Accountability for mass violence Examining the State’s record By Surabhi Chopra Pritarani Jha Anubha Rastogi Rekha Koli Suroor Mander Harsh Mander Centre for Equity Studies New Delhi May 2012 Preface Contemporary India has a troubled history of sporadic blood-letting in gruesome episodes of mass violence which targets men, women and sometimes children because of their religious identity. The Indian Constitution unequivocally guarantees equal legal rights, equal protection and security to religious minorities. However, the Indian State’s record of actually upholding the assurances in the secular democratic Constitution has been mixed. This study tries to map, understand and evaluate how effectively the State in free India has secured justice for victims of mass communal violence. It does so by relying primarily on the State’s own records relating to four major episodes of mass communal violence, using the powerful democratic instrument of the Right to Information Act 2005. In this way, it tries to hold up the mirror to governments, public authorities and institutions, to human rights workers and to survivors themselves. Since Independence, India has seen scores of group attacks on people targeted because of their religious identity1. Such violence is described in South Asia as communal violence. While there is insufficient rigorous research on numbers of people killed in religious massacres, one estimate suggests that 25,628 lives have been lost (including 1005 in police firings)2. The media has regularly reported on this violence, citizens’ groups have documented grave abuses and State complicity in violence, and government-appointed commissions of inquiry have gathered extensive evidence on it from victims, perpetrators and officials. Despite this, it has been remarkably difficult to hold perpetrators and State authorities accountable for committing, encouraging, aiding or enabling (including through deliberate inaction) such violence. 1 A.A. Engineer, Communal Riots after Independence: A Comprehensive Account (Delhi: Shipra, 2004). 2 B. Rajeshwari, Communal Riots in India: A Chronology (1947-2003) (Delhi: Institute of Peace and Conflict Studies, 2004). Many of those who are engaged with this study have experience of working directly with survivors of mass communal violence, and learning from the narratives and experience of victim survivors. There is also a fairly large body of information - reports of judicial commissions, investigations by civil rights groups, academic research and journalism - available on episodes of mass communal violence. All of these suggest a recurring pattern of structural injustice and impunity leading up to, during and in the aftermath of such mass violence. These lay out the broad hypothesis of this study, which we tried to test against the State’s own records. The study does not investigate the build-up and prevention of episodes of mass communal violence. It focusses on the access of victims to protection, justice and reparation after communal violence. In summary our hypothesis is that the Indian State has failed, in very large measure, to prosecute perpetrators, to account for its own failures, to compensate victims, and to tell citizens about what it did or did not do. We seek in this study to verify this hypothesis, by excavating the State’s own records. There are many related questions which this forensic examination of public records connected with the conduct of various State institutions during and after major episodes of mass communal violence seeks answers to. What leads to this recurring failure to secure justice in successive religious massacres? What is the nature of the State’s failure, the extent and contours of this failure, the areas where it recurs and the areas where it is unique to or particularly pronounced after certain episodes of mass communal violence. Citizen human rights groups, victim groups and researchers have documented many episodes of mass violence. However, we believe that in anatomizing the State’s response to mass violence, the extraction of official records from the conventional determined secrecy of public institutions, and their careful scrutiny and analysis would perhaps add another dimension both to the chronicling of and efforts to prevent the recurrence of such violence. International law lays down that States owe victims of gross human rights violations reparation3, and reparation includes (1) access to justice in the form of criminal 3 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International prosecution, (2) access to truth, and (3) material and non-material restitution. The Indian State has failed victims of mass violence on all these counts. We felt that the State’s failure to make its own performance public was tied to its multiple failures to make reparations. In this spirit, we thought it important to examine the official record, to analyse what it reveals about how the Indian State responded to episodes of mass violence. We look in particular at (a) the State’s efforts to prosecute people responsible for mass violence, (b) the State’s attempts to hold complicit or remiss public officials accountable and (c) the State’s measures to compensate victims of mass violence. All governments tend to work in a culture of secrecy. This tendency to withhold official information from public inspection is aggravated when the State is itself subject to intense scrutiny for the performance of its duties. Arguably the most significant administrative reform in India since Independence to deepen democracy has been the passage of a very progressive and strong Right to Information law in 2005. This has legally created duties of public officials at every level to share most official information and documents with any citizen who seeks these, and in fact to actively place in the public domain a lot of information even when it is not specifically sought. This law has spurred an enormous amount of civic action, mainly to interrogate the financial probity of official actions. This current study seeks to extend this scrutiny consciously to official actions to protect the life and property of citizens in major episodes of targeted mass communal violence. Unlike the largest volume of right to information activism which has enquired into public corruption, this seeks to place the spotlight for public examination on public action to secure protection and justice for all citizens regardless of their religious identity. It interrogates all institutions of justice – the civil magistracy, the police, and the courts. It strives to examine, in the final analysis, the success of the executive and judicial arms of governments to uphold the pledges of the secular democratic Constitution of India. Humanitarian Law: resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147, available at: http://www.unhcr.org/refworld/docid/4721cb942.html This study was made possible by a study grant from IDRC. We are in particular very grateful to Navsharan Kaur, who supported, encouraged and guided us through this very difficult research effort, with her characteristic warmth, faith, intelligence, and insights. This research involved the filing and dogged legal pursuit of 770 applications under the Right to Information to seven state governments and the central government during the course of one year. Almost without exception, these applications were strenuously resisted in the offices in which they were filed, and had to be pursued in appeals. There was some real bewilderment, confusion and gaps of official capacity in dealing with the applications. Some records were reported to have been routinely destroyed, others were difficult to locate, and applications were frequently shuttle- cocked from office to office. As a result of these exertions, we finally were able to gather in the period of one year information from various public authorities; many RTI applications are still pending for disposal in various State and Central Commissions. We intend to pursue these Right to Information applications beyond the period of this study, and to place all these records in the public domain, for use by other researchers, chroniclers and human rights workers, because we feel these records are in themselves part of the right to truth of all survivors, and an essential key to prevent future recurrence of such institutional injustice and impunity. All of this, and the painstaking analysis of replies received in diverse languages and often in inscrutable bureaucratese, and the preparation of this detailed report of this offbeat study, all within one year, was possible because of the very special dedication and industry of an extraordinarily fine groups of young researchers. This team of peers was coordinated with outstanding calibre, talent and integrity by Surabhi Chopra, a legal academic based in Hong Kong. She was supported closely by Pritarani Jha who admirably co-leads Nyayagrah, a community based effort at mass legal action among the survivors of the Gujarat communal carnage of 2002. They were aided by two other law researchers, Anubha Rastogi who took a break for this study from her career in human rights law practice, and Suroor Mander who was a law student as well as worked with homeless children during the time of the research. And the enormous challenge of keeping track of hundreds of Right to Information applications was possible because of