Remembering Kandhamal: a legacy of institutional failure

Orissa September 2009

Minasi (75) and his wife Sartabati (68) have seen their church in Mukundipur village attacked on five occasions, in 1966, 1975, 1998, 2007 and 2008. They said they did not think they could cope with another attack. Gajapati District, Orissa. Marcus Perkins/CSW 2009.

25 August 2016 is the eighth anniversary of India’s worst instance of communal violence against Christians. Many of the victim-survivors in Kandhamal, Odisha State, continue to wait for justice.

It is estimated that over 90 people were killed, 600 villages ransacked and 5,600 houses looted and burned in the 2008 attack. Approximately 54,000 people were left homeless, while 295 churches and places of worship were destroyed. Furthermore, an estimated 13 schools, colleges and philanthropic institutions for the sick were looted and burned. Approximately 2,000 Christians were forced to renounce their faith during the violence and 10,000 children were robbed of their education.

At every stage, the response of government, law enforcement and the criminal justice system to this tragedy has been woefully inadequate, undermining justice for the victim-survivors.

Two initial government reports into the incident were heavily criticised by civil society  activists as riddled with inaccuracies. They were later overturned by the findings of the National Commission for Minorities (NCM), which reported that the violence was communal and that the Christians were attacked purely on the basis of their religion.

The Long Genesis of the Kandhamal Violence

The violence in Kandhamal had a long genesis. Christians in the district had been subject to hate campaigns by Hindu fundamentalists since the 1960s, when attacks on places of worship and Christian leaders were a regular occurrence.

But it was the killing of prominent Hindu Swami Laxmanananda on 23 August 2008 that sparked the devastating communal attack that occurred a few days later. Despite the media citing police sources to point to Maoist involvement his death, Hindu fundamentalists blamed and later targeted the Christian community. Swami Laxmanananda’s funeral procession was exploited to inflame tensions and the NCM concluded that the violence could have been prevented had the local government diverted the funeral procession through a much shorter route.

Due Process Sidelined

Failures extended to the criminal justice system. Despite more than 3,300 complaints made to the police, only 820 First Information Reports (FIRs) – initial police reports – were registered. Of that number, only 518 cases led to charges and 247 of those cases were disposed of. In a rare piece of good news, it was announced on 2 August 2016 that the Supreme Court of India has directed the Odisha State Government to re-investigate 315 cases in which reports were made to the police but were not followed through or did not result in prosecution of the offenders.

Fast-track courts that were set up soon after the attack to administer swift justices in the few cases that were advanced failed to hold the perpetrators accountable. Due process was often sidelined in favour of speed, a critique levelled by the Association of Victims of Communal Violence.  Moreover, many victim-survivors and witnesses were living in refugee camps and were not able to testify due to fear of reprisals from the Hindu extremists who knew where they lived.

Official Delays Put Justice – and Lives – on Hold

Law enforcement also failed to discharge their duties properly, often failing to take seriously those who were brave enough to register a crime or not conducting paperwork and investigations thoroughly. Some complainants were turned away and treated with hostility by the police when attempting to register an FIR, or, if they were able to, the police were not willing to record or investigate their case thoroughly.

Asmita Digal, whose husband Rajesh was buried alive during the Kandhamal violence, has still not been issued a death certificate by the State authorities. As a result, his case cannot go to trial until a court declares that her husband is dead and Asmita is not currently entitled to any compensation as the widow.

Members of civil society who are familiar with her case reported that the police did not conduct a thorough investigation.

Father Ajaya Kumar Singh, the Director of the Odisha Forum for Social Action said, “Rajesh Digal, who was killed during the anti-Christian violence has not got any justice. This reflects the State apathy and a failed criminal justice system. Asmita’s grievances are now into its eighth year and there is no sign of closure for her.”

“The presumption in Indian law is that a person is presumed missing until a body is found or where there is evidence to prove otherwise. Here, there the killing was witnessed by someone, who saw Rajesh being abducted by the Hindutva groups as he was a Christian to be done away with. Unfortunately, the witness was not given any assurance of safety if he identified the felon. It is now eight years and the State should issue a death certificate so that the due process of the law can take its course in the courts,” he added.

Witness intimidation

In some cases, false criminal proceedings were brought against victim-survivors as a means of deterrence and intimidation, resulting in them having to mount their defence without legal aid, despite provisions for this under the 1973 Code of Criminal Procedure.

Witnesses reported intimidation. In some instances, Hindu extremists were able to gain entry into police stations to examine police records for the names and addresses of witnesses on FIRs. The information was used to abduct witness or threaten them, prompting some turning hostile in court.

The Multiple Action Research Group (MARG), which works on legally empowering marginalised communities, reported in 2010 that the threats to victims-survivors and witnesses had reached an unprecedented level, leaving them feeling insecure and afraid to attend court proceedings.

Sexual Violence in Kandhamal

In 2011, the National People’s Tribunal emphasised the additional danger posed to female witnesses of sexual violence but its recommendations went unheeded.

Many women were subject to sexual violence in the 2008 attack. Sister AA, a Catholic nun who was gang-raped in the Kandhamal violence was rebuffed in her attempts to register an FIR of her ordeal.

She told CSW that “there are remaining 21 accused who are yet to be brought to justice. On that day, my colleague Father CC and I were attacked by a mob of about 30. Nine men were charged with rape, however, only three were found guilty and the remaining six were acquitted.”

“I want to move on with my life but find it difficult to break away and the past always haunts me because I am tied down to these cases for so many years now. I still go to court as a witness because there are many who are afraid to go to court as witnesses. Someone has to do it.”

“The criminal system lingers and lingers and often time justice is not served even after so much of hard work put into these cases. I cannot go freely to Kandhamal, although I would like to because I am afraid. The perpetrators of these crimes are still out there. All these bother me,” she said.

The Supreme Court, in its ruling on 2 August, emphasised that the level of security that India’s minorities feel would be the index of the level of civilisation of the nation.

However, as Dr John Dayal, the former National President of the All India Catholic Union, has observed:

“Fear is still a reality in Kandhamal.”

Reforms are urgently needed at every stage of the criminal justice system in order for justice to be fully realised for the victim-survivors of Kandhamal. Until past crimes are confronted and adjudicated upon, the Christian community will continue to feel disenfranchised.

By CSW’s India Advocacy Officer.

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