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Failure of justice

Violence with impunity in Gujarat

by Hans Dembowski
Mass crimes committed in western Indian have still not come to court seven years after anti-Muslim pogroms occurred. In the light of this judicial failure, Indian legal scholars suggest that those responsible at the political level should be ostracised internationally.

Lawyer Pritha Jha is furious with Indian judges because they regularly allow mass violence to go unpunished. Their verdicts typically conclude that such crimes are committed “spontaneously”, by brutal mobs that “appear” as suddenly as they “disappear”. Government agencies are thus deemed powerless to prevent or stop such conflicts, and the prospect of legal prosecution is also said to be limited.

Pritha Jha reckons that is nonsense. Social scientists have long accepted that mass violence against minorities is impossible without prior organisation. That, obviously, applies to the 2002 riots in Gujarat, in which close to 2,000 Muslims died. With still no significant moves made to prosecute those crimes in the courts, Pritha Jha charges the investigating authorities with disinterest at the very least. Pointing out that the same stock phrases keep cropping up in investigators’ records and that witnesses in many cases have been intimidated, she considers complicity with the perpetrators more probable.

Mukul Sinha of the New Socialist Movement in Gujarat’s capital Ahmedabad believes that there are indeed political reasons for the failure of the police and courts to do their job. He sees the pogroms as evidence of a constitutional crisis over the secular character of the republic. Narendra Modi, the chief minister of the State of Gujarat, is on the right wing of the BJP, a party that stresses India’s Hindu identity and was founded on a platform calling for a constitution that enshrines that status. Sinha claims that Modi has never recognised India’s non-religious legal system but acts instead according to the constitution he would like to see in place in stead.

Mukul Sinha does not only argue along ideologicallines, however. The lawyer reports that mobile phone records of the nights of violence show there was continuous communication between the police and murdering gangs. To secure evidence, his organisation took part in an official commission of inquiry even though other civil-society groups claimed from the outset that this commission was set up only to whitewash Modi’s role in the violence.

In January, the lack of a juridical response to the violence in Gujarat was one of the topics debated at the Law and Social Sciences Research Network in Delhi. Supported by the Max Planck Society and the Ford Foundation, the conference discussed whether Gujarat ought to be a case for the International Criminal Court (ICC) in The Hague. One argument against that, however, is that India has an independent judiciary and its central and state governments are elected. The ICC has jurisdiction only where it is impossible to conduct criminal proceedings in the country in which atrocities were perpetrated.

Upendra Baxi, professor of law at Britain's Warwick University and a noted expert on human rights, praised the USA for denying Modi an entry visa because of the Gujarat pogroms. European governments, he suggested, might also be persuaded to take a similar line. Modi is considered particularly dangerous by many Indians because he has successfully attracted investors to Gujarat and the state is thus sometimes considered a development model. Authoritarian attitudes may actually seem beneficial to industry managers who face popular opposition elsewhere. Indian corporate giant Tata, for instance, opted for Gujarat after having been unable to set up a new small-car production line in West Bengal because of protests by local people.

(dem)