Supreme Court Must Intervene, US Congress Told
'Once an organisation has the support of the state it does not remain on the fringe'
NEW DELHI: A Congressional briefing led by 17 civil society organisations in the United States brought expert testimony and personal accounts to bear on the recent calls for a genocide of Muslim Indians and ‘the escalating violence against religious minorities in India under the rule of Prime Minister Narendra Modi and his Hindu nationalist party the BJP.’
Five panelists video testified to US senators, congresspersons and State Department representatives on January 12 – Supreme Court of India advocate Anas Tanwir, Genocide Watch president Gregory Stanton, Amnesty International India specialist Govind Acharya, Hindus for Human Rights director Sunita Viswanath, and entrepreneur and activist Amina Kausar, whom Hindu extremists recently purported to ‘auction’ online.
The briefing was organised by 21Wilberforce - American Muslim Institution - Amnesty International USA - Association of Indian Muslims of America - Center for Pluralism - Dalit Solidarity Forum - Federation of Indian American Christian Organizations of North America - Genocide Watch - Hindus for Human Rights - Humanism Project - India Civil Watch International - Indian American Muslim Council - International Christian Concern - International Society for Peace and Justice - Jubilee Campaign - New York State Council of Churches - and Students Against Hindutva Ideology.
In a passionately argued statement, Anas Tanwir alerted US legislators to the ‘judicial and societal silence against hate speeches’ in India, submitting his ‘earnest hope and prayer that the courts, henceforth at least, will not look the other way when called upon to protect the minorities from violence.’
Tanwir argued that the Supreme Court’s silence and inaction, and occasional dog whistle from the bench, have enabled ‘the strengthening of the hands of Hindutva nationalism in India.’
He began with an account of the dharm sansads or religious parliaments in Haridwar, Raipur and elsewhere, and the response to the political seers’ calls.
‘I have filed a case against Mr Suresh Chavhanke and his news channel [Sudarshan TV] for hate speech. I am also filing a petition very soon against that oath we saw in the video, in Chhattisgarh where they took an oath that they will not have any business or any relation with Muslims,’ he said.
‘Hate speeches are not new. The call for genocide is not new. However, the judicial as well as the societal reaction.. against these instances of hate speech is shocking to say the least. Our democracy becomes a rule of majoritarian mob if the courts that are a custodian of the Constitution on which the democracy stands remain silent. And sometimes this silence converts itself into enabling the demonising of a particular community.’
Tanwir recalled a series of Supreme Court judgments to argue that the state, and not simply the government, has participated in the rise of Hindu extremism in India.
‘It was in the Manohar Joshi case that the Supreme Court observed that Hindutva is a way of life, knowing fully well the dangers of Hindutva. This judgment was passed in 1995, much after the demolition of the Babri masjid. Hindutva nationalism had by then shown its fangs by demolishing the Babri masjid and pushing the nation into one of its worst communal riots.
‘That Hindutva nationalism would one day break the throes of secularism and fraternity which are an integral part of the Constitution was apparent to everyone. Therefore the Supreme Court unfortunately acted as an enabler in strengthening the hands of Hindutva nationalism in India,’ he said.
That judgment delivered by Justices J.S Verma, N.P Singh and K Venkataswami held that Shiv Sena candidate Manohar Joshi did not violate the Representation of the People Act by making election speeches (together with Bal Thackeray and Pramod Mahajan) that rallied support for Hindutva. In it the Supreme Court bench held:
‘that the word “Hindutva” by itself does not invariably mean Hindu religion and it is the context and the manner of its use which is material for deciding the meaning of the word “Hindutva” in a particular text. It cannot be held that in the abstract the mere word “Hindutva” by itself invariably must mean Hindu religion. The so-called plank of the political party may at best be relevant only for appreciation of the context in which a speech was made by a leader of the political party during the election campaign, but no more for the purpose of pleading corrupt practice in the election petition against a particular candidate.’
Tanwir went on to trace the recent history of the Citizenship (Amendment) Act:
‘Then again in 2003, the Supreme Court again in Sarbananda Sonowal v Union of India relied on wrong and uncorroborated data to declare that there was an influx of illegal migration in Assam from Bangladesh. This caused the then Atal Bihari government of that time to amend the Citizenship Act, and that amendment became the tool for threatening the Indian Muslims with disenfranchisement.’
The amendment enacted in 2003 requires the Union government to create a National Register of Citizens and provide a ‘national identity card’ to each.
On Assam in particular, Tanwir continued:
‘And then again in 2014, in the Assam Sanmilita Mahasangha judgment - the bench led by former Justice Gogoi and former Justice Nariman - there were dog whistles against the Bengalis of Assam, twice. When once Justice Nariman remarked that “these people are enemy aliens”.
‘This remark was a dog whistle because even if, even if we presume that all those who are alleged to be an illegal immigrant are in fact illegal immigrants, still Bangladesh was not an enemy nation. For a learned judge, for an honourable judge of the Supreme Court sitting at that position to make such casual remarks was nothing but a dog whistle.
‘And then again, when the Assam Sanmilita judgment came, it started with a quote that said: “A prophet is without honour in his own country. Substitute ‘citizen’ for ‘prophet’ and you will get the gist of the various writs filed under Article 32 of the Constitution of India.” This to show that there is a separate class of people in Assam - that there are Assamese and there are illegal immigrants - and no data, no concrete data till date backs the finding of the Supreme Court.’
He pointed to court inaction on the years-long spree of lynchings or public murders of Muslims in India.
‘The silence continues,’ he said, citing the 2018 case of Tehseen Poonawalla v Union of India for which he was amicus curiae, and in which the three-judge bench ‘set out preventive, remedial and punitive measures for the central and state governments as well as law enforcement agencies to deal with the increasing incidents of lynching in India.’
‘A number of these measures were time-bound and the court exhibited a sense of urgency in having the governments respond to and implement its direction. The court observed that “Horrendous acts of mobocracy cannot be permitted to inundate the law of the land,” and “earnest action and concrete steps have to be taken to protect the citizens from a recurrent pattern of violence which cannot be allowed to become the new normal.”’
‘The matter, however, was last heard on September 24, 2018,’ said Tanwir, ‘and since then multiple attempts have been made by me, by my fellow lawyers, by other petitioners to move the Supreme Court to take stock of the implementation of its guidelines. Because the guidelines were very crucial, in fact they brought a brief lull in the cases of lynching. But none of our efforts have met with much success.’
Finally he drew attention to the 2014 case of Pravasi Bhalai Sangathan v Union of India in which, he said,
‘the petitioner asked for relief in the nature of mandamus [command to perform a statutory duty] declaring hate speech on lines of religion, caste, etc made by politicians: Such as suo moto registration of FIR in hate speech matters and termination of the membership of MPs and MLAs if they are found guilty.
‘And the court did pass a very good judgment. However, it stopped short of passing the guidelines. It asked the media to observe restraint, it asked the Law Commission to come out with its findings – and since then, nothing has happened in this matter.’
He added, ‘I personally and very sincerely believe that the judiciary is the only institution that is capable of stopping the fast growing hate in the country, but very unfortunately seems to have lost its way.’
He said that NCRB data record 1,217 cases of hate speech pending with the police in early 2020. ‘In 59% of these cases a final report was filed. Police files a final report when the investigation is complete at their end and where they are unable to file a chargesheet against the accused. It just shows the laxity on the part of the police and authorities, and their willingness to look the other way.’
When not looking the other way, the police and authorities ‘have been accused of being complicit in violence and hate speech’.
Tanwir also contested the notion that communal violence is perpetrated by fringe elements.
‘Most of these communal violence or “riots” that we have seen are carried out by what is called fringe Hindu organisations, or Hindutva organisations. I slightly disagree with this definition because once an organisation has the support of the state machinery, or if the state machinery is so much as willing to look the other way, then it does not remain a fringe organisation.’
‘If we take one of the very famous but still not much talked about Nellie massacre that happened in 1983 in Assam: Mr Atal Bihari Vajpayee the former prime minister was campaigning at the time in Assam and he was quoted as saying, “Foreigners have come here and the government does nothing. What if they had come into Punjab instead? People would have chopped them into pieces and thrown them away.”
‘This was followed by the Nellie massacre. Till date there has not been one single conviction in the Nellie massacre case because of the Assam Accord.’
Assam has been governed by the Congress almost uninterrupted since Independence.
At the end of his statement Tanwir noted the common thread of misogyny that runs through ethnic violence in India.
‘Now, these communal genocidal speech by political outfits led to large scale violence against the minority community. Apart from the inherent bigotry and Islamophobia, patriarchy is another commonality among these genocides. It is well known that women have often been sexually brutalised during communal riots. Most of India’s major communal massacres after Independence have been marked by extreme public cruelty and brutality against women.
‘The Gujarat carnage stands out for its extensive and focused targeting of women, young girls and children, who were exposed to the most heinous and terrible forms of violence. Rape was used as an instrument for the subjugation and humiliation of a community. And the 2002 rioters did not confine themselves to Muslims: they also targeted people of other religions who had any association with Muslims.
‘Often women’s bodies are reduced to pawns in masculine tales of nationalism, owing to the patriarchal, deeply ingrained view that women are the markers of each group, and they are repositories of the honour and dignity of the community to which they belong.
‘In this context it is important to highlight the recent disgusting incidents of the S— Deals and B— Bai apps, where Indian Muslim women of all ages were ostensibly auctioned off by a far-right Hindutva group called The Trads. One of the victims is amongst us in the panel’ he said, referring to Amina Kausar.
‘It all started with the rating of Pakistani women who had put their photographs on social media by a YouTuber called LiberalDoge [since identified as Ritesh Jha]. It was followed up by selective targeting of certain prominent social media Muslim women voices on Twitter. An FIR was registered in this regard with the Delhi Police: however no concrete action was taken against the perpetrators.’
‘When Muslims across India were celebrating the festival of Id ul Azha, an app was created on GitHub called S— Deals: ‘s—’ being a degrading term for Muslim women which was used to portray that these women were being auctioned off.
‘Two FIRs were filed, one with the Noida Police and the other with the Delhi Police. The issue was raised internationally, there was a huge outrage. The issue was escalated to the level of the Home Minister by a Congress MP named Dr [Mohammad] Jawaid.
‘As we have seen, time and again, however, no concrete action was taken by the Delhi Police. This silence and inaction by the authorities emboldened these creatures,’ said Tanwir.
He said that state inaction on the first dehumanising app led to the second.
‘It will not be wrong to infer that they created another app after all the outrage only because the law and order machinery looked the other way. The idea behind these apps was to dehumanise Indian Muslim women to the extent that people will look the other way when the genocide happens. This happened in Germany, and this happened in Rwanda, and we are all aware of the deaths and the trauma and the pain.’
Tanwir concluded that the Mumbai Police response to the second dehumanising app showed the state can curb the spiral of violence when it wants.
‘Mumbai Police quickly moved into action and arrested four accused persons. The Delhi Police also picked up the cue from the Mumbai Police and has arrested two accused persons till date. All these accused persons remain behind bars. If the state authorities have the will, and they want to, they can bring to an end such brutal and shameless action.
‘For a variety of reasons we consider legal justice for survivors of community violence to be a critical public good. Without it India’s Muslims cannot be assured of protection and certainty of non-recurrence, denying them the substantive equality guaranteed by the Constitution.
‘The promise of the state intervening on behalf of the harmed and the wrong to bring justice removes the potential of private settlement based on individual revenge from the hands of the aggrieved, allowing violence to spiral out of control. This spiral is something that the public good of justice can prevent.
‘The fact that the wheel of law moved to prevent the acts of lynching and to arrest the perpetrators of the B— Bai app shows that maybe not all is lost.’
‘It is also an earnest hope and prayer that the courts, henceforth at least, will not look the other way when called upon to protect the minorities from violence.. and will break the cycle of hate speech and genocide.. by doing their job and safeguarding the marginalised.’
The briefing also heard testimony from Amina Kausar, whom Hindu extremists tried to ‘auction’ online.
‘The sheer humiliation of being put up for “sale,” and called a “Bulli Bai,” a vulgar slang phrase implying a woman is a prostitute, is hard to describe in words… Being objectified, being reduced to a virus, normalizing the abuse, is one of the decisive stages of genocide,’ said Kausar.
‘These online abusers are not fringe elements. Many of them are backed by none other than the Prime Minister of India, Narendra Modi. I urge the US government to take note of the systemic violence that Indian Muslim women are subjected to.’
On January 21 the Attorney-General of India granted consent to initiate proceedings against Yati Narsinghanand Saraswati for criminal contempt of the Supreme Court in his remarks at the parliament in Haridwar.
Part 2 follows