Published in Economic and Political Weekly
Splintered
Justice: Living the Horror of Mass Communal Violence in Bhagalpur and Gujarat by Warisha Farasat and Prita Jha; New Delhi: Three Essays
Collective, 2016, pp 221, Rs 500 (paperback).
Does anyone even remember the communal
violence that tore apart Bhagalpur in Bihar in 1989? According to official estimates, around 250
villages and 50,000 people were affected.
The official death toll was estimated to be over 900 although the
unofficial toll was higher. It was
familiar story because it had happened before.
And since then it has happened again.
And will do so in the future.
The partition of India after the British
left is now history. But every day there
are partitions taking place in independent India, where people who have
coexisted, tolerated difference, even celebrated it, are now being forced into
separate territories, their differences highlighted and exacerbated by a
dominant politics that has given a new twist to the old divide and rule policy
of the British.
Why is it important to record these divisions,
these conflicts that recur with such worrying frequency? Would it not be better to erase these
memories and look ahead?
The writers of this book demonstrate
convincingly why incidents of mass violence must be recorded and followed
up. If they are not, then history will
only remember the version of the victors while the victims will continue to
remain voiceless, unheard, without justice.
In this regard, the book under review
serves an important purpose. It is a
record of the communal killings in Bhagalpur in 1989, and in Gujarat 2002. But
instead of going over familiar ground, the authors help us understand the
legacy of such mass violence. These
recorded memories show us the costs of a broken criminal justice system and the
price that victims of mass violence continue to pay for decades.
Although a great deal has been written
about the mass violence in Gujarat in 2002, not that much is known about
Bhagalpur. Yet, this is a good time to remember it as the issues that triggered
the violence are alive today, and are likely to be ratcheted up in the next two
years leading up to the next general election in 2019. In fact, with the Supreme Court having
ordered the Central Bureau of Investigation (CBI) to speed up hearings in the
two cases on the destruction of the Babri Masjid on 6 December 1992, the
central controversy over the building of the Ram temple on the site of the
demolished mosque will remain alive.
Fertiliser of Communalism
Bhagalpur happened before the Babri Masjid
was destroyed. It was one of the many
incidents of rioting triggered by the frenzy that the Sangh Parivar built up by
mobilising Hindus on the Ram temple issue.
While the embers of the communal killings in Bhagalpur were still
glowing, L. K. Advani of the Bharatiya Janata Party (BJP) launched a rath yatra
to build up support for the temple in September 1990. It culminated in Ayodhya
on 6 December 1992 when thousands of kar sevaks converged on the Babri Masjid
and carried out their well laid plan to destroy it even as senior BJP leaders,
including Advani, Murli Manohar Joshi and Uma Bharati stood by watching and
even cheering.
The commission of inquiry set up by the
Bihar government to look at the Bhagalpur riots in 1990 concluded that the Ram
temple movement was the trigger that set off the killings and that it was
"acting as a fertiliser to give nourishment to the soil of Indian
communalism" (p28-29). The
commission also noted the failure of the district administration and the police
to control the fraught situation in Bhagalpur.
One of the authors, Warisha Farasat, a
trained lawyer, visited Bhagalpur in March 2011, 22 years later, to find that
the "wounds are still raw, the hearts charred" (p 31). Farasat sought out men and women who
remembered what happened, who had witnessed the killings, who had attempted to
seek justice through the legal system, and who were left only with bitter
memories. As in other similar situations after a communal massacre, some of the
victims decided to go back to their own villages while others moved on, fearful
of returning to a place where even trusted neighbours had turned on them.
The exercise of looking at Bhagalpur and
Gujarat together establishes several common threads. Irrespective of the party
in power in the state or the centre, the system followed a similar pattern. At
the time of the Bhagalpur killings, there was a Congress government at the
centre headed by Rajiv Gandhi and a Congress government in Bihar headed by
Satyendra Narayan Sinha. In Gujarat in
2002, when the communal violence occurred, the BJP was in power in the state
with Narendra Modi as Chief Minister and a National Democratic Alliance
government headed by Atal Behari Vajpayee was at the centre. In both instances, the party in the state and
the centre were the same.
Yet, whether it was a Congress government
or a BJP government, the state machinery was equally irresponsive. In both Bhagalpur
and Gujarat, the cases filed after the riots by the victims mostly failed and were
delayed for so long as to lose any meaning. In both places, victims had similar
experiences in the course of seeking justice. For instance, they had a hard
time getting FIRs recorded by an unsympathetic police. Even if they succeeded, they would find later
that the information in them was either wrong or incomplete. There were several
instances of omnibus FIRs that clubbed the complaints of several victims
together even if individually, these men and women had identified their killers
by name, as they were people known to them.
Indifferent Prosecution
Many cases were closed because an indifferent
prosecution did not put forward a convincing argument while the accused had
private lawyers with the ability to browbeat and intimidate the witnesses. Even where cases were reopened, through the
intervention of civil society groups as in Gujarat, or by a different state
government as in the Bihar under Nitish Kumar, many of the original witnesses
had either turned hostile and were unwilling to testify, or had died, thereby
weakening the cases.
In both Bhagalpur and Gujarat, the story of
inadequate compensation for loss of life and property is virtually identical. In many cases, the information that should
have been in the FIRs was simply not there because the police had not recorded it. There were no surveys to assess damage apart
from loss of life, and no one informed the victims of the processes they needed
to undertake to access the compensation.
As a result, only a small percentage of the affected actually received the
compensation to which they were legally entitled even if these amounts were far
from sufficient and did not compensate for the real losses that they had
incurred.
The book records the Gujarat government's
shocking decision to differentiate between the victims of the Godhra train
fire, all Hindus, and of the subsequent killings, all Muslims. While the families of the former were given
Rs 2 lakh, the families of the killings that followed Godhra were given only Rs
1 lakh. Only after an uproar and civil
society intervention did the government concede that both should receive equal
amounts, fixed at Rs 1.5 lakh.
In Bhagalpur, where civil society presence
was minimal and only one human rights group, the People's Union for Democratic
Rights (PUDR) sent a team to study and record the incidents of sexual violence,
the fate of the victims was even worse.
In moving testimonies recorded by Farasat, we hear the hopelessness of
people who have lost everything -- members of their family, their homes, the
tools of their trade -- and given practically nothing by way of
compensation.
In the chapter titled, "The Unhealed
Wounds of Bhagalpur", Farasat relates the case of Ali Ahmad of Shahpur
Tamouni. Both his parents were killed by
a Hindu mob. Seven months later, he
received a cheque of Rs 3,500 as compensation. "That was the value the
state put on two human being killed", writes Farasat (p 89). Nothing was given to him for the 20 cows and
bulls, the agricultural machinery and other valuable and household items that
they had lost.
When the Bihar government under Nitish
Kumar reopened some of the Bhagalpur cases in 2006, people did receive higher
compensation. But many missed out on
this as they did not have the requisite paper work, nor did they know what they
should do to avail of the higher amount.
The state too did not help as much as it could have. For instance, even
though the government's policy acknowledges that an FIR is not the only proof
of murder, and that other evidence must also be taken into account, in
compensation cases for loss of life, only the FIR is accepted. This is despite knowing that in communal
riots, police simply do not register FIRs.
The strength of this book is that it does
not depend only on secondary information.
It is a follow up to an earlier study by the Centre for Equity Studies based
on legal documents, several obtained through Right to Information (RTI)
applications. They looked at Nellie,
1983; Delhi, 1984; Bhagalpur, 1989 and Gujarat, 2002. This information was assembled in the book "On
Their Watch: Mass Violence and State Apathy in India" (Chopra, Jha, 2014).
The book under review goes further by including the testimonies of the victims
of Bhagalpur and Gujarat recorded by the authors.
Role of Judiciary
An important point that Prita Jha makes in
her section on Gujarat is the role of the judiciary. Not all judges were hostile, as victims told
the writers. In fact, many felt that the
only people sympathetic and willing to listen to their story during the court
hearings were the judges as the police was usually hostile, the prosecutors
unhelpful and the defence aggressive.
Jha mentions the remarkable judgment
delivered on 29 August 2012 by Jyotsna Patnaik in the Naroda Patiya case in
which 97 Muslims were killed in one day.
Patnaik convicted 32 people, including Maya Kodnani, a minister in
Modi's government, and Babu Bajrangi of the Bajrang Dal. In her historic
judgment, Patnaik calls 28 February 2002, the beginning of the Gujarat
violence, as "the day of a cyclone of violence, one of the black chapters
in the history of democratic India when violation of human rights and
Constitutional rights was publicly done by the assaulters on the victims"
(p 167).
In the course of the trial, Patnaik was aware
of the problems victims faced in registering their cases with the state
machinery and intervened often to ensure that victims would be able to speak instead
of being bullied by the defence. In
doing this she was implementing the spirit of the 2004 Supreme Court directive
in the Best Bakery case relating to the killing of 14 Muslims. Both the trial
court in Vadodara and the Gujarat High Court had absolved all those accused, as
the main witness had turned hostile. After going through the proceedings of the
courts in Gujarat, the apex court ordered a retrial in a fast track court in
Maharashtra headed by Justice Abhay Mahadeo Thipsay, who recognised that the
investigation into the case had been defective.
He convicted nine of the accused.
In its 2004 judgment, the apex court
criticised the Gujarat High Court judge who heard the case and also the investigation
and prosecution of the case by the state machinery. Justice Arijit Prasayat's
observations on the role of a judge in a criminal trial are as pertinent today
as they were when the judgment was delivered.
He said,
"If a
criminal court is to be an effective instrument in dispensing justice, the presiding
judge must cease to be a spectator and a mere recording machine by becoming a
participant in the trial evincing intelligence, active interest and elicit all
relevant material necessary for reaching the correct conclusion, to find out
the truth and administer justice with fairness and impartiality both to the
parties and to the community it serves. Courts administering criminal justice
cannot turn a blind eye to vexatious or oppressive conduct that has occurred in
relation to proceedings" (p 165).
There is a great deal of thoughtful
material in this slim book and given the times we live in, what it contains
becomes all the more relevant. Apart
from the way in which complicit state authorities have permitted these
incidents of mass violence to rage on, the criminal justice system and an
unsympathetic state machinery revisits violence on the people who have already
suffered it. This has to be fixed.
Reference:
Chopra, Surabhi and Prita Jha, 2014; On Their Watch: Mass Violence and State
Apathy in India, New Delhi: Three Essays Collective.
