11. Hindu-Muslim Conflict in the Subcontinent – Peace and Justice

11

Hindu—Muslim Conflict in the Subcontinent

Iqbal A. Ansari

The vision of a new South Asia needs to be inspired by the ideology of the human rights movement, whose two major concerns today are the pursuit of equality and celebration of diversity, ensuring effective enjoyment of the right to equality by all human individuals and groups, along with the right to preserve their distinct identity. Taking into consideration the worldwide reality that smaller communities, based on language, script, religion, or culture different from that of the dominant community are generally subjected to majoritarian pressure of assimilation, and its members are subjected to discrimination and exclusion, human rights norms require provision of special measures for ensuring a group’s right to be different yet equal.

These concerns found their indirect expression in the 1945 Charter of the United Nations, the Universal Declaration of Human Rights (UDHR), 1948, direct provision under Article 27 of the International Covenant on Civil and Political Rights (ICCPR), 1966, and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities,1992. Further, through the UN Human Rights Committee’s comment on Article 27 of the ICCPR, it has been clarified that ‘though rights protected under Article 27 are individual rights, they depend in turn on the ability of [a}minority group to maintain its culture, language and religion—Accordingly, positive measures by [the] State may also be necessary to protect the identity of a minority …’ The Committee further noted that protection of rights of minorities imposes specific obligations on states.1 Similarly Article 4(2) of the Declaration on Rights of Minorities requires states to create favourable conditions to enable minorities to express their characteristics.

These concerns have given rise to the idea of the multicultural state, inclusive democracy, and socially diverse composition of all institutions, especially those of governance, the armed forces and the law enforcement and justice systems, including the judiciary, as affirmed in the Durban Declaration and POA 2001.2

To be able to translate such a vision into South Asian reality, it would be necessary to rethink and reformulate the models of state-building and nation-building, transform power-centric governance into a citizen-centric one, reorganize the police, law enforcement and justice delivery systems to uphold the rule of law, and protect weak and vulnerable citizens and groups, especially during conflict situations.

However it must be borne in mind that all struggle for equality and justice to weaker sections and minorities through affirmative action are bound to generate conflict which on occasions may turn violent. Such conflicts may be between the state and the oppressed groups, or between the dominant and the deprived groups. In traditional societies like those of South Asia, the rule of law is a necessary but not sufficient condition for the vulnerable and deprived groups to secure their rights to live in peace, freedom, dignity, and equality. Such societies also require institutionalized mechanism of conflict prevention, management, and resolution.

Broad Contours of The Conflict

In the present chapter, an attempt has been made to examine the situation in India, Pakistan, and Bangladesh to see how best to promote inter-community and inter-state peace and conciliation, to create conditions favourable for equality and diversity to become attainable goals. It needs to be borne in mind that it is the variant, even conflicting readings and perceived wrongs of history, and differing concepts of nationhood and future aspirations of sections of Hindu and Muslim elites of British India who could not agree on a political formula of power-showing in a united India, that led to Partition. It again needs to be noted that the two wings of Pakistan could not remain united as the dominant group of Muslims in the western wing and Bengali Muslims with their distinct linguistic-ethnic identity could not agree on terms of power and resource-sharing. It needs to be kept in view that votaries of exclusivist Hindu Indian nationalism still swear by Akhand Bharat (united Hindu India) wherein Muslims and Christians will have to live on sufferance, without any claim to equal citizenship rights, and Sikhs, Jains, and Buddhists will accept their treatment as part of the larger Hindu fold.

In the subcontinent, part of the problem of issues of nationhood, culture and religion lies in the Hindu claim that it is not a religion but a way of life, and yet making the Census enumeration treat Hinduism as a religious category, which now includes not only members of Scheduled Castes but also tribals. A further difficulty arises from division of religions into indigenous and non-indigenous categories, creating a mindset which treats Muslims and Christians (Parsis, Bahais, and Jews do not matter) as aliens, in spite of their common Indian origin. Such duplicity about Hinduism not being a religion and yet being treated ‘as the general religion of India’ has been repeatedly taken recourse to by the apex court.3 Moreover the presidential order of 1950 on Scheduled Castes (SC) and its further amendments for inclusion of Sikh and Buddhists, but denying the SC benefits to Christian and Muslim Dalits is indicative of how the secular Indian state, its secular political parties and the highest judiciary endorse such categorization of religions into indigenous and non-indigenous ones.

At the level of civilizations, large sections of Hindus seem to harbour the sentiment that the land mass from Kabul to Cambodia is their natural ancestral domain, to which they make proprietorial claims, implying thereby that the status of Muslims of Afghanistan and Pakistan is that of usurpers caused by ‘illegitimate’ and ‘forced’ conversions.

A distorted communal reading of history has caused a special problem for present-day Indian Muslims. They are supposed to be perpetually in the dock. They are stigmatized and demonized for imagined wrongs of history, especially the Partition. Demonization of Christians has not been so pervasive, yet their image as followers of an ‘alien’ religion and as those who are engaged in converting vulnerable Hindu sections to Christianity—which may lead to demand for secession, or at least dilution of devotion to Bharat—is the source of victimization of Christians, especially their social workers.

How genuine is the Indian claim to being inheritors of long-established traditions of spirituality and peace as defining characteristics of its civilization, considering that the region has witnessed holocausts, wars, and massacres involving colossal loss of life, migration, and internal displacement of millions during the last 60 years? Was ancient India free from war and, oppression of the weak? This discrepancy between collective self-image and the unpalatable gory reality constitutes one of the difficulties to be surmounted in any attempt at building durable structures of peace in the region.

The conditions in which Pakistan came into existence, made its leadership apprehensive of India’s hopes of its liquidation. It was not only the champions of Hindu Akhand Bharat (united India) who sent out this message, but even secular democratic leaders of the Indian National Congress, including Nehru, did not try to make Pakistanis feel that India had wholeheartedly accepted, and had stakes in, its stability. Nehru is reported to have said in defence of his acceptance of Partition that ‘may be in this way we shall reach that united India sooner than otherwise’ (Menon 1957; Mosley 1961: 248).

This caused Jinnah to lament India’s propaganda that Pakistan was merely a temporary madness and that ‘Pakistan will have to come into the Union as a penitent, repentant, erring son’ (The Statesman 1947).

This perception of threat, awareness of vulnerability caused by the physical as well as ethnic separation of its eastern wing, and the dispute over Jammu and Kashmir leading to armed hostilities, persuaded the Pakistani elite to seek military aid and enter into regional defence alliances, which made India see red. Nehru raised an alarm over these Pakistani moves, characterizing it as waging war against India.

The adversarial relationship further deteriorated on account of the super power politics of the Cold War. The Pakistani leaders, who had offered a common defence with India in the wake of its military confrontation with China in 1962, waged a ware against India in 1965. The fiasco was not only expensive in terms of military costs, but helped intensify the Indo-Pak national and Hindu-Muslim communal divide over the entire region, whose worst victims were Indian Muslims, who were unofficially and on occasions officially treated as a suspect community in spite of the constitutional guarantee of their equal rights as citizens and their collective right to a distinct identity.

The culmination of this process of living not only as distant but estranged and hostile neighbours, was reached with the dismemberment of Pakistan in 1971, with overt Indian support. For the Pakistani elite, especially its army, the humiliating defeat in Dhaka confirmed their worst fears about Indian designs. The Simla Agreement of 1972 gave an opportunity to Pakistan to rethink its very ideological basis of existence in terms of religion-based nationalism and to get out of the obsession of completing the agenda of Partition by acquiring control over Kashmir, and normalize relations with its neighbour. The year 1971 had the potential of becoming a turning point in the history of the subcontinent, as the Hindu elite of all shades had felt reassured by ‘burying deep of Islamic militancy in India.4 But the path of reconciliation was not taken, one reason for which lay in the fact that Pakistan’s destiny at that time was presided over by a leader whose vision of his own destiny and of Pakistan inspired him with the ambition of not only resisting perceived Indian hegemonic designs, but to seek parity with India, on which subject he had made an eloquent speech in the UN General Assembly during the 1965 war. Bhutto prepared in 1972 the blueprint of what he characterized in civilizational terms an Islamic bomb. He was partly led into this course by his desire to escape being blackmailed by a nuclear India, a status which got confirmed by the 1974 Pokhran test. The search for hegemonic power by one and of parity of sorts by the other led eventually to Pokhran II and Chagai Hills. The ancestry of the Hindu search for power and Muslim search for parity can be traced back to post-1857 India.

In 1979, Soviet armed intervention in Afghanistan had set Pakistan and India on divergent courses, in spite of apparently persistent efforts of the Pakistani military ruler from 1980 onwards for a non-aggression pact with India and the latter’s offer of treaty of friendship, neither of which was motivated by any sense of the subcontinent’s shared destiny. Pakistan had a strategic interest in disengagement of its forces from its eastern border, and given India’s friendly relations with and dependence on Soviet Russia, it could not afford to antagonize or even embarrass it. It is this divergence and the too-deep involvement of Pakistan in Afghanistan’s jihadi resistance, and its synchronization with a set of circumstances in Jammu and Kashmir and India’s handling of the situation, that has changed the entire subcontinental scene.5 India’s refusal especially after Nehru to heed to any voice of sanity, like that of J.P. Narayan (1964a, 1964b) raised, in dealing with the fate of the people of Jammu and Kashmir led to their accumulated anger which found its militant expression since 1989–90. It found fertile soil to flourish because of the denial of right to Muslim groups in Kashmir to freely elect their own representatives in the State Assembly and the event synchronizing with the free flow of arms and jihadi ideology in the wake of armed resistance in Afghanistan.

The previous two decades have witnessed innumerable episodes of brutal acts of terrorism by Indian State’s forces including torture, custodial and encounter killings, disappearances and reprisal killings of innocent civilians and gang rape of women, indiscriminate acts of terrorist violence against innocent people by militant groups, and kidnapping and hostage taking of innocent people, including foreigners. It also witnessed mass migration of Kashmiri Pandits from the Valley bringing to the fore the communal dimension of the problem. In Jammu, militant attacks against innocent Hindus brought home the same message of communal hate.6 The armies of the two countries in full combat preparedness were deployed on the border, facing each other for months. There were occasions when the threat of use of nuclear weapons was resorted to. This longest period of tension and conflict activized Track II diplomacy and specialized studies focusing on the resolution of Jammu and Kashmir problem, which is considered, especially by the Pakistani elite, as the key issue whose satisfactory resolution would lead to an era of permanent peace in the region. Fortunately, a structured composite peace process is under way since 2004, which, one hopes, has the potential to become irreversible. But unfortunately, in both India and Pakistan, there have not been any significant initiatives by civil society to push the process forward. In this regard, the lack of any positive response by the political parties in India to President Parvez Musharraf’s offer to resolve the dispute, by accommodating India’s major concerns of no change of boundaries and no religious divisions, is not understandable. Obviously, the centrist and leftist political classes are opportunistically, silently watching the scene, while extremists in both countries are waiting in the wings. It needs to be recalled that it was not L.K. Advani’s remarks about M.A. Jinnah that had sent shock wave among Hindu (nationalists), but his declaration of Pakistan’s right to independent existence, that is, the negation of the RSS ideal of Akhand Bharat. However, it gives some hope that during the Lahore Summit A.B. Vajpayee paid a visit to Minar-e-Pakistan, which must have been reassuring to Pakistanis; and also the fact that it was he who started the composite peace process in 2004.

Historical Distortions

The question has often been raised from the Nehru era till date as to whether Kashmir is the key problem or the symptom of the problem of mindset, which has been responsible for partition of minds and lands, and of shared history and culture of a people? Is there a clash of civilization at the heart of all this continually conflicting state of existence of such vast sections of people? The question acquires greater validity and force when we find that the creation of Pakistan instead of solving British India’s Hindu-Muslim problem aggravated it, leaving behind after Partition a larger number of Muslims in India than are there in Pakistan Muslims as a suspect and marginalized community in India, periodically subjected to violence whose justification by extremist sections of Hindus is sought in the perceived wrongs of history not only of British India and Partition, but of the whole period of medieval India when Muslim dynasties ruled over the country. These rulers are supposed to have been responsible for destroying temples and ravaging the modesty of Hindu women, and for forced conversion of Kafir Hindus to Islam. The significant point that is not generally taken note of is the indigenous stock of the overwhelming majority of Indian Muslims whose ancestors after embracing Islam did not enjoy any share in power, which was the exclusive domain of the nobility from the alien lands and of the collaborating Hindu castes.

The idea of the ghost of ‘wrongs of history’, of a thousand years becoming a potent factor influencing the present lot of living humans, is traceable to British administrator-historians who, in the wake of the 1857 revolt, perceiving Muslims as the greater destabilizing force, encouraged Hindus in reviving the memory of a golden era of ancient Indian history which was destroyed by Muslim rulers. This venture of history-writing was avowedly motivated by the policy of ‘divide and rule’ which alone could ensure the survival of British colonial rule in India.7 This led sections among them to subsequently encourage Muslims to develop an exaggerated fear of their interests not getting adequately protected if the newly formed Indian National Congress succeeded in having its way.

However, the entire range, direction and varying intensity of Hindu-Muslim conflict in the 19th century and the first four decades of the 20th century cannot be explained only in terms of British ‘divide and rule’ policy, and machinations and manipulations, including the introduction of separate electorates. Independent of the British policy, during the earlier decades, sections of Hindus and Muslims had been envisioning their separate destinies in exclusivist, revivalist terms. Even sections of the modern educated elites of the two communities familiar with secular democratic parlance, were motivated and inspired by visions of Hindu and Muslim cultural aspirations which, though not conceived in revivalist terms, had characteristics very distinct from the other, some of which were traceable to the differences in the two religious traditions. Though part of the post-1857 Hindu-Muslim conflict (during its phases after the formation of the Indian National Congress in 1885, the Muslim League in 1906 and the Hindu Mahasabha, the Arya Samaj and other social, cultural and political organizations of the two communities) can be traced largely to a clash of political and economic interests—described by sociologists as intra-and inter-community elite competition for control over power and resources—viewing the entire conflict over identity-related issues as a mere tool for mass mobilization is a dangerous oversimplification which distorts reality. All the identity-related issues like cow protection, religious conversion, Urdu script, religious processions, Vande Mataram, and sanctity of holy places and personages, which were dexterously used for political mobilization of Hindus and Muslims, had each a genuine core which had the capacity to move millions.

It is unfortunate that a modernist Nehru influenced by Western secular modernization and socialist thought and practice had a dismissive attitude to identity-related issues. Mahatma Gandhi, whose discourse and idiom was avowedly Hindu (though with a humane spiritual interpretation) and who conceived of resolution of communal conflict by taking recourse to the concept of unity of all relig ions under the slogan of Ram–Rahim, failed to touch the imagination of both the communities.

Hindus and Muslims with a long shared history of living together could have succeeded in evolving a model of government, society, and culture with institutional arrangements accommodating both the distinct sectional and common national values, aspirations, and interests under law and convention, and by consensual agreements. But it is the Westminster model of electoral system that scared a person like Sir Syed Ahmad Khan, who is supposed to be the originator of the idea of Muslim nationalism. The Hindu numerical dominance in representative institutions would, he thought, be used to settle old historical scores with Muslims, of which he had had a bitter taste in the Hindu elite’s desire to replace Persian script by Nagri, and glimpses of which were discernible in the Hindu revivalist movements, which were perceived as anti-Muslim and which had caused periodic riots (Barrier 1976).

One is struck by the lack of any creative attempt to evolve some consociational democratic model of not only power-sharing under the proportional representation (PR) electoral system, coalition form of government, quota in services, equitable allocation of national resources and state benefits, but also of sectoral, cultural autonomy and mutual veto within a federal polity, which could have kept a multicultural country together. The Motilal Nehru Report of 1928 made the following significant observation: ‘We have no doubt that proportional representation will in future be the solution of our (communal) problem. It offers the only rational and just way of meeting the fears and claims of various communities’ (Siddique 1993: 26–33). But the report did not recommend the PR system, for lack of consensus as to its workability.

A history of political constitutional developments in the period 1927 to 1946 makes one feel that the Hindu elite’s preference for a strong centralized state of India, based on what the Congress resolutions reiterated as ‘pure undiluted nationalism’8 over a loose federal state wherein accommodation had to be made for other entities, did contribute to Partition becoming a reality. The post-1947 experiment within India, of managing its diversity, has however convinced every one that conceiving the idea of India in terms of ‘pure undiluted nationalism’ was not workable. It is significant to note that during the concluding part of the debate on the Advisory Committee’s Report on Minority Rights in the Constituent Assembly in August 1947, Dr S. Radhakrishnan said that ‘it is our ideal to develop a homogeneous democratic State’. The goal, he declared, was to put an end to ‘the disruptive elements’.9 It is this conflict over idea of India as a nation-state—its first experiment in history—which tore it apart. From Sir Syed to Bhutto, the Muslim elite’s search for parity with Hindu India also contributed to the sorry denouement. Within the remainder of India, the realization sank quite early in the consciousness of the intellectual and political classes that we were not already a nation, but one in the making. But the process has not been as smooth and as it could have been, if the conception of India’s unity in diversity had been allowed to unfold its implications in a plural humanistic framework, which required as a prerequisite a humane citizen-centric governance, rule of law and observance of human rights norms, and an inclusive polity, making the composition of all institutions socially diverse.

Muslim Conflict

We will now consider how Muslims have been treated and examine why pre-Independence Hindu-Muslim conflict has yet not been resolved and suggest measures for doing so.

Settling old scores with Muslims and putting them in their proper place started with the process of framing of the Constitution. Though Mahavir Tyagi’s proposal to make the rights of minorities in India dependent on how Pakistan treated its minorities (Michiko and Panjatan 1975) was rejected by Ambedkar, the Partition did cast its shadow over the course of the framing of the Constitution with regard to minorities. For example, safeguards for political and economic rights, provided for in the earlier phase and written into the Draft Constitution were finally unceremoniously scrapped.10 The demand for the right of a child to receive primary education in the mother tongue, unanimously voiced by Muslim members, was not provided for in the Constitution, because G.B. Pant maintained that having separate Urdu sections in schools would cost the exchequer a lot of money. Moreover he maintained that Urdu was no different from Hindi and that those who were keen on their children learning Urdu could send them to madrasas (CAD, Vol. V, p. 283) The promise of Article 29(1) to sections of citizens having distinct language and script to conserve it, has consequently remained a teasing illusion, at least for users of Urdu. During the debate a staunch nationalist Muslim like Hasrat Mohani was told to go to Pakistan, when he made a fervent plea for Urdu language. Articles 347 and 350(A) providing for the use of minority languages for official and instructional purposes are discretionary and not mandatory in nature which makes the status of all minority languages, not only Urdu, very vulnerable. Though some states like Bihar, Andhra Pradesh, Maharashtra, and Himachal Pradesh have made provision for the official use of Urdu for specified purposes, the demand for making it the second official language in UP has not only remained unfulfilled, it has been causing communal tension and violence.

About the first major communal riots in 1961 in Jabalpur, Prime Minister Nehru held the opinion that they were pre-planned. The failure of the police in intelligence-gathering for prevention of violence, and subsequently in investigation and prosecution which resulted in acquittal of the rioters, has been noted by Justice Shiv Dayal Shrivastava who inquired into the riots at Jabalpur, Sagar, Damoh, and Narsimhapur in February 1961. The riots are reported to have shaken Nehru. A National Integration Committee was constituted, which recommended, among others things, that the district administration should be held responsible for failure to maintain peace and appropriate action to be taken. In 1968 the National Integration Council (NIC) made the recommendation that ‘failure to take prompt and effective action should be considered a dereliction of duty and officers concerned should be dealt with accordingly. Service rules should be amended, if necessary’. The 1961 NIC had made a significant recommendation to suitably amend Section 153(A) of the IPC for its effective enforcement for prevention and prosecution of hate speech. That these recommendations were not taken seriously is obvious from the observations of the Dayal Commission Report on riots in Ranchi, Sholapur, Malegaon, and other places in 1967 that ‘the general impression has been that either there was no police force to deal with the mischief makers or it had direction not to act’. (CAD, Vol III, p. 505).

My investigation into the 1969 Ahmedabad riots revealed how the accidental hitting of the panel of the temple during a brawl between the Hindu sadhus and Muslim boys was used to create an association with the destruction of Somnath temple by Mahmood Ghazni about a thousand years ago. The local Dharm Raksha Samiti and Hindu Sangram Samiti which campaigned for retaliation reminded Hindus of the historical role of Muslims as destroyers of temples, and that Hindu Dharma again faced a threat from the Muslims. One of the leaflets published by Hindu Sangram Samiti stated:

Muslims have meanly attacked Ahmedabad’s famous Jagannath Temple and desecrated its idols. Muslims are repeating history. Their main aim is not only to destroy the maximum possible Hindu temples but to destroy Hindu religion and culture and to convert Hindus to Islam. (The Hindu youth must) avenge the insult to our Temples and ladies and rush to Muslim areas with weapons and finish them.11

Apart from the exhumation of a thousand year old ‘history’, the neighbouring Pakistan was a living presence in the minds of people who had been warned of imminent attack from that country in Gujarat and Rajasthan by the Jana Sangh leader Balraj Madhok while addressing the Rifle Training Club on 14 September 1969. The ensuing violence apart from taking a very heavy human toll destroyed a large number of Muslim mosques.

In Baroda, another city affected by communal violence in 1969, a slogan on the wall asked Muslims to ‘Quit India’. A number of posters appeared, appealing to Hindus to subject Muslims to complete social and economic boycott, a repeat of which happened in 2002. The then military ruler of Pakistan Gen. Yahya Khan publicly said that he had ordered his men to seal the border with India against any infiltration of Muslim refugees. He, however, exploited the events of 1969 to deny any official presence of the Indian Muslim delegation in the Rabat Conference of the Organization of Islamic Conference.

The partisan role of the police during the initial phase of the massacre in 1969, derived from what the Asia Watch Report on Gujarat 2002 has used as its title: ‘We Have No Orders To Save You’. The author’s own inquiry into this first large-scale pogrom against Muslims in 1969 revealed that the police connivance and complicity was partly caused by the communal bias of the police personnel, and largely by its dependence on policy directions from the political executive. Similarly, Ajit Bhattacharjea’s report on Ahmedabad (Bhattacharya 1969) does not attribute police inaction for the first three days of rioting, during which maximum loss of life and property took place, to its slackness but to the policy of the secular Congress Government based on its cynical electoral calculations. His conversation with Congress leaders revealed that they believed that if the government had given directions to the police to act tough with the rioters, it might have lost the next elections to the Jana Sangh. No prosecution was lodged against those who had distributed handbills inciting people to violence in the name of protection of dharma. Justice D.P Madon Commission which inquired into riots in Bhiwandi, Jalgaon, and Mahad in 1970 reported a more blatant communal bias against Muslims in the entire law-enforcement machinery, from intelligence-gathering to investigation and prosecution (Noorani 1997: 6–7).

That the police in India does not function as an impartial law enforcement agency, but as a subordinate body to enforce the policies of the government of the day was noted by the National Police Commission (NPC) in its Reports (1978–81) which it attributed to the continuation of 1861 Police Act whose command-control system oriented it as a ruler-appointed body. The NPC made the recommendation to reorganize the police to enable it to function independently of the governmental policy, accountable to law. The recommendations, earlier endorsed by the National Human Rights Commission (NHRC), the National Commission for Minorities (NCM) Report (Ansari 1970) perpared by the author, and by several human rights organization, now constitute the basis of the direction of the Supreme Court on 22 September 2006 for state and central governments to enact laws to make the police functioning under State Security Commissions independent and accountable. The Government of India constituted a Police Act Drafting Committee headed by Soli J. Sorabjee whose Model Police Act came out in October 2006. It needs to be noted that though the NPC had dealt with the issue of policing communal riots quite objectively in Chapter VI (1981), the communally biased attitude of the police personnel and the inadequate representation of minorities in the system did not figure in the public interest litigation (PIL) which resulted in the Supreme Court’s direction. It is well that the Police Act Drafting Committee did take due note of the special need for the protection of weaker sections and minorities, especially during conflict situations. Its recommendations also include making the composition of all wings of the police system socially diverse. Unfortunately there does not appear to be any serious concern in the civil society and political parties to get the recommendations of the Model Police Act under the direction of the Supreme Court implemented. It is one of those long awaited measures without which we cannot have even the semblance of rule of law in the country.

Apart from the politics of Ram Mandir, Uniform Civil Code, Conversion and other ethno-religious identity issues, it is this fragility of the institutional mechanism of the rule of law that has proved disastrous for Hindu—Muslim, Hindu—Sikh, and Hindu—Christian relations. The butchery of 3,000 innocent Sikhs in 1984 in Delhi owes to this system of policing. Dara Singh, the killer of Graham Staines and his two sons was emboldened into committing the heinous crime, because he was not brought to justice for his earlier anti-Muslim criminal acts. The demolition of Babri Masjid happened because the district administration and the police carried out the partisan orders of the chief minister, disregarding their duty under law.

The system of justice delivery is no less to blame for encouraging a pervasive climate of impunity in the country. It does not only suffer from delay, but from distortion and miscarriage of justice. And instead of showing any sensitivity and healthy activism in communally sensitive and riot-related cases, it has on occasions given the impression of acting under pressure of circumstances. The Ayodhya-related cases, especially the 1949 attachment order and the 1986 order for opening of the gate, have been perceived as acts of judicial complicity with the executive, as claimed in the BJP’s White Paper on Ayodhya and the Rama Temple Movement. (White Paper on Ayodhya 1993: 155). Hindu religious leaders have publicly claimed that it was at their behest that Rajiv Gandhi got the lock of the gate opened for political considerations (Madon 1970: 293–328). It is this partisan policing and an unresponsive justice system incapable of delivery of prompt untainted justice that has given encouragement to hate speech and hate crimes, and it is this impunity which is a major source of recurrence of communal and other inter-group violence in India.

Those who have been analysing riots mainly in terms of the sociological and economic factors related to the places where riots occur and try to understand pattern of community relations favourable as well as unfavourable for riots, do throw light on some facilitating micro-level factors. But a majority of anti-minority riots in Independent India have been caused because of the macro political agenda of certain organizations, which get successfully implemented because of the politically supported official connivance/complicity of the law-enforcement system.

Given our holistic understanding of the phenomenon of communal violence what is required is a two-pronged approach involving the establishment of institutional mechanisms of rule of law and tackling the aggressive ideology of exclusive Hindu militant nationalism and Muslim jihad at social, ethical, and political levels. For example, by having a more effective law to prevent and punish hate speech, without abridgment of the right to freedom of speech, and a law on the rights of victims of all public violence as required by human rights standards, and a law and procedure to fix official responsibility for acts and omissions that lead to failure of governance causing loss of life, dignity, and property, most communal violence can be prevented and controlled without much damage. It is the enactment of one such law that was recommended by the Delhi High Court in the judgment delivered by Justice Anil Dev Singh on 5 July 1996 on the rights of victims of 1984 anti-Sikh carnage (Report on Communal Riots: Prevention And Control 1999) which was not pursued by any political party or human rights group because of their preoccupation with secularism and sadbhavna. To be able to use these legal mechanisms effectively it is required that the personnel of law-enforcement machinery are not communalized in their attitudes and composition. Making the composition of the governance system socially diverse and free from biases should receive priority in the scheme of reforms, as recommended by the Durban Declaration & Prevention of Atrocities, 2001.

Most of these reform measures have already been suggested in the reports of the NIC (1961, 1968), NPC (1978–81), the NHRC (1994, 2002), the NCM (1999) and the Union Home Ministry Guidelines (1997). The most comprehensive is the Report of the Concerned Citizens’ Tribunal on Gujarat Report (2002). The author’s own report (1999) commissioned by the NCM, which paid special attention to preventive measures and on the rights of victims to compensation and rehabilitation, which the commission adopted in 1999 and sent to the government for implementation, has not been even laid before the Parliament yet.

It is again unfortunate that though the bill on Communal Violence, Prevention, Control and Rehabilitation of Victims Bill, 2005 does have certain positive features, it fails to make the crucial provision for the accountability of the state actors, including the political executive, the administration and the police, whose acts and omissions lead to the outbreak and continuation of violence.

Laws and Communal Politics: An Overview

In a traditional society like India, allowance has, however to be made for the fact that contentious ethno-religious issues like Ayodhya, cow, conversion, Vande Mataram, and Urdu which have been a source of communal conflict for more than a century and a half, are such that they cannot be left to be resolved by law alone. The rule of law is a necessary but not sufficient condition for durable communal peace. It requires civil society initiative to bring about conciliation through dialogue between the parties in an atmosphere of trust, mutual respect, and accommodation. A South African court, while giving its decision on a dispute between Christians and Muslims on the issue of the use of amplifiers for azan, ruled that while the Muslims had a right to use amplifiers for azan, the timing and volume had to be settled by community leaders themselves. In such issues, there is a role for law and a role for dialogue. Without protection of law the weaker party will have to submit to the dictates of the strong; but the absence of mechanisms of dialogue will make the parties unable to work out a win-win solution which gives better mutual satisfaction and yields peace dividends, especially for the weaker party.

It is the absence of both,a firm institutional mechanism of rule of law and of dialogue that has caused the crisis of communal conflict, violence, and the consequent terrorism in India. It should, however, be realized that there cannot be any meaningful dialogue between the hate-mongering tormentors who have been threatening to impose their majoritarian will in defiance of law, and the oppressed weaker party which feels hurt and humiliated. To be able to understand the requisites of a successful dialogue, the background of two decades of confrontation over the politics of identity needs to be clearly grasped.

The communal-conflict situation in India today, which peaked during 1990–92 in Ayodhya and in 2002 in Gujarat, started in 1981 in the wake of the mass conversion to Islam of a few hundred former untouchables in Meenakshipuram in Tamil Nadu. It is this event which seems to have revived and intensified the sense of siege which Hindus have been nursing since the publication of census data in 1881, showing a gradual decline in their population. The event made almost entire Hindu India, including Prime Minister Indira Gandhi, to sit up and take stock of things. It set the Vishwa Hindu Parishad (VHP) upon a determined course of consolidation of Hindus for protection of their interest and to check perceived Muslim assertiveness. This was the time when the VHP started Hindu mobilization over Ayodhya, which got intensified by what appeared to be a secular Congress Government’s continuing appeasement of Muslims by enacting a law on Muslim Women (Protection of Rights on Divorce) 1986, in accordance with Islamic shariah. The period of the 1980s, in the wider Indo-Pak context, has had a bearing on intensifying the Hindu sense of siege and threat from Islam and Muslims. Violent militancy in Kashmir has further aggravated the situation.

Though issues like Ayodhya, cow, conversion, Vande Mataram and personal law, which have been politically exploited for Hindu consolidation in pursuit of an agenda based on an exclusionist concept of nationhood and a communalized mythic reading of history, are seriously undermining the growth of a plural multicultural democratic society and polity in India based on human rights norms, none of these issues has been artificially created by the Sangh Parivar. They have been around for a long time. During phases of the freedom movement also they were politically exploited. But this should not make us take a dismissive attitude in the name of secularism. We must not ignore the fact that Article 48 of the Constitution does specially prohibit the slaughter of cow and calf, though in the name of scientific animal husbandry, and state laws providing for such a prohibition have been upheld by the apex court, secularism and minority rights notwithstanding.

Irrespective of the legality of law on cow slaughter, the point to be borne in mind is that it reflects the strong religious sentiments of large sections of the people. It leads us to the conclusion that there is a ‘political cow’ and there is ‘a sacred cow’. Those who are promoting communal peace and harmony need to pay due regard to and accommodate communitarian values and usages, which are not violative of human rights norms. As in the case of cow, there is a political Rama, as admitted by L.K. Advani in his deposition before Liberhan Commission, and there is a sacred Rama. To be able to effectively deal with the political Rama peace-makers will have to accommodate the sacred Rama.

The loss of Urdu script by its users (who happen to be largely Muslims) is a genuine grievance. Fear of cultural assimilation as well as disregard of the religious norms regarding regulation of relations in the family, are genuine grounds for Muslim opposition to a Uniform Civil Code. Moreover, from a purely humanistic perspective, cultural pluralism validates legal pluralism in family laws, provided the valid concerns regarding gender justice are addressed. It is not for the state to decide whether divorce should be easy or difficult. Ultimately it is a matter of cultural choice. However, it is for the state to see that the right to cultural autonomy is exercised in a manner consistent with the norms of equity and justice for all parties, especially women. Instead of seeking to enforce uniform norms and laws in the culture-bound area of family life for all communities, a secular state should endeavour to ensure the observance of norms of justice for women of all communities, making due allowances for cultural diversity.

Conciliation over contentious communal issues is required so that they are not politically exploited for electoral gains. It would require dialogue among sections of communities; a dialogue which respects equal rights of all citizens and group rights of identity-based communities, and is committed to the rule of law and non-recourse to hate speech and violence. Apart from civil-society initiatives for the promotion of conciliation through dialogue, under conditions of trust and protection of law, there is a need for an empowered statutory Community Relations Commission (CRC) for the study, monitoring and prevention, and resolution of all inter-group conflicts based on religion, language, or ethnicity. In a country of India’s diversity, with its historical baggage and contemporary sources of conflict, such a commission, and not the ad hoc National Integration Council without any mandate or structure for research and monitoring, is required to promote social harmony, peace, and stability. The recommendation for such a CRC was made by the author’s NCM Report on Communal Riots (1999). It combines the role of dialogue and rule of law. In the event of any agreement between parties to a dispute the CRC, with its regional and local branches working in liaison with NGOs, will be responsible for enforcement of the terms of the agreement. In the event of failure of dialogue or breach of terms of agreement, the CRC will be empowered to initiate legal action against the erring party, including under the reformed provisions on hate speech. The CRC will be assisted by special intelligence units and special prosecutors. It will have a say in the appointment of the inquiry commission probing the causes of failure of governance and for fixing responsibility. The commission’s apex advisory council will have representatives of all political parties, eminent publicists, and intellectuals appointed by a procedure ensuring independence from the government of the day. The present NIC may perform this function.

The CRC may consider taking appropriate measures if and when considered advisable by consenting communities and when the advisory council feels that it would produce greater and more lasting peace and justice. It may also get ad hoc tribunals constituted under law for arbitration over sensitive intractable ethno-religious issues like Ayodhya, Kashi and Mathura.

Appeals for Peace in the Region

In the area of a regional mechanism for peace-building in India Pakistan-Bangladesh what is required is the adoption of the SAARC Human Rights Convention and institutions. Instead of thinking in terms of an Indo-Pak confederation or entering into no-war pacts, the European Union should be kept as a model for the SAARC to adopt a regional human rights convention, and special instruments and bilateral/multilateral treaties on the rights of minorities, refugees, migrant workers, prisoners, asylum-seekers,and members of divided families, with a provision for SAARC commissioners for human rights, minorities and non-citizens and SAARC Human Rights Courts. Special attention needs to be given to providing mechanisms for harmonization of security concerns of each member state and also for the resolution of inter-state disputes.

The SAARC Charter adopted at Dhaka on 8 December 1985 is based on recognition of, among other things, the desire for promotion of peace, stability, and amity in the region. The Dhaka Declaration adopted by heads of governments in 1985 makes it more explicit that ‘they were conscious that peace and security was an essential pre-requisite for the realization of this objective’ that is, of promotion of the welfare and prosperity of the peoples. The charter also takes due cognizance of the fact ‘that in an increasingly interdependent world the objectives of peace, freedom, social justice and economic prosperity are best achieved by mutual understanding, good neighbourly relations and meaningful cooperation among the countries of South Asia which are bound by ties of history and culture’.

In view of this, it would be appropriate to include in the charter, the objective of promotion of peace in the region and protection of human rights. Disputes among neighbours are bound to arise. If recourse to war is to be replaced by the rule of law in international relations, the parties to a dispute must be willing to be subjected to the process of not only bilateral dialogue but also adjudication, arbitration, and reconciliation through third-party mediation. It does not make any sense to treat bilateral negotiation as the only civilized and lawful method of resolving any dispute between any two parties, individuals, groups, or nations. In this regard, priority needs to be given to a multilateral SAARC treaty on use of force in settling disputes, international or domestic, based on the Four Geneva Conventions (1949) and Optional Protocols. If pursued with genuine commitment to peace it will bring to an end all acts of indiscriminate and unlawful use of force in the region. Efforts have been made to adopt and campaign for the enforcement of a Citizens’ Declaration on the Protection of Innocents in all Situations of Use of Force, on the lines of the humanitarian law on armed conflicts. Instead of separately labelling events as terrorism, communal riots, or killings by the police, it declares all such use of force by all parties to be illegal and unethical, where the intended or unintended victims are uninvolved innocent persons, especially children, women, old and disabled people.

The Inter Community Peace Initiative which was constituted in 2001 to promote peaceful resolution of conflicts has started a campaign called Shanti Pahal. It appeals to people to pay heed to the ethical norms and religious teachings of all communities, distinguish between combatants and non-combatants, and especially spare children, women, old people, and worshippers, if recourse to force is taken in defence of one’s right to life, dignity, and freedom. Efforts in this direction have elicited fairly good response from all sections of people including leaders of ‘azadi’ in Srinagar.

 

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