Towards a nuanced picture of human rights - 2
Duration: 01:03:33; Aspect Ratio: 1.366:1; Hue: 3.903; Saturation: 0.104; Lightness: 0.684; Volume: 0.184; Cuts per Minute: 4.500; Words per Minute: 134.850
Summary: Any analysis of human rights has to be located within the rapid changes being undergone in Indian polity and society today. There is a critical link between the nature and extent of human rights violation and the dramatic transformation being undergone under the aegis of rapid globalisation.
While there is a depth and breadth of activism around human rights issues in the country, there is not always an attempt to see the relationships between the different contexts of human rights violations.
To produce an analytical overview of the nature of human rights issues and activism as well as the kinds of strategies employed by human rights activists, the Alternative Law Forum, Bangalore, felt that it might be useful to paint a bigger picture of what is going on in contemporary India. This was attempted at 'Human Rights priorities in contemporary India: Strategic Responses', a consultation held on December 12 and 13, 2009 at Christ College, Bangalore. It was an attempt to arrive at a more nuanced and critical understanding of the state of human rights.
On day one, Mihir Desai, Navaz Kotwal and Deepu spoke on communalism in India.
Christ College, Bangalore
communalism
human rights
Good afternoon everyone. This is the panel titled "Communal Conflict in India". I believe we're running very very late from the first session, so I'm requesting all three panelists to stick within ten minutes so that we can try and conclude this panel in about 45 minutes to an hour. Our three panelists today are: Mihir Desai - I think everyone knows Mihir but for those who don't, Mihir is a practicing civil and political rights lawyer in Bombay.
Deepu is the State Joint Secretary of the Karnataka Komu Souharda Vedike. He is also a filmmaker and works with Pedestrian Pictures. Nawaz Kotwal has been with the Communal Human Rights Initiative and has been working in Gujarat post-Godhra since 2002 following up cases. So can I ask Mihir to begin? I will keep time.
Mihir Desai: Thanks. I have a difficult task. After a very very engrossing session in the morning, plus after lunch everyone feeling sleepy, including me! So I promise to finish in ten minutes, which is the time allotted to me. Communalism is one issue, like most others, actually, where the law and the judicial system have had very little role to play in terms of battling the issue, in terms of dealing with communalism, in terms of communal violence.
communal violence
Mihir Desai: I'll basically be speaking on...because my title is 'Communal Conflict in Justice', I will confine myself to issues concerning communal violence, because there are a large number of other issues concerning communalism, which are from time to time litigated. Whether it's a question of cow slaughter, whether it's a question of Ayodhya - Ayodhya was of course a question of communal conflict-whether it's a question of forced marriages or forced abductions after voluntary marriages. Here I think was a recent case of so called 'love jihad' which is also something I am familiar with having dealt with some of those cases in Bombay.
The 'love jihad' phenomenon in India is becoming more and more notorious, as rhetoric about forced conversions takes on a human face. The term has come to imply inter-religious relationships allegedly aimed at converting women to Islam, and reports of such cases have been increasing. This new age Romeo and Juliet saga, however, has dark undertones of a deepening hostility towards the Muslim minority in India. Some incidents are reported in
'Love Jihad Raises Alert in Karnataka, Kerala' and
'India Lost in Love Jihad', and their alarming focus on conversion and the widespread belief that it is almost a racket are disturbing. The article lists 2,868 girls who fell into the "love jihad" net between 2006 to 2009. But how much of this is rhetoric and how much of it is based on fact is anybody's guess.
Mihir Desai: I'll confine myself to communal violence, as we normally know it, and law. A few general observations on that. We don't have a specific law on dealing with communal violence in India. And if one looks at what the government has come out with, then I would say thankfully so, that we don't have a specific law on dealing with communal violence. Because what the State is trying to pass now, is an extreme - I mean, I won't go into the details of the law, but it is a very bad law, it will do nothing else but empower the state machinery and take away whatever little power the people have in their own destinies.
Though the
Communal Violence (Suppression) Bill approaches fruition, the Home Minister has been quoted in an interview with
The Hindu, saying that it is expected to be passed before the year is through. This law, however, has been criticised for a number of reasons. Unless the state or the central government decides to declare an area as communally disturbed, the Bill cannot be invoked. The institutional machinery can turn a blind eye to heinous crimes such as rape, since the standard set forth for invoking the Bill is death, and so other crimes fall outside its ambit. As per Chapter III, the Army is given the liberty to intervene, and even kill, at will. There are severe defects in the Bill that need to be corrected, without which it remains an ineffective and impotent tool. Colin Gonsalves, a senior advocate of the Supreme Court, has made some suggestions for corrections
here. The National Commission for Minorities has come up with an
extensive set of suggestions (such as focussing on the victims of sectarian violence, suggesting a time limit by which the Special Courts have to operate, guidelines for compensation, etc.) which analyse the Bill clause by clause and make for very informative reading.
Mihir Desai: That is the kind of law that they are trying to bring about. First of all, I think those who have read the law should oppose it, and those who have not, please read it, whether you oppose it or not, but it needs to be opposed. That is one thing. The second thing...so you are left with a situation, where communal conflict as a distinct kind of conflict, communal violence as a distinct kind of violence, does exist in the society in a widespread manner.
Mihir Desai: Whether you look at Gujarat, whether you look at Orissa, and various other places including Karnataka. But you don't have a specific law dealing with communal violence. We are left with the ordinary law. The only specific law one can say, to a limited extent, which deals with communal violence, is the Hate Speech Law which is under Section 153(a) and (b) of the Criminal Law, which says that if you are trying to provoke people on the basis of their religion etc, it's a crime.
Mihir Desai: So you're left with the ordinary law, and ordinary law, that is the Indian Penal Code, by and large, with some other laws thrown in, to deal with issues which are very very specific, namely that of communal violence. And if you look at the history of India since Independence, Partition which is the major Holocaust, you don't have legal machinery being used at all. After that, the standard practice has been that you have a major communal conflagaration, in any place, whether it is Ahmedabad, Jamshedpur, Bombay, Delhi, Gujarat, whatever it is, and the State's response is to set up an enquiry committee under the Commissions of Enquiry Act.
Enquiry Commissions in India have been riddled with problems and have often been criticised and it has been stated that the Commissions of Inquiry Act has to be amended. Chief Justice R.C. Lahoti (2004-05) has commented on enquiry commissions here:
'Enquiry Commissions: A waste of Time'. The main problem is that the recommendations are generally not binding, and so the commissions become redundant. The lack of fair, respectable and qualified judges to head these commissions is also a big problem. The chequered history of these commissions in India indicates that a change is definitely needed, as is discussed in
'Inquiry Commissions in India are black holes'.
Mihir Desai: That has been the standard response of the State, that you set up an enquiry committee by a retired or sitting High Court judge. If you're lucky it could get over in 6 years, like it happened in Bombay. Otherwise it could take 20-24 years, 18 years, god knows how long. That's the normal enquiry. All the enquiry committee reports, systematically, now that is one thing, as lawyers, or as legal activists, how do you look at these enquiry committees? Because one problem of course is that it takes too long, the second problem is the decision of the enquiry committee is recommendatory. It is not binding on anybody. And the third problem is that you might be faced with judges, like it is presently happening in Gujarat, with Nanavati and Shah and whatever, Akshay Mehta and whatever, these judges, who are handpicked by the State to basically be the State's mouthpieces.
Enquiry Commissions
Mihir Desai: I mean, he may be a retired Supreme Court judge, like Nanavati, and all, but that doesn't make a damn of a difference in terms of his ideology. Let us be very clear about that. Because going to the Supreme Court is no guarantee of wisdom or of ideology which subscribes to the Constitution, forget anything else. So, that's one aspect.
Mihir Desai: Sometimes, the State may make a mistake. Like they did in Maharashtra, after the riots, they found the sitting judge who was wearing a tikka (ceremonial mark) everyday and coming to court, they thought 'this guy is not going to say anything against Hindus' so let's put him as the enquiry committee judge. So they appoint Justice Sri Krishna as the enquiry committee judge, thinking that amongst everybody, this is the guy who will represent us very very well. He turns...he doesn't really do what the right wing communalists wanted him to do. He comes out with a very very good report. Unfortunately the report has not been implemented, till date.
Mihir Desai: Hardly any prosecutions under the law, no convictions under the law. The standard things; the witness turning hostile, first of all the State's reluctance to grant sanction to prosecute public officers, etc. So one of the problems which occurs is that you have these commissions of enquiry, you are lawyers, you are human rights activists, do you participate in it or not? That is one issue that comes up. My personal opinion would be that if you have the time and you have the energy, if you have the infrastructure, do not allow the space to be given up to the other side.
Mihir Desai: Don't give up the space to the other side. Participate in the enquiry. As has been happening in Gujarat, as it happened in Bombay, you participate in the enquiry. It has its own campaign value, it has its own value in terms of generating some amount of consciousness, it also helps in various other ways. For instance, when the Sri Krishna Commission was set up, and this is what I was talking to Arvind last time when I was here, I mean, how do you strategically use it? So one of the things that was decided in Bombay when Sri Krishna...what happened is that the police were directly involved in the Bombay riots, and they were callous enough to talk on the phone, "Mian log ko maaro, marne do unko" (Kill the Muslims, let them die), you know, that kind of conversations were going on on their wireless sets.
Mihir Desai: The wireless messages are normally removed after 15 days. So one of the things that people did in Bombay was to go to court, the High Court, get an injunction against the wireless messages being removed, being erased. So, you go to court, and get an injunction against the wireless messages being erased, and you use those wireless messages for the purposes of the litigation, of the enquiry, etc, etc. So that's one thing as far as the commission of enquiry is concerned.
Mihir Desai: The second problem is in respect of actual communal violence, and the cases which are pending in court. One of the major problems which happens in any cases of communal violence is that the police refuse to register First Information Reports (FIRs). And the courts take holier than thou stands, saying that if you didn't put the name of the person in the First Information Reports, how can you now say that he was there and so acquit the person. So this is the standard collaboration between the investigating agency, prosecution and the judiciary, which happens repeatedly in any communal violence situation.
First Information Reports
Mihir Desai: This is the stage at which it becomes important, strategically, for human rights activists, legal activists, to intervene as soon as some kind of communal violence takes place. To help people in filing the First Information Report. Because otherwise as lawyers we only come into the picture when something goes to court. But in matters of communal violence, I think it becomes very important to intervene at the level of First Information Reports, because ultimately, in criminal matters, First Information Report is a very very important document.
Mihir Desai: So, these are the two things which I wanted to talk about. I am running out of time so I will conclude now by saying only one more thing, which is linked to the earlier session, where the question raised was what can the citizens do? And if I am addressing prospective lawyers here, my thing is very simple, that it's important for prospective lawyers, when they become lawyers at least, to spend some time on issues concerning human rights.
Mihir Desai: Even if you are in a corporate firm, even if you are doing something else. Otherwise what happens is that in our own living rooms or bars or pubs or whatever, we discuss how Pakistan is bad and how it is attacking us, and that is when our patriotism or our Indianness or whatever ends. If one really wants to do something, one must spend some time in doing human rights work when we are lawyers.
Mihir Desai: I completely subscribe to what Usha said, it doesn't mean filing public interest litigations. There are lots of people lying in jail, lots of people languishing in jails who can be helped. Lots of people living in slums who can be helped. A certain amount of time, if one is not able to give to that, I think it's worthless and useless becoming a lawyer or practicing as a lawyer, to put it in very simple words.
Mihir Desai: And finally, the only other thing that I want to end with...no that will take a long time, so I will take it up if a question comes....so thanks
Nawaz Kotwal: Hi everybody. I've been listening to all the speeches since morning quite carefully and towards the end of Mihir's speech I felt quite hopeless, that maybe you know, that we are here and are going to struggle struggle struggle for a very long time, and nothing is going to happen. And on the other hand, the topic that has been assigned to me is 'Struggles for Justice in Trial Courts of Gujarat' and I have to present a better picture than most of the speakers in the morning session and Mihir now.
Gujarat riots
litigation
Nawaz Kotwal: We started working in Gujarat after the 2002 riots where over 2000 people were killed and thousands more were displaced. And the intention was not going there and working for so long. But just...you were left with...the intention actually was to do a fact finding report and come back, probably present a study to somebody who was really not going to the listen. But once you were there you couldn't...your conscience wouldn't allow you to do that. So you decided to stay back and work in Gujarat and actually help out with people who are willing to take this struggle for justice ahead.
Nawaz Kotwal: And the history of communal violence in Gujarat...in the country rather, have been that there are no prosecutions, no convictions at all. And that has been seen right from Partition, from the '69 riots, the '84 riots, the '92 riots...but Gujarat there is a slightly different picture. Though the scale of the riots has been...it has been a massive scale, but the number of convictions in Gujarat...I would say that there have been...there hasn't been any other state where communal violence has happened with so many convictions. And I would simply salute the spirit of the... I won't say the Gujarati Muslim, but just of the Gujarati person out there who is gone through so much to just get justice.
Nawaz Kotwal: And justice has had different meanings for different people. When I started working there, for me, to get justice was to have a conviction at the end of the long trial, in whatever manner we had to do it. But interestingly, there was another person, whose case was slightly less heinous than the other cases we were looking at. He had just lost his household, he had lost his property, everything was burned and destroyed. He decided to follow the case. After a long struggle, the FIR was registered, people were arrested, but the whole investigation was so flawed, so tainted, that there is absolutely no hope that there is going to be a conviction in this case.
That
First Information Reports (FIRs) are extremely important is the first lesson learnt in criminal law. It should be lodged at the nearest police station as soon as an offence has been committed and serves as the main building block of the criminal trial. Any delays or problems in recording it can therefore have a lot of repercussions on the success of the trial since it is the primary mode of evidence and its absence means that the prosecution case will not succeed. These issues are discussed in Raghavendra Singh and Nidhi Vaidya's paper titled
FIR: Legal Aspects of Credibility. Therefore, to ensure that justice is delivered in cases of communal violence, it should be ensured that the FIR recording system is fair, efficient and effective. In Gujarat, thousands of FIRs were just not registered, or were registered with defects, which led to problems in the prosecution of the perpetrators of communal violence.
Nawaz Kotwal: And I was telling him, that kaka look, the evidence is so bad that I don't think there is going to be a conviction in this case, because we are only relying upon your eye witness evidence. And he has a very simple theory. His idea of justice is that, 'I managed to get an FIR registered, I managed to get the people arrested, these people were taken from the village to the police station, they had to stay in jail for 5 months, and after that they did get bail. And now that the trial has started they are having to come every day to court, stand there, do nothing else the whole day and face the trial. For me, justice is done. Tomorrow people come and kill me also, its okay, nothing is going to happen. For me, this much is enough.
Nawaz Kotwal: And that really made me think about what my idea of justice was, when we only say that justice would mean a conviction. And, I think I will go a little... we are running a little short of time..but, in the other cases that we have followed, basically, in most of the cases...we had picked up 10 cases, and the 10 cases were cases basically of murder. One case was of rape. And it was mass murder, some 3-4, some 18, some 36, and difficult cases; FIRs were not registered, the investigations were not taking place, witness statements were not being recorded, arrests were not being made, the accused were threatening the witnesses, and in all this scenario, there were also the threats that the witnesses were facing, not just the threats but also the inducements, in terms of financial inducements. And those inducements were not small. I mean, to an extent that people were being offered 10-20 lakhs per accused. It's like, one case where there are 7 accused, you are being offered 10 lakhs, just forget everything. And there are 7 accused in the case...which means it is a lot of money, in the situation that people were in at that time.
Nawaz Kotwal: And people have refused all of that, and have stuck together as a community, waiting for justice to be done. In the 10 cases, it is not been easy at all. The trials have taken place in fast track courts, and people went through a lot. But decided that no matter what happens, we are going to struggle and we are going through till the end. So from 2002- 2005, when we had our first conviction, it was for people who were assisting also these victims and these witnesses...it was a very strange, awkward moment when certain people had lost 5,7,11 members of their family and here is a conviction where all the people have been sentenced to life. And you don't know whether you have to celebrate or whether you have to...you really don't know. It was a very awkward situation for all of us. But what I realised that there is generally this thing that says that civil society in Gujarat failed. But who is really the civil society? I don't think for a moment that civil society failed there. Because it is these people, who are still struggling, still fighting for justice, some of the appeals, some of the cases where there were convictions or acquittals have come up in court. But of course if you look at the magnitude of the cases...there were 4,500 odd cases in the beginning, and within 2 years some 2000 cases were closed. Then there was the Supreme Court order which asked for re-opening of the cases. Some cases were re-opened, and then again they were closed, because there was noone really to follow them.
Nawaz Kotwal: But in the cases that were followed, in for example the few cases that we took up, the 10 cases we have managed to finish, have verdicts in 7 of them. We've had convictions in 5 of the cases where all of them have got life sentences. In one case, we've had partial success, with some of them being convicted and some of them being acquitted. And in one, we had a complete acquittal. But I think that where the picture in Gujarat seems really grim and there is widespread hatred for Muslims and there is economic boycott and there is social boycott, everything happening, people are still struggling. And despite living as second class citizens, there are small instances where people are trying to make their assertion of rights and I think itâs just these efforts where citizens themselves are trying to get justice, these people need the support of probably lawyers, probably civil society movements or anybody. And I myself am not a lawyer, I am actually a microbiologist who by mistake got into this, volunteered to do this, and couldn't leave after that. But it's just that when I look at all of you, I always feel that I wish I had done law, so I could have done so much more in that situation. So when I look at all of you, it just feels like you have such a vast area of work that is there before you. And I think that having this kind of education, having this kind of opportunity, it will be a little sad to see most of you all going into the corporate world. You will probably remain poor, not very financially sound, but I think the satisfaction that you get at the end of the day is quite immense. I'll stop at that.
(Applause)
Deepu: I know that I can't even take a deep breath because there's no time for it. Anyways. Friends. I am standing here really confused because of two things. Not because of the time. But because of the times in which I am living, and the questions that we are facing today. And secondly confused with lot of identities and constructs which have been, as equations, put forward in front of us. Like, I am a part of Karnataka Kumo Souharda Vedike, and I am confused because of one more thing, like whenever I got on the stage discussing about these things, I always talked about how succesful we were in the last 8 years, in Karnataka. But Karnataka there was a BJP government that came into power. So because of three reasons I am standing here really confused.
Deepu: And I'll start with...I know there is not that much time to put my confusions in front but still, I'll start with one of my primary confusions: about this entire progressive identities. And there is a certain kind of duty that has been assigned to it, historically. Whenever we look back, tracing the journey of communalism or communal growth in India, we will see the failures of progressives in several points. First of all, we will have to, I think...whether the term 'progressive' - I represent a progressive coalition, it's actually funny for me- this progressive, whether it had any element, in itself, to counter the communal. That is the primary question today when we justify the failures, we have to ask ourselves, I feel. Why I am telling this, like, for example, I am speaking in the context of Karnataka, where the opportunistic caste politics have played a role throughout history; you know, after Independence whichever governments came into power. So, when we look at the growth, 1983 Ramakrishna Hegde's government first gave chair of power to BJP, and from there there is a journey they have gone on, which I shall not be getting into any of that...but here, for example, we come up with a magical equation to counter communalism. I will call it magical because I don't know if it exists. Which is, women and secondly minority communities and dalits will come together to fight communalism. This is a good idea.
progressive coalition
Deepu: Here the primary question comes in front of us: whether such kinds of blocs exist as an equation or programme when we put forward to anybody? Whether we are living in a society where such equations actually exist as political blocs, whether we can see dalits as a political bloc to bring them together, to articulate together a political resistance. And at the same time, women...I see matas on the roads..mata is mothers...I see Matas Jatre next week it's happening in Chikmaglur, it is being organised by the right wing. But I can't see the progressive woman identity which we are saying it as a bloc, under a coalition. I'll say it, because often, when there is a protest that happens, December 6th there was a protest that happened in Bangalore, there is around 750 people who came to participate in the event. Out of which 690 people were Muslims, 60 people were from other 20 organisations. So, here actually we should understand. As a bloc, political bloc also, until now, because of the historical condition in which the Muslim community lives in, they are compelled to come. There are emergence of NDF to PFI to you know...as a film maker I was covering the Malegaon elections, and it was fascinating for me, because I saw a Mulla winning with a high margin- independent candidate- and he could make everybody cry, the entire Muslims cry, where the majority of the Muslims have been targeted as terrorists.
Deepu: So there is this kind of new political formation which happens only in the Muslim community. This again, for example, when you are in a fight against the communal, we have a majority muslim, a muslim who has been looked at suspiciouly by the people who even come for...after a riot, you can get n number of people, on the street. They react to a riot, but they are not reacting to what happened to the Muslims or what happened to the secularism. Sometimes it's the violence that makes the people react. So, whenever the riots happen, you have a massive number of people coming out on the street but they're anti-muslim, so they're not interested in such kind of coalitions with are getting formed. He's suspicious about them. And so there is no other political bloc which can strongly oppose this right now, as a bloc, when you talk about coalitions getting formed. Secondly, there is one more problem that I face. Progressive is extremely, I believe it is extremely brahminized. When I use this term, I'll say that it's different kinds of brahminization. I'll say that when the caste identities...when here the Karnataka elections happen, when we say that lingayats, and the bhilava community came together and a government got formed. So this caste politics have a major role to play in the growth of Hindutva in Karnataka. Opportunistic caste politics. But here, now we are deriving the progressive coalitions from the progressive angle, you will maximum enter into the limit of the dalit. If you cross the dalit, then it's not progressive in it's essence, because, and this I have faced several times, when we speak about forming caste based organizations within these communities...because I'll say that these castes which represented, which supported these kinds of political coalitions, which always served the interest of the elite in that particular caste, it's not served the interest of the maths as well. So who ever be the elite.
caste politics
Caste has always been recognised as an important indicator of political choice and preference. In recent years it has emerged as a visible political identity and potent form of assertion of political presence. For example, the Lingayats and the Vokkaligas have been dominant in Karnataka for many generations, and this is reflected in the people who come to power as CM. More figures on this can be found in the article
'In Karnataka politics, Caste Matters'. Raghavendra Rao's thesis on the
'Changing Pattern of Political Leadership of Karnataka' has an extensive account of how caste identities have evolved in Karnataka politics. It is only by studying this importance of caste in politics can it be understood how to counter such forces. Minority identities can be an important focal point for the generation of political dissent and as a counter to communalism, and an understanding of caste in politics can help realise this focal point.
Deepu: So there is an interest conflict within the community itself that exists. But it has a history of forming as a bloc within the identity of caste. So the formation of like, you know, using these conflicts within the caste - for example, lingayat caste or other shudra caste, because I don't generally like to see shudras as one single bloc, so shudra culture and all these things. I don't know whether it is a past memory for me. And, so, this kind of within the caste, the resistance and the fragmentation, I'll put it that how can you fragment the solid caste identities which have been supporting the right wing. At the same time, the progressive identities that we claim that as a solid bloc, it's actually a progressive identity but how can we make it much more solid? How can we organize? In terms of dalits...dalit is a very..i'll say that...it's also a very interesting identity. When I asked and raised the first question whether the progressive had the elements, I'll tell you some of the lohiat influence and the Dalit movement that happened in Karnataka, it has a huge history. But one of the slogans that some of the dalit groups put forward is that 'No Reservations for Dalit Christians'. This is the same argument that the right wing put forward. So in the general political sphere, there is not much of conflict of interest happened between them, also. So, this is...the struggle against communalism is a comfortability of space that we always derived ourselves into. In terms of our reaction to incidents, and not more than...we've never taken a step ahead.
Deepu: And, I'll give one or two examples. A beedi worker who is part of CITU (majority of beedi workers in Bangalore are part of CITU), which is a CPM left union, but they were bajrang dal activists, they were very much part of the riots that happened. And secondly, I'll raise one more question, in terms of...I can give you n number of examples...one more thing that I would like to put...recently, one more phenomenon that we will have to carefully study, if you look at Nagarjuna, the fight that happened, the struggle, the leader is Satyajit. Satyajit is one of the best engineers of riots. He knows how to kill somebody, he plans it so well, he's right wing leader. It's a resistance which is coming, which is questioning the issues of development, and now there is a struggle that is coming up in Mangalore. Similar kinds of compositions that you can see within these, what we like to call, new social movements. In the last page, Balgopal, in that note, has written something that is very interesting in that way. And, I'll just finish...thirdly I'll put more one thing. We have high amount of romanticization of...for example, how do we fight? we will put in terms of bringing examples from the past, or justifying the history, this has been one of the patterns of our defence. Like for example, somebody has destroyed this, no no, his interest was different, Muslim king destroyed this. Time is up.
<applause>
Gentleman in the audience: Actually, you know, I was listening to what you were saying and it seems to me that there are issues, I mean, I'm confused about this as well. It seems to me that when he was talking about 'progressive' and then he said there are matas on the street and what can you expect from the matas, I have a problem here, because actually the bulk of the people are matas and pitas, or whatever. So if you are going to be waiting for progressives to come out, then you have marginalized yourself already. You're not going to go anywhere. I'm sorry if I've misunderstood you, but I really don't think that communal issues can be tackled by waiting for the rise of progressives who will take over the country and we will have an end to communalism. This is something that I have heard again and again, and I have never understood why we are waiting for progressives. Because the matas - the people we categorize as matas- they are as human, I mean, they can have the humanity to stand up against communal violence just like the progressives. I see no reason to put that label and then rule them out as possible allies. Thank you.
Deepu: One is that I'm rushing fast...I'm not against...I'm not saying mothers are not to be addressed, or anything like that, or that they don't belong to the socio...I'm just telling that the failure of ours, in bringing ...I basically told that this identity itself is confusing for me, but in terms of the discourses, whatever be the discourses which are happening right now, there is, you know, for example, a woman's issue or whatever that has been portrayed, for example, a woman, a mata, on Chikmaglur street is talking about the child Dattatreya. Not the child who has been on the street, who is unemployed, or whatever be the issues that is concerning children who lives there. So the transformation of this kind of identities is necessary when you speak about fighting communalism.
Gentleman in the audience: Sir , my question is to you, I'm sorry if I have misunderstood you, but do you see any connection between development, or what you call progressives, and the solidifying of the religious identities? And in my opinion, I have done some work, which is not much but still, and I think that once you solidify these religious identities, that itself brings in the element of communalism in a sense. So what would be the solution? You cannot do away with globalization or development in that aspect. So what would be the solution?
Gentleman in the audience: This question is for Nawaz. What are the kind of strategies that really work, or worked in the trial cases that you said were succesful. If you could just give us a few pointers, I mean, what is it that was different. Obviously you must have faced a lot of obstacles and it took a lot of time but what are the learnings in terms of the strategies.
Arvind Narrain: Question to Mihir. Any particular reflections on the Libranhs Commission report in particular? And what do you think the impact of that might be, in terms of creating a public space or public discussion? Also, question to Nawaz: if you could share a little more about the what the experience might have been in the Gujarat context. Because it's very difficult to imagine someone from Bombay going and living in Gujarat, doing this kind of work. So what was it like to be there, all alone, doing the kind of work?
Swati : I have a question for Nawaz... you spoken in terms of resisting in the mass sense but you all know that the communal conflict has a every dayness to it. Whether it is acceptance and admission to schools, receiving credit etc. How has Gujarat, for example, dealt with that heaviness of communal conflict and for people how to reap from that learning?
Gentleman in the audience: they had something called as textbook communalism. In the sense that, in the textbooks, you have something which is taught which causes disharmony in the community. So in that sense...that will be the cause, rather than afterwards seeing the results.
Nawaz Kotwal: Okay I have three questions. One is strategies. It took me about 2-3 years to figure out the strategies, so it will be difficult to concise that. But basically the first thing was that I had to make up my mind that this is going to take a decade, and we have to just be at it for the next 5-7 years and not leave midway, because it is very easy to get tired and leave. So the first strategy was that you have to make up your mind that you are not going to leave. Secondly I think that the pattern of the cases was so similar: FIRs were not being registered, statements were not being taken, investigations were not being done, arrests were not being made, so, wherever there was any wrong doing, we made it a point to intervene at every wrong doing that took place. If First Information Report was not being registered, then whatever remedies are available in law to make sure that that was being done, was being exploited. When that was also not happening, then getting where the First Information Reports existed...the whole thing of the omnibus First Information Report, there are 5 incidents everywhere and there is one common First Information Report...so we made sure that at least statements were being recorded in a proper fashion. Not the way statements are normally recorded, like you say something and something else is recorded. So we made sure that at least statements are being properly recorded. There was I think a little bit of..I won't say unethical, but, we did a bit of witness preparation, which...<laughter> I am not a lawyer so I don't know of the ethics, but you were preparing witnesses as to what they have to say in their 161 Statement. And it was basically...we were trying to stick to the truth, we didn't move here or there, but at least to make sure that how the statements were being recorded, that was being done.
strategies
investigation
procedure
Nawaz Kotwal: When the arrests were not being made, and wherever we intervened, the complaints that were made to the police station, it was made to the district office, to the range IG, it was made to the Chief of Police. Now all of them, I know, were as involved in the riots as much as the local guy in the police station. They were all involved. But the thing was to have a paper trail. I wasn't expecting the range IG to respond to my request. But I wanted a paper trail which at some time, if the trial ever came up, I could prove all that I did to ensure that things were moving properly. So in the trial, it did help, when some of the names in the First Information Report, or in the statements were left out. It was very easy to say that it was not recorded in the First Information Report, so how can you say it now? And that is the time we showed all the different complaints that were made, all the different interventions that were made, from 2002 I have been saying this, I can't help it if the police does not take the statement properly. So that in itself helped a lot. Probably every section of the law that could have been used, was used. We had a couple of good lawyers, we had a couple of very good junior lawyers, we had a couple of good senior lawyers who really assisted in the whole process. The other thing we did, we didn't leave it to 4-5 witnesses to fight for their case, but we actually managed to get the community together and it wasn't restricted to an Aarti or a Deepu fighting his own case, but basically that whole area which was affected came together to provide support and assistance to the victims and witnesses. That itself is a big thing that assisted us. Because there is so much inducement, that it was very likely that a lone witness, or 3-4 witnesses alone would have succumbed to the pressure.
Nawaz Kotwal: But they knew they had the support from a lot of people. The third thing we did which was a little...when I started doing it, people thought I was completely bonkers to think that this would work...this was a legal assistance programme that was going on. And, alongside this we started a legal literacy or legal empowerment programme. I'm sure you must be wondering what the hell that is. But, the first time I was in one of the camps, and I was talking about - of course I first had to read up on Sections 156, 154 myself, because I didn't know - when I started talking about your rights when you are trying to register a First Information Report, someone from that crowd stood up and asked me - of course that time my Gujarati was not too good- ki madam aap humaare desh ka kanoon bata rahe ho ya bahar se padh kar aaye ho? (madam are you telling us the laws of this country or have you read up about foreign laws?). So, I just realised that people have no clue or no awareness about rights. So I thought to myself, this is one of the avenues where you can start an empowerment programme, or at least a legal literacy programme. We started off with having this programme only for the minority community, and realised that we were making a big mistake because having a programme just for the minorities was further dividing up the community. Because the majority community who hadn't really taken part in the riots at that time started feeling, okay, now what is happening? What is this separate group of people, they're having these small meetings, small lectures, small talks, what is happening?
education
empowerment programme
Nawaz Kotwal: So we decided to make it inclusive, the programme was open to anyone who wanted to join. I think basically what worked is using law as a key to get communities together. Whether you are Hindu or Muslim or Dalit...of course, being Muslim, we were at the time further victimized, much more victimized, but basically being poor or being marginalised, not aware of what your rights are, what your entitlements are, you are going to be at the receiving end of injustice. So part of that legal empowerment programme was your...rights vis-a-vis police, just preparing witnesses, making sure they knew what the next 5-7 years are going to be like. But the rest of it was just..how do you engage with the system, how do you dialogue, access your rights, what are your rights vis-a-vis the police, how do you...raising awareness of the various government schemes that were existing in Gujarat. And different laws, slowly the Right to Information act came up, that was a big tool in how that programme progressed. So it was just using these legal assistance, legal empowerment, getting these communities together to assist, take part and take the whole thing forward. I think in Gujarat, it is quite a small concentrated project in 2 areas. One district, but quite concentrated in that district. But now there are 2 citizens advice centres that have been set up. This is completely run by the community, and is comprised of Hindus, Muslims and I think the person who is really taking the lead on that is the person who has lost 17 members of his family in one attack. And, for someone who has lost practically everything. I mean, for me also, I cannot imagine what I would have done in such a situation. But if that person has followed the law, has taken...has gone through everything that was required to just make sure that he got justice in the end - and we did manage to get a conviction in that case- so he takes the lead in that whole programme. We've managed to get them to almost self sustain themselves, they've got community support, they've got lawyers who are assisting them, sitting with them in the citizen advice centres.
Nawaz Kotwal: It's no longer a Hindu - Muslim thing. Now it's just, anyone who is in need of any kind of awareness, any kind of assistance, is provided that assistance at the centres. And so it's various things, various strategies, sometimes they were planned, and sometimes they came up organically. So, I don't know if that answers your question. In terms of what it was like to work in Gujarat...it was awful, in Gujarat you have sweet food (I mean just on a lighter note). Basically, I think we went there at a time when the riots were at its worst. I have seen people who have lost everything, who have struggled, despite having lost everything, still having the hope that tomorrow will be better. For me, that was just...everytime I thought of giving up, I mean for me also it wasn't very easy because there were threats, some threats that were actually implemented, and different things..but each time I thought of giving up, I thought of the people who have lost so much and are still struggling, and I thought that I don't have the right to just give up. And...the last thing is how this Gujarat deal with the communal situation. I don't know if it deals with it, but just I think that thats how people...basically I think the survival instinct is there in people. So people are surviving, and trying to come up with new strategies. There is huge economic boycott, huge social boycott, but how Gujarat is coping with that...because I think the majority Gujarati is someone you really cannot talk with. Initially, in my first couple of years in Gujarat I would try very hard talking to them but now I have given up, I can't waste my energy on trying to explain to people who will just not listen. I know it's a little cynical, but I'm really looking at the very very micro things, really not getting into the larger communal conflict, not getting into that at all. I just wanted to concentrate on a very small area, I'm not aware of what's happening on the sides. It might be a wrong strategy but that's how I work.
Mihir Desai: I would just like to add to Nawaz said, which was quite refreshing, to hear what she was saying, in terms of strategies, you have a number of strategies, some of which counteract, some of which work, which you don't know really because you are going by trial and error at any given point of time. When things happen. Like I remember in the case of Zahira Sheikh. I mean first thing to remember about Zahira Sheikh's case is that the first person to be convicted in the Gujarat riots was a victim...and was put behind bars...she was put behind bars on account of perjury and things like that...but the point is when the issue came up, Zahira Sheikh's...the trial is already over. What she said is very important. To put it in slightly different words: what is most important is to intervene at the investigation stage. If you don't intervene at the investigation stage, then everything else doesn't really matter. Because by the time the case comes up for trial, everything is botched up, and you can have the best lawyers and the best witnesses, nothing will work. You have to ensure that at the investigation stage, things are properly dealt with. That's one thing. The second thing is that as far as the cases...it becomes important to have constant...we can't behave like normal lawyers, whenever the next date comes we'll go with the client to court then...that won't work in these kind of situations. You have to be in constant touch with the client. You cease to have a client lawyer relationship, which is fine. If it's unethical, it's unethical, and I have no problems with that.
Liberhans
witnesses
Mihir Desai:That's the reality. You cease to have a purely client-lawyer relationship with the person who you are dealing with. And that's the only way to build confidence, that's the only way you can take the case forward. There may be a time when the person feels - you may work on it for 5 years but at the end of 5 years, the person feels I want to compromise, I want to give up the case, and you have to respect that. Because ultimately it is that person's life that we are dealing with. So that...those kind of problems constantly occur. And it can be quite frustrating. Like I was telling you, just coming back to Zahira Sheikh's case. Trial was over, everybody had been acquitted. The question was, what do you do? How do you bring it...in the normal procedure you go to the higher court, the higher court will say in the trial all the witnesses have turned hostile, so what do we do? How do you get out of that? Only way to get out of it, at that time seemed, is to build huge media pressure. You bring it out in the open, publically, at the national level. Don't confine yourself...that was something that worked that time in Zahira Sheikh's case. Because it became a huge media thing, she came on TV, she talked to press people, saying yes I was threatened etc, the Supreme Court felt embarassed etc and did something. But the same kind of strategy would not have worked, for instance, in Bilkiss' case. Which was again a case that was transferred outside Gujarat into Bombay, where it was done at a very very low key level. Deliberately. In Zahira the mistake that was made was to put her as a witness after the retrial was ordered in Bombay at a much later stage than other witnesses.
Mihir Desai:By the time her turn came, already there were already pressures and pulls on her because of which she detracted. Bilkiss' decision it was clear that we put her up front as the first witness. Get it over with, so the pressures cease, and to do it at a very very low key level. So you have different strategies based on the different situations, which occur. Some may work, some may not work. But...there are no blue prints of strategies, they evolve, I guess, in the context of the particular situation. As far as the Liberhans Commission goes... I have not read the report as yet. Nor do I intend to read it fully. But the problem is that...it has taken what, 18-19 years. From whatever I have heard from people, who have read parts of it, it's not a very well logically argued report. That doesn't mean that I don't agree with some of their conclusions. But the point is...that this is what it seems. I have not read it so it is very difficult for me to comment on it. And at this belated stage, to what extent it can be used as a campaign document, I'm very very doubtful. After 18 years it becomes very difficult to use it as a campaign instrument. That's...except unless you are pushing that the people who are named should be prosecuted. Then it's a different...to that limited extent. But beyond that, in the larger context of the Ayodhya case and the communalization...you know...the society at that point of time. I don't know how much you can use it. That's all.
Deepu: Grandmothers...grandparents didn't use to wear pants. And now we wear pants. So it doesn't mean that...whatever my earlier generations have followed, we don't have to follow. We will have to understand here that there is an interaction of modernity, and whatever questions it has raised to the community. For example the way that our culture..whatever be the thing that are talking about..which has actually in a way sidelined these kind of identities. For example adivasi, the usage itself, in a common city or in way if you look at it in a different languages, like Kannada, Tamil etc...which is like saying, "why do you behave like an Adivasi?". It is something derogatory, you use like that. So these kinds of social identities are very important to these kind of marginalised communities. So there this asssertion of Hindutva, in terms of the new identity that has been given to them, actually contributes a lot. I will give one more example to it, just from Karnataka. That is, when the bhilava that is the Mukabira community, that is the fishing community, who is for example...the exclusion process that happened post 90s, in Mangalore...and it is a commerce centre...and you might never have noticed the fisherman. I mean he is just the fisherman, he has not been visible, he doesn't have any such kind of identities, of assertion in that particular economy or cultural sphere also. But today he has a new identity, an aggressive identity. He has been identified, not as a fisherman, but as a bajrang dal activist or a Shri Ram Sene activisit, which actually gives him much more social power.
social identity
Deepu: So this process, what globalization has contributed? Actually put us into crisis also. whatever be the way we are trying to give identities, to address this issue. Because I feel that it is a great challenge, which is right now in front of us, whenever we talk about facing challenges, because we have never identified this, for the last few years. For example we were talking about legal citizenship in a city, in a slum, we always ask about .... why the city...the Hindu Samajotsava...it is a big thing..Bangalore it is like a big thing for everybody. If you go and talk to them, it is one of the places, where they can celebrate those identities. Which is well within...it is much more an assertive situation which they are into. Like they are being Hindu...it's not like they are from morning to evening fighting with the police, every single person, to get space in this particular sphere. So this kind of need of identities also, like which globalization actually provided to these identities I feel...and secondly the question of...I was not very clear, one is about the ...how do we deal with it? That is the question that are facing, and I think that is the answer that we are searching for. There is a huge struggle which I feel that comes from...I really don't have an answer. That is why I started with, I am really confused. Because I know that this is the way you can do protest and this is the way you will have to fight an issue. But still it is a larger, social ...answers that we will have to find. Especially in Karnataka, I have been working for the last 8 years and mobilizing people...whatever be the thing that has been happening. I think I really don't have a clear answer, and I'm not ready to put equations in place, because that never worked out. Thank you.
Pad.ma requires JavaScript.
