been deeply wounded, specially in the aftermath of bundh calls during and around Christmas. We are therefore apprehensive of such bandh calls. The Orissa government and the Kandhamal administration must restrain all mischievous and fundamentalist elements and ensure the Christmas is peaceful.”
Not that the region outside Kandhamal is peaceful. On 8th December 2011, a Hindu group attacked 3 tribal Christian families at Chandikhole, a suburb in Jajpur district close to Keonjhar district. When the people went to the police station, they were detained on charges of “conversion” of Hindus.
The saddest commentary on the governance in Orissa is in the narrative of the dispensation of justice, specially in the fast track courts where not a single person has so far been convicted of murder – mostly because the witnesses have been coerced into silence and the police has made sure there is precious little forensic evidence from their shoddy investigations
The following is the current Status of communal violence cases of 2008-2009 of Kandhamal district. Do remember that more than 3,500 persons filed complaints to the authorities.:
1. CASES REGISTERED BY THE POLICE : 827
2. NO. OF CHARGE SHEETS : 512
3. NO. OF FINAL REPORTS SUBMITTED : 315
4. NO. OF CASES ENDED IN CONVICTION : 68
5. NO. OF PERSONS CONVICTED : 412
6. NO. OF CASES ENDED IN ACQUITTAL : 140
9. NO. OF PERSONS ACQUITTED : 1900
10. NO. OF CASES PENDING TRIAL : 304
11. NO. OF ACCUSED PERSONS ARRESTED : 1607
[Acknowledgments: Fr Ajay Singh, Fr Dibya Parichha, Br Marcose, Pastor Harish Arshaliya, Rev Vijayesh Lal]
Friday, December 2, 2011
WAITING FOR JUSTICE
A REPORT OF THE NATIONAL PEOPLE’S TRIBUNAL ON KANDHAMAL
EXECUTIVE SUMMARY
A National People’s Tribunal (NPT) on Kandhamal was held in New Delhi on 22-24 August 2010, organized by the National Solidarity Forum - a countrywide solidarity platform of concerned persons from various walks of life. The NPT aimed at assisting the victims and survivors of the Kandhamal violence 2008 to seek justice, accountability and peace and to restore the victim-survivors’ right to a dignified life. The twelve-member jury of the NPT was headed by Justice A.P. Shah (retd.). The Tribunal’s final report was released in Bhubaneswar on 2nd December 2011. The report is based on the testimonies of 45 victims, survivors and their representatives. Additionally, it incorporates and draws upon the contents of studies, field surveys, research, fact-finding reports and statements to the Tribunal that were presented by 15 experts.
The 197-paged report is divided into four parts. The first part provides the background and context of the violence in Kandhamal in 2008, and highlights the fundamental aspects of the violence. The second part focuses on the impact of the violence. In separate chapters, this part examines aspects such as freedom of religion, the gendered impact of the violence, impact on children, and the impact on socio-economic and cultural rights. The third part compiles and analyzes the responses to the violence. It encompasses role of the state and democratic institutions, processes of justice and accountability and the aspect of reparations. The fourth and concluding part of the report lays down the concluding observations and the recommendations of the jury. Annexures to the report include details of victim-survivors who deposed before the Tribunal, details of reports / statements presented to the Tribunal and details of members of the Organizing Committee for the Tribunal.
MAJOR OBSERVATIONS:
• Communal Violence in Orissa: The targeted violence against the adivasi and dalit Christian community in Orissa violates the fundamental right to life, liberty and equality guaranteed by the Indian Constitution, and affirmed by the ICCPR, ICESCR, CERD and other international covenants. The brutality of the violence also falls within the definition of ‘torture’ under international law, particularly the Rome Statute of the International Criminal Court. Communal forces have used religious conversions as an issue for political mobilisation and incited horrific forms of violence and discrimination against adivasi and dalit Christians.
• Violence in Kandhamal: The 2008 attacks in Kandhamal were widespread, and were executed with substantial planning and preparation. The violence meets all the elements of ‘crimes against humanity’ as defined in applicable international law. Christians who refused to abandon their faith and convert to Hinduism were brutally killed or injured. Burning and destruction of property (residential, official and religious / charitable institutions) was also a predominant form of violence. Human rights defenders have been deliberately targeted for their role in assisting victim-survivors. Moveable property, valuable documents and certificates were looted / destroyed to economically impoverish and lower the socio-economic status of the victim-survivors. Evidence of the attacks was systematically and meticulously destroyed in order to scuttle the processes of justice and accountability.
• Gendered Impact: The jury observes, with deep concern, the silence that prevails in matters of sexual assault, at various levels including documenting, reporting, investigating, charging and prosecuting cases. The threats of sexual violence against women and their daughters continue, heightening women’s sense of vulnerability. The attacks on women violate constitutional guarantees of equality and non-discrimination on the ground of sex, and other international standards, including the CEDAW. The relief measures undertaken by the government have been marked by gender blindness and did not address women’s special needs for privacy, nutrition, medical and psychological support. There is no implementation of government schemes by which widows, single women and women survivors of violence can be restored to a life with dignity.
• Impact on Children: The impoverishment of the victim-survivor community after the violence has had an adverse impact on the children jeopardizing their physical, psychological and intellectual development. Many children have witnessed horrific violence to their close family members and suffer from acute trauma with no access to services of socio – psycho support and healing. Many children have dropped out of school due to the financial inability of the families to bear the expenses, due to fear or discrimination by the school authority. Children having been forced into the labour force, in hazardous conditions, in order to supplement the family income, and have also been trafficked for the purposes of forced labour, sexual exploitation and abuse.
• Impact on Socio-economic and Cultural Rights: The violence against Christians has caused large-scale displacement, leaving the victim-survivors with a sense of rootlessness. The destruction of many churches and prayer halls, and the failure to reconstruct them has deprived the victim-survivors of their right to religious practice. The victim-survivor community is unable to freely practise its faith and is thereby reduced to a state of secondary citizenship – an anathema in a democracy like India with a constitution that guarantees fundamental rights. The violence has had an adverse impact on the livelihood and economic well-being of the affected people. Socio-economic boycott of the Christian community continues to be implemented in a variety of ways. The provisions of NREGA too do not benefit them as it is implemented in manner that discriminates against persons on grounds of religion, caste and gender.
• Role of State Administration and Public Officials: The jury members observe, with grave concern, the deliberate dereliction of constitutionally mandated duties by public officials, their connivance with communal forces, participation in and support to the violence and a deliberate scuttling of processes of justice through acts of commission and omission. The state agencies have blatantly failed to extend much-needed institutional support to victim-survivors and protect them from attacks to their persons and properties, ostracism, socio-economic boycott and subjugation by non-state actors. The state government has also failed in its responsibility to prevent the violence in Kandhamal in August 2008.
• The Justice Process: The jury observes, with deep concern, that the criminal justice system has been rendered ineffective in protecting victim-survivors and witnesses, providing justice and ensuring accountability for the crimes perpetrated. The complicity of the police and their collusion with the perpetrators during the phase of investigation and prosecution, indicate an institutional bias against the targeted Christian adivasi and dalit community. Victims and witnesses engaged in the justice process have been threatened and intimidated, as there is no guarantee of safe passage to and from the courts. Guidelines on witness protection, issued by the Supreme Court and various High Courts, are not followed by the Fast Track courts. Women and child witnesses face extreme vulnerability. The jury further observes that clear gaps exist in substantive, procedural and evidentiary law to prosecute and punish those responsible for targeted mass violence, and that international jurisprudence in this regard has potential relevance for filling the gaps in Indian criminal law.
• Reparations: Through the issuance of a notification prohibiting non-profit organizations from conducting rescue and relief work in Kandhamal, the state government abdicated its constitutionally-mandated duty to protect the lives and human rights of vulnerable populations. The dismal conditions in the government-run relief camps are clearly indicative of the indifference of the State government to the plight of victim-survivors. They are violative of the right of victim-survivors to a life with dignity and equality, as guaranteed by the Indian Constitution; and the right of all IDPs to an adequate standard of living, as recognized UN Guiding Principles on Internal Displacement, 1998. The award of meagre compensation to some victim-survivors and its denial to many, defeat the very purpose of awarding compensation - to repair the harm and loss caused to the victim-survivors. The lack of uniform criteria in damage assessment has led to an arbitrary determination of compensation amounts by State authorities whose acts are coloured by institutional bias against the Christian community. The absence of a comprehensive rehabilitation package has prevented the victim-survivors from being restored to a life of dignity. The negative role of public officials in the peace committees and the infiltration of perpetrators in such committees indicate that the state government’s peace initiatives have been a dismal failure. The jury reiterates that while confidence-building measures are of prime importance, these cannot be undertaken in the absence of or as a substitute for processes of justice and accountability, which are the tool for long-lasting peace in the region.
MAJOR RECOMMENDATIONS:
A. Socio-economic and Cultural Rights
Apply National Rural Employment Guarantee Act (NREGA) and other livelihood schemes of the state and central government to the affected community, without any discrimination on the basis of caste, religion or gender. Act against those engaging in such discrimination.
Implement widow pension schemes; provide government jobs to individuals from families of deceased victims, on compassionate grounds; reinstate/reappoint victim-survivors engaged in government jobs prior to the violence and transfer them to areas that they perceive to be safe and secure; provide soft loans for commencement of small businesses.
Ensure that relief camps meet the minimum international standards of health, hygiene and privacy for IDPs; they should have facilities to meet the educational and nutritional needs of children, lactating mothers and pregnant women; provide medical and psychological, particularly trauma counselling to the victims/ survivors, with a special attention to the needs of women survivors of sexual and gender-based violence.
Incorporate a separate section in the State policy on relief and rehabilitation that conforms to Article 3 of the Child Rights Convention, as the guiding principle for all relief and rehabilitation work.
Recommend that the National Commission for Protection of Child Rights and the National Commission on Scheduled Castes and the National Commission on Scheduled Tribes assess the needs of children, dalits and adivasis respectively from the affected Christian community in Kandhamal, and make recommendations to appropriate agencies at the state and central levels for ensuring their rehabilitation at the earliest.
Address educational needs of the children who have suffered displacement as a result of the violence.
Address the long-standing problem of landlessness and land alienation of the dalits and adivasis in a comprehensive manner through land reform and redistribution.
B. Legal and Judicial Processes
Identify unreported cases of sexual and gender-based violence and include the offence of sexual assault in First Information Reports (FIRs), in cases where it has been ignored and ensure that they are effectively investigated and prosecuted.
Enquire into the acts of all public officials named in this Report, and pursue stringent disciplinary, administrative and other legal action against them for grave dereliction of duty, and for collusion and complicity in the crimes committed by the perpetrators.
Strictly enforce Sections 153 A and B of the Indian Penal Code (promoting enmity between different groups and doing acts prejudicial to maintenance of harmony) in order to proactively prevent programmes that are divisive, propagate hate and incite violence against religious minorities.
Constitute a Special Investigation Team (SIT) to re-examine the already registered FIRs for accuracy, examine registrations of fresh FIRs, the trials that resulted in acquittals due to intimidation and/or lack of evidence and recommend the trials that need be transferred or fresh trials be conducted outside Kandhamal.
Appoint Special Public Prosecutors who discharge their duties with professional competence and integrity. At the appellate stage in the Orissa High Court a special panel of lawyers to represent the victims of Kandhamal violence should be constituted.
Recommend that State Legal Services Authorities set up a legal cell to assist victims in their legal cases and interactions with the police and courts.
Provide protection to victims and witnesses before, during and after the trial process according to the guidelines provided in the judgments of the Delhi and Punjab and Haryana High Courts. Take pro-active measures to prevent threat of sexual and gender-based violence to women survivors and their daughters and pay attention to the needs of the child witnesses involved in various proceedings related to the Kandhamal violence. The State Legal Services Authority lawyers to also ensure, that witnesses depose freely and without fear in the fast Track Courts and to bring any incident of intimidation to the notice of the concerned authorities including the Court. State Legal Service Authority to assist the victim- witnesses to initiate appropriate legal action in this regard.
Accord special protection to human rights defenders and adequately compensated the damage to their residential and organizational properties so that there are no impediments to their work in assisting victim-survivors with processes of justice and reparations.
C. Reparations
Adopt, at the very minimum, the 1984 anti Sikh and 2002 anti Muslim Gujarat compensation package to enhance the compensation already announced. In addition, victims of sexual and gender-based violence should be included as a ground eligible for compensation and employment.
Recognize the right of the Internally Displaced Persons (IDPs) to return home and create enabling conditions to facilitate such safe return in accordance with the UN Basic Principles and Guidelines on Development-based Evictions and Displacement, 2007 and UN Guiding Principles on Internally Displaced Persons.
Facilitate the return and reintegration of the affected families back in their villages of habitual residence, or resettle them in safe and secure alternative places of residence that is near to agro-based or other livelihood possibilities.
Formulate and implement policies to provide victim-survivors full reparations, which include compensation, restitution, rehabilitation, guarantees that the crimes committed will not be repeated, and forms of satisfaction such as restoration of their dignity and a public acknowledgement of the harm that they have suffered; meeting national and international human rights standards.
Include movable properties into the scheme of compensation, and adequately compensate loss of valuables, cash, agricultural produce and cattle, essential documents, household articles and vehicles towards restoring the victim-survivors and their families to the standard of living that they enjoyed prior to the violence.
Focus on revival of dignified livelihood options for the affected families, and facilitate a resumption of the livelihood they had pursued prior to the violence. Make a concerted effort at recovery and return of lands that the victim-survivor families had abandoned at the time of the violence, in order that they may pursue agro-based forms of livelihood.
Include members of the affected community, particularly women, in all confidence-building and peace-building initiatives by the state and district administration. Substantive participation of women in village level peace committees should be facilitated, rather than a token representation.
D. Minority Rights
Protect the right to religious freedom and clarify that this freedom means and includes the right to remain animist, areligious and/or atheist, and make any form of forced conversion or reconversion illegal.
Formulate a policy / programme to urgently address the issue of institutional bias against the minority Christian community in Kandhamal and other parts of Orissa, through a combination of perspective-building and stringent action that is intended at upholding the rule of law.
Review OFRA to ensure that it does not violate the right to religious freedom as guaranteed by the Indian Constitution and international law.
Review the definition of the Scheduled Castes in The Presidential Order of 1950, on the basis of the discrimination experienced by members of schedule castes even after conversion.
Implement the recommendations of the National Commission for Minorities, issued in their reports of January, April and September 2008 with immediate effect.
**********
Tuesday, September 20, 2011
KILL BILL
KILL BILL
- Or how the BJP and its friends across party lines tried to shoot down the draft Communal Violence Bill in the NIC meeting
JOHN DAYAL
I must begin with a Disclaimer: I was a member of the Working Group of the Mrs Sonia Gandhi-led National Advisory Council which drafted the Prevention of Communal Violence [Access to Justice and Reparations] Bill 2011. I am also a member of the National Integration Council. In the council’s belated meeting on 10th September 2011 in the magnificent Vigyan Bhawan, I was the solitary Christian Member – of the other two, St Stephens College principal Dr. Valson Thampu did not attend, and Delhi Archbishop Vincent Concessao was away in Rome – to speak and support the enactment of such a Bill, which otherwise came in for a brutal drubbing at the hands of Bharatiya Janata party’s parliamentary leaders Mrs Shushma Swaraj of the Lok Sabha and Mr Arun Jaitely of the Rajya Sabha, and the party’s chief ministers of Madhya Pradesh, Chhatisgarh, Jharkhand, leaders of most major non Congress parties and even the bosses of some Satellite TV channels. My views in this article may, therefore, be somewhat biased, and if they are, it is despite my trying hard to be absolutely neutral. I may also point out that during the framing of this draft Bill, I, together with jurists Vrinda Grover and Usha Ramanathan and activist Shabnam Hashmi, have been a critic of many a provision relating to a feared erosion of the federal character of our governance and possible allusions to “disturbed areas” which are anathema to many of us in the civil liberties movement. The NAC accepted over 57 objections before publishing its draft Bill.
Having said that, I fear that there has been a possible attempt in some official quarters to kill this Bill even before it has formally seen the light of the day by being send to the Cabinet, then introduced in Parliament, discussed in select committees and then debate openly on the floor of the Rajya Sabha [where an apparition of a 2005 Bill still lives] before being passed and signed into law. The manner in which it was allowed to be mauled in the open meeting of the National Integration Council – just four of us really supported it, three being social activists – put a huge question mark on why the Bill was so prematurely put before political opponents for their views, and why no one from the government or from the Congress Party spoke, or was allowed to speak, in defence of either the Bill or the rational for coming up with suitable legislation to save religious minorities of all sorts from targetted violence.
The Bill came into being from the group experiences of the anti Muslim pogroms of Gujarat in 2002, the attempted annihilation of Christians in Kandhamal, Orissa in 2007-2008, the haunting memories of the 1984 massacre of Sikhs in Delhi and other cities, together with attacks on Dalits and Tribals over the past few decades. The government had come up with a Bill in 2005, but when it presented its version in the Rajya Sabha, it was clear that the administration was empowering governments and police rather than protecting and defending the victims. It took five years of hard labour by civil society and specially by the Muslim groups, led by the likes of former Chief Justice Ahmadi and several retired high court judges, before the government agreed there was need to revise the Bill thoroughly.
The National Integration Council took upon itself the task of drafting the proposed new Bill, together with other social legislation it was working on including the Right to Food. It set up a working group with members Harsh Mander and Farah Naqvi as coordinators and experts and activists representing the minorities, legal luminaries and others on the team. It took close to a year before the Bill took some share, seeing bitter and prolonged discussions between members to balance the needs of the minorities and reconciling it with constitutional provisions and the Indian penal Code.
It was quite clear from the beginning that there was a felt need to identify and punish targetted violence, define who will be identified as victims and when, and how action would be taken to end impunity, enforce command responsibility, set up some mechanism to trigger state action. It was also clear that we did not want to repeat the experiments of the National Human Rights commission and the national Commission for Minorities which were either toothless, or as themselves as defenders of national honour by defending the government, or were toothless. It was also clear to us that the federal character of the state could not be trifled with. And above all, many of us were absolutely adamant that there be no reference to disturbed areas on the pattern of Jammu and Kashmir and the north eastern States which gave unfettered powers to the Armed Forces.
Although most of the members had worked with the victims of communal violence, and therefore wanted some universal principles and equality to be introduced both in justice and in reparations and relief and rehabilitation, we did not want fears to be expressed about possible overthrow of state governmetns by the Centre and the introduction of President’s Rule. Therefore it was only the second part of Article 355 which was seen as an entry point for the Central government to encourage state governmetns to act swiftly when communal violence went out of hand, as had happed in Gujarat and Kandhamal.
In defining groups, it was also clear to us that most groups could be in a minority in some state or the other, and in certain circumstances. Though Muslims, Sikhs, and Christians were the national minorities, even Hindus were a minority in as many as seven of the 35 States and Union territories of India. Other issues covered in the Bill in detail were Dereliction of Duty by public servants which was recognised both in omission and commission. The definition said public servants who act or omit to exercise authority vested in them and fail to prevent or offences or protect victims or act in a malafide or predicted manner will be guilty of punishable offences. They had of course first to identify the violence as targetted. The monitoring and grievance redressal, the bill said, shall be with the National Authority for Communal Harmony, Justice and Reparation (NACHJR) and corresponding State authorities (SACHJR). The monitoring mechanism of national and state authorities will also provide the “paper trail” to ensure robust accountability of public officials in a court of law.
The critical clauses related to the identification of targetted and communal violence. The Indian Penal Code contains most offences committed during episodes of communal violence. These have been appended in a schedule to the Bill and shall be considered offences when they cross a threshold of being knowingly directed against any person by virtue of his or her membership of a minority group. Brutal forms of sexual offence as seen in Gujarat and Kandhamal have also been included in the bill, as is hate campaign and propaganda leading to alienation and targetted violence.
Just to make it doubly sure that the Bill passed muster, the draft said advisories and recommendations of the NACHJR were not binding on State governments. All powers and duties of investigation, prosecution and trial remained with the State governments.
The draft Bill, after being put in a legislative format by Additional Solicitor General Indira Jai Singh [she did only the formatting, not the actual drafting, it must be made clear] the draft was put on the Internet by the National Advisory Council to garner public opinion which would be sent to the Central government together with the suggestions came. In due course, the ministries were supposed to clear it before the Union Cabinet, chaired by the Prime Minister adopted a final version for introducing in parliament.
That is why the developments in the NIC meeting surprised us. The government had not formally intimated its position on the Bill nor had it formally sent it to the opposition parties and the state governmetns for their official opinion and suggestions other than the NAC putting it on its website. The agenda formulation too made it seem that those who were to speak had either to accept it or reject it, rather than to critique and analyse it. As the formal NIC note put it, the agenda of the meeting was “measures to curb communalism and communal violence, approach to the Communal Violence Bill, measures to promote communal harmony and measures to end discrimination, specially against minorities, and finally, how to prevent radicalisation of youth”.
Unfortunately, barring the preliminary remarks of Prime Minister Manmohan Singh, the discussion, along political divides, focussed on just the Draft NAC Bill. The tone was set by Sushma Swaraj who slammed the Bill and said it did not consider people as Indian citizens but divided them on line of religion or ethnicity and language. Her party, she said, would formally oppose the Bill. Arun Jaitely followed suit, saying the federal structure would be hit. In saying so, they almost verbatim followed the propaganda that had been let loose for weeks earlier by the RSS and its wings, the Bajrang Dal and the Vishwa Hindu Parishad whose leadership threatened a nationwide agitation to ensure that the bill, which they aid stigmatised the Hindu community, did not bring law. It was mostly the BJP chief ministers who were present in force barring Narendra Modi of Gujarat. They all opposed the Bill in the language similar to the Bajrang Dal and RSS. Nitish Kumar, Jayalalitha and Mayawati had stayed away, but the text they circulated criticised the Bill for infringing on the rights of the states. The CPM – and both Prakash Karat and Sitaram Yechury spoke, also had grave apprehensions about the federal motives of the NAC. BJP’s allies at one time or the other, the Akali Dal and the Biju Janata Dal, also toed the line.
What surprised observers was the stance of the UPA ally Trinamul Congress of Mamta Bannerjee which made common cause with other state governments in the issue of the rights of the states. Scholar Zoya Hasan and some media stalwarts also spoke against the Bill for a verity of reasons, but essentially implying that existing laws were more than sufficient.
There were very few supporters. Ministers do not speak at NIC meetings as a matter of form. But other Congressmen do. They refrained this time from supporting a draft emerging out of a council headed by party president Sonia Gandhi.. The support came from Muslim members Navid Hamid and Asghar Ali Engineer and a few others. The Chairman of the National Commission for Minorities, Wajahat Habibullah, repeatedly asked for permission to speak, but in the end could not. In an interview later, he said he wanted to stress issues of Rehabilitation, Accountability and the plight of Internally Displaced persons, which in fact was added on NCM’s recommendation following Kandhamal, Ahmedabad and the situation in Tribal areas of Tripura. He also referred to the agenda item on youth, mentioning the victimisation of Muslim youth arrested In the Mecca Masjid bomb blast case and the governmetns” arresting them under laws on criminal conspiracy and sedition and so on.
The matter of course is not over. The debate continues even among those of us who were members of the NAC Working group. Many have called for an urgent meeting of the Working group to revisit the issues of federalism and possible encroachment of the powers of the States. There is a feeling that even if the objections have been political, there is need to make the Bill go through parliament with consensus and dialogue, and therefore there is a need to engage with the states governmetns and with various political parties.
There is a definite agreement, articulated by eminent law teacher Upendra Buxi that there is need for a law to prevent targetted and communal violence. Vrinda Grover said “we must also pay heed that criticism or anxiety is being expressed from across the board and not just the usual suspects.” Vrinda and Usha Ramanathan were among the first in the Working group to flag problematic provisions. “There is some merit in reconsidering some legal propositions presented in the final NAC draft of the CV Bill, 2011,” she says. “I am afraid the apprehension that this law is a device for the Union to usurp the power and role of the States and intrude at will, lingers on. The ill advised Clause 20 of the penultimate NAC Bill, still haunts public memory, with some reason. Despite Clause 20 having been dropped no corresponding change has been made the powers and functions of the National Authority. It is this that has invited the wrath of many regional, Left, 'secular' parties who would have otherwise been our allies and advocates of this Bill.
Most of us agree with Vrinda when she says “tampering with the federal structure will not yield anything for those constituencies who need the protection of the CV law. It will however alienate critical allies, without whose support, it is unlikely that this Bill will ever translate into law, as the numbers will simply not add up.”
All eyes are now on the NAC and the Union Government, though the hopethat the Bill would be placed before Parliament, possibly as government amendments to the Bill of 2005, are fading fast.
- Or how the BJP and its friends across party lines tried to shoot down the draft Communal Violence Bill in the NIC meeting
JOHN DAYAL
I must begin with a Disclaimer: I was a member of the Working Group of the Mrs Sonia Gandhi-led National Advisory Council which drafted the Prevention of Communal Violence [Access to Justice and Reparations] Bill 2011. I am also a member of the National Integration Council. In the council’s belated meeting on 10th September 2011 in the magnificent Vigyan Bhawan, I was the solitary Christian Member – of the other two, St Stephens College principal Dr. Valson Thampu did not attend, and Delhi Archbishop Vincent Concessao was away in Rome – to speak and support the enactment of such a Bill, which otherwise came in for a brutal drubbing at the hands of Bharatiya Janata party’s parliamentary leaders Mrs Shushma Swaraj of the Lok Sabha and Mr Arun Jaitely of the Rajya Sabha, and the party’s chief ministers of Madhya Pradesh, Chhatisgarh, Jharkhand, leaders of most major non Congress parties and even the bosses of some Satellite TV channels. My views in this article may, therefore, be somewhat biased, and if they are, it is despite my trying hard to be absolutely neutral. I may also point out that during the framing of this draft Bill, I, together with jurists Vrinda Grover and Usha Ramanathan and activist Shabnam Hashmi, have been a critic of many a provision relating to a feared erosion of the federal character of our governance and possible allusions to “disturbed areas” which are anathema to many of us in the civil liberties movement. The NAC accepted over 57 objections before publishing its draft Bill.
Having said that, I fear that there has been a possible attempt in some official quarters to kill this Bill even before it has formally seen the light of the day by being send to the Cabinet, then introduced in Parliament, discussed in select committees and then debate openly on the floor of the Rajya Sabha [where an apparition of a 2005 Bill still lives] before being passed and signed into law. The manner in which it was allowed to be mauled in the open meeting of the National Integration Council – just four of us really supported it, three being social activists – put a huge question mark on why the Bill was so prematurely put before political opponents for their views, and why no one from the government or from the Congress Party spoke, or was allowed to speak, in defence of either the Bill or the rational for coming up with suitable legislation to save religious minorities of all sorts from targetted violence.
The Bill came into being from the group experiences of the anti Muslim pogroms of Gujarat in 2002, the attempted annihilation of Christians in Kandhamal, Orissa in 2007-2008, the haunting memories of the 1984 massacre of Sikhs in Delhi and other cities, together with attacks on Dalits and Tribals over the past few decades. The government had come up with a Bill in 2005, but when it presented its version in the Rajya Sabha, it was clear that the administration was empowering governments and police rather than protecting and defending the victims. It took five years of hard labour by civil society and specially by the Muslim groups, led by the likes of former Chief Justice Ahmadi and several retired high court judges, before the government agreed there was need to revise the Bill thoroughly.
The National Integration Council took upon itself the task of drafting the proposed new Bill, together with other social legislation it was working on including the Right to Food. It set up a working group with members Harsh Mander and Farah Naqvi as coordinators and experts and activists representing the minorities, legal luminaries and others on the team. It took close to a year before the Bill took some share, seeing bitter and prolonged discussions between members to balance the needs of the minorities and reconciling it with constitutional provisions and the Indian penal Code.
It was quite clear from the beginning that there was a felt need to identify and punish targetted violence, define who will be identified as victims and when, and how action would be taken to end impunity, enforce command responsibility, set up some mechanism to trigger state action. It was also clear that we did not want to repeat the experiments of the National Human Rights commission and the national Commission for Minorities which were either toothless, or as themselves as defenders of national honour by defending the government, or were toothless. It was also clear to us that the federal character of the state could not be trifled with. And above all, many of us were absolutely adamant that there be no reference to disturbed areas on the pattern of Jammu and Kashmir and the north eastern States which gave unfettered powers to the Armed Forces.
Although most of the members had worked with the victims of communal violence, and therefore wanted some universal principles and equality to be introduced both in justice and in reparations and relief and rehabilitation, we did not want fears to be expressed about possible overthrow of state governmetns by the Centre and the introduction of President’s Rule. Therefore it was only the second part of Article 355 which was seen as an entry point for the Central government to encourage state governmetns to act swiftly when communal violence went out of hand, as had happed in Gujarat and Kandhamal.
In defining groups, it was also clear to us that most groups could be in a minority in some state or the other, and in certain circumstances. Though Muslims, Sikhs, and Christians were the national minorities, even Hindus were a minority in as many as seven of the 35 States and Union territories of India. Other issues covered in the Bill in detail were Dereliction of Duty by public servants which was recognised both in omission and commission. The definition said public servants who act or omit to exercise authority vested in them and fail to prevent or offences or protect victims or act in a malafide or predicted manner will be guilty of punishable offences. They had of course first to identify the violence as targetted. The monitoring and grievance redressal, the bill said, shall be with the National Authority for Communal Harmony, Justice and Reparation (NACHJR) and corresponding State authorities (SACHJR). The monitoring mechanism of national and state authorities will also provide the “paper trail” to ensure robust accountability of public officials in a court of law.
The critical clauses related to the identification of targetted and communal violence. The Indian Penal Code contains most offences committed during episodes of communal violence. These have been appended in a schedule to the Bill and shall be considered offences when they cross a threshold of being knowingly directed against any person by virtue of his or her membership of a minority group. Brutal forms of sexual offence as seen in Gujarat and Kandhamal have also been included in the bill, as is hate campaign and propaganda leading to alienation and targetted violence.
Just to make it doubly sure that the Bill passed muster, the draft said advisories and recommendations of the NACHJR were not binding on State governments. All powers and duties of investigation, prosecution and trial remained with the State governments.
The draft Bill, after being put in a legislative format by Additional Solicitor General Indira Jai Singh [she did only the formatting, not the actual drafting, it must be made clear] the draft was put on the Internet by the National Advisory Council to garner public opinion which would be sent to the Central government together with the suggestions came. In due course, the ministries were supposed to clear it before the Union Cabinet, chaired by the Prime Minister adopted a final version for introducing in parliament.
That is why the developments in the NIC meeting surprised us. The government had not formally intimated its position on the Bill nor had it formally sent it to the opposition parties and the state governmetns for their official opinion and suggestions other than the NAC putting it on its website. The agenda formulation too made it seem that those who were to speak had either to accept it or reject it, rather than to critique and analyse it. As the formal NIC note put it, the agenda of the meeting was “measures to curb communalism and communal violence, approach to the Communal Violence Bill, measures to promote communal harmony and measures to end discrimination, specially against minorities, and finally, how to prevent radicalisation of youth”.
Unfortunately, barring the preliminary remarks of Prime Minister Manmohan Singh, the discussion, along political divides, focussed on just the Draft NAC Bill. The tone was set by Sushma Swaraj who slammed the Bill and said it did not consider people as Indian citizens but divided them on line of religion or ethnicity and language. Her party, she said, would formally oppose the Bill. Arun Jaitely followed suit, saying the federal structure would be hit. In saying so, they almost verbatim followed the propaganda that had been let loose for weeks earlier by the RSS and its wings, the Bajrang Dal and the Vishwa Hindu Parishad whose leadership threatened a nationwide agitation to ensure that the bill, which they aid stigmatised the Hindu community, did not bring law. It was mostly the BJP chief ministers who were present in force barring Narendra Modi of Gujarat. They all opposed the Bill in the language similar to the Bajrang Dal and RSS. Nitish Kumar, Jayalalitha and Mayawati had stayed away, but the text they circulated criticised the Bill for infringing on the rights of the states. The CPM – and both Prakash Karat and Sitaram Yechury spoke, also had grave apprehensions about the federal motives of the NAC. BJP’s allies at one time or the other, the Akali Dal and the Biju Janata Dal, also toed the line.
What surprised observers was the stance of the UPA ally Trinamul Congress of Mamta Bannerjee which made common cause with other state governments in the issue of the rights of the states. Scholar Zoya Hasan and some media stalwarts also spoke against the Bill for a verity of reasons, but essentially implying that existing laws were more than sufficient.
There were very few supporters. Ministers do not speak at NIC meetings as a matter of form. But other Congressmen do. They refrained this time from supporting a draft emerging out of a council headed by party president Sonia Gandhi.. The support came from Muslim members Navid Hamid and Asghar Ali Engineer and a few others. The Chairman of the National Commission for Minorities, Wajahat Habibullah, repeatedly asked for permission to speak, but in the end could not. In an interview later, he said he wanted to stress issues of Rehabilitation, Accountability and the plight of Internally Displaced persons, which in fact was added on NCM’s recommendation following Kandhamal, Ahmedabad and the situation in Tribal areas of Tripura. He also referred to the agenda item on youth, mentioning the victimisation of Muslim youth arrested In the Mecca Masjid bomb blast case and the governmetns” arresting them under laws on criminal conspiracy and sedition and so on.
The matter of course is not over. The debate continues even among those of us who were members of the NAC Working group. Many have called for an urgent meeting of the Working group to revisit the issues of federalism and possible encroachment of the powers of the States. There is a feeling that even if the objections have been political, there is need to make the Bill go through parliament with consensus and dialogue, and therefore there is a need to engage with the states governmetns and with various political parties.
There is a definite agreement, articulated by eminent law teacher Upendra Buxi that there is need for a law to prevent targetted and communal violence. Vrinda Grover said “we must also pay heed that criticism or anxiety is being expressed from across the board and not just the usual suspects.” Vrinda and Usha Ramanathan were among the first in the Working group to flag problematic provisions. “There is some merit in reconsidering some legal propositions presented in the final NAC draft of the CV Bill, 2011,” she says. “I am afraid the apprehension that this law is a device for the Union to usurp the power and role of the States and intrude at will, lingers on. The ill advised Clause 20 of the penultimate NAC Bill, still haunts public memory, with some reason. Despite Clause 20 having been dropped no corresponding change has been made the powers and functions of the National Authority. It is this that has invited the wrath of many regional, Left, 'secular' parties who would have otherwise been our allies and advocates of this Bill.
Most of us agree with Vrinda when she says “tampering with the federal structure will not yield anything for those constituencies who need the protection of the CV law. It will however alienate critical allies, without whose support, it is unlikely that this Bill will ever translate into law, as the numbers will simply not add up.”
All eyes are now on the NAC and the Union Government, though the hopethat the Bill would be placed before Parliament, possibly as government amendments to the Bill of 2005, are fading fast.
Saturday, September 10, 2011
Justice issues of Kandhamal, Dalit Christian demands raised at meeting of National Integration Council
[The following is an abridged version of the points raised by Dr John Dayal, Secretary General, All India Christian Council, at the meeting of the National Integration Council at Vigyan Bhawan, New Delhi on Saturday, 10th September 2011. The Prime Minister of India, Dr Manmohan Singh, chaired the meeting moderated by Union Home Minister Mr. P Chidambaram. Mr. L K Advani, BJP leaders Sushma Swaraj and Arun Jaitely, Defence minister A K Anthony, chief ministers of Orissa and other States, leaders of the Congress and other parties, leading industrialists were among the Members of the NIC present.]
“Mr. Prime Minister, Honourable Union Ministers, Honourable Chief Ministers, distinguished Members
I bring you greetings from the Christian community in India, proud to be Indians, and proud of the fact that our country has rule of law under a Constitution that guarantees us Freedom of Faith as a vital component of our Secular, Socialist Democracy.
At the outset, may I express our community’s strong condemnation of the recent bomb blast outside the Delhi High court, and express our solidarity with the victims and our fellow citizens. Terror has no place in Indian society. There is no cause big enough to merit mindless violence that targets innocent men, women and children. As people of Peace, we pray for the dead as we also pray for the speedy recovery of the injured. Above all, we pray eternal peace and prosperity for India, our motherland.
We ourselves are victims of a different sort of socio-political terror, the terror of communalism. Our data shows we are targetted across the country with at least one incident a day of hate-motivated violence at some town or village, in one state or the other. Some states are worse than others. Among the worst are Karnataka and Madhya Pradesh, and districts such as Udaipur in Rajasthan. In many states, the local police and administration are complicit. Often their actions and impunity blatantly encourage local violent elements. In Karnataka and Madhya Pradesh for instance, local police and administrative coercion and threatening of prayer services in homes, or house churches as they are called, almost immediately leads to acts of physical violence. Not every church has to be a large Cathedral. Jesus said “Wherever two or three are gathered in my name, I will be there”. That is the basis of house churches, small Christian communities and Basic Christian Communities as they are called in the Evangelical, Episcopal and Catholic denominations respectively.
Such targetting, intolerance and officially conducted so-called “surveys” and demands for “registration” of churches must end forthwith. It does not happen with believers of other faiths, and it must Not happen with Christians.
Hate campaigns must also end. We have identified, as I am sure the governmetns' intelligence agencies must also have identified, the origin of such hate from the headquarters of certain political groups who want India to be rid of its religious minorities, or wants them to live as second rate citizens. We are first class citizens, much as everyone else, and seek our rights, the first of which is security so that we can enjoy that other right – freedom of faith and worship. Government must take urgent steps to train its police and administrative personnel in the principles of secularism, and sensitize them on the needs of all minorities, and the Christian minority in particular.
The Targetted and Communal violence [prevention, reparation and justice] Bill 2011 drafted by the National Advisory Council seeks to ensure this. We still feel the Bill needs some fine-tuning on issues of protecting India’s federalism and the autonomy of States.. We also specifically seek Christian representation in the structures it envisages. We commend its early adoption by government and its enactment as law after checking the Constitutionality of every clause and sub clause.
It may come as a surprise to some, but our community also has its share and more of the poor and the deprived. The Dalit Christians are one such group. They must be restored their constitutional rights at the earliest as recommended by the Justice Rangnath Misra Commission. Other poor, specially among the tribals and the rural landless and fishermen, must be identified and receive the assistance of the Government’s many schemes. For this it is important they first be identified. We have repeatedly demanded a Prime Minister’s Committee, on the pattern of the Justice Sachchar Committee set up for the Muslims, to look into the socio economic and developmental status of the Christian community across the country. Such a survey will help the Church generate its own development strategies. And it will help the government implement its secular agenda of development.
There must also not be any confrontation and conflict between the educational rights guarantees for minorities in the Constitution, and the new Right to Education Act. Across the country, our educational sector is facing harassment in recent months with local authorities trying to intimidate school managements.
In the drafting of the 12th plan, we have suggested several measures for the uplift of those of my brothers and sisters who are deprived, in education, hostel facilities, employment and self employment. I commend those recommendations made to the Ministry of Minority Affairs and the Planning Commission. They must form part of government policy and must be implemented.
I close with reflecting on the many lapses that have taken place in ensuring justice, rehabilitation and reparation to the Christians of Kandhamal district in Orissa. Kandhamal saw an anti Christian pogrom in August, September and October 2008 and it seemed that the Connotation of India was not operative in that distant plateau in the centre of Odisha. Over 56,000 people were rendered homeless, over 5,600 housed destroyed, almost 300 churches torched, nuns raped. There was other and significant gender violence. According to our count, and the government differs, more than 90 persons lost their lives. Men and women lost livelihood and homes, jobs and fields. Children lost opportunities of education. Many villages banned the entry of Christians if they did not convert to Hinduism. Three years on, justice in the real terms remains a dream despite two Fast Track Courts which are known for witnessing the terrorizing of witnesses. Government aid for reconstruction was timid and small. The church helped out. But even then more than 2,000 houses remain unbuilt. It is shocking but many people have not been able to return home. Education, jobs, agriculture opportunities are missing. Even in the cases of murder, there has been no punishment in over 20 cases because the witnesses were scared or paid off. Sometimes their terrorizing took place in court, as I have witnessed personally.
Justice must be done, Dear Prime Minister and Dear Chief minister of Odisha. We look to you for justice.
I thank you for this opportunity to address the National Integration Council.”
“Mr. Prime Minister, Honourable Union Ministers, Honourable Chief Ministers, distinguished Members
I bring you greetings from the Christian community in India, proud to be Indians, and proud of the fact that our country has rule of law under a Constitution that guarantees us Freedom of Faith as a vital component of our Secular, Socialist Democracy.
At the outset, may I express our community’s strong condemnation of the recent bomb blast outside the Delhi High court, and express our solidarity with the victims and our fellow citizens. Terror has no place in Indian society. There is no cause big enough to merit mindless violence that targets innocent men, women and children. As people of Peace, we pray for the dead as we also pray for the speedy recovery of the injured. Above all, we pray eternal peace and prosperity for India, our motherland.
We ourselves are victims of a different sort of socio-political terror, the terror of communalism. Our data shows we are targetted across the country with at least one incident a day of hate-motivated violence at some town or village, in one state or the other. Some states are worse than others. Among the worst are Karnataka and Madhya Pradesh, and districts such as Udaipur in Rajasthan. In many states, the local police and administration are complicit. Often their actions and impunity blatantly encourage local violent elements. In Karnataka and Madhya Pradesh for instance, local police and administrative coercion and threatening of prayer services in homes, or house churches as they are called, almost immediately leads to acts of physical violence. Not every church has to be a large Cathedral. Jesus said “Wherever two or three are gathered in my name, I will be there”. That is the basis of house churches, small Christian communities and Basic Christian Communities as they are called in the Evangelical, Episcopal and Catholic denominations respectively.
Such targetting, intolerance and officially conducted so-called “surveys” and demands for “registration” of churches must end forthwith. It does not happen with believers of other faiths, and it must Not happen with Christians.
Hate campaigns must also end. We have identified, as I am sure the governmetns' intelligence agencies must also have identified, the origin of such hate from the headquarters of certain political groups who want India to be rid of its religious minorities, or wants them to live as second rate citizens. We are first class citizens, much as everyone else, and seek our rights, the first of which is security so that we can enjoy that other right – freedom of faith and worship. Government must take urgent steps to train its police and administrative personnel in the principles of secularism, and sensitize them on the needs of all minorities, and the Christian minority in particular.
The Targetted and Communal violence [prevention, reparation and justice] Bill 2011 drafted by the National Advisory Council seeks to ensure this. We still feel the Bill needs some fine-tuning on issues of protecting India’s federalism and the autonomy of States.. We also specifically seek Christian representation in the structures it envisages. We commend its early adoption by government and its enactment as law after checking the Constitutionality of every clause and sub clause.
It may come as a surprise to some, but our community also has its share and more of the poor and the deprived. The Dalit Christians are one such group. They must be restored their constitutional rights at the earliest as recommended by the Justice Rangnath Misra Commission. Other poor, specially among the tribals and the rural landless and fishermen, must be identified and receive the assistance of the Government’s many schemes. For this it is important they first be identified. We have repeatedly demanded a Prime Minister’s Committee, on the pattern of the Justice Sachchar Committee set up for the Muslims, to look into the socio economic and developmental status of the Christian community across the country. Such a survey will help the Church generate its own development strategies. And it will help the government implement its secular agenda of development.
There must also not be any confrontation and conflict between the educational rights guarantees for minorities in the Constitution, and the new Right to Education Act. Across the country, our educational sector is facing harassment in recent months with local authorities trying to intimidate school managements.
In the drafting of the 12th plan, we have suggested several measures for the uplift of those of my brothers and sisters who are deprived, in education, hostel facilities, employment and self employment. I commend those recommendations made to the Ministry of Minority Affairs and the Planning Commission. They must form part of government policy and must be implemented.
I close with reflecting on the many lapses that have taken place in ensuring justice, rehabilitation and reparation to the Christians of Kandhamal district in Orissa. Kandhamal saw an anti Christian pogrom in August, September and October 2008 and it seemed that the Connotation of India was not operative in that distant plateau in the centre of Odisha. Over 56,000 people were rendered homeless, over 5,600 housed destroyed, almost 300 churches torched, nuns raped. There was other and significant gender violence. According to our count, and the government differs, more than 90 persons lost their lives. Men and women lost livelihood and homes, jobs and fields. Children lost opportunities of education. Many villages banned the entry of Christians if they did not convert to Hinduism. Three years on, justice in the real terms remains a dream despite two Fast Track Courts which are known for witnessing the terrorizing of witnesses. Government aid for reconstruction was timid and small. The church helped out. But even then more than 2,000 houses remain unbuilt. It is shocking but many people have not been able to return home. Education, jobs, agriculture opportunities are missing. Even in the cases of murder, there has been no punishment in over 20 cases because the witnesses were scared or paid off. Sometimes their terrorizing took place in court, as I have witnessed personally.
Justice must be done, Dear Prime Minister and Dear Chief minister of Odisha. We look to you for justice.
I thank you for this opportunity to address the National Integration Council.”
Sunday, May 8, 2011
KANDHAMAL UPDATE 1 MAY 20 2011
JUSTICE STILL ELUDES THE CHRISTIAN VICTIMS, AND MANY ARE TO BLAME FOR IT
JOHN DAYAL
There has been just one conviction for murder in 20 cases of the brutal killing of Christians of Kandhamal, Orissa, at the hands of Hindutva fanatics, and mobs led by them, during August--October 2008. More than two years and 9 months later the course of justice in the two special Fast Track Courts continues to be a travesty – with aberrations at all stages, from the presentation of the production case and examination of witnesses, to the coercive presence of Rashtriya Swayamsevak Sangh goons in the court premises, often in the court room, and the role of both judges and defence lawyers.
Lawyers for the victims have no role in court other than occasionally feebly protesting to the judges – in vain – those relatives and other eye witnesses who deposed they saw the men and women being killed are being threatened blatantly. The response of the judges has been, “we have sent the orders to the police.” The police have no response at all. The single biggest beneficiary of the miscarriage of justice has been Mr. Manoj Pradhan, the local Member of the State Legislature and a leader of the Bharatiya Janata party which was then a coalition partner in the government of Chief Minister Mr. Naveen Pattnaik. Mr. Pradhan is accused in over half a dozen cases, and is currently free on bail.
Investigation no doubt has been tardy and superficial – one junior gazetted officer and two inspectors head the small team trying to probe the vast number of cases with primitive forensic equipment and almost no training in probing cases of mass violence. No attempt was made to use video and mobile phone camera images that are widely available both with the victims and with the accused. In some cases, the two Fast Track Court judges have indeed passed strictures against the police investigation, and in most cases, they have found the testimony of witnesses --- victims and their relatives – either not trustworthy or insufficient to prove the offence against the accused, a review of the judgments shows.
There has been no attempt by the Directorate of Prosecutions or by the police to upgrade cases where victims died of their injuries not on the spot, but in hospital, refugee camps or other places. Under Indian legal practice, cases of attempted murder or murderous assault would automatically be upgraded to murder if the victim died of his injuries. This has prevented a large number of cases from being recorded as murder.
It may be recalled that the violence which began 24th August 2008 took a heavy toll. Over 14 of the 30 districts in the state were impacted. 6,000 houses were burnt in 400 villages, including 296 churches and smaller places of Christian worship. Over 56,000 became internally displaced persons, about 30,000 living from three months to a year in government refugee camps. Over 20,000 men, women and children spent days hiding in forests. Over 10,000 are yet to return home. About 1,000 have been warned or threatened by their neighbours they can return home if they become Hindus. Some are living in what can be called “Christian ghettos”, one of which is on land provide by the district authorities who find themselves impotent in rehabilitating the Christians in their villages. The rest have left Kandhamal in fear, or in search of jobs, as they do not have any livelihood now in Kandhamal where they also face an economic blockade.]
Cutting through the fog created around the legal data, the following is the current situation of the criminal investigation of cases of arson and murder, abduction and violence. Complaints were made at the local police posts, at the regional police stations, and often directly to the offices of the Superintendent of Police in the district capital of Phulbani by registered post. In some cases, complaints were sent to the Director General of Police in Bhubaneswar when the Police stations returned complaints sent by registered post.
3,232 criminal complaints were filed when the dust settled on the Second Phase violence that began on 24th August 2008 and after peaking by about 30 August, continued sporadically through most of September and October that year.
1541 complaints are acknowledged by the Kandhamal district police, but they did not file them as the First Information Reports required under Indian Criminal law.
828 complaints were actually converted to First Information Reports [FIRs} which mark the beginning of further investigation and the case being brought before a court for trial after a charge-sheet is filed.
327 Cases have actually seen a completion of the investigation process with the cases committed to the two Fast Track Courts headed by two ad hoc Additional District Judges for day to day hearings.
169 Cases have seen the acquittal of all accused,
86 cases have ended up in convictions -- not for the heinous crimes mentioned in the FIRs as the main ones, but for comparatively minor offenses meriting only prison terms of two or three years.
90 cases still are in the process of being tried.
1597 suspects have been acquitted. This does not include the thousands who could not be arrested in the cases, and therefore could not be brought to trial.
[The Orissa State government acknowledges and admits to 52 deaths in Kandhamal in the violence of 2007 and 2008. Of them 38 are of Christians, four deaths of Hindus include those of Vishwa Hindu Parishad Vice president Lakshmananda Saraswati and three inmates of his Ashram attacked by Maoists on 23 August 2008, 4 were killed in police firing in Kotagarh of Tumlibanda Police station and G Udayagiri police station, three were policemen killed by mobs, and 3 are said to be other deaths in other Maoist attacks. Data collected by church activists lists 91 murder cases. Of them, murders with death on the spot number 38, another 41 died of injuries sustained in the violence, but at places other than the place of violence and at various times after the attacks, and 12 died in police action. These figures do not include suicides and deaths that could be medically labelled as due to post trauma syndrome among the young and aged who saw the violence at close quarters and then spent much time in refugee camps or slums.]
[Larger issues of criminal law and justice have been recorded – till mid 2010 – by Supreme Court of India Advocate Vrinda Grover in her research book “The Law must change its course’, published by MARG, a Delhi-based NGO. Orissa Chief Minister Naveen Pattnaik has admitted in a written answer in the State Legislative Assembly that of the arrested persons, over 600 were members of the Rashtriya Swayamsevak Sangh, the Vishwa Hindu Parishad, the Vanvasi Kalyan Ashram, and the Bajrang Dal, the militant wings of the Bharatiya Janata party, a national political party which was his coalition partner at the time of the anti Christian pogrom.]
[Jurists who have seen the records have said “There have been grave lapses on the part of each of the three, viz., the Investigating Officer, the Public Prosecutor (PP) and the Trial Judge. The Investigating Officer has failed to get the Statements of the Eye Witnesses, especially the injured witnesses recorded u/s 164 Criminal Procedure Code (CrPC). The PP has failed to properly cross-examine the Eye witnesses who were turning hostile in the court. The PP also failed to get exhibited the confronted portions of the statements of the Hostile Eye Witnesses recorded prior in time u/s 161 CrPC. The Trial Judge has failed in his duty u/s 280 CrPC inasmuch as the Trial Judge has failed to record remarks regarding the demeanour of each of those eye Witnesses who were resiling from their previous statement recorded u/s 161 CrPC and who were become hostile to the prosecution. The Trial Judge has also failed to play his role to discover the truth and the Trial Judge has failed to put any court question to the hostile eye witnesses in order to discover the truth. Finally, the Trial Judge has wholly misapplied his mind and has failed to appreciate the evidence in terms of the guidelines laid down by this Hon’ble Court in several judgements. The Trial Judge has sufficient material available before him to hold that the persons facing trial were part of an unlawful assembly, the object of which was to cause inter alia homicidal death of the victims. There was also sufficient material to show participation of the accused persons in such an unlawful assembly. There was also sufficient material available to the Trial Judge to discover that the accused persons had acted in furtherance of the common object. The Trial Judge had sufficient available material before him to examine that the accused persons had been properly identified in the court and that specific roles had been ascribed to the accused persons and the Post mortem Report was corroborating the role ascribed to such accused persons in their assault with the weapons described by the witnesses.”]
JOHN DAYAL
There has been just one conviction for murder in 20 cases of the brutal killing of Christians of Kandhamal, Orissa, at the hands of Hindutva fanatics, and mobs led by them, during August--October 2008. More than two years and 9 months later the course of justice in the two special Fast Track Courts continues to be a travesty – with aberrations at all stages, from the presentation of the production case and examination of witnesses, to the coercive presence of Rashtriya Swayamsevak Sangh goons in the court premises, often in the court room, and the role of both judges and defence lawyers.
Lawyers for the victims have no role in court other than occasionally feebly protesting to the judges – in vain – those relatives and other eye witnesses who deposed they saw the men and women being killed are being threatened blatantly. The response of the judges has been, “we have sent the orders to the police.” The police have no response at all. The single biggest beneficiary of the miscarriage of justice has been Mr. Manoj Pradhan, the local Member of the State Legislature and a leader of the Bharatiya Janata party which was then a coalition partner in the government of Chief Minister Mr. Naveen Pattnaik. Mr. Pradhan is accused in over half a dozen cases, and is currently free on bail.
Investigation no doubt has been tardy and superficial – one junior gazetted officer and two inspectors head the small team trying to probe the vast number of cases with primitive forensic equipment and almost no training in probing cases of mass violence. No attempt was made to use video and mobile phone camera images that are widely available both with the victims and with the accused. In some cases, the two Fast Track Court judges have indeed passed strictures against the police investigation, and in most cases, they have found the testimony of witnesses --- victims and their relatives – either not trustworthy or insufficient to prove the offence against the accused, a review of the judgments shows.
There has been no attempt by the Directorate of Prosecutions or by the police to upgrade cases where victims died of their injuries not on the spot, but in hospital, refugee camps or other places. Under Indian legal practice, cases of attempted murder or murderous assault would automatically be upgraded to murder if the victim died of his injuries. This has prevented a large number of cases from being recorded as murder.
It may be recalled that the violence which began 24th August 2008 took a heavy toll. Over 14 of the 30 districts in the state were impacted. 6,000 houses were burnt in 400 villages, including 296 churches and smaller places of Christian worship. Over 56,000 became internally displaced persons, about 30,000 living from three months to a year in government refugee camps. Over 20,000 men, women and children spent days hiding in forests. Over 10,000 are yet to return home. About 1,000 have been warned or threatened by their neighbours they can return home if they become Hindus. Some are living in what can be called “Christian ghettos”, one of which is on land provide by the district authorities who find themselves impotent in rehabilitating the Christians in their villages. The rest have left Kandhamal in fear, or in search of jobs, as they do not have any livelihood now in Kandhamal where they also face an economic blockade.]
Cutting through the fog created around the legal data, the following is the current situation of the criminal investigation of cases of arson and murder, abduction and violence. Complaints were made at the local police posts, at the regional police stations, and often directly to the offices of the Superintendent of Police in the district capital of Phulbani by registered post. In some cases, complaints were sent to the Director General of Police in Bhubaneswar when the Police stations returned complaints sent by registered post.
3,232 criminal complaints were filed when the dust settled on the Second Phase violence that began on 24th August 2008 and after peaking by about 30 August, continued sporadically through most of September and October that year.
1541 complaints are acknowledged by the Kandhamal district police, but they did not file them as the First Information Reports required under Indian Criminal law.
828 complaints were actually converted to First Information Reports [FIRs} which mark the beginning of further investigation and the case being brought before a court for trial after a charge-sheet is filed.
327 Cases have actually seen a completion of the investigation process with the cases committed to the two Fast Track Courts headed by two ad hoc Additional District Judges for day to day hearings.
169 Cases have seen the acquittal of all accused,
86 cases have ended up in convictions -- not for the heinous crimes mentioned in the FIRs as the main ones, but for comparatively minor offenses meriting only prison terms of two or three years.
90 cases still are in the process of being tried.
1597 suspects have been acquitted. This does not include the thousands who could not be arrested in the cases, and therefore could not be brought to trial.
[The Orissa State government acknowledges and admits to 52 deaths in Kandhamal in the violence of 2007 and 2008. Of them 38 are of Christians, four deaths of Hindus include those of Vishwa Hindu Parishad Vice president Lakshmananda Saraswati and three inmates of his Ashram attacked by Maoists on 23 August 2008, 4 were killed in police firing in Kotagarh of Tumlibanda Police station and G Udayagiri police station, three were policemen killed by mobs, and 3 are said to be other deaths in other Maoist attacks. Data collected by church activists lists 91 murder cases. Of them, murders with death on the spot number 38, another 41 died of injuries sustained in the violence, but at places other than the place of violence and at various times after the attacks, and 12 died in police action. These figures do not include suicides and deaths that could be medically labelled as due to post trauma syndrome among the young and aged who saw the violence at close quarters and then spent much time in refugee camps or slums.]
[Larger issues of criminal law and justice have been recorded – till mid 2010 – by Supreme Court of India Advocate Vrinda Grover in her research book “The Law must change its course’, published by MARG, a Delhi-based NGO. Orissa Chief Minister Naveen Pattnaik has admitted in a written answer in the State Legislative Assembly that of the arrested persons, over 600 were members of the Rashtriya Swayamsevak Sangh, the Vishwa Hindu Parishad, the Vanvasi Kalyan Ashram, and the Bajrang Dal, the militant wings of the Bharatiya Janata party, a national political party which was his coalition partner at the time of the anti Christian pogrom.]
[Jurists who have seen the records have said “There have been grave lapses on the part of each of the three, viz., the Investigating Officer, the Public Prosecutor (PP) and the Trial Judge. The Investigating Officer has failed to get the Statements of the Eye Witnesses, especially the injured witnesses recorded u/s 164 Criminal Procedure Code (CrPC). The PP has failed to properly cross-examine the Eye witnesses who were turning hostile in the court. The PP also failed to get exhibited the confronted portions of the statements of the Hostile Eye Witnesses recorded prior in time u/s 161 CrPC. The Trial Judge has failed in his duty u/s 280 CrPC inasmuch as the Trial Judge has failed to record remarks regarding the demeanour of each of those eye Witnesses who were resiling from their previous statement recorded u/s 161 CrPC and who were become hostile to the prosecution. The Trial Judge has also failed to play his role to discover the truth and the Trial Judge has failed to put any court question to the hostile eye witnesses in order to discover the truth. Finally, the Trial Judge has wholly misapplied his mind and has failed to appreciate the evidence in terms of the guidelines laid down by this Hon’ble Court in several judgements. The Trial Judge has sufficient material available before him to hold that the persons facing trial were part of an unlawful assembly, the object of which was to cause inter alia homicidal death of the victims. There was also sufficient material to show participation of the accused persons in such an unlawful assembly. There was also sufficient material available to the Trial Judge to discover that the accused persons had acted in furtherance of the common object. The Trial Judge had sufficient available material before him to examine that the accused persons had been properly identified in the court and that specific roles had been ascribed to the accused persons and the Post mortem Report was corroborating the role ascribed to such accused persons in their assault with the weapons described by the witnesses.”]
Friday, March 18, 2011
Kandhamal Update March 2011
ORISSA KANDHAMAL UPDATE
MARCH 18, 2010
Deep in village, thugs enforce economic boycott of Christians
From John Dayal
As Archbishop Raphael Cheenath, now on a farewell pastoral tour of Kandhamal, extols the courage, faith and perseverance of the Dalit Panos and Tribal Kondh Christians of the central Orissa district in the face of unceasing Hindutva pressure, deep in the villages, the economic boycott of Christians in enforced by organised gangs of fanatical thugs.
The 77 year old Divine Word Society prelate of Orissa retires on 2nd April 2011. Like Archbishop Alan De Lastic of Delhi who emerged the face and voice of the community in his unflinching challenge to persecution in the 1990s, Cheenath was the central figure in the legal and civil society challenge to mass arson, serial murders and gang rapes unleashed in 2007 and 2008 by members of the RSS, Adivasi Kalyan Ashram and Bajrang Dal, whose political identity was confirmed by Chief Minister Naveen Pattnaik in the State Legislative Assembly.
Cheenath saluted his people saying “You have raised the faith into new heights at the face of death. I am proud of you.” As he cautioned them not to be misled by the apparent peace prevailing in the area, he said “For the government, peace has returned, but I am not sure how long it would remain, We cannot sit idle, but continue to fight for our Constitutional rights, especially religious freedom to earn sustainable peace.”
In the past, stressing that justice and peace had to go together, the Archbishop moved the Supreme Court in 2008 when the arrogant Collector-cum-District Magistrate Dr Krishna Kumar banned the entry of Christian relief organisations to help the traumatised people. The Supreme Court ruled in the Archbishop’s, favour. He has moved the Supreme Court through the Human Rights Law Network on several issues, including a challenge to the Orissa High Court granting bail to a convicted murderer, Manoj Pradhan, on the plea the he was a legislator. The Supreme Court again ruled against the lower court.
Despite these heroic efforts, much remains the same in that heavily forested district as far as justice and state action is concerned. Br Markose, a Gabriel Brother from Ranchi now working at the grassroots, has been systematically reporting issues of economic boyctott an official apathy.
In an email to me yesterday, Br Markose narrated recent cases of vigilante decisions from Bodimunda where houses of Christians were destroyed in August 20908. Twice during 2009, the Christians tried to bring construction material such as sand to rebuild their houses. On both occasions, the sand was reloaded into the tractor and taken to the temple. The owners of tractor were fined before the vehicle was released by the hardcore Sangh cadres of the village.
After six months, due to the untiring efforts of activists, the villagers took courage to hire a tractor and bring sand. On 14th March this year, Pradeep Nayak hired a tractor from village Rudangia and brought two loads of sand. The next day, Joseph Nayak hired the tractor of Tileshwar Digal of village Breka,. After making two trips, driver Ishak was stopped by a mob of about 12 persons led by Birendra Pradhan, stopped him and demanded a fine of Rs. 5051. The driver did not have the money. He left the tractor on the road and returned to the village.
Nabin Nayak and Bikram Nayak called Bro Markose on the phone who told them to immediately tell the police. Pastor Sunil Paricha called up the Superintendant of Police who referred him to the Tikabali police station. The Police cane to Bodimunda at night and the tractor was released. But the goons had taken away battery, jack and wrench from the tractor in lieu of fine. They told the driver that these materials would be returned when fine was paid.
On 17th March a four-hour long meeting was held at Catholic Church of the village more than 60 Christian men and women participated. Finally they wrote a formal report to the police, saying they would see the matter through, come what may.
------------
LEGAL FACT-SHEET AND UPDATE DECEMBER 2010
Complaints lodged before the police station in Kandhamal after the
Violence of 2008 -- 3232
Cases registered -- 831
Number of cases committed to the Fast track courts 1 & 2 -- 277
Number of case Acquitted ( Violence case ) court No – 1 & 2 -- 128
Number of case Convicted ( Violence case) court No – 1 & 2 -- 59
Number of case pending trial (Violence case) court No – 1 & 2 -- 44
Accused convicted so far --183
Accused acquitted so far -- 639
MARCH 18, 2010
Deep in village, thugs enforce economic boycott of Christians
From John Dayal
As Archbishop Raphael Cheenath, now on a farewell pastoral tour of Kandhamal, extols the courage, faith and perseverance of the Dalit Panos and Tribal Kondh Christians of the central Orissa district in the face of unceasing Hindutva pressure, deep in the villages, the economic boycott of Christians in enforced by organised gangs of fanatical thugs.
The 77 year old Divine Word Society prelate of Orissa retires on 2nd April 2011. Like Archbishop Alan De Lastic of Delhi who emerged the face and voice of the community in his unflinching challenge to persecution in the 1990s, Cheenath was the central figure in the legal and civil society challenge to mass arson, serial murders and gang rapes unleashed in 2007 and 2008 by members of the RSS, Adivasi Kalyan Ashram and Bajrang Dal, whose political identity was confirmed by Chief Minister Naveen Pattnaik in the State Legislative Assembly.
Cheenath saluted his people saying “You have raised the faith into new heights at the face of death. I am proud of you.” As he cautioned them not to be misled by the apparent peace prevailing in the area, he said “For the government, peace has returned, but I am not sure how long it would remain, We cannot sit idle, but continue to fight for our Constitutional rights, especially religious freedom to earn sustainable peace.”
In the past, stressing that justice and peace had to go together, the Archbishop moved the Supreme Court in 2008 when the arrogant Collector-cum-District Magistrate Dr Krishna Kumar banned the entry of Christian relief organisations to help the traumatised people. The Supreme Court ruled in the Archbishop’s, favour. He has moved the Supreme Court through the Human Rights Law Network on several issues, including a challenge to the Orissa High Court granting bail to a convicted murderer, Manoj Pradhan, on the plea the he was a legislator. The Supreme Court again ruled against the lower court.
Despite these heroic efforts, much remains the same in that heavily forested district as far as justice and state action is concerned. Br Markose, a Gabriel Brother from Ranchi now working at the grassroots, has been systematically reporting issues of economic boyctott an official apathy.
In an email to me yesterday, Br Markose narrated recent cases of vigilante decisions from Bodimunda where houses of Christians were destroyed in August 20908. Twice during 2009, the Christians tried to bring construction material such as sand to rebuild their houses. On both occasions, the sand was reloaded into the tractor and taken to the temple. The owners of tractor were fined before the vehicle was released by the hardcore Sangh cadres of the village.
After six months, due to the untiring efforts of activists, the villagers took courage to hire a tractor and bring sand. On 14th March this year, Pradeep Nayak hired a tractor from village Rudangia and brought two loads of sand. The next day, Joseph Nayak hired the tractor of Tileshwar Digal of village Breka,. After making two trips, driver Ishak was stopped by a mob of about 12 persons led by Birendra Pradhan, stopped him and demanded a fine of Rs. 5051. The driver did not have the money. He left the tractor on the road and returned to the village.
Nabin Nayak and Bikram Nayak called Bro Markose on the phone who told them to immediately tell the police. Pastor Sunil Paricha called up the Superintendant of Police who referred him to the Tikabali police station. The Police cane to Bodimunda at night and the tractor was released. But the goons had taken away battery, jack and wrench from the tractor in lieu of fine. They told the driver that these materials would be returned when fine was paid.
On 17th March a four-hour long meeting was held at Catholic Church of the village more than 60 Christian men and women participated. Finally they wrote a formal report to the police, saying they would see the matter through, come what may.
------------
LEGAL FACT-SHEET AND UPDATE DECEMBER 2010
Complaints lodged before the police station in Kandhamal after the
Violence of 2008 -- 3232
Cases registered -- 831
Number of cases committed to the Fast track courts 1 & 2 -- 277
Number of case Acquitted ( Violence case ) court No – 1 & 2 -- 128
Number of case Convicted ( Violence case) court No – 1 & 2 -- 59
Number of case pending trial (Violence case) court No – 1 & 2 -- 44
Accused convicted so far --183
Accused acquitted so far -- 639
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