The loud silence in Kandhamal
The silence is overwhelming. The declamations of the administration and the right wing of civil society loud. The government of Orissa, the Sangh Parivar, scores of major NGOs and a section of the church have for a long time now exhorted the Christian community of Kandhamal, Orissa, to forget about the violence that hit them in 2008, and to “move on”, so that development can take place in the remote district which is in the news, not for religious persecution any more, but for the Maoists who inhabit the dense Sal forests. Let us move on, say the NGOs, and the state government, perhaps even a section of the Union government, echo the call. A tiny group of activists, priests and lawyers, taking sustenance from small segments of civil society in Bhubaneswar and New Delhi disagree, and have moved the Supreme Court for justice after discovering that judges in the Cuttack high court and the district judiciary have failed the victims.
The violence in Kandhamal, with a curtain-raiser on Christmas eve in 2007 and a full fledged pogrom beginning 24 August 2008 and continuing for almost two months, is arguably the single largest violence against the tiny Christian community in India since Tipu Sultan of Mysore took the Catholics of Mangalore-Goa and marched them to Srirangapatnam, most of them falling on the way. The violence began when the Vishwa Hindu Parishad vice president Lakshmananda Saraswati, who had moved to Kandhamal forty years earlier to combat, as he said, the Christian influence in the Tribal and Dalit district, was shot dead in his ashram. Local Maoists took the credit for the murder. But people such as Praveen Togadia roused the local people by taking his body in a motorcade along 270 kilometers of a tortuous journey through major villages. As the body went past, local thugs and Sangh cadres launched an attack on the Christian population. The local police was a mute bystander, the administration entirely helpless, it seemed. When the smoke finally lifted, over 400 villages had been purged of all Christians; more than 5,600 houses and 296 churches had been burnt to a cinder, perhaps as many as a 100 killed [the government admits to a total of 56] thousands injured, several women raped including a nun, and 56,000 men, women and children rendered homeless. Investigation no has been tardy and superficial – one junior Gazetted officer and two inspectors head the small team trying to probe the vast number of cases with primitive forensic equipment and almost no training in probing cases of mass violence. There has been no attempt by the Directorate of Prosecutions or by the police to upgrade cases where victims died of their injuries not on the spot, but in hospital, refugee camps or other places.
Cutting through the fog created around the legal data, the following is the current situation of the criminal investigation of cases of arson and murder, abduction and violence. Present Legal Status: 3,232 criminal complaints were filed when the dust settled on the Second Phase violence that began on 24th August 2008 and after peaking by about 30 August, continued sporadically through most of September and October that year. 1541 complaints are acknowledged by the Kandhamal district police, but they did not file them as the First Information Reports required under Indian Criminal law. 828 complaints were actually converted to First Information Reports [FIRs} which mark the beginning of further investigation and the case being brought before a court for trial after a charge-sheet is filed. 327 Cases have actually seen a completion of the investigation process with the cases committed to the two Fast Track Courts headed by two ad hoc Additional District Judges for day to day hearings. 169 Cases have seen the acquittal of all accused, 86 cases have ended up in convictions — not for the heinous crimes mentioned in the FIRs as the main ones, but for comparatively minor offenses meriting only prison terms of two or three years. 90 cases still are in the process of being tried. 1597 suspects have been acquitted. This does not include the thousands who could not be arrested in the cases, and therefore could not be brought to trial.
The magnitude of the violence and its aftermath has been recorded by the National Commission of Minorities, among others. The Minorities Commission also noted the woeful conditions in the refugee camps in which the Kandhamal Christians lived for up to a year. Victims later gave chilling first person accounts before a National People’s Tribunal in New Delhi headed by a former Delhi high court Chief Justice. “The intense human tragedy has had a severe impact on the lives of many due to the targeted destruction that took place in Kandhamal in 2007 and 2008. Such a tragedy must not be allowed to be compounded by the lack of attention to adequate human rights-based compensation that the victim-survivors deserve,” said Miloon Kothari, former Special Rapporteur on Adequate Housing, United Nations Human Rights Council Executive Director, Housing and Land Rights Network, India, who led a group that recently researched the situation of the rehabilitation of the victims.
Orissa then had a coalition government consisting of the Biju Janata Dal and the Bharatiya Janata Party, with Mr Naveen Patnaik as the chief minister. Much later, and after he had broken with the BJP over a slew of allegations, one of which was that his partner was following a communal agenda, Pattnaik told the State Assembly that the violence was carried out by members of the Sangh parivar, many of whom were arrested by the Kandhamal police. Among the arrested was BJP MLA Manoj Pradhan, accused in over half a dozen murder cases. Manoj ironically remains on bail because the High Court said he was an honourable Member of the Legislative Assembly. Victims have accused Manoj of subsequently coercing and threatening those who have deposed against him, and others who are awaiting their turn to give evidence in other cases.
Pattnaik also appointed two judicial commissions, headed by Justice Panigrahi for the 2007 violence, and Justice Mohapatra for the events following Lakshmananda Saraswati’s murder. Mohapatra died in office, and was succeeded by Justice Naidu, another retired judge of the Cuttack high court. The commonality between the judges is the haste in which they have expressed their high regard for the late VHP leader and their belief that the violence is not religiously motivated but a conflict over land issues between the Tribal Kondhs, mostly Hindu, and the Dalit Panos, many of whom have converted to Christianity, and who are demanding Scheduled Caste status. After almost five years, there are no indications when the commissions will submit their reports. At one time the Christian victims got so disgusted with the conduct of the commissions that they boycotted them for two years. They have however decided to rejoin the commission hearings to be able to put on record their own statements about the violence that left so many of them homeless and displaced in their own land.
As can possibly be inferred from the data on the sheer volume of the crimes, investigation was the first casualty. Church and NGOs did not demand, right at the beginning, the setting up of Special Investigating Teams with specialists who have had experience in arson and murder, or mob violence. Two Deputy superintends of Police and a handful of other staff were deputed to look into all the FIRs and then carry out the investigations. The district police, and in fact the state police, is woefully equipped, with hardly any equipment and expertise in contemporary forensic sciences. Even such things as identification kits to identify suspects were not used. In the hostile environment, there was of course no question of seeking public assistance in finding out the suspects. Everything was made to rest on the victims, the relatives and the victims themselves. Even at the investigation stage, many witnesses said, their statements were not recorded faithfully. On the other hand, the police was unsympathetic, even hostile. Inevitably, this led to a large number of cases being closed prematurely, or left hanging. The charge-sheets themselves were grossly faulty and inadequate, ad in turn would make the court examination and cross examination process weigh heavily in favour of the suspects. The two fast Track Courts which were set up — and which have been disbanded earlier this year — were a farce. Each was headed by an additional sessions judge, with a public prosecutor handling the cases up for trial. The results betray the predilections of the courts, though they were faced with shoddy evidence produced in court. Sitting through the proceedings of the courts was educative, specially on how criminal justice is dispensed at the grassroots in India. Inside the court, a battery of lawyers, many of them ranking office bearers of the BJP and some high ranking cadres of the RSS, conducted the defence of the accused, who would number from half a dozen to over twenty at any given time. Many other accused in the cases were still absconding, and therefore the trial was in affect conducted in parts, limited to those accused who had been brought to court and keeping the trial open for those yet to be arrested. The witness was harangued by the battery of defence lawyers even as the accused glared at him or her. The public prosecutor intervened very rarely to protect the victim-witnesses. Even the judge looked unsympathetic. Not surprising therefore that several of the witnesses, whose relatives had been killed and whose houses had been burnt, told the court they did not remember anything, and could not recognise anyone! Outside the court, and within the walled compound, Manoj Pradhan and his cohorts, all accused in various cases, held their own private court. Manoj sat on a plastic chair, smiling and talking with his followers while the two policemen on guard duty looked on with a benign smile on their faces. Many witnesses later told social workers that they had reneged in court from their earlier statements because they and their relatives had been threatened. So far no formal police case has been registered for the intimidation of witnesses.
Supreme court advocate and gender and justice activist Vrinda Grover was so shocked by the aberrations, she wrote a report “Law must change its course”, now a book published by the MARG NGO in New Delhi. Stunned by the large number of murder cases in which the accused had gone scot free a group of activists filed a Public Interest Litigation in court. The petition pointed out that that in over 30 murder cases, there had been conviction in only two, and even there, only one life term had been given for the murder of a Christian, while on the other case of death in the communal violence, the conviction was not for murder but for abduction. The petition sought the court’s intervention to redress the gross miscarriage of justice and to get the state to set up a special investigation team and retrial. The Supreme Court admitted the petition, and issued notices to the state government, the police and the Central Bureau of Investigations in New Delhi. Till the reopening of the Supreme Court after the summer vacations, there was no information if the State government and the police organisations had filed their responses.
It took another PIL in the Supreme Court by the Church to initiate relief and rehabilitation operations in Kandhamal immediately after the violence. The District magistrate, Dr Krishna Kumar, for reasons best known to himself initially banned all Christian organisations from coming to Kandhamal with relief material. The argument his deputies gave to the Church was that Christians would give aid only to Christians and it would widen the communal divide. They would not listen to explanations that the church relief would be given to all victims irrespective of their religion, but that also meant that Christian victims would be given relief material. The district chief would not budge. Archbishop Raphael Cheenath, head of the church in the region, filed a PIL in the Supreme Court which ordered that relief be allowed forth with. This was the first indication that the victims would have to approach the judicial system if they were to get relief from the administration. In fact, it was finally the church which brought relief material to the refugee camps as the state machinery had failed abjectly, a fact pointed out by the Minorities Commission and others who saw the situation. It was the church again which took the lead in housing the almost 6,000 families in houses of their own, back in their villages if the situation permitted, or in new encampments when villages refused to admit the Christian victims unless they converted to Hinduism. By the way, the police have not registered cases against those demanding that the victims convert to Hinduism if they want to live on peace in their villages.
The rehabilitation status is the subject of the study by the Human and Land Rights Network. The report says, “The Kandhamal violence and its aftermath, including the acts of commission and omission by the state government, have resulted in the violation of multiple human rights of the victim-survivors. But no attempts have been made to assess the long-term impacts of the violations or to provide justice to the affected. Furthermore, the state does not view forced evictions as a human rights violation and the right to resettlement as a human right, and therefore, its policies are not human rights-based.
The violence in Kandhamal in 2007 and 2008, resulted in more than 6,000 families losing their personal possessions and property, including crops, food grains, agricultural implements, clothes, livestock, livelihood sources, regular government subsidies, vital documents, jewellery, educational material and uniforms and many other household articles – either due to theft or destruction by burning. The Government and a few non-government organizations (NGOs) provided some relief or compensation for house damage, but no support or compensation has been provided for other losses, including of personal items and property. Furthermore, no efforts have been undertaken until now to assess the total loss of property and extent of damage suffered. Neither the central government nor the State Government has any policy for loss assessment and compensation.”
The report said the real costs and losses suffered by individuals and families who experienced destruction of their homes and property are immense. This is all the more critical given that the families affected in Kandhamal are extremely poor and are struggling to make ends meet. Almost all the families are Dalits and live below the poverty line. An obvious and substantial effect of the violence was the violation of the human right to adequate housing. The Government provided Rs. 50,000 as compensation for ‘fully-damaged houses’ and Rs. 20,000 for ‘partially damaged houses.’ Compared to the actual loss incurred, the compensation provided by the state for house damage was extremely low. The minimum expense in putting up a structure is close to Rs 80,000. Reportedly, 5% of the families that lost their homes have yet to receive compensation. Many families whose homes were badly destroyed and had to be rebuilt, received compensation for ‘partially damaged houses.’ During the assessment undertaken by government officials, many houses enlisted as ‘partially damaged’ later collapsed due to heavy rain and other factors when the victim-survivors were in relief camps. This matter was not taken into consideration by the government. As a result, such houses were considered as ‘half-damaged’ and the affected families received only Rs. 10,000 from the state government and Rs. 20,000 from the central government as compensation. In many cases, however, the victim-survivors have not received the central government amount of Rs. 20,000. “The compensation given to victim-survivors by the state has been insufficient for them to resume a normal life. Many families have not been able to adjust to the changed situation while many have left their villages in search of jobs elsewhere,” the report says. Affected families state that it will take generations to recover the extensive losses that they have had to incur. The District Magistrate of Kandhamal stated that the government does not have a policy to enumerate or compensate such losses.
The government has also point blank refused to help reconstruct over 300 churches and places of worship burn down by the Sangh mobs during the violence. The government argues that its secular mandate prohibits it from assisting religious bodies. The response seems funny, considering massive government expenditure involved in facilitating some local religious festivals. It seems even more funny in the light of the current political race to build temples destroyed in the Uttarakhand floods. Perhaps the victims will have to file another PIL in the Supreme court. Meanwhile pressure is mounting on the victims to reconcile with those who tormented them in th violence. It id argued, even by government officials, that the people will have to live together as neighbours, and it will not help if they pursue the criminal cases they have filed against the culprits. Human rights activists are also being in the line of fire by the district authorities specially the Intelligence police, for their work in assisting the people on issues of justice. But that is par for the course in Orissa, and specially in Kandhamal.
[First published by Centre for Policy Analysis journal, July 2013] —————–