by Vasanthi Raman
Frontier | Autumn Number, Vol. 48, No. 14 – 17, Oct 11 – Nov 7, 2015
The battle that is being waged today by Teesta Setalwad, Javed Anand and her colleagues is an extremely important one, with far-reaching implications for the future of the Indian Republic and the rights of all its citizens.
India’s contemporary post-independent history has been marked by a series of ‘riots’, communal violence which have targeted the minorities in general and the Muslims in particular. The scores of enquiry commissions that have been instituted have invariably pointed to the role of the administration and the police in these commissions of enquiry and the various errors of omission and commission. Very rarely has anyone been really punished. The late Nirmal Mukarji in an article titled “Who will guard the guards” written in the 1990s drew attention to the communalisation of the administration and its serious implications for democracy in the country. These questions continue to haunt progressives and democrats. And this is the crucial question that is at issue in the present fight for justice.
For the first time, it would seem that the struggle for justice of victims of communal violence after 2002, has reached a stage when 120 or so perpetrators have actually been handed a conviction, which included a former minister of the state government. This is perhaps unprecedented in the history of the criminal justice system in this country.
A little about the band of fighters for justice is necessary to counter the systematic and malicious propaganda war that has been unleashed on them, with sections of the media colluding to cloud the issues involved.
The two organisations set up by Teesta and Javed are Sabrang Trust (set up after 1992-93 after the riots in Mumbai) and the Citizens for Justice and Peace set up after Gujarat riots of 2002 with the express purpose of providing legal aid to the victims of the communal violence of 2002. Some of the activities carried out by Sabrang Trust are running an educational and cultural initiative, called Khoj : Education for a Plural India. This programme is being implemented in some of the government run schools of Mumbai. The experience of the previous riots, where the victims could not get justice due to the inability to access the law motivated some leading citizens of Mumbai to take the initiative to set up CJP, the mandate being to provide legal aid to the victims of communal and terror violence. The first President of CJP was the late Vijay Tendulkar. As Teesta mentioned in one of her articles/interviews, if such an initiative had been taken up after the 1984 anti-Sikh carnage, 1992-93 may not have happened and if such interventions had been pursued in 1992-93 and the Srikrishna Commission’s recommendations had been followed up, then the carnage of 2002 would not have happened.
What is the significance of Teesta and her colleagues’ struggle? Teesta in an interview pointed out that the Zakia Jafri criminal revision petition attempts to focus on the criminal or administrative culpability for all the incidents during the Gujarat riots of 2002 and not merely specific incidents. In her words, this is a historic legal endeavour.
Apart from this historic legal intervention, the resolution of which is likely to have long term implications for the civil liberties and rights of citizens, the CJP has played the historic role of substantive legal aid for Survivors, ensuring that the integrity of their eye-witness testimonies bear the test of legal scrutiny, particularly in India where the witnesses and survivors find it near impossible to make their way through the legal system and to access justice.
Even a cursory look at the voluminous materials which are available on the targeted violence in Gujarat post-Godhra that the various human rights groups and citizens’ groups (including the testimonies and conduct of conscientious of sections of the administration and police) have generated in their determined attempts point to a well-planned conspiracy. R B Sreekumar, former DGP, Gujarat in an article titled “Gujarat Genocide : The State, Law and Subversion” argues that what transpired was not a “system failure of governance, on account of in-built structural infirmities and long rope of discretion given to functionaries to contrive and manipulate the administrative machinery to their subjective requirements” but “a man-made disaster, for want of professionalism, integrity and commitment to the letter, spirit and ethos of the Constitution of India, from the Chief Minister Narendra Modi to the constables.” He argues that a serious analysis will point to unambiguous evidence on the deliberate acts of omission and commission by political leaders, bureaucrats and policemen aiming at the actualisation of the anti-Muslim carnage and lopsided justice delivery to riot victims.
The CJP decided to test the criminal justice system. In the course of the long battle, the Supreme Court exercising its writ of continuing mandamus monitors major trials and has offered witness protection to hundreds of witness survivors including Teesta, wherein an enabling atmosphere for public justice ensued leading to 120 perpetrators being convicted. The significant contributions to human rights jurisprudence has been an important achievement. Specifically, two important achievements need mention. They have consistently argued against death penalty and in favour of life imprisonment. This speaks for both the wisdom of the victims who despite having been at the receiving end of a barrage of hatred and violence have not succumbed to instincts of revenge and retribution and also the political wisdom and commitment of the CJP to stand up for a humane justice system. The second achievement has been an amendment to the Cr.PC (Section 24-8-2) which has meant that Victim Witnesses now have a right to their own advocates to assist the prosecution during a trial, thus introducing Victimology to the system.
The question of state responsibility has been articulated in many ways and with many nuances. The notion of raj dharma has been voiced by none other than Atal Bihari Vajpeyi, the then Prime Minister, when he called upon the Chief Minister of Gujarat, Narendra Modi to practise raj dharma, the rule of law.
Indira Jaising has taken the concept of state responsibility further by demanding that the Doctrine of Command Responsibility be adopted as a statutory and constitutional imperative instead of confining the struggle for justice to the provisions of the Indian Penal Code which only address crimes by individuals. Zakia Jafri’s criminal revision petition is not about seeking justice for one incident where her husband Ehsan Jafri was burnt to death, but squarely posing the larger question of the culpability of the State and the issue of command responsibility of the Chief Minister of Gujarat in preventing the widespread violence and thus abdicating his responsibility enjoined on him by the Constitution. If the CJP is able to prove a planned conspiracy for which evidence is ample (available from the police control records, from the statements of important members of the administration and police and even sections of the judiciary) and this evidence has been garnered by the CJP team, then the implications are indeed far reaching. A lot depends on the judiciary. Teesta attributes the important victories so far to the independence of the judiciary.
The larger political implications of the struggle being waged are not to be overlooked. The very idea of India which has so far been carefully nurtured during the years of the freedom movement by a courageous and far sighted band of men and women is at stake. The idea that India could only survive with a broad and inclusive vision wherein the myriad peoples who inhabit this subcontinent had equal space to flourish, was an idea that exercised the mind and imagination of many men and women. The idea of India was nurtured assiduously over many decades, through many debates and struggles, across different political shades. The more pluralistic and composite vision of Indian nationalism was forged in the crucible of the anti-colonial struggle. The remarkable feature of this vision was that it comprised of the articulation of many diverse strands which were contesting for a legitimate space within this broad vision. More importantly, the struggle for social justice and equality was an integral part of this struggle. But this inclusive vision of India had to wage a relentless struggle against a more narrow and exclusivist vision of Indian nationhood that was based on religion. This latter vision of nationalism had more or less kept away from the anti-colonial struggle given that its spokespersons were more obsessed with who constitutes a ‘Hindu’ and how those who had walked out of the fold of Hinduism were to be reconverted. The core elements that comprise the idea of India are a pluralist, tolerant and secular India which was part and parcel of the nationalist movement and which was reflected in the legal and political structure of independent India. The Constitution of India epitomizes the achievements of the anti-colonial struggle.
There have been serious historic setbacks, but the idea of India is still work in progress. And the struggle being waged by Teesta and her colleagues is part of consolidating the idea of India, of strengthening the Republic.