Abstract
Mass Communal Violence and State Records
The recent acquittal of the accused in the Hashimpura massacre case provides a chilling reminder of how our criminal justice system fails victims of communal violence. While Hashimpura might be a particularly sorry example of this failure, it is definitely not the only one. A book released recently, On Their Watch: Mass Violence and State Apathy in India, Examining the Record, edited by Surabhi Chopra and Prita Jha, demonstrates how this failure to provide justice to victims of communal violence is systemic. The work sets out to assess the state’s performance on delivering justice for victims of mass communal violence. And it seeks to do that by looking at state records. The authors have obtained these records using the Right to Information Act, 2005 (RTI). The authors use a combination of both old and more recent episodes of large-scale violence as case studies. These include Nellie, Assam, in 1989 (an estimated 3,000 Muslims killed); Delhi, in 1984 (an estimated 4,000 Sikhs killed); Bhagalpur, Bihar, in 1989 (an estimated 1,100 Muslims killed); and Gujarat, in 2002 (an estimated 2,000 Muslims killed).
This very useful volume is organised into three sections: the first, titled ‘Extracting State Records’, examines the experience of using the RTI Act as the data collection method and the larger significance of using the law for state accountability in the context of communal violence. The next section, ‘Four Episodes of Violence’, sets the context for this examination, providing background material to the episodes. Finally, the last section, ‘Examining the State’s Record’, pieces together the information collected using the RTI, to draw a picture of how state agencies and actors acted in the discharge of their duties during and after the violence, and the consequences of those acts for victims’ rights.
This work must be seen at two levels. First, as a book on communal violence, it shows particularly the failures of the state to provide justice to the victims of communal violence. As already set out, the volume seeks to examine the state’s performance by relying not on unofficial records (media reports, testimonies, reports of citizens committees and other historical material), but on the state’s own records, that is, the records generated by authorities tasked with responding to violence. Why state records? According to the authors, information about what the state did or did not do when the violence broke out is important information in itself. Additionally, examining the records of the state helps in a better understanding of the nature of state failure, by directing attention at the internal working of state institutions; the systems and processes and capacities that hinder state’s delivery of its constitutionally mandated obligations towards victims of violence. The authors’ use of the state’s own records to study and analyse its failures in the context of communal violence has, thus, helped fill a big gap in our understanding of the subject.
Second, this is a book on the working of RTI in the specific context of the criminal justice system. There is now a growing body of literature on the working of RTI as it applies to development, particularly exclusion and corruption in public services. But there is very little material on how the law performs in the context of legal justice for citizens and civil rights. As a law, RTI is a strong tool for extracting information on mass violence in particular, and abuses of civil and political rights in general. It places weightier obligations on the state to disclose information related to human rights than other types of information (p. 51). 1
Is the law delivering? The authors filed 824 applications, all under RTI, to public authorities relevant to the four episodes of violence chosen, asking questions on the three basic dimensions of the state’s obligations to citizens: (a) access to the criminal justice system; (b) holding public officials accountable; and (c) relief compensation and rehabilitation.
Success in Accessing State Records
The result of this multi-year project in extracting official record of government failures is revealing. In many ways, this is the core strength of the volume. In terms of findings on the use of RTI, the results are not encouraging. The authors first received responses to 31 per cent of the applications; 40 per cent of the cases were transferred to other public authorities; and most remarkably, 29 per cent of applications were met with total silence. First appeals had to be filed in 515 cases (that were met either by silence or by formal refusals for one reason or the other) (p. 39). And then, there were the procedural hurdles with filing RTI applications: a lack of basic information for applications (who to apply to? in what form?); lack of suo motu disclosure by public authorities; and inspection of records, although allowed by law, was problematic in practice, with public authorities hindering rather than facilitating those.
More important was the finding, revealed in RTI responses, that showed how state authorities undermined this law and its transparency ethos by either purposely misreading its provisions—such as the 20-year rule, which requires that information dating back two decades should be more easily available, which the public authorities countered by saying that it removed them from the ambit of RTI—or frequently resorting to the provision that allows security and intelligence agencies exemption from RTI, unmindful of the fact that these exclusions do not apply in cases of corruption and more to the point, human rights violations by these agencies.
A more disturbing finding was the poor availability of records by agencies of the state with direct responsibility for security and human rights protection. Concerned state governments and the central Ministry of Home Affairs claimed not to have critical pieces of records, including reports of commissions of enquiries set up by governments. These represent a gross failure of record management, especially serious, the authors claim, as they reflect a failure to recognise the importance of records related to mass violence. Equally remiss in maintaining these records were the national and state commissions on human rights, minorities and women, although it is these statutory bodies that should be the repositories of information on mass violence. And in some cases, important records, such as the details of complaints and first information reports (FIRs) in cases of mass killings, as with Nellie, were found to have been completely destroyed.
Overall, access to information was found to be dependent on a variety of factors. Generally speaking, compared to other issues, information on relief and rehabilitation was more readily disclosed, even though the information tended to be patchy. On the other hand, information on accountability of officials and disciplinary proceedings against officials named in commissions of enquiry proved most difficult to access. Local and district-level public authorities, such as, district magistrates and superintendents of police, tended to be more responsive as well as better up to date with the expectations of the law compared to agencies such as the army, statutory commissions and the courts that mostly refused to respond or came across as being totally at sea. Another variable determining the access of information was the capacity and understanding of concerned Public Information Officers—for the most part, they tended to be poorly trained and equipped, resulting in restrictive interpretations of the law, undermining the transparency ethos of the RTI Act.
Civil society pressure tended to be a big plus factor aiding access. Greater civil society scrutiny forces states to create and maintain records—this, the authors demonstrate, is the difference between Nellie, 1983 (where hardly any records exist, on the background of very little activism) and Delhi, 1984 (which has seen much public action for victim rights), or indeed Gujarat, 2002 (that saw a groundswell of public action) and Kandamahal (2008), with very little scrutiny, and the peculiar case, as the authors report, where any information was denied by public authorities.
Understanding State Failure
So, how does the book under review advance our understanding of state failure to provide for victims of violence? How does examining the state’s records help us better understand the nature of state failure, as the authors claim? Despite the large number of (deemed and reasoned) refusals to provide information and the delays and procrastinations, the use of the RTI to ‘excavate’ state records did result in public authorities providing a number of records. In most cases, these records have been made public for the first time, including reports of commissions of inquiry, other administrative reports, FIRs and suchlike. Examining and piecing together the information from these official records, of its actions during and after mass communal episodes, paints a picture of the state, in relations to its citizens, as significantly remiss. Indeed, most would see it complicit in denying justice to victims of violence.
So, what do these official records reveal? The authors report that victims of mass violence were let down severely by the criminal justice system, across all the episodes. This began from stage one in which a victim comes in contact with the state, through the flawed writings of the FIR, in cases where FIRs were recorded, to poor investigation, resulting in a large number of cases being summarily closed, with no evidence of the complainant being given a chance to represent against it, as required by law. These were followed by poor show on arrests of the accused, and poorer prosecution. This also included an acute weakness of effort to contest bail applications. Rates of acquittal were significantly high, suggesting either a passive trial court or one that was complicit in subverting justice. The authors contend, ‘…the scale of these failures, (and) the fact that they are repeated across different episodes demonstrates that these failures are systematic rather than occasional aberrations’ (p. 334).
In the case of Bhagalpur (1989), the authors managed to obtain the reports of the then Divisional Commissioner and the Special Additional District Magistrate (L&O), besides that of the Bhagalpur Riots Inquiry Commission set up by the state government, all rich in facts and analysis, and the FIRs from three police stations. An examination of these records demonstrates serious problems across the three dimensions of state’s performance. The recordings of the FIRs were found to be fraught with refusals, delays and rampant inaccuracies, stymieing any robust criminal investigation to follow. The process was found to be heavily biased against Muslim victims. The reports note how the FIRs targeted Muslims as the accused, rather than as victims that they overwhelmingly were; major massacres remained undetected for months after the eruption of violence, resulting in delays in registering FIR and adversely affecting the investigation; and that when the police were asked to record FIRs by Muslim victims, they were slow to record the names of the attackers and in some cases, recorded the chain of incidents dubiously. According to these reports, the FIRs in most cases were found to be doctored.
Arrests that followed the FIRs reflected a strong bias against Muslims, with large numbers arrested, despite their proportionately lower population and their mostly victim status; and searches were conducted exclusively of Muslim homes for arms and armaments. Of the cases registered, some 70 per cent were summarily closed. The Divisional Commissioner of Bhagalpur noted that this exceptionally high figure was on account of, among others, poor drafting of the FIRs, delays in commencing investigations and not allowing any roving inquiry by police officers. Some of the information is revealing as it hints at an institutional bias against Muslims: 70 per cent of all cases against Muslims accused ended up in charges being framed, whereas the corresponding figure for Hindus accused was a smaller 30 per cent. Such was the strong evidence of bias that the commission of inquiry held the Bhagalpur district police to be ‘totally anti-Muslim in their attitude, and had no desire or will to save the life of innocent Muslims’. It held the then district superintendent of police directly responsible for the large loss of lives. And yet, no action was taken against those identified in these official inquiries.
This last goes to the heart of the matter: whilst it is true that using the state’s records to assess its performance provides us an insider’s view of how the state fails at every test, that realisation, however valuable it is—and there is no doubt that it is indeed valuable—does not in itself provide us the answers to challenge those failures. Revelations of the strong indictment of state’s failures by various state-led inquiry reports, at least in some cases of violence, coupled with little action on those reports by the governments of the day, points to a larger, more fundamental problem: an institutionalised bias, in law enforcement circles, against minorities and the lack of a political commitment to hold the guilty accountable and enforce the rule of law.
Institutionalised bias against minorities, in the context of law enforcement, comes up for scrutiny in another recently released work, Manisha Sethi’s Kafkaland: Prejudice, Law and Counterterrorism in India (2014). If On their Watch is about the state’s failures of omission, as they relate to citizens, Kafkaland is about its failures of commissions. Kafkaland focuses on the state’s counterterrorism policies and practices, to put the spotlight on the rot in the system: the widespread use of illegal detention; the centrality of torture in terror investigations; an all-pervasive cavalier prejudice and the ease with which formal norms are institutionally subverted.
The villain of the piece here is the ‘extraordinary’ Unlawful Activities Prevention Act that extends remand to 180 days (in place of 90), makes bail very difficult to obtain and includes economic offences, along with terror financing, within its remit. And even though confessions are not admissible as evidence, the author argues, they are used freely to construct a mythology of guilt, much of it based on bias/prejudice against specific communities. One effect of this law (as with its predecessors, Terrorists and Disruptive Activities (Prevention) Act [TADA] and Prevention of Terrorism Act [POTA]) has been that this has become Law Enforcement’s default provision to invoke, in place of using normal laws, such as those against production and smuggling of counterfeit currency (in the Indian Penal Code [IPC]). Manisha Sethi warns that whether tough laws deter terrorism is not known. What is known, however, is that these laws lead to gross violation of citizen rights, illegal detentions, torture, false cases and long periods of incarceration. It is these tragic stories, along with an assessment of the counterterrorism framework, which the author shares in her heart-wrenching volume.
Noteworthy here is the Contrast this heavy-handed policing against terror suspects, routinely invoking the harshest laws, to the negligent enforcement of criminal justice against perpetrators of mass violence and preachers of hate in episodes of mass violence, where minorities are the victims.
Overall, across the four episodes documented in On Their Watch, the accountability of public officials comes forth as a particularly weak point. Gaps in the law and procedural barriers to prosecution make it easier for complicit officials and politicians to escape. Rather, the state has a system of commissions of inquiries, appointed strategically by state governments, with many seen to be shying away from proposing robust measures. And where commissions of inquiries have put forth honest findings of denials of justice and official complicity or inaction, these have been neglected, often with impunity. Such was the luck, the authors note, of the accused in both the 2002 Gujarat case as well as the 1984 Delhi violence cases until the media, civil society and opposition party members in the legislature forced the government to take action against responsible public authorities. The point to note here is the significant role of civil society activism, including through media engagement and getting politicians to speak up on the issues, in the struggle for justice for violence survivors.
Limitations of the Book
First about the terminology. The authors describe the event as ‘mass communal violence’. Does this do justice to the particular social reality? Is this the best way to describe these episodes of violence? The authors have explained why they are not calling these ‘communal riots’—because they believe that usage would erase the state’s role in the incidents of violence. The same could be said about ‘mass communal violence’. The formulation seems to hint at, admittedly, large-scale violence, but between two groups. What does not come through is the confirmation of the failure of state agencies, particularly the police, to prevent the violence, and more to the point, their connivance, confirmed by the wide empirical literature and journalistic accounts, of state agencies often siding with the perpetrators of violence, and mostly just looking the other way, when minority communities are under attack. Also, not captured in this formulation is the post-violence denial of justice for the victims. The authors, elsewhere, delve into questions of numbers and describe all four cases of violence under study as massacres. Massacres comes closer to the reality of these episodes.
A more substantive point is about the scope of the study. The authors have not touched upon the preventive steps required to be taken by the police and the administration to prevent communal violence from erupting, that could potentially ensure that the initial sparks do not blow up into full-fledged communal conflagrations. These need not only be intelligence-led reports, but could potentially be evidence of police response to information of violence, and police and administrations’ efforts for keeping the peace, through outreach and nurturing inter-group dialogue. Inclusion of this preventive action in the study would have provided a more complete assessment of the state’s performance on the count. No clear justification is provided as to why this was not an area of focus.
And by relying on state records, and the RTI Act as a means to obtain those, the authors have necessarily limited the scope of the material they examine to assess state performance in communal violence. Given the scale of deemed or reasoned refusals that the authors experienced, this has meant that a large part of the state records have potentially been left untouched. The reliance exclusively on state records then, although useful in its own right, poses serious risks for an enterprise of history writing. As revealed by the authors themselves, refusal by the authorities to provide information on the Kandamahal anti-Christian violence in Odisha, forced the exclusion of that episode from the scope of the book. This is, of course, not to dispute the compelling reasons for basing the investigation on state records, as already established.
Conclusion
What lessons are there from this study of state response to mass violence for Hashimpura and other survivors who are still waiting for justice? That they should obtain all information, including state records of state’s own conduct in the violence. But mere information will not deliver justice—they will need to use the information to mobilise themselves for better advocacy, including with the courts, for obtaining justice. As to lessons for the state, the authors have already identified urgent institutional reform of the police and prosecution systems. Perhaps one could add human rights education, a more ‘representative’ police force and greater transparency in police and court workings.