Every communal massacre in India is marked by the stain of impunity. Impunity means the assurance that those who plan and execute the slaughter and rape of innocents, and the loot and arson of their homes and businesses will ultimately escape all punishment.
As a result of these persisting failures of legal justice, there is little closure possible for survivors of mass hate crimes. The large majority of victims are people from religious minorities — Sikhs who survived the 1984 massacre, Christians who were battered by the carnage in Kandhamal in 2006, and Muslims slaughtered in a multitude of communal massacres beginning with Jabalpur in 1961. Their wounds cannot heal because those who organised and accomplished their suffering walk free.
This dishonourable reality of our secular democracy is not a chance outcome. It is built into the communal and anti-minority institutional bias of the criminal justice system that plays out through the police, prosecution and courts.
India’s long history of impunity for communal crimes was broken, but only partly, in the Gujarat massacre of 2002. After the slaughter and gang-rape of more than a thousand people the criminal justice system acted the same as in the past. More than half the criminal cases registered after the carnage were closed even without trial in the first year after the carnage.
But an extraordinary alliance arose for defending secular democracy, not just of tireless human rights defenders, but also the National Human Rights Commission with the moral leadership of Justice JS Verma, judges of conscience like Ruma Paul and Arijit Pasayat, courageous police officers like Rahul Sharma, and scores of survivors who fought for justice at all odds like Zakia Jafri and Bilkis Bano.
As a result of this alliance, the closure without trial of 2,000 cases was annulled; some cases were reversed with strong strictures by the Supreme Court admonishing the courts to exercise conscience rather than acting merely as a ‘tape-recorder’; a Special Investigation Team (SIT) bringing in officers from outside the state was constituted; and some cases were moved to courts outside Gujarat.
Yet the recent ruling of the special SIT court in the massacre of 64 people in the Gulberg Society in the heart of Ahemdabad on February 28, 2002, illustrates the limits of the possibilities of full justice in the context of persisting institutional bias. If the version the court accepts is correct, then this was a spontaneous massacre by 11 men who were part of a larger crowd that was incensed by the burning of Hindus in a train compartment in Godhra a day earlier. They were further provoked by the firing on them by former MP Ehsan Jafri, who was later burned alive by members of the crowd. There was no conspiracy at any level in planning or enabling the massacre, and the mobs were not led or provoked either by BJP leaders or by the police. There were 20 police persons at the spot, but they lacked the means to control or disperse the mob provoked by Jafri’s shooting at them. The convicts displayed ‘good conduct’ during the 14 years of trial, and ‘deserved a second chance to reform and rehabilitate’.
The version of the survivors, and many citizen investigations is different from Judge PB Desai’s conclusions. The massacres of the scale that transpired in Gulberg Society and elsewhere required mobilisation, arming and planning of a scale that was impossible without a larger conspiracy. The crowds everywhere were led by leaders of the BJP, VHP and Bajrang Dal. The crowds were angered by the way the burning of Hindus on the train was reported, and their bodies were paraded. The small numbers of poorly-equipped policepersons on the spot was not a matter of chance. Ehsan Jafri called senior police officials and, reportedly even the chief minister, but no police reinforcements were sent.
These two versions conform closely to two competing understandings of why communal violence recurs in India. One version is that although religious minorities constitute the large majority of persons killed, raped or looted in hate violence, it is they who provoke the violence by acts such as the burning of Hindus on the train, the killing of Prime Minister Indira Gandhi, desecrating temples, sexual designs on Hindu girls, killing cows, religious conversions, and firing on attacking mobs. This leads to spontaneous violence, and the police administration does all it can to control the riots, but is unable to do so because of the scale of righteous anger of the provoked Hindu mobs.
Another version is that there are no communal riots, only systematically planned communal massacres. And that State can control, including by calling in the army expeditiously, communal violence of any scale in not more than 24 hours.
Foot soldiers are not blameless, but their share of guilt for these hate crimes is far less than that of communal organisations that organise these massacres, and political leaders, police and civil officers who abet it mostly by deliberate inaction.
The men convicted by Judge Desai are only such foot soldiers, who indeed deserve another chance. However, the real criminals — who organised the massacre — must be punished severely, but the court absolves them completely. No wonder that Ehsan Jafri’s widow, Zakia Jafri, is dismayed by the court ruling and declares, “‘My husband was a good and kind man. I will never give up my fight for justice, for him and thousands like him”.
Harsh Mander is convenor, Aman Biradari
The views expressed are personal