Nyayagrah Program for Mass Community-Based Legal Aid, State of Gujarat, India
Harsh Mander, India
People disadvantaged in this case
India when it began had the promise that it was to be a peaceful and secular democratic society. In 2002 however, the state of Gujarat was convulsed by one of worst episodes of ethnic blood-letting that independent India has seen. This resulted in the brutal murder, often by burning alive, of an estimated 2,000 men, women and children, almost entirely of the Muslim community, and mass rapes and slaughter, often of young girls. More than two hundred thousand people fled in terror as their homes and livelihoods were systematically plundered and burned. They took refuge in sparse makeshift relief camps that were hastily erected across the state of Gujarat by volunteers of the beleaguered victim community.
There is massive independent evidence confirming the enormity of the brutality, which was substantially targeted at women and children from the minority Muslim community. This evidence corroborates the systematic advance planning and execution of the violence by right wing fundamentalist Hindu nationalist groups, and the role of the State authorities who enabled or actively abetted the planned massacre and destruction.
As fear and insecurity continued, authorities forcibly closed refugee camps. Refugees were told, by local residents, as well as by law enforcement officials, that they would only be allowed to return on the condition that they would not seek legal justice against individual perpetrators of violence. Otherwise they would face renewed violence as well social and economic boycott until they were forced to leave their homes again.
In the aftermath of the riots, 4,500 complaints of violence were filed, largely by the police; victims were prevented from filing their complaints. Most case files failed to name an accused, referring instead to “anonymous mobs.” These police complaints often included hundreds of crimes in single files. More than half the cases were closed without trial. To break this trend of legal protection for perpetrators of ethnic violence, the Nyayagrah Program for Mass Community-Based Legal Aid began a two-pronged strategy to improve access to justice for riot survivors.
How the innovation improved access
Gandhi fashioned the instrument of “satyagrah” literally truth-force, as a mode of ethical, non-violent mass resistance against unjust laws and legal regimes. In his words, “Civil disobedience becomes a sacred duty when the State becomes lawless.” However, in formal democratic regimes, the letter of the law often upholds justice while State authorities openly violate citizen rights in practice. Where the State willfully violates its own laws, we require the development of new instruments of civic resistance. We propose the idea of “Nyayagrah”, (literally “justice-force” or people’s resistance for justice) as mass campaigns not to disobey unjust laws, but instead to hold the State accountable for enforcement of its own just laws. The State must be required to uphold rights guaranteed by its Constitution and laws, and to secure justice through its democratic instruments.
The Nyayagrah Program’s two-part innovation began, first, with a petition to the Supreme Court to reopen these 2000 plus closed cases. The petition was granted, but without the support of victims there were still impediments to access to justice. To encourage riot victims to speak up, Nyayagrah began a second initiative, a mass community-based and ethically bounded grassroots campaign, to educate, guide, counsel, support and aid victims of ethnic violence. It uses the police and courts, but we see it as primarily a battle against fear, hate and injustice. Our ethical foundation rests on our resolution never to manipulate or make use of the victim, to take every step only with her informed consent, and to ensure that no bribe is given or taken and truth never compromised.
We chose a holistic approach to the problem: rather than selecting test cases for trial, we contacted every person affected by the riots. Once we identified the plaintiffs in these improperly closed cases, we provided moral support, in case they wished to name the accused and fight the cases, ensuring that the accused were arrested and brought to trial. To ensure the authenticity of Nyayagrah’s cases, each victim must pledge that he or she will not take give or take bribes or falsely accuse members of the community.
To give local residents a sense of ownership over the grassroots initiative, the Nyayagrah Program employed both Community Justice Workers and lawyers to educate and support plaintiffs. Community Justice Workers proved essential to helping local communities heal in the aftermath of the Gujarat riots: they were both Hindu and Muslim, mostly working class, and generally contributed their time not for the minimal wages they received, but to overcome the ethnic tensions that led to the carnage in the first place.
Obstacles encountered
The State continues 5 years later to be openly hostile to the Muslim minorities, and many refugees are still unable to return home, cramped in ghettoes. Others who have returned live in face widespread social and economic boycott.
Many observers were skeptical that mass prosecution by working class justice workers and young lawyers could challenge the impunity of the powerful State and the persisting social divide between communities. Yet others felt that the police and courts could never be used to enforce justice. In a sense, Nyayagrah had to wage a war against common sense, given the size of the state apparatus the program had to face.
Others believed that justice was not the priority of the victim, who was believed to be more interested in issues of livelihoods and the opportunity to return to their homes.
The results of the innovation
In a persisting situation of fear, open state hostility and boycott, it is remarkable the survivors in around 250 cases have decided to confront both the state and their neighbors by both naming the accused and pursuing the cases with our support. We learned that justice is important for dispossessed survivors, as it restores to them a sense of equal citizenship and humanity, forces acknowledgement of their suffering, and prevents recurrence. Local victims of violence were encouraged to seek legal recognition for their suffering not for retribution, but because the community perceived justice to be the only way to rebuild a sustainable community after the disruptions of the sectarian carnage. When the fight for justice is community-based, egalitarian, and ethical, even States that violate their own secular, democratic Constitutions can he held accountable through the institutions of the police and the court system.