Landscapes of Fear: Understanding Impunity in India

Introduction

Patrick Hoenig & Navsharan Singh

This volume tackles some tough and disturbing questions outside our comfort zone. Talking about human rights feels good as long as we foreground the issue of how we can protect what needs protection most: our lives and our dignity. Accepting that we live in a world where human rights get violated is a bitter pill to swallow, but even more difficult it is for us to come to terms with the notion that patterns exist to these violations. When we hear about lines being crossed and rights violated we are repulsed and filled with expectation that the wrong will be righted. Impunity, understood as a systematic exemption from punishment and a denial of redress, works as a double betrayal of our sense of justice: a violation has occurred and, what is more, it has not been rectified.

In the politically charged atmosphere of the human rights discourse in India, the acknowledgement that wrongs have been committed and need to be remedied is hard to come by. Evidence on human rights abuse, including sexual violence, is scarcely reported in the mainstream media. To the extent that human rights violations are found to have occurred—individuals disappeared, tortured, killed in custody and raped—they are either explained away as aberrations or condoned in the interest of greater causes. When the late Ram Narayan Kumar started the Understanding Impunity Project (UIP), he worked on the assumption that human rights violations in India are large-scale and systematic. Using a uniform questionnaire for interviews in different regions, the UIP set out to collect data for comparative analysis. This book is the result of our engagement with the resulting set of data, an effort, which, due to Kumar’s passing, remains truncated.

It has not been an easy journey. Even Kumar, who spent over two gruelling years on this project, became conscious very early on of the challenges that the endeavour entailed. This was perhaps the first study ever to attempt an empirical enquiry of impunity. The study regions were well known for human rights violations, at least in some circles, but this exercise wanted to compile, for the first time, accounts from different parts of India for comparative purposes. And when the information began to trickle in, we were struck by the patterns of violence and the impunity it enjoyed; the terrible maleness of violence and the near total absence in records of how women and men in these regions experienced violence on their bodies and being; the sheer stillness as a result of years, sometimes decades, of silencing and isolation, and simultaneous eagerness to speak about other things. The material provided sufficient grounding to start thinking about impunity, discovering the gendered experience, breaking what was coded in silence, and uncovering the gaping holes in our understanding.

This introduction explains the concept of impunity, tells the history of the project, and gives a brief portrayal of the person behind this process of discovery. Part 1 of the book contains a set of papers analysing the workings of impunity and the impact it has been having on women and men living in areas affected by it. Part 2 opens thematic windows on impunity, grappling with the myriad ways in which constitutional provisions and values are upheld in rhetoric and violated in practice. Part 3 holds 160 case studies from Jammu and Kashmir, Assam, Manipur and Tripura, covering a range of violations grouped into custodial death, forced disappearance, torture and sexual violence.

The volume ends with a few observations on possible campaigns aimed at ending impunity, but it does not provide a set of recommendations. Uma Chakravarti (2010), in a memorial panel dedicated to Ram Narayan Kumar and Rhonda Copelon, recalled how it takes an inquisitive mind to unpack the notion of impunity and peel away its multiple layers. Maybe there are no definitive answers to the issues we are raising, but if the material presented here generates some fresh thoughts and insights on what else needs to be recovered from the pages of history, the project will have made a contribution, howsoever small, to understanding the concept and context of impunity.

The Meaning of Impunity

The international legal system, as it developed around the United Nations Charter of 1945, accorded human rights a prominent place. States were thought to be sovereign entities, albeit with obligations towards each other and their citizens. The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, committed states to refrain from interfering with personal freedoms and liberties (negative rights), and create conditions for ensuring that the basic needs of people living under their jurisdiction were being met (positive rights). For decades to come, the discourse on human rights centred around the twin notions of what has come to be known as freedom from fear and freedom from want. The well-being of society as a dimension of the rights framework, which is what the concept of impunity is concerned with, has become a subject of debate only fairly recently.

The trouble with impunity starts with its definition. In human rights circles, impunity means the freedom of state or non-state actors to inflict harm, loss and violation without fear of consequence or, as the UN Commission for Human Rights (2005) puts it, the impossibility, de jure or de facto, of bringing the perpetrators of violations to account and rendering them answerable to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. Definitions set the stage for reflection and action, but the listing and linking of keywords hardly informs an organic understanding of the larger concept. Impunity is not just a legal term; it works at multiple, mutually reinforcing levels.

First of all, impunity represents a site where agency is negotiated. Vittorio Bufacchi (2007: 41) reminds us that an act of violence, apart from the infringement of a person’s rights, strikes at the root of her integrity, understood as the quality or state of being complete or undivided. In a situation of rights breakdown, impunity is the matrix connecting perpetrator, survivor and society at large. The Little Magazine (2009) aptly addresses the corrosive effect of impunity for society: Like a snake eating its tail, the culture of impunity feeds corruption, inefficiency, social evils and state neglect just as these fatal flaws nurture the culture of impunity. However, as much as the impact of legal, administrative and social practices giving rise to abuse is being felt here and today, it is perhaps important to note that providing legal cover for impunity does not constitute a recent phenomenon.

There has of late been some intelligent writing on the historical dimension of impunity and its correlation with the framing of security debates in India. Laying bare the colonial roots of draconian laws and teasing out the rationale for continued recourse to policies and practices aimed at suppression of dissent in post-independence India, authors from various disciplines have parted with the deadpan and the worst thing is we lifted all this from the law books of the Britishers argument that leaves unexplained the how and the why. Late K.G. Kannabiran (2004: 88–89) lucidly writes about the role that the Rowlatt Act of 1919 played as a precursor to today’s anti-terror laws. He notes: Justice S.T. Rowlatt, who headed the Indian Sedition Committee of 1917, found conspiracies all over the country. All forms of protest against misrule were seen as conspirational and seditious. Kannabiran goes on to cite from Motilal Nehru’s presidential address to the Amritsar Congress in 1919. In reference to the Rowlatt Act, Motilal Nehru stated:

No one can but deplore violence and political crime. But let us not forget that this is the direct outcome of continued repression. It is due to the perversity of the executive which blinds itself to the causes of the discontent and, like a mad bull, goes about attacking all who dare stand up against it.

The imagery of that statement is so vivid, the arrogance of power so neatly captured that observers of contemporary politics have found it to be a fitting description of the situation in India almost a century later.

The Armed Forces (Special Powers) Act, 1958 (AFSPA), a black law firmly rooted in the colonial past and selectively applied in disturbed areas, sanctions—apart from the arrest of any person and the search of any premise without warrant—the killing of any person by the armed forces on mere suspicion.¹ Sanjib Baruah (2010: 4) posits that at the time AFSPA was first introduced in North-East India in 1958, a colonial frontier mentality was deeply entrenched in state bureaucracy. The state apparatus would easily subscribe to colonial notions of the need for emergency and emergency-like powers, which goes a long way in explaining the resilience in postcolonial India of imperial policing practices especially the use of the military to assist civil power.

The AFSPA was just the kick-off for a slew of legislation that has since been enacted by the centre in the name of security. Draconian laws include the Disturbed Areas Act, 1967, which complements AFSPA; the Unlawful Activities (Prevention) Act, 1967 (UAPA), which introduces restrictions on the freedom of expression, the right of assembly, and the right to form associations; the National Security Act, 1980, which provides powers for preventive detention for up to one year; and the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) and its successor, the Prevention of Terrorist Activities Act, 2002 (POTA), which allowed for far-reaching infringements on civil liberties and, after much abuse and massive protests, were repealed in 1995 and 2004 respectively. At the state level, legislators have kept equally busy framing laws that clamp down on rights in the name of security, as is evidenced by, just to name a few: the Jammu and Kashmir Public Safety Act, 1978, which, according to Amnesty International (2011: 67), allows authorities to circumvent the rule of law; the Gujarat Prevention of Anti-Social Activities Act, 1985; the Maharashtra Control of Organised Crime Act, 1999; and the Chhattisgarh Special Public Security Act, 2005.

Even where human rights campaigns have managed to put a squeeze on government circles to rethink black laws, mind games are the order of the day. Observers point to the decision of the United Progressive Alliance in 2004 to rescind the controversial POTA, while slipping its most egregious provisions into the UAPA, which, unlike POTA, has no sunset clause. This, they say, might well be a possible trajectory for the AFSPA. Referring to the recommendation made by the Jeevan Reddy Committee to repeal the latter and incorporate its vital provisions into UAPA in a bid to erase the feeling of discrimination and alienation among people living in areas to which the AFSPA applies, K.G. Kannabiran (2010) points out that such a course of action is eyewash. People in Northeast India want the AFSPA to go, he writes, not because of its name but because of what it represents, namely, army rule. As long as the Army rules in this region, he writes, it does not matter which repressive law is in the place of the AFSPA.

In the same vein, following a mission to India in March 2012, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns (2012) stated that the AFSPA has no role to play in a democracy, violates international law, and should be scrapped. However, not only is it kept on the statute books, in the name of fighting terrorism ever more intrusive legislation is introduced. This is with a view to vesting new powers in law enforcement agencies already in existence, as is the case with the UAPA Amendment Bill introduced in the Lok Sabha in December 2011 and passed in the Rajya Sabha in December 2012, or conferring traditional police powers, for example the power to arrest, on new agencies, such as the proposed National Counter Terrorism Centre. ²

What compounds matters further is that black laws are so pervasive. The 2010 Raipur trial court verdict, for instance, sentencing the paediatrician and social worker Binayak Sen to life in prison, a particularly glaring miscarriage of justice in the eyes of many observers, was grounded in provisions of the Indian Penal Code (IPC) inherited from the colonial past.³ Constitutional experts argue that the sections under which Sen was convicted, namely, conspiracy to wage war against the government (121A) and sedition (124A), are draconian in terms of their definition and ambit and carry a disproportionate quantum of punishment (Sridhar 2011).

The Soni Sori case adds to the arbitrary use of legal force an additional layer of sexualised police brutality. In 2011 Soni Sori, a school teacher who was branded a Maoist sympathiser by the Chhattisgarh police, was arrested and detained, and has since been fighting charges under IPC Sections 121 (waging war against the state), 120B (conspiracy), 124A (sedition) and the UAPA (offences related to contributing to terrorist activity and raising funds for terrorist activity). In police custody Soni Sori has repeatedly been subjected to severe torture and sexualised violence, not sanctioned, but made possible under the draconian provisions.⁴ Similarly, Aparna Marandi, a dalit activist and a long-time human rights defender, who has repeatedly been targeted by the Jharkhand state government for her activities, was arrested, along with her four-year-old son, in early December 2012 under the Jharkhand Crime Control Act, 2002. She faces similar charges, and an imminent risk of torture and sexual violence, as mentioned in the petitions against her arrest.⁵

These examples show how a climate of impunity not only invites violence on several levels—physical, psychological and sexual—but also prolongs and intensifies suppression on account of caste, class and gender.

Discourses

The iridescence of the concept of impunity allows for innumerable discursive frames and social constructions. Depending on the context and referential framework one chooses, layers of meaning can be added on to, or peeled from, the notion of impunity—all enriching the discourse, none giving it definite shape. For the purposes of this study, a few broad clusters of debate shall be identified, on all levels: political, conceptual, empirical and functional.

In political terms, what sets the theme of impunity apart from other forms of engagement with human rights is that it links the harm inflicted on the individual with a notion of collective harm. A good deal of writing on impunity focuses on bringing out the human story, telling a tale of pain and anguish, opportunities lost and dreams vanquished. Empathy constitutes an important dimension of understanding impunity as it allows us to make an emotional connect with abstract principles. However, what a conceptualisation of violence centred on personal loss and suffering cannot capture is another dimension of impunity, namely, the systematic use of violence for political ends and the devastating impact it has on the well-being of society. Shobna Sonpar avers that abuse and violence are the creation of a system that provides a higher authority, validating actions that would ordinarily be constrained by norms and ethics (Raman 2010: 19). Questions of authority, in turn, cannot be seen in isolation from the dispensation of power in state and society. Hannah Arendt’s work on the banality of evil shows how easily we fall into the trap of believing that following orders and operating within the law constitutes a sufficient safeguard against infringing on the rights of others and breaching the social contract. Inextricably linked to the rights discourse, the exploration of the workings of impunity thus leads us to larger questions of legitimacy of power.

Sites of violence seem to be ever expanding. A burst of recent literature has been grappling with entrenched forms of violence, such as gender violence, caste violence and economic violence, including bonded labour. Violence is always a violation of a person’s integrity, physical or otherwise. However, what we are concerned with in the impunity discourse is the added tinge of what Bhikhu Parekh calls institutionalised humiliation, understood as the systematic violation of individual or collective self-respect. A system based on institutionalised humiliation survives, writes Parekh (2009: 31–34), on legitimizing ideology that effects degradation or social marginalization by way of coercion administered routinely by members of the dominant group as the guardians of the system or, more straightforwardly, by the physical force of the state. This is why it is important to establish what crimes have been committed and by whom, and what measures can be taken towards restoring survivors to a life in dignity. Ram Narayan Kumar (2007: 4) notes in that respect:

The experience with the relentless state of impunity, which the human rights movement in all the countries of South Asia have made, clearly demonstrates close connections between the perpetration of massive human rights violations by the state agencies, on the one hand, and, on the other, the methodologies of cover up that implicate supposedly independent institutions, the media as well as the professional bodies belonging to the civil society sphere.

The case of Shopian in Kashmir, where medical evidence on the rape and murder of two young women was tampered with, is etched in public memory and a reminder of the sense of betrayal and the complete failure of professional institutions in the country to act independently.⁶

Another site of debate has opened on the question of what sustains impunity. Depending on the framing of the debate, a solution to the problem of impunity would be found in fine-tuning an essentially healthy constitutional machinery to prevent it from occasionally breaking down or developing strategies to address more fundamental flaws in social contract theory. One strand of analysis argues that militarisation of the periphery, geographical or social, leads to deinstitutionalisation, which in turn eliminates democratic space and delegitimises the state, giving rise to patterns of abuse. A broader, perhaps more sinister, explanation of impunity rests on the assumption that violence against the perceived other is not to be considered an aberration of the law, but a systemic, arguably necessary, feature in the process of rationalising the state, which, it is argued, has justification for gobbling up resources only if it visibly exercises its monopoly of violence. In this vein, Shardool Thakur (2011: 220–26) refers to India during the period of Emergency or today’s civil war theatres of Jammu and Kashmir and the North-East as manifestations of the state of exception, a concept that Giorgio Agamben (2005) developed to describe the dominant paradigm of government in contemporary politics.

Engaging with the issue of impunity conceptually, we may want to pause for a moment and look at the paradox of the modern state. It is built on ideas of separation of powers, democratic governance and rule of law, but in violent conflict or situations of mass violence we see a curious transformation of constitutional features. Channels of authority and lines of command routinely blur or dissolve, creating zones of overlapping jurisdiction and lumps of power that form and disintegrate unpredictably. Presenting the modern state as a natural site of impunity, Haley Duschinski (2010: 113–14) speaks to the violence-enabling nature of such obscurity. The terrible ambiguity of violence and law melting together at the heart of the state and blurring perceived boundaries between the legal and the extra-legal, and the licit and the illicit, she writes, manifests itself through various disciplinary, regulatory, and enforcement practices that are exercised differentially across a range of citizenry, creating social (as opposed to spatial) landscapes of cores and peripheries that are shot through with power and violence. In other words, uncontrolled and uncontrollable violence presents itself not as the result of an accident at the switchboards of a generally benign state, but as a cancerous tumour that grows from within. Such are the circumstances in which the state becomes a site of contestation for a wide range of players who pass off their two cents of wisdom as collective truths and work perceptions of who belongs and who does not into a vortex of exclusive claims and claims of exclusivity.

The politics of rumour is central to the orchestration of violence in a communally charged atmosphere. In the introduction to an extensive collection of testimonies around the Delhi riots in 1984 and their profound impact on relations between Hindu and Sikh communities, Uma Chakravarti and Nandita Haksar (1987: 20) write that the storming of the Golden Temple in Amritsar (Operation Bluestar) earlier that year produced an avalanche of rumours circulating within the respective communities, rumours that ran parallelly, each community choosing to hear and react only to one and obliterate the other. As a consequence, information, misinformation, and knowledge itself seemed to become personified, assuming the identity of the two communities. The production of narratives and counter-narratives culminated in emotions becoming so charged that any kind of meaningful communication between the two communities was severely affected. That toxic mix of half-truths and half-lies ultimately prepared the ground for the mass violence that held the capital in its grip for days on end.

This brings us to a functional conceptualising of impunity. Inclusion–exclusion dynamics are intrinsically woven into processes driving impunity. Nandini Sundar (2012: 133) gives us an example of how conflict thrives on the vilification of the other. Referring to the protracted fighting between government forces and Maoists in central India, she notes that the government brands any critic of its counter-insurgency operations as pro-Maoist, while the Maoists consider anyone pulling them up for their acts of violence as apologists for the oppressors. Even in cases where there is consensus on the need to overcome divisions, solutions are sometimes hard to find. Navnita Chadha Behera (2007: 127–28) calls attention to the difficulties relating to the implementation of overall agreed plans to create conditions conducive to the voluntary return of Pandits who, in a climate of violence and counter-violence, left their homes in Kashmir in the early 1990s.

Binaries can also be drawn spatially, by creating so-called zones of exclusion. In post-colonial India, explains Prasenjit Biswas (2006: 264), justice is a matter of geography. The merger of spaces of exclusion with the nation-state project of inclusion has created a situation where the state enacts courts that are no courts, laws that are no laws and a [peace] process that is no process. Applying the exceptional lens to politically sensitive regions in India is common but fraught with problems. This is not only because the exception confirms the rule, which would mean, in our case, that impunity confirms the rule of law, prompting us to look for a quick fix in what we erroneously assume is otherwise working. It is problematic also because the notion of exceptional abuse discourages closer examination of the pervasiveness of violence across time and space.

Another issue with the construction of binaries is that it diverts the researcher’s attention from the task at hand, namely, establishing facts. Communal violence in Nellie (1983), Delhi (1984) or Gujarat (2002) all have produced narratives that explain, justify or excuse the perpetration of acts of violence against the perceived other even when members of the targeted community offered little or no resistance. Narratives are matched with counter-narratives until all sense of clarity is lost. Justice has been postponed, it seems perpetually, on the grounds that before any guilt can be ascribed to the perpetrators of violence, the wrongdoing of the other side, in its entirety, needs to be brought into the equation.⁷ Paradoxically, it is such calls for even-handedness in accounting for violence that eventually stymie any attempt at shedding light on, drawing lessons from and prosecuting atrocities committed, allegedly, in the name of protection from the threat posed by the other.

Parsing events of mass violence and arriving at conclusions as to who did what and in what sequence can be a tedious, at times impossible, endeavour, a finding that is corroborated by the research undertaken by the UIP. Interestingly, despite untold suffering inflicted by a host of incidents of mass violence and low-intensity conflicts since independence, India has no record to speak of in terms of owning up to mistakes made in the past. Sanjay Kak (2011: 34–35) hints at the role of the national media in hushing up uncomfortable truths by producing a cacophony of voices. Campaigns of disinformation, he claims, take two forms: the conflict shrouded in silence, like in Manipur, or the abundance of twisted images, serving as a smokescreen on which Indian journalists project a self-image of caring souls, as in the case of Kashmir. The studied silence surrounding impunity, punctured by bouts of noisy reporting on side issues, suggests, if not a climate of acquiescence, a deeply felt unease to deal with the consequences of power derailed, primarily but not exclusively, in the context of meeting the challenge of ethno-nationalism.

Couched in the language of counter-insurgency, a statist reading of violent conflict suggests that any challenge to the state warrants a robust and, if required, military response lest territorial integrity and constitutional guarantees be jeopardised. Ram Narayan Kumar (2006: 145–46) observes that it would make considerably more sense for post-colonial states to negotiate the terms of legitimate authority with the people in conformity with the principles of self-determination rather than impose the legal fiction of nation-state inherited from dissolving European empires. Meanwhile, the effect of enacting and enforcing draconian laws, such as the AFSPA, has been the deepening of impunity and the spreading of it to areas that were never considered disturbed.

Historical considerations apart, there is a case to be made for a structural understanding of impunity. Building on the idea that knowledge can be colonised like territory or people, Walter Mignolo (2010) distinguishes the project of post-coloniality from what he calls the de-colonial shift. He deserves credit for pointing out that colonialism becomes more useful as a lens for analysis of power equations when it is couched not in historical but structural terms. Translated into the present context, this means that colonial hierarchies of abuse have not ceased to exist just because we have entered the era of post-colonialism.

It is obvious from the global appeal of human rights movements that protection needs have outgrown the straitjacket of national borders. However, the rhetorical value of impunity has increased so much that the need to hold state actors accountable for violating the rights of their people has started to serve as a justification for international intervention. The referral of the case of Libya to the International Criminal Court by the UN Security Council in February 2011 is indicative of how thin the line between defending rights and toppling regimes has become. Within weeks of the referral and one Security Council resolution later, Colonel Gaddafi’s regime found itself under military attack from Western powers because, as US Ambassador to the UN Susan Rice put it, a leader whose only means of staying in power is to use mass violence against its own people has effectively lost the legitimacy to rule.⁸ This episode shows how impunity has turned into a term for dual use.

What does that mean for India? It is often heard in official circles in India that signing on to international human rights conventions is not really in the national interest as concepts like the universality of human rights are bound to make inroads into the unfettered exercise of national sovereignty. Confidence in the remedial powers of the constitution, coupled with the realisation that when they make international human rights law governments act from political motives (Freeman 2011: 8), is cited as the principal reason for India’s opposition to institutions such as the International Criminal Court. At the same time, Indian public diplomacy has been keen on promoting the country as a stalwart of human rights protection in an international arena wary of development models that, like China’s, pursue economic growth with minimal respect for political freedoms. The resulting conflict of interests helps explain the oddity that India is a signatory of both the Convention against Torture, 1984, and the Convention for the Protection from Enforced Disappearance, 2007, but has ratified neither. Needless to say that India’s ambiguity towards international law exasperates human rights defenders at home and abroad.⁹

Silences

In his last book Terror in Punjab, Kumar (2008a: 365 –66) tells the story of a tender cotton tree that is unfazed by a deadly battle raging between the King of Eagles and the King of Snakes. Even the uprooting of the mighty banyan leaves the cotton tree cold. But when it realises that a displaced flock of birds is coming over to make their nests on its branches, the cotton tree starts trembling with fear. This is, as it explains, because the birds eat fruit and their droppings will break out as saplings of banyan, fig and boa. While the clash of giants has no bearing on its life, those trees will grow and take away the sunlight and water.

It is typical for Kumar to end his book on a cryptic note, leaving plenty of room for interpretation. However, it would be consistent with his larger argument for the need to address impunity had he meant to draw our attention to the effect of violent conflict for society, potentially very significant even though invisible at first. Maybe there is a case for arguing that the fighting between security forces and armed opposition groups in India’s conflict zones feeds into a much broader, and more frightening, pattern of structural violence, overtaking ideological differences and binding state and non-state actors into a coalition of the willing waging war against the people. Here we turn to the sensitive question of what is not being discussed and why—in other words, the politics of silence.

It is perhaps important to point in this context to the many meanings of silence. Survivors at times make a deliberate choice to not enter the public discourse, a legitimate decision in the face of traumatic experiences and one that calls for respect. But even when they are willing to speak up, survivors often enough make the experience that they are being silenced. Institutional response to abuse constitutes an unfailing indicator of what survivors have to expect when they go public with the story of their ordeal. In other words, silence as a reaction to violence can be a signifier of an array of social phenomena. It may betray endorsement or guilt on the part of the perpetrator; it can be an expression of paralysis or dignity on the part of the survivor. Where silence is not a choice, however, the question of silencing arises.

In the context of South Asia, the story of silence and silencing as a way of responding to collective trauma harks back to the experience of the Partition. Among the many silences that shrouded the violence of the Partition for decades, the one around sexual violence that Punjabi women of Sikh, Muslim and Hindu religious communities were subjected to counts among the most glaring. As Urvashi Butalia wrote in 1993, A resounding silence surrounds the question of women and Partition (p.13). She describes further the barriers to developing such an analysis, asking how we begin to understand the experiences of these women and what tools we have at hand to begin this exploration. She notes that there are very few official records or facts and figures available for this purpose (ibid.: 19). Feminists were among the first to carefully explore the meaning of silence as a protection from the realisation by those who were silenced—the women living through Partition—that what they knew to be true was in blatant contradiction to what was peddled in history books as the official account of building the nation. Through feminist analysis the cracks in talk about national pride as well as honour and sacrifice emerged and it became clear that for many women it was not only miscreants, outsiders or marauding mobs they needed to fear—husbands, fathers, brothers and even sons could turn killers (Menon and Bhasin 1998: 255). Breaking the silence in such circumstances also meant breaking the lock on the closet that held the proverbial skeletons. This is what makes the process of probing for truth so delicate. Butalia (2000: 280) describes her research into the under-side of history, the story of Partition as told by women, as a stop-and-go journey that came to fruition only when she learnt to listen in stereo, tuning into the dominant and muted channels carefully to understand the relationship between them.

Silence speaks in different ways. There is the public forgetting of Partition violence, which caused dislocation and disruption but denied their effects. As a consequence, healing became an individual project. It was the individual who grappled both with political violence and the traumatisation caused by violence. In the context of sexual violence, the silence and endorsement of it contributed to creating a lasting culture of impunity. It operated at several levels: the state did not recognise the mass occurrence of sexual violence at Partition. There was no name (beyond shame, humiliation or degradation) for the violence that women endured; there was no framework to address it or to ensure that it is not repeated. The state failed to recognise that while women were representatives of the religious community on account of which they were targeted, they were also citizens with rights and claims to justice. Civil society also failed to seek accountability from the state and from the perpetrators.

As a consequence, the perpetrators’ membership of their community remained intact and many became local leaders. Progressive politics also failed to challenge the impunity granted to the brave men of the community who avenged the dishonour brought to the community by members of the other religious group. While women’s suffering was mourned and lamented, there was no support for women seeking justice. The families faithfully stuck to patriarchal norms of honour and chastity, and refused to take their daughters back. The pain was thus left unspoken; it was suppressed in the body.

The UIP, as much as it anchored its research in the conflict zones of Kashmir and the North-East, succeeded only partially in breaking the silences around sexual violence and giving women’s voices the forum we feel they require. This is not only because certain kinds of violations (such as enforced disappearances or encountered killings) are more centred on men as they are in the public sphere; it is also because information on gender-based violence is hard to come by. It is hidden under layers of silence and taboo, which our researchers were careful not to pry open at the risk of hurting the feelings of the interviewees.

Going over the case studies, we were struck by the deafening silence of the respondents on sexualised violence. The interviews ended abruptly when the subject was broached. The silence is equally marked when the same issues are raised with men who spent years in custody and endured brutal torture. But it is also true that discoveries by experienced feminist researchers could illuminate what is not visible to most or, as Bishakha Datta (2010: 5) says, the movements of women have led to discovering issues that may have long existed but are being named and recognised in the 2000s. We learnt in the process why we might need dedicated feminist intellectual resources to uncover the silences around gendered subjects of impunity. The recently launched project on sexual violence and impunity in South Asia will build on the UIP findings and go on to explore the gender dimensions of human rights violations and impunity to their fullest.¹⁰

It is perhaps helpful to recall at this point that the politics of silencing is not only at work in what is not being talked about but also in the mismatch of what is being said and what is being done. Jinee Lokaneeta (2011: 130–65) demonstrates that the jurisprudence of the Supreme Court of India on custodial deaths was marked, until the 1990s, by routine articulation of shock over the pervasiveness of torture occurring in Indian detention facilities. This rhetoric, however, did not translate into the sentencing of actual perpetrators so that it seems as if torture exists in a parallel universe, the result of invisible actors, in spaces where the Court cannot intervene. The custody jurisprudence of the court, which has since declared torture irreconcilable with Article 21 of the Indian Constitution and provided specific guidelines for the treatment of detainees, may be an expression of a changed sensitivity towards the phenomenon of custodial violence, she writes, but its overall impact on the ground has been limited. If the cases collected by the UIP team are anything to go by, we must conclude that law enforcers have fine antennae for ambiguities in the interpretation of the principle that all are equal before the law, and make full use of the resultant wriggling room, eliminating in the process whatever subtle yet vital distinction has remained between torture and death in custody.

Where proactive strategies come too late, perhaps the most essential precondition for breaking the cycle of violence is the acknowledgement that a wrong has been committed and reparations will be awarded. Reparations can take numerous forms, ranging from restitution (the re-establishment of the situation that existed before the wrongful act was committed) to compensation (covering, in case restitution is impossible or impractical, any financially assessable damage) and satisfaction (an additional remedy to be used by the state to acknowledge the wrong done in cases where other forms of reparation do not suffice). And yet, as the case studies suggest, reparations too have been a tool of silencing. Accepting compensation all too often comes at the price of signing away the right for survivors and for victim families to speak.

Inspiration

Ram Narayan Kumar, in whose memory we are releasing this volume, divided his time between a variety of places, including Punjab, North-East India, Kashmir and Gujarat, all of which are known for their history of human rights violations. Not content with attending meetings and paying the occasional token visit to state capitals, Kumar travelled extensively in the regions, spending time in remote villages and drawing, in his analysis, from a wide range of sources. Thematically, however, he remained focused, with great tenacity and attention to detail, on unearthing the truth of what happened, pressing for accountability and making a case for restitution. His was a battle for understanding—and changing—the paradigms of a security discourse that, in his words, had been feeding people to the dragon’s belly of disappearances for too long.

Equally critical of government bigwigs and what he saw as hypocrites in the various regional freedom movements, Kumar measured rights talk against implementation, comparing tall claims to what was being done in practice. In a panel discussion on contested space and identity in the Seven Sister states of the North- East, Kumar (2008b: 44–46), visibly agitated, argued that India, in its capacity to transgress laws (which after all were its own laws) had been privileging state power over people’s rights. At the same time, he criticised the political leadership of militant groups in India’s conflict regions. With respect to emphasising fundamental rights in peace talks, which in essence were to bring about power-sharing settlements, Kumar said he felt that the Nagas have failed, the Kashmiris have failed, and the Punjabis have failed.

A self-taught expert on constitutional law, Kumar (2007: 6) insisted on the need of bringing into focus the history of the conflict between the executive and the legislative branches of the State on the one hand and the higher judiciary on the other over issues of fundamental rights and the limits on the powers of the State to derogate from them in the name of public interest. However, it is pertinent to note that Kumar’s concern went beyond the purely legal realm. The suffering he witnessed during his trips to the field pained him. An astute observer of his surroundings and a fine political mind, Kumar set out to expose the mechanisms at work in state and society that allowed for people, often doing nothing more than wandering into the wrong place at the wrong time, to be killed, disappeared, tortured or sexually assaulted with impunity.

Kumar’s biography, in large parts, reads like a chronicle of India’s brush with social movements. As a young man, he vocally registered his opposition to the Emergency, which was declared in June 1975 and lasted until March 1977. He published an underground magazine and wrote incessantly, stressing the importance of upholding civil liberties and stubbornly refusing to toe any particular political line. In the face of imminent arrest, he went abroad to mobilise resistance against the Emergency and Indira Gandhi’s regime. Disappointed with the results of his campaign, Kumar returned to India. Inevitably, he was arrested and jailed. He jumped bail and published one last issue of his magazine, of which he distributed, as he recalled in conversation, a fair number of copies before he was rearrested. This time he was slapped with charges under a draconian security law and held in detention without trial for more than a year. The lack of public action against the Emergency, or infractions of the constitution of comparable severity, never ceased to puzzle him. In an interview with an old friend, Kumar (1992: 54) gave an explanation that may have informed his later course of action, including on the issue of impunity. The reason why the Emergency encountered so little opposition, he said, was simple: The majority was indifferent and the rare dissenters were scared to death. As someone who deeply believed in standing up for one’s convictions, Kumar must have found it hard to make sense of the lack of public interest in issues that he himself felt to be of great consequence for society.

In 1982, when a strike of coalminers he had been leading in Jharkhand, now Chhattisgarh, teetered on the brink of collapse, Kumar was to take a controversial decision. In order to draw attention to the plight of people whose lives, in his view, had been reduced to those of animals, he, along with a young associate, entered the Delhi flat of a Member of Parliament, who represented one of the constituencies affected by the strike, and took five people hostage. They were all co-workers of the MP, who himself managed to flee. The hostages were freed the same day and no one was harmed. Kumar and his accomplice were arrested, indicted of attempted murder, a charge that was later dropped, and detained for the entire duration of the trial—seventeen long months. But even in prison Kumar stood up to the powers that be. For exposing the wheelings and dealings in Delhi’s notorious Tihar jail, in particular the sexual exploitation of minor undertrials by long-term convicts and jail officials, he nearly paid with his life. Eventually, he was sentenced, released on bail upon appeal to the Delhi High Court and, when he withdrew his appeal for ethical reasons, made to serve out the rest of his jail term under a sentence that was sure to have been overturned.¹¹

During the 1984 riots in Delhi, Kumar walked into the streets of the capital to help rescue civilians from the raging crowds. For many who had thrown themselves into the rescue and relief effort in Delhi in those days the only way to come to terms with the realities of mob frenzy and organised violence, so Chakravarti and Haksar (1987: 13–14), was to record what they had witnessed. Amitav Ghosh (2010: 59), however, notes that his experience was different and no one he knew from the days of the riots had written about them, except in passing. He adds that there are good reasons for those who witnessed the mayhem to not write about it. After all, the riots were the result of actions and reactions, a cycle of violence, pitting against each other the terrorists in Punjab and the Indian government. To write carelessly, he cautions, in such a way as to appear to endorse terrorism or repression, can add easily to the problem: and in such incendiary circumstances, words cost lives, and it is only appropriate that those who deal in words should pay scrupulous attention to what they say. It is only appropriate that they should find themselves inhibited. Ghosh’s plea, therefore, is not for weighing words, but eating them in the interest, or so we are led to believe, of objectivity.

Kumar did not think that in the instance of mass violence or institutionalised violation of human rights well-considered silence was an option. He spoke openly about the Delhi riots and the urge to identify and expose the dynamics and structural underpinnings of abuse, and, where possible, the perpetrators never quite left him. Given the historical trajectory of insurgency in India, Punjab would quite naturally become a main area of his research interests. Kumar’s immediate attention, however, shifted to Bhopal where, in December 1984, a chemical plant had leaked toxic gas into a densely populated area, killing, depending on the source, between 3,800 and 15,000 on the spot, condemning thousands of others to a slow death spread over months and years, and destroying the livelihoods of many more for generations to come. Together with friends with whom he had worked in the days of the Delhi riots, Kumar joined the relief and rehabilitation campaign in Bhopal in early 1985 and spent several months in the devastation zone. A friend recalls that Kumar worked with survivors in a small basti (slum) of maybe a hundred houses, adjoining a side wall of Union Carbide, not far from the train tracks. Kumar did not share much about his time in Bhopal in his writings, but how deeply he reflected on the injustices inflicted on local communities by the manifestations of globalisation becomes clear in his analysis—published posthumously (Kumar 2012)—of the business interests and the imperial designs driving the US in its conquest of Iraq in 2003.

Later Kumar (2008a: 113–22) would revisit the issues in Punjab and argue that many more civilians were killed in Operation Blue Star than would have been necessary for the purpose of vacating the premises. In his writings and conversations, he would often refer to the pioneering work of Jaswant Singh Khalra, a human rights defender from Amritsar Kumar had been close to for many years. Khalra found proof that the Punjab police had secretly burnt thousands of bodies, crucial evidence of what he disclosed to be a ruthless elimination campaign conducted by the police in Punjab in the 1980s and early 1990s against perceived extremists. In September 1995 Khalra himself got forcibly disappeared, a footnote maybe in the larger scheme of things in Punjab, but an event that we can safely assume instilled in Kumar a sense of duty to take forward the unfinished work of his friend. Along with a small dedicated group of associates, Kumar conducted research into mass cremations of disappeared civilians in Punjab, meticulously collecting evidence, documenting cases and piecing together what arguably represents today the most comprehensive record of human rights violations committed in Punjab during the years of counter-insurgency.

Not wedded to political agendas other than the struggle for justice, Kumar also grappled with the intricacies of the situation in the North-East. Examining the 1997 ceasefire agreement between the Indian government and a faction of the National Socialist Council of Nagaland, an armed opposition group, Kumar travelled to Nagaland and Manipur in 2001, collected testimonies from various areas, and consulted with representatives of civil society groups and villagers alike. In the resultant fact-finding report, Kumar (2002: 136) notes that for more than three years of its operation, until the enactment of an amendment to the Ground Rules in January 2001 excesses and abuse of authority did not constitute a violation of the ceasefire agreement. This omission, he says, suggests that the signatories of the agreement viewed war solely as a matter between two organized armed forces with conflicting claims of suzerainty over the land, its people and resources. The observation that no reference had been made in the ceasefire instrument with respect to the protection of civilians under international humanitarian law may not have gone down well with the parties to the conflict, but earned Kumar respect among human rights defenders and many ordinary people in the North-East.

It would be an injustice to Ram Narayan Kumar’s life and work if we were to divorce the debates he helped trigger on impunity from the campaigns he launched to address it. He was involved in campaigns to have the AFSPA repealed in the North-East, and Jammu and Kashmir. In his last years Kumar worked tirelessly to identify the lowest common denominator for groups in the AFSPA-affected areas to subscribe to an agenda for joint action. High on his agenda was to have Naga People’s Movement of Human Rights vs Union of India (1997) overturned, a Supreme Court decision that upheld the AFSPA. The decision was based on an extraordinarily thin conception of the rule of law, as Sanjib Baruah (2010) observes, namely, that the Indian Parliament had the competence to make that law. Many who knew Kumar have commented on what they perceived to be his radical leanings. But for him to suggest that the best course of action to be taken on the AFSPA was to place the question of its constitutionality before the very Supreme Court that had already endorsed the act as constitutional gives pause. Is it possible that he was prepared to accept defeat in what he himself saw as a decisive battle if only it was duly placed on record to shame future generations into acknowledging a historical wrong?

Kumar was a controversial figure, never shy to speak his mind and pick a fight for a cause he felt was worth it. At the same time, he was exceptionally democratic, always open to be drawn into debate, considering arguments on their merits. Driven by a life-long quest for knowledge, he was hardest on himself, constantly questioning his ideas in light of fresh research findings and changing ground realities. Well read and widely travelled, he had numerous books, reports and articles to his name, but little of what he wrote reached a mainstream audience. Brooking no editorial interference with his writing, he felt, it seems, more comfortable with the smaller publishing houses. Even though he never attached much importance to his public visibility, his dedication and intellectual contribution to discourses on freedom and justice are remembered by many. Kumar passed away in Kathmandu on 29 June 2009, just two months shy of his fifty-third birthday.

The Understanding Impunity Project

Ram Narayan Kumar’s last and unfinished project, housed by the South Asia Forum for Human Rights (SAFHR) in Kathmandu and funded by the International Development Research Centre was titled Understanding Impunity: Failures and Possibilities of Rights to Truth, Justice and Reparation. The point of departure for the project, as Kumar (2007: 5) explained in a paper posted on the SAFHR website, was what he found to be a widening gap between the image drawn of India and the ground realities. The portrayal of India as a functional democracy with a secular constitution, an independent judiciary, a free and vigilant press, and an effective human rights protection regime clashed, he observed, with the findings of human rights organisations, domestic as well as international, which suggested that abuses occur on a massive scale.

At a deeper level we can see how in his work on impunity Kumar finally started to connect the dots of his previous human rights engagements. One after another he had picked out challenges that seemed to defy the vocabulary that human rights professionals were so comfortably using, irrespective of whether they described singular instances or systematic abuse. A case of torture is a case of torture is a case of torture for how long? In comparing four major theatres of conflict in India, the UIP took the work on human rights that Kumar had been involved in for so long to another level. The project started to look at patterns, began to investigate the system that bound all the seemingly loose threads of violence together.

Launched in October 2007, the project set out to arrive at some conclusions regarding the genesis, practice and culture of impunity, and inform a debate that in the absence of in-depth primary research has perhaps lacked clarity and substance. The project hinged on the hypothesis that in widely dissimilar conflict situations impunity in post-independence India has developed along strikingly similar lines. The idea was to collect and compare data and case studies from four regions in India, namely, Punjab, Gujarat, Jammu and Kashmir, and the North-East. The project could build on the findings of previous initiatives taking a comparative approach. Urvashi Butalia (2002: xv, xxi) describes the dynamics of a dialogue between women from Kashmir and North-East India that she and Sahba Husain had initiated years earlier under the auspices of the Violence Mitigation and Amelioration Project. Focus group discussions held across regions revealed how women in conflict are grappling with expectations, suspicion and stigma, and yet retain agency in adverse conditions. It is hard to imagine that the participants of such workshops, including widows and half-widows from Kashmir, would not have touched on the various manifestations of institutionalised injustice meted out to them. Impunity has thus been the subject of debate for a long time, whatever the words used to describe it as a political and social reality. However, in attempting to conceptualise the phenomenon of impunity and foreground patterns of violations by way of generating empirical data, the UIP is to be considered a first.

The fieldwork began in early 2008. The project team investigated cases of human rights abuse by both state and non-state actors, recording and transcribing interviews with victims and/or their families and preparing narratives. From the outset, Kumar was clear about the need to collect comprehensive data in a systematic way. In Reduced to Ashes, a landmark report on illegal cremations, Kumar (2003: 149) explained the importance of data organisation for quantitative research purposes as follows: From the beginning of our documentation efforts in Punjab, we recognised that the arguments about…the rights of victims to acknowledgement, restitution and reparation could have force only when the information on the violations and their magnitude became available in an objective, accurate and standardised form. Applying the same benchmarks for the UIP, the team developed a range of research and communication tools, including a Web-based and password-protected database, a discussion forum for members of the team and advisers to the project, and an incident report form, designed to systematically capture the distinctive features of a variety of violations and their impact on the respondents and their families.¹²

One of the key challenges the project faced from the beginning concerned methodology. Root causes of conflict vary from region to region and so do the manifestations of violence. How does one compare situations that, to a large extent, appear incomparable? Of course, Kumar was well aware of the difficulties involved in shaping an overarching analytical framework for the four regions under consideration. Gujarat, in particular, was routinely referred to as a case apart. Writing to colleagues in December 2008, Kumar acknowledged the need for the incident report form to be able to capture the nature of communal violence, its orchestration implicating the State and non-State agencies [in Gujarat] as well as the failures of the criminal justice system. He agreed that the incident report form had to be designed in a way so as to reflect the collaboration of state and non-state actors in Gujarat of a kind un-thought of and unknown to the existing frameworks of human rights research.

The incident report form continued to be a bone of contention even after it was already being used in the field. However, it seems Kumar never stopped believing that it was possible to develop a uniform research tool applicable to patterns of violence clearly differing from one another. In March 2009 he wrote in an e-mail in response to feedback on an article he had published in the Kashmir Times:

The other questions you raise, around the politics of identity, and the perversions and discrimination and bloody purges they have introduced in our polity, point to failures of post-colonial nationalism in creating a larger, universal framework of citizenship which can accommodate diversities and curb intolerance. What happened in Jammu & Kashmir, especially against Pandits, in [the] early 1990s, and what happened in Gujarat in 2002 and thereafter represent two sides of these failures.

For the sake of comprehensiveness, he might as well have mentioned examples from Assam and Manipur, such as the incident of mass violence in Nellie in 1983 (which was covered by the UIP) and the Naga-Kuki clashes in the hill tracts of Manipur in the early 1990s (which were not).

In October 2008 the first of several symposia that had been planned under the project to discuss issues of impunity and the work in progress was held as an in-house event in Chandigarh, followed by a capacity-building workshop in Guwahati in April 2009. Upon conclusion of the workshop, Kumar, along with a team of researchers, made a field trip to Tripura. It was to be his last. The project, which was envisaged for a three-year period, was terminated after thirty-one months in May 2010, barely a year after Kumar’s demise. Understanding impunity, even within the four corners of the project, has remained an unfinished task.

In August 2010 a group of advisers met in Delhi to discuss ways of bringing the project to its logical conclusion. Case material had been collected from three regions, namely, Jammu and Kashmir, Gujarat and the North-East (Assam, Manipur and Tripura). The data consisted of incident report forms, summaries, transcripts and supporting documentation obtained from the victims or their families, such as court files, official reports, correspondence and newspaper clippings. Falling decisively short of the number of case studies Kumar had intended to generate, it was becoming clear that the project no longer held much promise to support quantitative research. And yet, the material was too rich for us to consider letting it go waste.

We decided to systematise and consolidate the files, to edit the case summaries and summarise the transcripts, in short, to bring the wealth of information contained in the database into shape for qualitative analysis. Finally, we hauled a trunk full of cardboard boxes from the archives and examined the documents they contained one by one. Mostly they were incident report forms, filled in as part of the interview process, but we also came across heaps of supplementary material that the researchers had unearthed, such as first information reports (FIRs) registered by the police, court files, judgements, correspondence of victims and/or their families with authorities, and newspaper clippings. From these we prepared a compilation of cases, which we shared, for analysis and further research, with a group of experts, all of whom had been associated, in one form or another, with the project or the project partners. The articles contained in the present volume, complemented by a collection of case studies from Jammu and Kashmir, Assam, Manipur and Tripura, are the result of a string of intensive meetings and a drawn-out back and forth correspondence. As is often the case with edited volumes, not all the friends we asked eventually delivered a paper, but we felt that the enthusiasm the project stirred among its supporters was genuine, and we hope that whether or not our friends got around to put their ideas in writing, they all came away thinking it was a journey worth their time and effort.

A few explanatory remarks may be in order on the methodology of the fieldwork. While the incident report form was used in interviews across regions to ensure uniformity of data collection, the criteria selected by the regional teams to identify cases for investigation seem to have varied significantly. Scant attention has been paid across the board to a range of violations and actors that will need to be considered important for understanding how impunity works. Sexual violence is one area that features prominently in the research design but is only marginally reflected in