“A huge compromise has been made by our so-called intellectuals.”

ICF speaks to Teesta Setalvad

It has been said time and again that the Indian courts, police, administration and law are not equipped to prevent communal riots. Many years after Gujarat, just before the BJP government came to power at the centre, we had similar kinds of “orchestrated sentiments” at play, in Muzaffarnagar for instance, where the Kisan Union was radicalised into a “Hindu outfit”, given a Hindu identity, with Amit Shah coming and other VHP leaders on the ground – we know what happened afterwards. How can we better equip the administration to prevent this, and deal with it effectively if it occurs?

You are right in saying Gujarat was not the only time we have had this kind of pogrom-like, targeted communal violence. I believe this began in the mid-1980s. Before that you would have communal violence where the bias of the police showed – in Bhiwandi in the 70s, to take one example, which the Justice Madan Commission report commented on. But since the mid-80s, with the start of the so called Ram Janmabhoomi movement, and L.K. Advani’s rath yatra, there was a series of bouts of communal violence, including in Hashimpura. Bhagalpur 1989, Aligarh, Moradabad, Bhopal, Ahmedabad 1992: these were, discernibly, pogroms against the minority in which the police took on a majoritarian, mob role; seemed to take on a Hindu identity.

Gujarat 2002 transgressed even these bounds, because of the complete involvement of the state. In 1984 in Delhi, during the anti-Sikh pogrom, you had select members of the Congress party inciting mobs, and senior police officers were also involved, but not the whole government. The Congress party was certainly involved, but not the entire government machinery.

Now, one of the things that came up after Gujarat 2002, as a result of the Concerned Citizens Tribunal report brought out by Justice Krishna Iyer and others, the recommendation was that there should be a law against mass crimes. This was one of the specific long-term recommendations of the tribunal. We need a prevention of mass crimes law which recognises the entrenched institutional bias and prejudice against minorities, comparable to the recently amended Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act.

It was a promise made in the Common Minimum Programme of the first United Progressive Alliance (UPA) government, where the Left was an ally: a similar law where religious minorities are also protected, hence the entire movement for prevention of communal violence, and justice and reparations. Several attempts were made – Citizens for Justice and Peace (CJP) had at least 20 consultations on it, as part of the National Advisory Council group on preparing the draft, but there was huge reluctance by the time the second UPA government assumed power.

After four or five drafts the National Advisory Council under Sonia Gandhi finally forwarded a draft to the Home Ministry for their consideration. But there was great hesitation, from the very party that promised it, to even table the bill and let future parliaments take it forward, as with the Lokpal Bill. We know it took forty years before we had an anti-corruption law, so this was not going to happen overnight. But if it had at least been tabled, it would have been possible to pick it up at a later stage. So far even that hasn't happened.

Is there a possibility it will happen?

Under this government?

Or in future…

If you think about the history of specific legislative moves, I suppose there will be a time when it is picked up again. But I can't see this government, which is a government of the perpetrators, being essentially interested in trying to further a law like that. In fact they openly opposed it at that earlier stage. It was opposed by both the RSS and the Gujarat government.

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On one hand, in 2011 amicus curiae Raju Ramachandran told the Supreme Court that there was enough evidence for Modi to at least face trial, but this was disregarded. On the other hand, former minister Maya Kodnani – promoted by Modi after the riots – was convicted by a special court in the Naroda Patiya case. In light of this, what kind of statutory mechanism would a draft bill propose, perhaps instituting procedures that would reduce discretion and kick in automatically?

The Zakia Jafri case was attempted to be filed in 2006; then you had the Supreme Court transfer it to the Special Investigation Team (SIT) in 2009. The SIT had already been constituted a year before to investigate the ten other cases we were handling – Gulberg, Naroda Patiya, Sardarpura, Mehsa, Ode and others. By 2010 they submit a report on the Zakia Jafri case saying there is no evidence. We contest that in the Supreme Court – Zakia Jafri and CJP were co-petitioners – saying no, there is enough evidence to prosecute.

When the courts see some sense in this, they ask Raju Ramachandran to give his independent assessment: the order says to bypass the SIT and independently evaluate whether there is indeed any material. On July 25 2011, he files a report saying there is enough material to prosecute Modi. Now, the SIT filed a closure report despite Raju Ramachandran's response, so we went back to the magistrate and filed a protest petition, arguing for six months, before it was finally dismissed by the magistrate in December 2013.

This is the decision we have appealled. Since then it is the SIT that has been delaying the appeal in the high court.  But the case is still open.

Coming to your question about future institutional mechanisms, the idea behind the proposed law is that in case of a breakdown of law and order of this magnitude, you need to have the district administration and the Superintendent of Police (SP) automatically held responsible. Vibhuti Narayan Rai, a senior police officer now better known for his book on Hashimpura, wrote his first book Sheher Mein Curfew on the Allahabad riots in the 1980s, when the rath yatra was at its height. He is one of the 10-15 senior police officers in India who have been saying repeatedly that a certain majoritarian communalism has crept into the police, misguiding its functioning. One section of the population is treated differently from the other, whereas in uniform you are not supposed to discriminate. A well-known line from the book is, “If within 24 hours a state riot is not controlled, it is because the state does not want it to be controlled.”

If you use that as a benchmark, then the SP or the District Magistrate (DM) – the SP being the police head and the DM head of the IAS – need to be held responsible if communal violence is not controlled: that is the presumption of such a law. These authorities would have to answer to the court as to why they didn't take certain steps which they were constitutionally obliged to.

Then there are issues about compensation: automatic compensation as a matter of statutory right, not given at the discretion of a particular government: this much to Sikhs, this much to Christians, this much to Muslims or this much to Dalits, or this much to Kashmiri Pandits – even they deserve it. The point is, if I am dispossessed of my property because of a breakdown of the rule of law, under a government duty-bound by the constitution to protect both my life and my property, then I must be compensated. That is the principle. So compensation is also sought to be statutorily granted under this law.

It is a question of administrative culpability, of holding the administration, police and political representatives responsible for their actions. So it could even be an elected member of the government. Maya Kodnani’s conviction is one of the biggest achievements after the Gujarat genocide, because for the first time in the history of communal violence in independent India we have managed, collectively, including in the faulty Gulberg verdict, to get 130 people convicted and sentenced to life imprisonment.

This is unprecedented: it never happened in 1984, it didn't happen in Bombay 1992-93, it didn't happen in Gujarat 1969, nor in the Nellie massacre in 1983. This tells you a few things; for one, that a robust citizen's group like the CJP, actually trying to push the envelope, can go by National Human Rights Council recommendations, approach the Supreme Court and ask that orders be issued.

[Also see Truth of Gujarat, a website set up by members of the Jan Sangharsh Manch.]

If the Supreme Court is persuaded to monitor trials, which in this case they did; if reasonably independent prosecutors are appointed – they were not, completely, because even the SIT became compromised at some point – then to some extent pressure can be maintained on the government. We managed these convictions: if none of these other factors had worked, even this much would not have happened.

Very few people know that since April-May 2004, I have had Central Industrial Security Force protection and guards – but 570 survivors living in Gujarat also have the same protection. So for the first time there is judicial acknowledgement that in the struggle for justice, survivors and witnesses need protection. We need a witness protection programme. This was also built into the proposed law, that once you have a mass crime of this magnitude you need to protect witnesses, because otherwise they are vulnerable, to threats, inducements, all sorts of things.

To turn to the cultural desecration that was a key part of the Gujarat genocide. Many mosques, dargahs and madrassas/madarsas were destroyed. One of us studied in a madrassa, and a senior there wrote a poem, “Kya tumne Gujarat ka manzar dekha hai / Kya tumne ek zakhmi kabootar dekha hai” [Have you seen Gujarat’s face? / Have you seen a wounded dove?]. There were riot survivors in some of the hostels, who had lost their families. The situation was such that only people at the madarsa would take care of them; they didn’t have anyone else. And afterwards, I no longer knew where they were, or what they were doing; they had no voice… When I was in Gujarat in 2015 – it was my first time there – I asked some locals about the city plan: what it looked like before 2002, and after. In some localities they said, “Jo tha woh kuchh bhi nahin hai” [Nothing that was there remains]. The lines were redrawn such that even those who wanted to see what it used to be like, couldn't. The city has been transformed, maybe to hide the pain, or maybe to increase the pangs. Could you comment?

As regards religious monuments and desecration, there is ample material. In fact there has also been a legal petition on this, both in the high court and the Supreme Court. The high court actually came out with a very sharp judgement, holding the government of Gujarat responsible for failing to protect religious and cultural shrines; all the details of the destroyed shrines are available there, if anyone wants to study this aspect. This judgement was then challenged by the Gujarat state government, because this was the time Modi was on his way to becoming prime minister. He was very hostile at the time. His basic stand was that the government would not repair the structures.

Now, in the Supreme Court there have been at least 13 hearings on the matter, and the government is vacillating, because Modi now wants to try presenting a different image. The day [in August 2015] he went to that mosque in Abu Dhabi, I remember writing, But what about this mosque? And we put up pictures of them; all the pictures are available in the public domain.

I personally believe that whether it is art historians or photographers – artists in general – they have also abandoned Gujarat. For the simple reason that they are all scared. Or in effect they are complicit, because they would much rather let these events be erased from our memories than confront a force we know to be vindictive. After Haren Pandya was killed, you have a litany of stuff happening. Then there’s Rahul Sharma, there’s R.B. Sreekumar and myself. So then people say, “Let’s lay off, let’s not get into this territory.”

So I think creative, academic, literary energies have been hugely compromised. All the questions are posed to those of us who are already doing too much. These are questions you need to ask your colleagues in the art fraternity: what have they done? How have senior Indian artists or art historians dealt with conflict zones? What have they done about Manipur? Nothing. What have they done about Kashmir? Besides Nilima Sheikh and a few other artists, nothing.

Art historians are themselves just as cowardly as any other academic in this country. They don’t really delve into conflict zones and “problem” areas. Vasudha Thozhur and maybe a few others have done work on Gujarat, but they are very few. And the questions do need to be asked, to the right quarters. Instead, it’s the same activists, the same academics and writers who are doing the work we’re doing, which is legal activism and journalism.

Even your second point, about surviving in different institutions: this is a fallout of any conflict situation. The deadline recently passed for admitted students to come and register themselves at five institutes in Delhi. Students from Kashmir, who had already secured admission, could not come. Despite the ongoing curfew, imposed by the government, under the RSS-BJP regime these enrolment deadlines were not extended. So it’s not just a question of Gujarat: we need to ask just how our institutions respond, if at all, to young people who are victims of a conflict.

There are not enough journalists going out there and posing such questions to the relevant authorities. We have an extremely compromised public discourse in India today, and a very compromised commercial media. Not to mention an “alternate media” which is really quite comfortable, and doesn’t ask these questions directly, where they should be asked – not just the government but also these institutions, these supposedly public spaces.

About the city plan: there is a law in operation in Ahmedabad which says that Hindus can’t sell properties to Muslims and vice versa. This is the Disturbed Areas Act, amended by the Gujarat government in 2009. Again, how many urban planners discuss it? Why should it be a question only for anti-communal activists? Shouldn't it be the concern of anybody committed to our composite, plural, secular culture? But which big names in architecture or urban planning, or in research institutions, are examining the issue or even talking about it? Nobody. I think a huge compromise has been made by our so-called intellectuals.

The concluding part of our interview with the longstanding civil rights activist and journalist.  You can read the first part here.

Disclaimer: The views expressed here are the author's personal views, and do not necessarily represent the views of Newsclick