From the SelectedWorks of Saumya Uma January 2010 Kandhamal: The Law Must Change its Course Contact Start Your Own Notify Me Author SelectedWorks of New Work Available at: http://works.bepress.com/saumyauma/31 KANDHAMAL The Law Must Change its Course Vrinda Grover (ed.) Vrinda Grover Must Change its Course The Law KANDHAMAL KANDHAMAL The Law Must Change its Course Research and Writing by Saumya Uma Edited by Vrinda Grover The tragedy of Kandhamal is that the attack on the Christian community was familiar and the subsequent failure of the legal system to accord justice to the victim-survivors predictable. This book critically examines the patterns of impunity as they unfold in Kandhamal. There is today a vibrant debate seeking legal reform to ensure accountability for mass crimes by extending culpability to those who sponsor and profit from the carnage. Rooted in the firm belief that without justice there can be no peace, this book seeks to contribute to the effort to forge new legal tools to alter patterns of continuing injustice and rampant impunity. Multiple Action Research Group KANDHAMAL The Law Must Change its Course Research and Writing by Saumya Uma Edited by Vrinda Grover KANDHAMAL The Law Must Change its Course KANDHAMAL The Law Must Change its Course Research and Writing by Saumya Uma Edited by Vrinda Grover First Edition, 2010 Published by Multiple Action Research Group 205-206, 2nd Floor Shahpur Jat, New Delhi -110049. Tel: 91-11-26497483/26496925 Fax: 91-11-26495371 E-mail: [email protected] Website: www.ngo-marg.org © Multiple Action Research Group, 2010 Material from this book may be used, duly acknowledging the source Multiple Action ISBN: 978-81-87377-19-1 Research Group Cover Photo: Courtesy Tehelka, Garima Jain Printing: Printexcell MATRIX, New Delhi. Design: Sherna Dastur SUPPORTED BY Supported by: Embassy of the Kingdom of the Netherlands, New Delhi Embassy of the Kingdom of the Netherlands, New Delhi & Commonwealth Human Rights Initiative (CHRI) & Commonwealth Human Rights Initiative (CHRI) Table of Contents Preface 6 Annexures 168 Acknowledgements 8 ANNEXURE I Summary of Interviews & Focussed Group Discussions Conducted by MARG among List of Abbreviations 10 Victim-Survivors 170 ANNEXURE II Map of Kandhamal marking the Route taken by the I INTRODUCTION 13 Funeral Procession of Lakshmanananda Saraswati 177 II FREEDOM O F RELIGION IN THE CONTEXT O F ANNEXURE III Orissa Government’s Order Related To Relief VIOLENCE IN KANDHAMAL 23 & Rehabilitation 178 ANNEXURE IV Report of National Commission Of Minorities, III ROLE O F THE STATE IN PREVENTING VIOLATION S , September 2008 179 PROTECTING & RE sp ECTING HUMAN RIGHT S 46 ANNEXURE V Extracts From Bhajan Kaur vs. Delhi Administration (ILR 1996 Delhi 754) 188 IV ROLE O F THE STATE IN PROVIDING RELIE F , REHABILITATION & RE P ARATION S 68 ANNEXURE VI Extracts From National Human Rights Commission vs. State Of Arunachal Pradesh (1996 SCC (1) 742) 191 v THE CONTOUR S O F LAW & JU S TICE 92 ANNEXURE VII Extracts From the Report Of U.N. Special Rapporteur On Freedom Of Religion Or Belief, vi GA ps IN INDIAN LEGAL JURI sp RUDENCE 120 Mission To India, 26 January 2009 192 vii AN AGENDA F OR RE F ORM 154 Glossary 198 Constitution been abandoned in Kandhamal? The photographs appearing in this book were taken during this trip. They bear silent testimony to the real meaning of the ‘normalcy’ and ‘peace’ that supposedly prevails in Kandhamal. preface The tragedy of Kandhamal is that the attack on the Christian community did not surprise anyone and further more, that the subsequent failure of the legal system to accord justice to the victim – survivors was predictable. Despite warning signals that concerted communal mobilization was underway for almost two decades in Orissa, no preventive measures were taken to secure life and property. Perhaps governance was guided by lessons learnt from India’s contemporary history - one of which appears to be that communal killings are expected to pay rich electoral dividends. The failure of the criminal justice system to punish those who planned the killing and destruction in Kandhamal has left a deep sense of injustice and discrimination. The state’s failure to provide It takes approximately five to six hours travel by road to reach Kandhamal adequate reparation to the victim-survivors and their cruel abandonment has from Bhubneshwar, the capital of Orissa. A remote and barely known district deepened this alienation. of Orissa, it received national and international attention on account of the anti Christian violence of 2007 and again in August 2008. On my first visit The Nellie massacre of 1983; the anti Sikh pogroms of 1984; the Bhagalpur riots to Kandhamal, what struck me was the abject poverty of the majority of its of 1989; the anti Muslim violence in Mumbai in 1992; the genocidal attack on population. The Dalit Christians Panas and the Kandha tribals both counted the Muslims of Gujarat in 2002; and now the Kandhamal attack on Christians, amongst the poorest and most marginalized citizens. It is a shame that after 60 indicates that mass crimes committed with overt or covert State sanction, pose years of Independence, it is not development, growth and prosperity that have a grave challenge to the secular, pluralist idea of India. made an impact upon their lives, but hatred and communal prejudice. This book critically examines the pattern of impunity as it continues to unfold In April 2009, I visited the Phulbani fast track courts set up to adjudicate cases in Kandhamal. Civil society in India urgently requires to debate legal reforms related to the Kandhamal anti Christian violence. A senior member of the on accountability for mass crimes. The claim to ‘civilisation’ by any society is Phulbani Bar admonished me for doing so, stating that it was ‘outsiders’ like me dependent above all, on the degree to which it ensures the dignity of its citizens, who were causing trouble. He also suggested I visit the interior Blocks to see and their equality in the eyes of the law. That is why it is essential to extend for myself that normalcy had returned to Kandhamal. I did as he advised and culpability to those who sponsor and profit from such acts. This publication traveled to a few blocks. I found that almost a year later the Christian community seeks to contribute to the effort to forge new legal tools to alter this pattern of continued to seek refuge in derelict relief camps or lived as outcasts on the continuing injustice and rampant impunity. It is rooted in the firm belief that fringe of villages. As they tried to cope with loss, they also faced an uncertain without justice there can be no peace. future due to a socio-economic boycott against them; and remained fearful of impending attacks. Has the Indian polity come to regard second class citizenship for religious minorities as the normal state of affairs? Has the guarantee of equal citizenship for all regardless of religion, caste, sex etc. inscribed in the Indian Vrinda Grover AcknowledgEments MARG’s foray into Kandhamal, Orissa, began with a modest scoping study for A very sincere thanks to Dhirendra Panda for generously sharing his insights the purpose of legal empowerment. While discussing the preliminary findings and coordinating MARG’s work in Orissa. MARG is also grateful to Father of the survey, MARG’s chairperson, Maja Daruwala suggested that the findings Ajay, John Dayal and other social activists and lawyers of Orissa who answered of the survey and research be published. This remark and the unstinting support our many queries. A special mention must also be made of the support and of Navaz Kotwal encouraged this publication. guidance provided by Abhilasha Kumari in the early stages of our work. We express our deep appreciation to the Embassy of the Kingdom of the A warm thanks to Dilip Simeon for reading through the entire draft and Netherlands, New Delhi and Commonwealth Human Rights Initiative (CHRI) providing editorial assistance and valuable comments. for supporting the research, publication and dissemination of this book. MARG would like to express its sincere gratitude to Tarun Tejpal and Garima This book was conceptualised and edited by MARG’s Executive Director, Jain of Tehelka for the cover photograph, shared in a spirit of solidarity. Vrinda Grover, whose understanding of entrenched impunity for mass crimes MARG is indebted to Sherna Dastur for agreeing to design this publication at contributed to the analysis. very short notice and accommodating us in her hectic schedule. We also thank MARG would like to acknowledge the commitment with which Saumya Uma Matrix printers for meeting yet another impossible deadline. undertook the research and writing of this book. Needless to say this book would not have been possible without the logistical Research assistance was provided by Seema Misra, Jawahar Raja and Mayur and administrative support provided by the entire MARG team. Suresh. The surveys were designed and supervised by Seema Misra and interviews and focus group discussions carried out enthusiastically by Mansoon Mohanty and Manyabar. MARG expresses its heartfelt gratitude to all the victim – survivors of Kandhamal who participated in the survey and group MARG discussions. IO Investigating Officer IPC Indian Penal Code, 1860 IPS Indian Police Service LIST OF ABBREVIATIONS IPT Indian People’s Tribunal on Environment and Human Rights MLA Member of the (state) Legislative Assembly MP Madhya Pradesh – a state in India NCM National Commission for Minorities, a statutory body NGO Non-governmental organization NCW National Commission for Women, a statutory body NHRC National Human Rights Commission, a statutory body AIR All India Reporter PAC Provincial Armed Constabulary – a type of police personnel Art.