The Communal Violence (Prevention, Control, and Rehabilitation of Victims) Bill, 2005.
please see the attached pdf.
January 24, 2006
A People's Critique of the Communal Violence (Prevention, Control and Rehabilitation of Victims)
Betrayals and Missed Opportunities:
The Communal Violence (Prevention, Control and Rehabilitation of Victims)
Bill, 2005
A People's Critique
ANHAD
HRLN
Jan Vikas
Anti-communal groups, human rights organizations and women's groups have
expressed their strong opposition to the Communal Violence (Prevention,
Control and Rehabilitation of Victims) Bill which the UPA government
recently tabled in Parliament. Earlier drafts of this bill were rejected by
these citizen groups, but few of their concerns have been addressed in the
Bill which was hurriedly tabled in the Rajya Sabha on December 5, 2005. A
demand for such a bill had been made in light of an increasing atmosphere of
communalisation across the country and particularly in light of the events
of Gujarat 2002. On neither front does the Bill deliver.
A people wearied and battered by the politics of hatred that swept the
country during almost two preceding decades, have been let down gravely by
the Bill recently introduced by the UPA government in the Rajya Sabha. In
the deeply troubled times that the nation is passing through, the Bill was
awaited with great hope by not just minorities, but by other citizens as
well who are intensely concerned about imminent and serious threats mounted
to the secular character of our society and polity. The Bill does not
respond significantly to the criticisms and fears voiced when its first
draft was released a few months ago outside Parliament. The government
instead appears bent on diluting, even subverting the spirit of one of its
most important commitments on being voted to power. As this Bill is being
considered by Parliament, a deep sense of disappointment and anguish
prevails.
The basic problem with the Bill is with the foundation of objectives on
which its entire edifice is constructed. This foundation of the Bill is so
flawed that its architecture cannot be remedied by improvements in specific
components. The preamble of the Bill itself states that the Bill aims to 'to
empower the State Governments and the Central Government to take measures to
provide for the prevention and control of communal violence which threatens
the secular fabric, unity, integrity and internal security of the nation and
rehabilitation of victims of such violence'. The immediate context for the
Bill is the Gujarat massacre of 2002 and its aftermath, but also Nellie in
1983, Delhi in 1984, Bhagalpur in 1989, Mumbai in 1992-93, and a long list
of such episodes of national shame and trauma in which democratically
elected state administrations were openly partisan and neglectful or even
actively participant in the massacre of segments of the populace that
followed a different faith from those of the majority of their fellow
citizens.
Let us consider by way of illustration Gujarat as the most recent, and the
most disgraceful of all of these acts of state abdication and collusion with
communal organisations. The state machinery was found by many independent
citizen investigators to be gravely complicit in planning and executing the
most brutal massacre since Independence of women and children of the
minorities. It did little to control the violence for weeks, refused to set
up relief camps or to rehabilitate the victims. Almost four years later,
many more than half those who lost their homes are unable to return because
of continuing fear. The legal process has been subverted.
To legally prevent the recurrence of situations like this is a matter not
just of security and restored trust, but actually of life and death for
millions of citizens of minority faiths. Its urgency is enhanced by the fact
that over the last two decades, political formations with openly communal
agendas have directly or through their political proxies, captured political
power in many states of the country, and indeed along with a bunch of
opportunistic political formations have emerged as the main alternative
contenders for power in the central government in the future. The prospect
of the infamous Gujarat experiment of a state sponsored terrorising of
minority citizens is a realistic imminent fear with which millions of
citizens are living in states like Rajasthan, Orissa, Madhya Pradesh,
Chatisgarh and Jharkhand. It is for this reason that the Bill pledged in the
common minimum programme of the coalition government was so eagerly awaited.
But what this law sets out to do is not to protect innocent citizens from
future possible acts of criminal communal collusion of their elected rulers,
and the civilian and police arms of their administrations. Instead, in its
statement of objectives itself, it sets out perversely to vest those same
state administrations with even more powers.
Do the framers of the Bill, or the members of the union cabinet who approved
its submission to Parliament, genuinely believe that Narendra Modi in 2002,
or indeed the administrations of Delhi, Nellie, Bhagalpur or Mumbai when
these also burnt in the past in raging communal fires, did not act because
they did not have enough powers to do so? Was the failure of disempowered,
or of criminally malafide public authority in each of these cases? Even a
junior local policeperson or civil administrator has all the powers under
the law as it exists, that is needed to quell any communal conflagration.
Indeed, no riot can continue beyond even a few hours without the active,
wanton, and in my opinion manifestly criminal complicity of state
authorities. If this is the case, what purpose is served by a law that sets
out as its objective to further 'empower' these same state and central
governments?
The core sections of the Bill from Chapter II to Chapter VI, relating to the
prevention of communal violence, the investigation of communal crimes and
the establishment of special courts will only come into effect if the State
government issues a notification. All opposition governments could ignore
this statute completely. Moreover, a state government may issue a
notification bringing the statute into force in the state and yet render it
sterile by not issuing notifications declaring certain areas to be
communally disturbed areas. The Act can be invoked only in very extreme
circumstances where there is criminal violence resulting in death or
destruction of property and there is danger to the unity or internal
security of India. There are many serious communal crimes which may not
result in death such as rape. Similarly, social and economic boycotts,
forced segregation and discrimination will not fall within the ambit of the
statute because they do not result in death or the destruction of property.
Even in such extreme circumstances the Act only prescribes that the
government 'may' act by issuing a notification. On the face of it, the duty
to act is not mandatory.
Chapter III relates to the prevention of communal violence and appears to
empower the district magistrate to prevent the breach of peace. The powers
of executive magistrates and policepersons delineated here already exist
under numerous statutes, such as to requisition the armed forces to control
communal violence; to control any assembly or procession; prohibit
loudspeakers; confiscate arms, ammunition, explosives and corrosive
substances; conduct searches; prohibit displays or 'harangues', or
gatherings that may incite communal sentiments; and externment of those who
may disturb communal peace. The listing of these powers in the new Bill is
at best cosmetic and redundant, as it adds little to what is already legally
permissible for these authorities to suppress communal violence. The earlier
draft had included new powers, attempting to reintroduce through the
backdoor draconian provisions from the repealed POTA and the abused and
feared Armed Forces Act. The government was mercifully sensitive to protests
that enhanced state powers in communal situations will mainly be misused
against minorities, and it withdrew these provisions from its new draft.
For citizens living under the shadow of communally driven (or opportunistic)
governments, then, what this Bill offers a listing of powers of the
government that mostly already exist, that they *may *use to protect them if
they choose to do so. What they needed instead was a law that enhanced the
powers of citizens in relation to such governments, and not of the
governments in relation to its citizens. They needed a law that did not
merely enable their governments to act when communal violence unfolded. They
needed a law which made it mandatory for the government to act, in clearly
codified ways, before, during and after communal violence, and which made
failures of these governments to act, leading often to the avoidable loss of
life and property, or sexual violence, criminal acts for which they can be
charged, tried and punished. There is virtually nothing in the law that does
this; indeed, as observed, this is not even the stated intention of the law.
That is why this is not a Bill that can be improved by tinkering with a few
of its clauses. Its basic premises are so flawed, that it needs to be
rejected in its entirety and replaced by a law of very different objectives,
which genuinely protects the human rights and security of citizens in
communal contexts and enables them to hold their governments accountable for
their acts of omission and commission.
The Bill does contain one clause for punishment of public officials who fail
to perform their duties. Section 17 (1) provides for punishment with
imprisonment which may extend to one year, or with fine, or with both, for
any public servant who '(e)xercises the lawful authority vested in him under
this Act in a mala fide manner, which causes or likely to cause harm or
injury to any person or property'; or '(w)illfully omits to exercise lawful
authority vested in him under this Act and thereby fails to prevent the
commission of any communal violence, breach of public order or disruption in
the maintenance of services and supplies essential to the community.' It is
explained that offences under this section include wilful refusal by any
police officer to protect or provide protection to any victim of communal
violence; to record any information relating to or to investigate or
prosecute the commission of any scheduled offence.
There are however two fatal catches to this otherwise promising segment of
the Bill. It neglects to hold accountable the command authority of elected
leaders like the chief minister and home minister for these lapses, and at
best can result in the mild punishment of some junior policepersons. Even
more fatal is the proviso that no court shall take cognizance of an offence
under this section except with the previous sanction of the state
government. In the context of state governments with communally driven
malafide intent, the chances of even police officials being punished under
this clause are very remote.
It is well known that hundreds of cases throughout the country are
languishing because the state governments have refused to grant sanction for
prosecution of public servants. In any case sections 217 to 223 of IPC
cover offences by public servants such as the shielding of criminals,
preparing false records, making false report in courts, initiating false
prosecutions and allowing criminals to escape.
Recognising the role of the police in communal riots, it is critical that
the immunity granted under sections 195, 196 and 197 of the Criminal
Procedure Code be omitted in any statute on communal crimes. No junior
officer should be allowed to take the defence that he was ordered by his
superior to commit the crime. Nor should any commanding officer be allowed
to take the defence that he or she was unaware of the crimes that were
committed on one's beat.
Similarly, public prosecutors who side with the accused persons and enable
them to be released on bail or are instrumental in their acquittal ought
also to come under legislative scrutiny. A section is necessary to allow
the trial judge who finds the performance of the prosecutor unsatisfactory
to remove him from the case.
Chapter XII which grants immunity to the police and army is particularly
insensitive. Various Commissions of Enquiry including the Justice Ranganath
Mishra Commission (Delhi riots), the Justice Raghuvir Dayal Commission
(Ahmednagar riots), the Justice Jagmohan Reddy Commission (Ahmedabad riots),
the Justice D.P. Madan Commission (Bhiwandi riots), the Justice Joseph
Vithyathil Commission (Tellicheri riots), the Justice J. Narain, S.K. Ghosh
and S.Q. Rizvi Commission (Jamshedpur riots), the Justice R.C.P. Sinha and
S.S. Hasan Commission (Bhagalpore riots), and the Justice Srikrishna
Commssion (Bombay riots) have found the police and civil authorities passive
or partisan and conniving with communal elements.
There are other problems with the Bill as well. The definition of 'communal
violence' is limited to a listing of offences under existing acts, such as
the Indian Penal Code,1860; the Arms Act, 1959; the Explosives Act,1884; the
Prevention of Damage to Public Property Act, 1984; the Places of
Worship(Special Provisions) Act, 1991; and the Religious
Institutions(Prevention of Misuse) Act,1988. Given the character of communal
violence as it is unfolding in many parts of the country, a much wider
definition is needed, not just of violence, but of discrimination and human
rights violations on communal grounds.
The act should cover communal crimes such as hate speeches and mobilisation;
spreading ill-will and distrust between communities; communal literature and
textbooks as well as classroom teaching; forced ghettoisation and expulsion
and exclusion from mixed settlements; discrimination in employment, tenancy,
admission to educational institutions etc on communal grounds;
discrimination on communal grounds by professionals like doctors and
lawyers; and so on. Many of these such as hate speeches are addressed by
existing laws, but the flaw is the same, that there are no binding duties of
the state to act against these. In fact, governments are mostly known to
withhold permission to prosecute hate speakers and writers, even when
complaints are registered against them by human rights groups. The mandatory
duties of the state under this Bill should therefore include prevention of
these communal crimes as well, such as prohibiting and punishing (in a
purely illustrative list) hate speeches and writings of the kind that Bal
Thackerey, Modi and Tagodia routinely indulge in; the pedagogic content and
methods used openly in Sangh schools; or refusals to rent a house or employ
someone on the grounds of their faith, caste or gender.
The Bill does little to address gender violence, which has become the
feature of most communal incidents, where the bodies of women are used as
battlefields to establish dubious communal male superiority. Incidents like
Gujarat in 2002 alert us to the need for a much wider definition of sexual
violence (generally, but also specifically in the communal context) to
include acts like stripping before women or stripping them, insertion of
objects, piercing, sexual taunts etc, and should not require evidence of
actual penetration of the kind required under rape laws. The Bill needs to
change rules of evidence to shift the burden of proof to the accused, rather
than place it on the women survivors. It needs to protect the dignity and
confidentiality of the survivors of violence at all stages, from recording
of complaints and statements, to investigation and trial. There should be
mandatory services of counselling and medical attention to the survivors.
An unresolved controversy relates to whether the powers of the central
government should be extended in the event of a state government failing to
perform its legal and moral duties in expeditiously and impartially
controlling large-scale outbreaks of communal violence. This would be
important if the central government is comprised of parties and coalitions
of different political persuasion from those of the state government. The
Bill remains conservative in this, and section 55 requires the Central
Government, in cases where it is of the opinion that 'there is an imminent
threat to the secular fabric, unity, integrity or internal security of India
which requires that immediate steps' to 'draw the attention of the State
Government to the prevailing situation'; and to direct it 'to take all
immediate measures to suppress' the violence. If the state government fails
to act, the Bill provides first for the central government to declare any
area within a State as 'communally disturbed area' under this Bill; but this
is not significant because, as we observed, such declaration does not
require mandatory actions by the state government to control the violence.
The Bill also provides for central 'deployment of armed forces, to prevent
and control communal violence', which would have been very significant, but
the provision is neutralised by the requirement that this central deployment
is legally permissible only in the event of 'a request having been received
from the State Government to do so'. In other words, only the state
government still retains the power to decide about the deployment of armed
forces to control communal violence. Once more the Bill elaborately ensures
that nothing changes in the prevailing legal position, although it is made
to appear superficially that it does.
The Bill takes some halting steps to fill one major gap that exists in the
law at present. There is no law that defines the rights of survivors of
communal violence to rescue, relief and rehabilitation. The Bill once again
provides no protection against a government like that of Modi, who refused
for the first time in a major communal conflict after Independence, to even
set up relief camps, announced no rehabilitation package, and has yet to
take steps to secure the return of more than half the survivors who fled or
lost their homes in the carnage of 2002. There is no defence against the
contempt displayed by Modi against a segment of his own citizens when he was
asked why he did not set up relief camps. He is reported to have replied, 'I
refuse to set up baby-producing factories'.
Instead Chapter VII deals with relief and rehabilitation in a largely
ceremonial manner. It calls for the setting up of national, state and
district level 'Communal Disturbance Relief and Rehabilitation Councils' but
nowhere in the Statute does the right of the victim to relief, compensation
and rehabilitation emerge *as* *a right *according to an acceptable
international standards. When the state does not protect the lives and
properties of the minorities during communal carnages, should the victim not
have a right to compensation and alternative livelihoods at the cost of the
state? An answer to this was expected in the statute. Is a relief camp to
lie at the discretion of government and NGOs with shabby provisions being
made on a temporary basis, or is it the right of the victim to be provided
immediate relief according to well established norms? All this is sadly
missing in the Bill.
Chapter IX deals with the funds for relief and rehabilitation and once again
the shallowness of the central government stands exposed. The financial
memorandum to the Bill which is supposed to indicate the liability of
government ends on a dismal note: "As involvement of expenditure depends
mainly on the occurrence of communal violence, it is difficult to make an
estimate of the expenditure from the Consolidated Fund of India". The
entire orientation is in keeping with the approach seen in the
rehabilitation of Tsunami victims of getting the NGOs to spend for the
entire rehabilitation.
The Bill needs instead to lay down once again legally binding duties of
rescue, relief and rehabilitation; the relief camps must meet
internationally endorsed standards for refugees; the government must give a
subsistence support until it is possible for survivors to return with a
sense of security to their homes; and rehabilitation must ensure that people
who survive must be restored to a situation better than that in which they
were placed before the violence. There must also be special measures
prescribes for widows and orphans.
The Bill provides once again on the initiative of the state government, the
establishment of special investigation teams and special courts. It lays
down time limits for investigation of communal crimes of three months,
beyond which the cases will be reviewed by senior police officials. The only
qualification it lays down for public prosecutors is seven years of service,
but there is no impartial process of selection, and no bar to those with
known partisan links hostile to the interests of the victims. (It is
established before the Supreme Court that many public prosecutors were
members of Sangh organisations in Gujarat, therefore instead of prosecuting
the accused, they openly acted as their defence.) The law needed to go much
further in defending the rights of the victims, and the role that their
lawyers could play if the prosecution is partisan. There is also the
arguable provision for enhanced punishment of those convicted of communal
crimes, but the conventional wisdom remains that the certainty of punishment
is a much greater deterrence than its severity.
The Bill contains some provisions for witness protection under section 32,
which provides that for keeping the identity and address of the witness
secret. These measures include '(a) the holding of the proceedings at a
protected place; (b) the avoiding of the mention of the names and addresses
of the witnesses in its orders or judgments or in nay records of the case
accessible to public; and (c) the issuing of any directions for securing
that the identity and addresses of the witnesses are not disclosed.'
These measures are welcome but hardly go far enough. The witness protection
under Section 32 has been drafted without application of mind as to the Law
Commission's recommendations. The main aspects of modern day witness
protection which shields the witness from the accused, compensates her for
the trauma of the crime and the trial and creates new identities and a new
life for the witness is totally missing. Genuine witness protection
includes a substantial financial obligation of the state to take care of the
witness and her family in secrecy, often for the rest of their lives.
No law by itself can defend people against injustice. People need to be
mobilised and organised to secure their rights. But laws can be vital
democratic instruments by which people can resist and shield themselves
against injustice, particularly when the governments they elect defy their
moral and constitutional duties by failing to secure them against communal
mobilisation and crimes. The law that Parliament is considering is critical
for the defence not just of the lives and properties of minorities, but of
their equal rights and protection under the law, and indeed the secular
character of the polity. Let our law-makers not miss this critical moment in
our history to allow mounting and endemic state injustice in communal
situations to persist unchallenged.
Critique of the Communal Violence (Prevention, Control and Rehabilitation of Victims Bill, 2005)
By Y. H. Muchhala
Recently an official Bill is introduced in Rajya Sabha known as the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 (For short, described as CVP Bill, 2005) It is indeed good news for all those who have been fighting against the evil of communal violence, which erupts in our country at regular intervals.
Earlier, the Home Ministry had publicly circulated the Communal Violence / Prevention Bill of 2005. That Bill naturally provoked wide ranging debates and discussions. The following points/ concerns emerged out of such debates / discussions:
Legislative competence of the Parliament to enact laws in the form and substance of the Bill was doubted.
The common criticism of the Bill was about what it omitted to mention. The criticism, as it went, was that communal riots were not prevented and controlled not because there is any lack of power under the existing laws in favour of a State but because of the lack of political will to enforce the existing laws and to prevent and/or control communal violence. The Bill made no provisions for making the concerned authorities answerable / liable for non-exercise of powers to prevent and/or control communal violence. By providing immunity to the State Administration and its officers from any legal action for acts done “bonafide�, it was made clear that the provisions of the Bill are like a toothless tiger. There was nothing in the Act which would deter local administrations / police / State machineries / instrumentalities from dereliction of its constitutional / legal duties because they were not made accountable for such dereliction at all. Therefore, the opinion was expressed in many quarters, that no such bill was necessary.
The Bill provided for more stringent punishment for commission of scheduled offences. The criticism was that since there was no political will in the establishment to prosecute offenders under the existing laws for dereliction of duties, making punishment for such offences more stringent would become counter productive. It was natural assumption that since such offences were made more stringent there would be lesser likelihood of miscreants being prosecuted by State Agencies. Such provisions were merely an eyewash and did not help to cure the malady of Communal Violence.
It is generally noticed that whenever Communal Violence erupts in any part of the country the issue is immediately politicized and the parties in power become reluctant to exercise necessary powers of the State to prevent / control Communal Violence. Since the exercise of powers to declare an area as “Communally Disturbed Area� is left to the Centre / State Government, the exercise of such power will normally depend upon political equations that the Centre and State may have at a given point of time. If the same political party rules the Centre and State Government, then both have natural inclination to avoid “political embarrassment�, both will be reluctant to exercise such powers. In the event of the Centre and the State are governed by different political parties then again the exercise of powers by the Centre at any given point of time will not be without political motivations. In such events the absolute powers that are vested as per the provisions of the Bill in Paramilitary / Military forces are not without the danger of being abused. Therefore, it is very necessary that the Bill must contain the provisions for accountability for non-exercise of powers to declare an area as communally disturbed area. For want of accountability the whole exercise appeared to be in futility.
Legitimate concerns were voiced for vesting unfettered powers on military / paramilitary forces as the experience has shown that such powers have been exercised irresponsibly by military and paramilitary forces as it happened in Assam, Manipur and Kashmir. Since the Bill lacked provisions for accountability for the abuse of powers by concerned military and paramilitary forces, there was complete neglect of violation of Human Rights.
2. Now the Home Ministry has introduced an official Bill under caption “The Communal Violence / Prevention Control and Rehabilitation of Victims Bill, 2005� i.e. CVP Bill, 2005.
2.1 The introduction of the CVP Bill, 2005 in Rajya Sabha undoubtedly manifests the U. P. A. Government’s concern to prevent and suppress communal violence, which of notoriously occurs at intervals. Such action on the part of the Government is undoubtedly in consonance with the common minimum programme of U.P.A. Government.
But, the CVP Bill has many shortcomings. It is felt that the provisions of the CVP Bill, 2005 fall short of achieving the main objective of preventing and suppressing communal violence. It is therefore necessary to enlist those defects/shortcomings, which are as follows:
Commencement of the Act:
Section 1 Sub- Section (4)
The commencement of the Act in respect of the Union Territories is left to the Central Government and it can bring the Act into force on such date as the Central Government may by Notification in the Official Gazette appoint. So far as States are concerned, the scheme for commencement is such that only the provisions relating to relief and rehabilitation (excluding the provisions of suppression and prevention of communal violence) can be brought into force on such dates as Central Government may appoint by notification on the Official Gazette and different dates for different provisions may be specified for their commencement.
So far as the Prevention and Suppression of communal violence is concerned it is left to the State Government to bring the provisions in force on such date as it may appoint by notification in the Official Gazette.
Therefore, on the passing of the Act, by the Parliament, none of the provisions will come into force as the application of its commencement will depend on the sweet will of the Central Government / State Government.
The Public demand is to have effective law with immediate effect and not adding one more law to adorn statutes. No country can have good Governance unless all the sections of its population feel safe and secure. Therefore since the UPA Government has promised good Governance, it is its duty to enact effective legislation with immediate effect which will prevent/suppress communal violence. The whole scheme of enforcement of the provisions of the Act displays lack of political will.
Secondly, it is difficult to understand why the implementation of the provisions of the prevention and suppression is left to the discretion of State Governments. It is presumed that the Government must have done some exercise to elicit response from different State Government on the provisions of the CVP Bill, 2005. It is the right of public to know that which state has shown willingness to implement/enforce the Act with immediate effect and which States have taken recalcitrant approach towards it. It is therefore necessary for the Central Government to inform the public as to which of the States are willing to implement/enforce the Act with immediate effect and which states are not so willing.
Without its proper enforcement the CVP Bill, 2005 is merely ‘a teasing illusion and a promise of unreality.’ It is a toothless tiger which cannot even roar.
2.2. Closely examining the scheme of the proposed law as disclosed in the CVP Bill, 2005 it is clear that the provisions of the Act will come into force only on the concerned State Government or the Central Government declaring a particular area in any State as “Disturbed Area�. In the event of the failure of the Centre nor the concerned State Government to make such declaration, none of the provisions of the Act (baring few exceptions) will come into operation. There is no provision in the CVP Bill, 2005 making the State or the Central Government accountable / answerable for failing to make such declaration inspite of there being justification to do so. The CVP Bill, 2005 therefore does not answer or satisfy the main concern of the people that the communal violence erupts from time-to-time not because there are no sufficient provisions in the existing law to prevent or suppress communal violence, but there is no political will in our administrators / executors to take effective steps under the existing laws to prevent or suppress communal violence. This is a main lacuna in the CVP Bill, 2005. The maintenance of law and order is the primary responsibility of State. When there is complete break down of law and order, and complete disturbance of Public order and breach of Public peace and tranquility, the law must hold the State per se responsible for such situation and visit the State and its diverse actors with penalty and other civil and criminal consequences. It is common experience as is evident from diverse reports of the Commissions of Enquiry set up after communal violence in various parts of country (often headed by sitting or retired justices of High Courts and Supreme Court) that such break down of public order and disturbance of peace and tranquility occurred because of active complicity or sheer connivance or negligence of State actors. In short, the provisions of the Bill has no provisions to remedy this basic malaise.
That in the event of a Communal Riots, the concerned authorities should be made answerable / accountable for none exercise of powers for preventing and/or controlling communal violence. The CVP Bill, 2005 makes inadequate provision for the same.
The CVP Bill, 2005 repeated the provisions relating to the stringent punishment for scheduled offences but ignored the criticism that since there was no political Will in the establishment to punish offenders under the existing law by merely enhancing punishment, the law will become counter productive.
As regards the use of force by Police or Military / Paramilitary force to prevent or contain communal riots, the past experience has shown that such powers have invariably been used by such authorities against religious minorities and other marginalized sections of people like Dalits. There is no adequate provision in the Bill to make police or other paramilitary force accountable / answerable for excessive / malafide / bias/ partisan use of force against religious minorities and other marginalized sections of people like dalits. Thus there is complete neglect of violation of Human Rights.
Clause 5 of the CVP Bill, 2005 under Chapter III invest District Magistrate with the powers to take preventive measures when there is an apprehension of breach of peace or creation of discord between members of different religious groups, it is provided that he may, by order in writing, prohibit any act which in his opinion is likely to cause apprehension in the minds of another community or caste or group that it is directed to intimidate, threaten or otherwise promote ill will against that community or caste or group. The power conferred upon the District Magistrate under the clause, if properly exercised, may be effective in defusing built up of communal tensions in an area which normally precedes a communal riot. But there is no provision in the Bill providing for consequences for not obeying or defying such order. This defect should be remedied.
Clause 7 empowers the Competent Authority to direct any person or class of persons, or all persons, in a communally disturbed area, to deposit forthwith all arms, ammunition, explosives and corrosive substance, with the nearest police station. However, there is a proviso added to that clause stating that the Competent Authority may exempt any individual or class of individuals from the operation of such order. The effect of proviso which gives unguided and un-controlled discretion to the Competent Authority to exempt “any individual� or “class of individual� from the operation of such order is to wipe out the effect of main provision of the Section. The CVP Bill, 2005 does not provide any guidelines to the Competent Authority as to when they should exempt any individual or class of individual from the operation of such order.
Clause 10 of the CVP Bill, 2005 empowers the competent authority in a communally disturbed area to pass orders regarding the conduct of persons in communally disturbed area. This provision can also be selectively used against the interest of religious minorities and marginalized people like Dalits.
Clause 11 of the CVP Bill, 2005 prohibits of loitering in, or in the vicinity of communally disturbed area. Any person may be ordered to leave it, by a police office, or any other person authorized in this behalf by the competent authority (which may even include a constable). Whoever contravenes the provision of this section without just and sufficient cause is liable to be punished with imprisonment of one year, with fine or with both.
Selective application of these provisions may be or could be used against genuine social activists working in a communally disturbed area. This provision also can be selectively used against religious minorities and other marginalized sections of people like dalits.
Clause 12 of the CVP Bill, 2005 provides for punishment for committing offences under the Act. This provision can be selectively applied against religious minorities and other marginalized sections of people like dalits.
Clause 13 & 14 of the CVP Bill, 2005 provides for punishment for assisting an offender for the commission of offence under the act. This provision can be mischievously used against religious minorities and other marginalized sections of people like dalits to prevent any financial aid to the riot victims.
Clause 17 of the CVP Bill, 2005 is quite important which makes any public servant who exercises the lawful authority vested in him under the act in a malafide manner or willfully omits to exercise such authority vested under the act and thereby fails to prevent the commission of any communal violence, etc. with punishment up to three years or with fine or with both. However, no court can take cognizance of offence under Section except with previous sanction from the State Government. The State Government is required to disposed off every request for grant of sanction within 30 days from the date of the request.
The procedure for obtaining sanction from the State Government is quite unnecessary and for all practical purposes nullifies the effect of main provision of Clause 21. Experience has shown that the State Government is loath to grant sanction against the public officer for such prosecution. In the event of the State Government refusing the sanction there is no remedy available to the aggrieved persons to prosecute public servant for dereliction of his duties. Therefore, the remedy of prosecuting the delinquent public servant for willful dereliction of his duties or malafide exercise of his powers is quite illusory.
Further, what is the remedy to riot victims against the State Government or Central Government for not declaring an area as communally disturbed area inspite of the fact that there was factual justification for making such declaration? In such event, the major provisions of the Act will not become operative. Therefore, unless State Governments and Central Government are not made accountable / answerable for their inaction in the matter, the whole exercise of enacting a toothless law is to throw dust into eyes of the people. The whole exercise is to provide base for concerned political parties to make hollow claim that they have fulfilled their electoral promise.
Clause 18 of the CVP Bill, 2005 provides for punishment for violation of order under Section 144 of the Criminal Procedure Code. Again in this clause there is no mention of Clause 5 of the CVP Bill, 2005. Therefore, a person who contravenes the order made under Section 5 of the CVP Bill, 2005 cannot be prosecuted under this clause.
Clause 22 of the CVP Bill, 2005 provides for Review Committee to be constituted by the State Government. It will be headed by an Officer of the level of Inspector General of Police. There is an ambiguity about the number of persons who will constitute Review Committee and qualifications of such members. The Review Committee has power to order fresh investigation in case where charge-sheet is not filed within three months from the date of the registration of the F. I. R. by any officer not below the rank of Dy. S. P.
The Review Committee should be headed by the Officers with judicial experience and he need not be a Police Personnel.
2.16 Clause 23 of the CVP Bill, 2005 provides for constitution of Special Investigation Team by the State Government. When the State Government satisfied that the investigation of offences committed in any communally disturbed area were not carried out properly in a fair and partial manner, it may constitute Special Investigation Team. It is experienced in Gujarat and Mumbai riots that inspite of enormous evidence available to show that investigation in riot related cases neither fair nor partial, the State Governments turned Nelson’s eyes to the same. The political parties in power act in such situation on political considerations. They are reluctant to have fair and impartial investigation to avoid political embarrassment or to shield their rank and file or their political ‘supports and sympathies.
2.17 Chapter IX of the CVP Bill, 2005 contains clauses 49 to 52, which provide for funds for relief and rehabilitation. There is criticism about the constitution of relief and rehabilitation Councils as per the provisions of the Bill. The effectiveness of such Councils is doubted on the ground that the Council will comprise of members who will be the Government nominees. It is apprehended that such Government nominees do not take effective steps of relief and rehabilitation of riot victims. Further it is the State duty to provide adequate relief and rehabilitation to riot victims. Anti national and anti social elements who spread communal violence must be made to realize that the cost of rehabilitation and relief has to be born by the Society. It is suggested that the entire issue of rehabilitation and relief be dealt with in a separate enactment and should not be made part of the same enactment.
2.18 Chapter X of CVP Bill, 2005 deals with compensation to victims. Clause 53 provides for giving compensation to riot victims. It is illusory relief to them. Clause makes it clear that the compensation is required to be paid by the person who is convicted of offence punishable under this act.
In the first place, it is the past experience of the Communal Riots that very few individuals are convicted of offences committed during the communal riots. Secondly, people from very low economic strata are charged with commission of such crimes and even if they are convicted they have no means to compensate riot victims. The main lacuna in a whole act that it does no go after the people or organization who actually conspire and plan riots. Justice Srikrishna Commission Report indicted Bal Thackery who acted as vet rant general conducting riots but Bal Thackery was not present at any scene of communal violence and was not shown as accused in any of the riot related cases involving burning, looting of properties or physical harm or death of riot victims. Unless and until we have some effective legislation which makes responsible any organization be it the political, social, community based or otherwise for providing compensation to the riot victims making made the entire ‘enterprise’ of creating riots as loss making, the objective of preventing recurrence of communal riots cannot be achieved. The bill lacks such provisions.
2.19 NATIONAL COUNCIL
Chapter VIII contemplates the formation of National Communal Disturbance Relief and Rehabilitation Council consisting of not more than 11 members. The members of the National Council will be the acting beaureucrats and Government Nominees mentioned in clause 45. It merely performs the advisory role. It has to submit its reports periodically to the Central Government.
The constitution of such Council is absolutely redundant as none of its advice is binding on the concerned Governments. It hardly ever achieves the purpose for which it is set.
Secondly, the National Council should comprise of independent persons who may be selected on the basis of their integrity and non-communal outlook. It has to be ensured that such Council acts as Independent Autonomous body, not succumbing to any kind of pressure of the concerned Government. The Provisions of the Bill falls far short of the desired objectives.
A few Suggestions:
(A) The need to have a special law providing for suppression of communal violence on an all India basis can hardly be exaggerated. One need not take a cynical view of the Bill and reject it in toto on the specious grounds that existing laws are sufficient to meet ugly situations of communal flare-ups. One has to take a balanced approach towards the bill. From the public debates and discussions some constructive suggestions have also emerged which are as under:
To seize this opportunity and treat the communal riots on par with Genocide as per the provisions of Genocide Convention of 1948 to which India acceded in 1949.
In this connection it is useful to refer to the treatment meted out to the subject of genocide by Ireland, Germany etc. The legislations drafted by some countries (as available on internet) are annexed herein.
It is high time that the occurrence of communal violence within jurisdictional area of any police station disrupting the ordinary tempo of life therein should be ground enough to apply the doctrine of Res ipsa loquiter and the dereliction of duty by such officers should be declared as criminal offence for which all the higher police officials of the area could be charged criminally. In addition to that the police manuals / conditions of service of police be suitably amended to provide that happening of any such event within jurisdictional area of any police / administrative officers whose duty is to maintain public tranquility and avoidance of public disorder be made the grounds for disciplinary action for immediate suspension and ultimate dismissal from the service. Even for departmental disciplinary proceedings doctrine of Res ipsa loquiter should be applied against the errant public servants.
The Bill should be amended to introduce the vicarious criminal responsibility in the matter of abuse of powers by inferior / subordinate officers and concept of command responsibility be enacted to rope in the administrative and police officers of higher echelon including their political masters being the minister in charge of portfolios relating to maintenance of public order / tranquility and safety of public and private property. In short, the failure of a Policeman, Bureaucrats or Minister to take all the necessary and reasonable measures within his / her power to prevent / repress the commission of mass violence must render individual concerned liable for prosecution and exemplary punishment.
(B) It is necessary to define what is the dereliction of duty by public servant or the State or the State instrumentality? The concept of dereliction of duty must be unambiguously set out in the proposed Bill.
(C) An independent and impartial Enquiry Commission and State Security cum Administration Commission should be set up to examine the cases of dereliction of duties by the State or State instrumentalities of public servants in the matter of preventing or containing / controlling the communal riots and such Enquiry Commission should be invested with adequate powers to investigate into complaints of dereliction of duties by the State / State machineries / instrumentalities / public servants and the State should make available investigating agencies to such Commission.
(D) The proposed Bill must incorporate the concept of State responsibility to compensate riot victims. It should not be left merely to the offenders to compensate riot victims. The responsibilities to compensate riot victims of any communal violence is recognized in several foreign jurisdictions like New Zealand in 1963, Britain in 1964 and subsequently Canada, Northern Ireland, USA and Australia also enacted laws to compensate riot victims. The American Jurisprudence, 11th Edition – Vol. 54 has the following passage:
“In many jurisdictions, Municipal Corporations are made liable by statute for injury to persons or property resulting from the acts of mobs. Those statutes are in recognition of public duty entrusted by the State to the Municipality and other such division to preserve peace and order and to protect lives and property.�
The 6th Report (1981) of the National Police Commission also observed; “it is the duty of the administration to compensate to those unfortunate (sufferers of communal riots) for the loss and sufferings by them and to assist them in their rehabilitation.�
This opportunity must be seized to implement recommendations made by the National Human Rights Commission in its various Reports submitted to the Government. g
(The writer is a Senior Advocate)
NATIONAL CONSULTATION
ON
The Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill, 2005
June 16, 2007, New Delhi
The completion of three years of the UPA Government is an opportune moment to take stock of what the Government has achieved in terms of justice for communal crimes. The demand for a law on communal violence emerged from a brutal record of recurring violence in our country, the increasing occurrence of gender-based crimes in communal conflagrations, and complete impunity for mass crimes. The reasons are many - lack of political will to prosecute perpetrators, State complicity in communal crimes, lack of impartial investigation, and lack of sensitivity to victim's experiences. But there is also, crucially, the glaring inadequacy of the law. Today, despite huge strides in international jurisprudence, India continues to lack an adequate domestic legal framework, which would allow survivors of communal violence to seek and to secure justice.
The UPA Government's Common Minimum Programme (CMP) had promised to give the citizens of this country a 'comprehensive legislation' to fill this legal vacuum. We were promised a legislation that would strengthen the hands of the citizens in the struggle against communalism, and allow us to prosecute for mass crimes committed with political complicity and intent. While the country does need a strong law on communal violence, this present Bill is totally misconceived. What we have before us today is a dangerous piece of legislation called the Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill 2005, which will not only fail to secure justice for communal crimes, but will actually strengthen the shield of protection enjoyed by the State, its political leaders and its officials for their acts of omission and commission in these crimes. It is a Bill, which conceives of communal violence as a 'one time' event rather than as a long-term politically motivated process, and seeks to prevent it only by giving greater powers to (often communally tainted) State governments. Further, it continues to perpetuate the silence around gender-based crimes.
It is a travesty that a Bill of such fundamental importance in addressing the challenges posed to the secular character of our society and polity, was drafted by the Government without any real consultative process involving civil society. At this National Consultation on the Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill 2005, we the undersigned, reject this Bill in its entirety. The assumptions of the Bill are so flawed that it cannot be remedied by amending a few components. We therefore reject this Bill and ask the Central Government to forthwith set up a Drafting Committee to formulate an entirely new bill on communal violence, with the active participation of civil society through an open, transparent, and public process. Eminent jurists, civil society activists, academics and legal experts who have engaged on the ground and in court rooms with communal crimes must be part of such a process. A statute which is sincere about addressing gaps in criminal jurisprudence, must base itself on the experiences of victims of communal violence over the last 60 years, the recommendations of various Commissions of Enquiries and international covenants to which India is a signatory.
Endorsed by:
Justice A M Ahmadi, former Chief Justice, Supreme Court
Justice Hosbet Suresh, former Judge, Mumbai High Court
Justice K K Usha, former Chief Justice, Kerala High Court
Justice Rajinder Sachar, former Chief Justice, Delhi High Court
Justice Sardar Ali Khan, former Judge, AP High Court
Professor K.N. Panikker, former VC, Shree Shankaracharya University, Kerala
Nandita Das, Actor
Ghanshyam Shah
Harsh Mander, Social Activist (Aman Biradari)
Professor Rooprekha Verma, former VC Lucknow University
Colin Gonzalves, Supreme Court Advocate, Delhi
Dr. Ram Puniyani, Social Activist, Mumbai
Professor Kamal Mitra Chenoy, JNU, Delhi
Anil Chaudhary, PEACE, Delhi
John Dayal, Senior Journalist & Social Activist, Delhi
V.N. Rai, IPS, Lucknow
K.S. Subramanian, former IPS, Delhi
P.J.G Nampoothiri, former NHRC Spl Rapporteur, Gujarat
Ali Asghar, COVA
Dr. Abdul Salam
Zafar A. Haq, FFCL, Delhi
M. Hilal, FFCL, Delhi
Abid Shah
Uma Chakravarti, Feminist Historian, Delhi University
Hanif Lakdawala, Sanchetna, Gujarat
Prasad Chacko, Action Aid, Gujarat
Kavita Srivastava, Social Activist, Rajasthan
Mehak Sethi, Lawyers Collective, Delhi
Ajay Madiwale, HRLN, Delhi
Avinash Kumar, Oxfam, Gujarat
Ravindra, Lawyers Collective, Delhi
Sophia Khan, Safar, Gujarat
Vrinda Grover, Advocate, Delhi
Usha Ramanathan, Senior Law Researcher, Delhi
Madhu Mehra, Partners for Law in Development, Delhi
Harsh Kapoor, sacw.net, France
Iftikhar Ahmad Khan, Reader, M.S. University of Baroda, Baroda
Dr. Pratixa Baxi, JNU, Delhi
Asad Zaidi, Three Essays Publications
Nalini Taneja, Delhi University
Rohit Prajapati, Baroda
Trupti Shah, Baroda
Zakia Johar, Action Aid, Gujarat
Henri Tiphagne, Executive Director, Peoples' Watch
Niti Saxena, AALI, Lucknow
Saumya Uma, WRAG, Mumbai
Devika Biswas, Sancalp
N.B.Sarojini, SAMA, Delhi
Nandini Sunder, Delhi University
Soma K.P
Harsh Singh Lohit
K.A. Salim
Sharafudheen M.K.
Jahnvi Andharia, Anandi, Gujarat
Nasiruddin, Journalist, Hindustan
Gauhar Raza, Anhad, Delhi
Vineet Tiwari, MP Progressive Writers Association, Indore
Dr. Jaya Mehta, Sandarbh Kendra, Indore
Anjali Shenoy
Indu Prakash Singh, Actionaid India
Kshetrimayum Onil, Amnesty International
Asmita Asawari
Shabnam Hashmi, Anhad, Delhi
Gagan Sethi, Janvikas, Gujarat
Farah Naqvi, Delhi
New Delhi
June 16th, 2007
NATIONAL CONSULTATION ORGANISED BY ANHAD, DELHI
With inputs from Justice Ahmadi, Farah Naqvi and Gagan Sethi (CSJ)