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BETRAYALS AND MISSED OPPORTUNITIES:
THE COMMUNAL VIOLENCE (PREVENTION, CONTROL AND
REHABILITATION OF VICTIMS) BILL, 2005
A People's Critique
By 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
governmentrecently tabled in Parliament. Earlier drafts of this bill
were rejected bythese citizen groups, but few of their concerns have
been addressed in theBill which was hurriedly tabled in the Rajya
Sabha on December 5, 2005. Ademand for such a bill had been made in
light of an increasing atmosphere ofcommunalisation across the
country and particularly in light of the eventsof Gujarat 2002. On
neither front does the Bill deliver.
A people wearied and battered by the politics of hatred that swept
thecountry during almost two preceding decades, have been let down
gravely bythe Bill recently introduced by the UPA
government in the Rajya Sabha. Inthe deeply troubled times that the
nation is passing through, the Bill wasawaited with great hope by not
just minorities, but by other citizens aswell who are intensely
concerned about imminent and serious threats mountedto the secular
character of our society and polity. The Bill does notrespond
significantly to the
criticisms and fears voiced when its firstdraft was released a few
months ago outside Parliament. The governmentinstead appears bent on
diluting, even subverting the spirit of one of itsmost important
commitments on being voted to power. As this Bill is being considered
by Parliament, a deep sense of disappointment and anguishprevails.
The basic problem with the Bill is with the foundation of objectives
onwhich its entire edifice is constructed. This foundation of the Bill
is soflawed that its architecture cannot be remedied
by improvements in specificcomponents. The preamble of the Bill itself
states that the
Bill aims to 'toempower the State Governments and the Central
Government to take measures toprovide for the prevention and control
of communal violence which threatensthe secular fabric, unity,
integrity and internal security of the nation andrehabilitation of
victims of such violence'. The immediate context for theBill is the
Gujarat massacre of
2002 and its aftermath, but also Nellie in1983, Delhi in 1984,
Bhagalpur in 1989, Mumbai in 1992-93, and a long listof such episodes
of national shame and trauma in which democratically elected state
administrations were openly partisan and neglectful or evenactively
participant in the massacre of segments of the populace thatfollowed a
different faith from those of the majority of their fellowcitizens.
Let us consider by way of illustration Gujarat as the most recent, and
themost disgraceful of all of these acts of state abdication and
collusion withcommunal organisations. The state
machinery was found by many independentcitizen investigators to be
gravely complicit in
planning and executing themost brutal massacre since Independence of
women and children of theminorities. It did little to control the
violence for weeks, refused to setup relief camps or
to rehabilitate the victims. Almost four years later,many more than
half those who lost their homes are unable to return becauseof
continuing fear. The legal process has been subverted.
To legally prevent the recurrence of situations like this is a matter
notjust of security and restored trust, but actually of life and death
formillions of citizens of minority faiths. Its
urgency is enhanced by the factthat over the last two decades,
political formations with
openly communalagendas have directly or through their political
proxies, captured political power in many states of the country, and
indeed along with a bunch ofopportunistic political formations have
emerged as the main alternativecontenders for power in the central
government in the future. The prospectof the infamous Gujarat
experiment of a state
sponsored terrorising ofminority citizens is a realistic imminent fear
with which millions ofcitizens are living in states like Rajasthan,
Orissa, Madhya Pradesh,Chatisgarh and Jharkhand. It is for this reason
that the Bill pledged in thecommon minimum programme
of the coalition government was so eagerly awaited.But what this law
sets out to do is
not to protect innocent citizens fromfuture possible acts of criminal
communal collusion of their elected rulers,and the civilian and police
arms of their administrations. Instead, in
itsstatement of objectives itself, it sets out perversely to vest
those samestate administrations
with even more powers.
Do the framers of the Bill, or the members of the union cabinet who
approvedits submission to Parliament, genuinely believe that Narendra
Modi in 2002,or indeed the administrations of Delhi, Nellie, Bhagalpur
or Mumbai whenthese also burnt in the past in raging communal fires,
did not act becausethey 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 ajunior local policeperson or civil
administrator has all the powers underthe 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 stateauthorities. If this is the case, what purpose is
served by a law that setsout as its objective to further 'empower'
these same state and centralgovernments?
The core sections of the Bill from Chapter II to Chapter VI, relating
to theprevention of communal violence, the investigation of communal
crimes andthe establishment of special courts will only come into
effect if the Stategovernment issues a notification. All opposition
governments could ignorethis statute completely. Moreover, a state
government may issue
anotification bringing the statute into force in the state and yet
render itsterile by not issuing notifications declaring certain areas
to becommunally disturbed areas. The Act can be invoked only in very
extremecircumstances where there is criminal violence resulting in
death ordestruction of property and there is danger to the unity or
internalsecurity of India. There are many serious communal crimes
which may notresult in death such as rape. Similarly, social and
economic boycotts,forced segregation and discrimination will not fall
within the ambit of thestatute because they do not result in death or
the destruction of property.Even in such extreme circumstances the Act
only prescribes that thegovernment 'may' act by issuing a
notification. On the face of it, the dutyto act is not mandatory.
Chapter III relates to the prevention of communal violence and appears
toempower the district magistrate to prevent the breach of peace. The
powersof executive magistrates and policepersons delineated here
already existunder numerous statutes, such as to requisition
the armed forces to controlcommunal violence; to control any assembly
or procession;
prohibitloudspeakers; confiscate arms, ammunition, explosives and
corrosivesubstances; conduct searches; prohibit displays or
'harangues', orgatherings 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 legallypermissible for these authorities to suppress
communal violence. The earlierdraft had included new powers,
attempting to reintroduce through thebackdoor draconian provisions
from the repealed POTA and the abused andfeared Armed Forces Act. The
government was mercifully sensitive to proteststhat enhanced state
powers in communal
situations will mainly be misusedagainst 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 thegovernment that mostly already exist,
that they may use to protect them ifthey choose to do so. What they
needed instead was a law that enhanced thepowers of citizens in
relation to such governments, and not of thegovernments in relation to
its citizens. They needed a law that did notmerely enable their
governments to act when communal violence unfolded. Theyneeded a law
which made it
mandatory for the government to act, in clearlycodified ways, before,
during and after
communal violence, and which madefailures of these governments to act,
leading often to the avoidable loss oflife and property, or sexual
violence, criminal acts for which they can becharged, tried and
punished. There is virtually nothing in the law that doesthis; 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
berejected in its entirety and replaced by a law of very different
objectives,which genuinely protects the human rights and security of
citizens incommunal contexts and enables them to hold their
governments accountable fortheir acts of omission and commission.
The Bill does contain one clause for punishment of public officials
who failto perform their duties. Section 17 (1) provides for
punishment with imprisonment which may extend to one year, or with
fine, or with both, forany public servant who '(e)xercises the lawful
authority
vested in him underthis Act in a mala fide manner, which causes or
likely to cause harm orinjury to any person or property'; or
'(w)illfully omits to exercise lawfulauthority vested in him under
this Act and thereby fails to prevent thecommission of any communal
violence, breach of public order or disruption inthe maintenance of
services and supplies essential to the community.' It isexplained that
offences under this section include wilful refusal by anypolice
officer to protect or provide protection to any victim of
communalviolence; to record any information relating to or to
investigate orprosecute 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 atbest can result in the mild punishment of some
junior policepersons. Evenmore fatal is the proviso that no court
shall take cognizance of an offenceunder this section except with the
previous sanction of the stategovernment. In the context of state
governments with communally drivenmalafide intent, the chances of even
police officials being punished underthis clause are very remote.
It is well known that hundreds of cases throughout the country
arelanguishing because the state governments have refused to grant
sanction forprosecution of public servants. In any
case sections 217 to 223 of IPCcover offences by public servants such
as the shielding of
criminals,preparing false records, making false report in courts,
initiating falseprosecutions and allowing criminals to escape.
Recognising the role of the police in communal riots, it is critical
thatthe immunity granted under sections 195, 196 and 197 of the
Criminal Procedure Code be omitted in any statute on communal crimes.
No juniorofficer 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
enablethem to be released on bail or are instrumental in their
acquittal oughtalso to come under legislative scrutiny. A section is
necessary to allowthe trial judge who finds the performance of the
prosecutor unsatisfactoryto 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 RanganathMishra 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 JosephVithyathil Commission
(Tellicheri riots), the Justice J. Narain, S.K. Ghoshand S.Q. Rizvi
Commission (Jamshedpur riots), the Justice R.C.P. Sinha andS.S. Hasan
Commission (Bhagalpore riots), and the Justice SrikrishnaCommssion
(Bombay riots) have found the police and civil authorities passiveor
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.
-------------------
Anivar Aravind
GAIA (Global Alternate Information Applications )
Ph +91 9843593783
+92 9895803545
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