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)