WAITI NG FOR JUSTICE

[Dr. John Dayal]

:
A REPORT OF THE NATIONAL PEOPLE’S TRIBUNAL ON KANDHAMAL

EXECUTIVE SUMMARY

A National People’s Tribunal (NPT) on Kandhamal was held in New Delhi
on 22-24 August 2010, organized by the National Solidarity Forum - a
countrywide solidarity platform of concerned persons from various
walks of life. The NPT aimed at assisting the victims and survivors of
the Kandhamal violence 2008 to seek justice, accountability and peace
and to restore the victim-survivors’ right to a dignified life. The
twelve-member jury of the NPT was headed by Justice A.P. Shah (retd.).
The Tribunal’s final report was released in Bhubaneswar on 2nd
December 2011. The report is based on the testimonies of 45 victims,
survivors and their representatives. Additionally, it incorporates and
draws upon the contents of studies, field surveys, research, fact-
finding reports and statements to the Tribunal that were presented by
15 experts.

The 197-paged report is divided into four parts. The first part
provides the background and context of the violence in Kandhamal in
2008, and highlights the fundamental aspects of the violence. The
second part focuses on the impact of the violence. In separate
chapters, this part examines aspects such as freedom of religion, the
gendered impact of the violence, impact on children, and the impact on
socio-economic and cultural rights. The third part compiles and
analyzes the responses to the violence. It encompasses role of the
state and democratic institutions, processes of justice and
accountability and the aspect of reparations. The fourth and
concluding part of the report lays down the concluding observations
and the recommendations of the jury. Annexures to the report include
details of victim-survivors who deposed before the Tribunal, details
of reports / statements presented to the Tribunal and details of
members of the Organizing Committee for the Tribunal.

MAJOR OBSERVATIONS:
• Communal Violence in Orissa: The targeted violence against the
adivasi and dalit Christian community in Orissa violates the
fundamental right to life, liberty and equality guaranteed by the
Indian Constitution, and affirmed by the ICCPR, ICESCR, CERD and other
international covenants. The brutality of the violence also falls
within the definition of ‘torture’ under international law,
particularly the Rome Statute of the International Criminal Court.
Communal forces have used religious conversions as an issue for
political mobilisation and incited horrific forms of violence and
discrimination against adivasi and dalit Christians.

• Violence in Kandhamal: The 2008 attacks in Kandhamal were
widespread, and were executed with substantial planning and
preparation. The violence meets all the elements of ‘crimes against
humanity’ as defined in applicable international law. Christians who
refused to abandon their faith and convert to Hinduism were brutally
killed or injured. Burning and destruction of property (residential,
official and religious / charitable institutions) was also a
predominant form of violence. Human rights defenders have been
deliberately targeted for their role in assisting victim-survivors.
Moveable property, valuable documents and certificates were looted /
destroyed to economically impoverish and lower the socio-economic
status of the victim-survivors. Evidence of the attacks was
systematically and meticulously destroyed in order to scuttle the
processes of justice and accountability.

• Gendered Impact: The jury observes, with deep concern, the
silence that prevails in matters of sexual assault, at various levels
including documenting, reporting, investigating, charging and
prosecuting cases. The threats of sexual violence against women and
their daughters continue, heightening women’s sense of vulnerability.
The attacks on women violate constitutional guarantees of equality and
non-discrimination on the ground of sex, and other international
standards, including the CEDAW. The relief measures undertaken by the
government have been marked by gender blindness and did not address
women’s special needs for privacy, nutrition, medical and
psychological support. There is no implementation of government
schemes by which widows, single women and women survivors of violence
can be restored to a life with dignity.

• Impact on Children: The impoverishment of the victim-survivor
community after the violence has had an adverse impact on the children
jeopardizing their physical, psychological and intellectual
development. Many children have witnessed horrific violence to their
close family members and suffer from acute trauma with no access to
services of socio – psycho support and healing. Many children have
dropped out of school due to the financial inability of the families
to bear the expenses, due to fear or discrimination by the school
authority. Children having been forced into the labour force, in
hazardous conditions, in order to supplement the family income, and
have also been trafficked for the purposes of forced labour, sexual
exploitation and abuse.

• Impact on Socio-economic and Cultural Rights: The violence
against Christians has caused large-scale displacement, leaving the
victim-survivors with a sense of rootlessness. The destruction of
many churches and prayer halls, and the failure to reconstruct them
has deprived the victim-survivors of their right to religious
practice. The victim-survivor community is unable to freely practise
its faith and is thereby reduced to a state of secondary citizenship –
an anathema in a democracy like India with a constitution that
guarantees fundamental rights. The violence has had an adverse impact
on the livelihood and economic well-being of the affected people.
Socio-economic boycott of the Christian community continues to be
implemented in a variety of ways. The provisions of NREGA too do not
benefit them as it is implemented in manner that discriminates against
persons on grounds of religion, caste and gender.

• Role of State Administration and Public Officials: The jury
members observe, with grave concern, the deliberate dereliction of
constitutionally mandated duties by public officials, their connivance
with communal forces, participation in and support to the violence and
a deliberate scuttling of processes of justice through acts of
commission and omission. The state agencies have blatantly failed to
extend much-needed institutional support to victim-survivors and
protect them from attacks to their persons and properties, ostracism,
socio-economic boycott and subjugation by non-state actors. The state
government has also failed in its responsibility to prevent the
violence in Kandhamal in August 2008.

• The Justice Process: The jury observes, with deep concern, that
the criminal justice system has been rendered ineffective in
protecting victim-survivors and witnesses, providing justice and
ensuring accountability for the crimes perpetrated. The complicity of
the police and their collusion with the perpetrators during the phase
of investigation and prosecution, indicate an institutional bias
against the targeted Christian adivasi and dalit community. Victims
and witnesses engaged in the justice process have been threatened and
intimidated, as there is no guarantee of safe passage to and from the
courts. Guidelines on witness protection, issued by the Supreme Court
and various High Courts, are not followed by the Fast Track courts.
Women and child witnesses face extreme vulnerability. The jury further
observes that clear gaps exist in substantive, procedural and
evidentiary law to prosecute and punish those responsible for targeted
mass violence, and that international jurisprudence in this regard has
potential relevance for filling the gaps in Indian criminal law.

• Reparations: Through the issuance of a notification prohibiting
non-profit organizations from conducting rescue and relief work in
Kandhamal, the state government abdicated its constitutionally-
mandated duty to protect the lives and human rights of vulnerable
populations. The dismal conditions in the government-run relief camps
are clearly indicative of the indifference of the State government to
the plight of victim-survivors. They are violative of the right of
victim-survivors to a life with dignity and equality, as guaranteed by
the Indian Constitution; and the right of all IDPs to an adequate
standard of living, as recognized UN Guiding Principles on Internal
Displacement, 1998. The award of meagre compensation to some victim-
survivors and its denial to many, defeat the very purpose of awarding
compensation - to repair the harm and loss caused to the victim-
survivors. The lack of uniform criteria in damage assessment has led
to an arbitrary determination of compensation amounts by State
authorities whose acts are coloured by institutional bias against the
Christian community. The absence of a comprehensive rehabilitation
package has prevented the victim-survivors from being restored to a
life of dignity. The negative role of public officials in the peace
committees and the infiltration of perpetrators in such committees
indicate that the state government’s peace initiatives have been a
dismal failure. The jury reiterates that while confidence-building
measures are of prime importance, these cannot be undertaken in the
absence of or as a substitute for processes of justice and
accountability, which are the tool for long-lasting peace in the
region.

MAJOR RECOMMENDATIONS:
A. Socio-economic and Cultural Rights
Apply National Rural Employment Guarantee Act (NREGA) and other
livelihood schemes of the state and central government to the affected
community, without any discrimination on the basis of caste, religion
or gender. Act against those engaging in such discrimination.

Implement widow pension schemes; provide government jobs to
individuals from families of deceased victims, on compassionate
grounds; reinstate/reappoint victim-survivors engaged in government
jobs prior to the violence and transfer them to areas that they
perceive to be safe and secure; provide soft loans for commencement of
small businesses.

Ensure that relief camps meet the minimum international standards of
health, hygiene and privacy for IDPs; they should have facilities to
meet the educational and nutritional needs of children, lactating
mothers and pregnant women; provide medical and psychological,
particularly trauma counselling to the victims/ survivors, with a
special attention to the needs of women survivors of sexual and gender-
based violence.

Incorporate a separate section in the State policy on relief and
rehabilitation that conforms to Article 3 of the Child Rights
Convention, as the guiding principle for all relief and rehabilitation
work.

Recommend that the National Commission for Protection of Child Rights
and the National Commission on Scheduled Castes and the National
Commission on Scheduled Tribes assess the needs of children, dalits
and adivasis respectively from the affected Christian community in
Kandhamal, and make recommendations to appropriate agencies at the
state and central levels for ensuring their rehabilitation at the
earliest.

Address educational needs of the children who have suffered
displacement as a result of the violence.

Address the long-standing problem of landlessness and land alienation
of the dalits and adivasis in a comprehensive manner through land
reform and redistribution.

B. Legal and Judicial Processes
Identify unreported cases of sexual and gender-based violence and
include the offence of sexual assault in First Information Reports
(FIRs), in cases where it has been ignored and ensure that they are
effectively investigated and prosecuted.

Enquire into the acts of all public officials named in this Report,
and pursue stringent disciplinary, administrative and other legal
action against them for grave dereliction of duty, and for collusion
and complicity in the crimes committed by the perpetrators.

Strictly enforce Sections 153 A and B of the Indian Penal Code
(promoting enmity between different groups and doing acts prejudicial
to maintenance of harmony) in order to proactively prevent programmes
that are divisive, propagate hate and incite violence against
religious minorities.
Constitute a Special Investigation Team (SIT) to re-examine the
already registered FIRs for accuracy, examine registrations of fresh
FIRs, the trials that resulted in acquittals due to intimidation and/
or lack of evidence and recommend the trials that need be transferred
or fresh trials be conducted outside Kandhamal.

Appoint Special Public Prosecutors who discharge their duties with
professional competence and integrity. At the appellate stage in the
Orissa High Court a special panel of lawyers to represent the victims
of Kandhamal violence should be constituted.

Recommend that State Legal Services Authorities set up a legal cell to
assist victims in their legal cases and interactions with the police
and courts.

Provide protection to victims and witnesses before, during and after
the trial process according to the guidelines provided in the
judgments of the Delhi and Punjab and Haryana High Courts. Take pro-
active measures to prevent threat of sexual and gender-based violence
to women survivors and their daughters and pay attention to the needs
of the child witnesses involved in various proceedings related to the
Kandhamal violence. The State Legal Services Authority lawyers to
also ensure, that witnesses depose freely and without fear in the fast
Track Courts and to bring any incident of intimidation to the notice
of the concerned authorities including the Court. State Legal Service
Authority to assist the victim- witnesses to initiate appropriate
legal action in this regard.

Accord special protection to human rights defenders and adequately
compensated the damage to their residential and organizational
properties so that there are no impediments to their work in assisting
victim-survivors with processes of justice and reparations.

C. Reparations
Adopt, at the very minimum, the 1984 anti Sikh and 2002 anti Muslim
Gujarat compensation package to enhance the compensation already
announced. In addition, victims of sexual and gender-based violence
should be included as a ground eligible for compensation and
employment.

Recognize the right of the Internally Displaced Persons (IDPs) to
return home and create enabling conditions to facilitate such safe
return in accordance with the UN Basic Principles and Guidelines on
Development-based Evictions and Displacement, 2007 and UN Guiding
Principles on Internally Displaced Persons.

Facilitate the return and reintegration of the affected families back
in their villages of habitual residence, or resettle them in safe and
secure alternative places of residence that is near to agro-based or
other livelihood possibilities.

Formulate and implement policies to provide victim-survivors full
reparations, which include compensation, restitution, rehabilitation,
guarantees that the crimes committed will not be repeated, and forms
of satisfaction such as restoration of their dignity and a public
acknowledgement of the harm that they have suffered; meeting national
and international human rights standards.

Include movable properties into the scheme of compensation, and
adequately compensate loss of valuables, cash, agricultural produce
and cattle, essential documents, household articles and vehicles
towards restoring the victim-survivors and their families to the
standard of living that they enjoyed prior to the violence.
Focus on revival of dignified livelihood options for the affected
families, and facilitate a resumption of the livelihood they had
pursued prior to the violence. Make a concerted effort at recovery and
return of lands that the victim-survivor families had abandoned at the
time of the violence, in order that they may pursue agro-based forms
of livelihood.

Include members of the affected community, particularly women, in all
confidence-building and peace-building initiatives by the state and
district administration. Substantive participation of women in village
level peace committees should be facilitated, rather than a token
representation.

D. Minority Rights
Protect the right to religious freedom and clarify that this freedom
means and includes the right to remain animist, areligious and/or
atheist, and make any form of forced conversion or reconversion
illegal.

Formulate a policy / programme to urgently address the issue of
institutional bias against the minority Christian community in
Kandhamal and other parts of Orissa, through a combination of
perspective-building and stringent action that is intended at
upholding the rule of law.

Review OFRA to ensure that it does not violate the right to religious
freedom as guaranteed by the Indian Constitution and international
law.

Review the definition of the Scheduled Castes in The Presidential
Order of 1950, on the basis of the discrimination experienced by
members of schedule castes even after conversion.

Implement the recommendations of the National Commission for
Minorities, issued in their reports of January, April and September
2008 with immediate effect.

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