Final Statement from the National Consultation on Communal Violence Bill

1. Statement of Objects & Reasons – dated 26 November 2009. The objective of the Bill should be to ensure that the State governments and the Central government take measures to provide for the prevention and control of communal violence, which threatens the physical, social, economic, cultural, political and human security of the citizens.

Definition of communal violence – We reject the definition of communal violence as stated in S. 19 (1) of the Bill because as noted above, the rationale for this Bill does not provide any protection to citizens whose security is threatened on the basis of religious identity. We propose the following definition of communal violence:

Communal violence is any targeted attack committed on the persons and properties of individuals or a group of persons on the basis of their religious identity, which can be inferred directly or from the nature or circumstances of the attack.

3. Declaration of Communally Disturbed Areas - This National Consultation strongly rejects the scheme of the Bill which envisages the declaration of certain areas as communally disturbed areas, and calls for the complete removal of Chapter II of the Bill. The state already has sufficient power vested in it by law. However, experience, particularly during communal violence, shows the non-exercise or non-judicious exercise of this power by state functionaries. Further empowering the state and central governments would therefore not remedy the situation. Co-relation between crimes and disturbed area is false, dangerous and untennable and must not find place in a law on communal violence.

4. Enhanced punishment – In keeping with principles of rule of law and natural justice, punishment has to be commensurate to the crime. While grave crimes must carry enhanced punishment, a mechanical exercise of doubling the punishment under this Bill will be counter-productive. Other forms of punishment such as disqualification from public office or other forms of debarring from professional associations, or running for public office must also be included in the case of culpability of public officials.

5. Accountability of the Public Servant - S. 17 of the Bill does not serve the purpose of holding the public servant accountable. Criminal law mandates that knowledge and mens rea be proved for the commission of any crime, including dereliction of duty, and the inclusion of the words ‘mala fide’ and ‘wilful’ in this Bill will make it more difficult to secure accountability.

Presumption of good faith – ‘Good faith’ clause has no place in a law with the purported objective of preventing and controlling communal violence, and appears to have been inserted as part of a routine drafting exercise. We call for the deletion of Chapter XII on powers, duties and immunities of the officers. Instead of presumption of the public servant acting in good faith, the same ought to be a matter for judicial determination, in case of a complaint, at the initial stage of the commencement of the judicial proceeding.

Requirement of prior sanction for prosecution: Given the complete impunity that state agencies enjoy for misdeeds of omission and commission, because of the requirement of prior sanction from the government for prosecution, we suggest a modification in the existing provision that would safeguard the public servant from malicious or frivolous prosecution. Instead of the requirement of prior sanction, the same should be a matter for judicial determination at the initial stage of the commencement of the trial. We also call for no prior sanction to be required for 153 153B

Command/ superior responsibility: the doctrine of command/ superior responsibility must be incorporated in any bill dealing with communal violence. Such responsibility implies that persons in positions of official power (civil or military) or senior/high officials of non-state structures and organizations, by reason of their position, have effective control and knowledge or ought to have knowledge of the acts or omissions of their subordinates that causes the violence. When such officials fail to use their knowledge and authority to prevent the violence, they should be held criminally responsible for the acts or omissions of their subordinates. The principle of `Command / Superior responsibility’ therefore has to be incorporated into the law if the architects of violence are to be drawn into a legal scheme of punishment and deterrence.

Scheduled Offences: Situations of communal violence have shown that the range of offences committed is not restricted to the offences enumerated under the IPC and related penal statutes. This is best illustrated by the restricted statutory definition of rape, the absence of torture and the doctrine of command responsibility to hold persons in positions of power and authority accountable.

The Bill must define new crimes/ offences, and new rules of procedure and evidence to adequately and appropriately reflect the realities of the crimes experienced by victims and survivors of communal violence. We call for the inclusion of the following crimes:

• Sexual violence in situations of communal violence, unlike those in non-communal contexts, is often committed with malicious intent of intimidating, humiliating and degrading the dignity of the victim community using the bodies of women. Inclusion of a wide ranging crimes of sexual violence, in addition to rape, therefore assume great importance in a bill to prevent and punish those responsible for communal violence. We therefore call for the inclusion of rape, forced pregnancy, enforced sterialization and other forms of sexual violence.
• Other crimes not included in the scheduled offenses such as torture, ss. 34 and 107 of the IPC.
• We call for the criminalization of social and economic boycott of certain groups of individuals on the basis of their religious identity.

Develop evidentiary standards appropriate to the context of a communally charged and violent situation for proving sexual violence. This is particularly in view of the fact that in situations of communal violence, women’s access to police stations (for lodging FIR), government hospitals (for medical examinations) and the confidence / ability to pursue legal procedures is substantially reduced during the period of the violence and till the return to a safe and non hostile environment for the survivors of the violence. Hence, appropriate evidentiary and procedural standards are imperative and should include the following:

§ All investigation should be conducted in a gender-sensitive manner

§ Judicial cognizance should be taken of the coercive circumstances under which the crime has occurred, and accordingly delays in reporting, absence of medical evidence or corroboration of victim’s testimony should not adversely impact the case.

§ Consent to sexual act as a defense to the perpetrator should be specifically excluded

§ Introduction of evidence of prior or subsequent sexual conduct of a victim of sexual violence should be explicitly prohibited

§ Sexual violence in a communal situation should be equated to custodial rape as mob exercises complete control and is in a position of authority.

§ Hence, the Bill should as in cases of custodial rape provide for enhanced punishment and also shift the burden of proof from the victim to the perpetrator

§ Victim / witness protection regime for survivors of sexual violence.

§ Special efforts to be made to conduct the trial in a gender sensitive environment to ensure that the consequent trauma is diminished

6. Investigation – Given that investigations are often influenced by political expediency and institutional bias, we propose that judicial cognizance be taken of the coercive circumstances. No adverse inference should be drawn of delayed lodging of FIR, absence of material evidence, discrepancies in statements recorded by the police. Any variance in the testimonies of the victim-witnesses should be taken as admissible evidence if they withstand the cross-examination.

7. Courts – A time-bound disposal of case should be prescribed without compromising on fair trial standards. If there are any apprehension of the possibility of fair trial at the local courts or lack of congenial atmosphere for victims and witnesses to depose freely, the bill must provide guidelines for transfer of such cases.

8. Protection of witnesses – the provisions related to protection of victims and witnesses are superficial and farcical and do not even draw upon the existing guidelines of the Supreme Court and recommendations of the Law Commission. Victim witness protection ought to be comprehensive, and for all stages – pre-trial, trial and post-trial stages.

9. Relief, rehabilitation & reparations – the provisions in the Bill are grossly inadequate and provide excessive discretion to state functionaries to provide relief, compensation and rehabilitation. The token representation of women and lack of representation of affected victim community in District, State and National Councils does not make such Coucils inclusive. Instead of establising permanent national council, existing mechanisms such as NHRC and NCM may be explored as an alternative. Reparations to be an inviolable, legally enforceable right of the victim-survivor, and according to objective norms and scales that are binding on all governments.

Reparations: Any proposed law on Communal violence must use the concept of reparations as an inviolable, legally enforceable right of the victim-survivor, and according to objective norms and scales that are binding on all governments. The law must specify criteria for identifying who is a victim/survivor and standards which will be applicable to all victims and survivors of communal violence, and not leave it to discretion at the state level. The reparations guidelines must include rescue, relief, compensation, restitution, rehabilitation and guarantees of non-repetition. The rehabilitation measure must include, among other, assistance of soft loans and land allocations to rebuild livelihoods and shelters to levels not less than before the violence and inconformity with the wishes of the affected persons, and the reconstruction of places of worship destroyed in the violence. Any determination of reparation measures must be through a mechanism that is inclusive of members of the affected community. The compensation scheme under the SC/ST Act should be one of the model for compensation of victims and survivors of communal violence.

Internally Displaced Persons: The Bill must acknowledge rights of internally displaced persons who face forced displacement due to communal violence. Reparations should be provided in conformity with international standards for internally displaced persons, including the UN guidelines on Internal Displacements. These Guidelines must be domesticated through adoption of a national policy to include those affected by the violence and a nodal agency be constituted, so that all internally displaced persons have a justiciable framework of entitlements to protect them.

10. Non-discrimination clause – We welcome the principle of non-discrimination that is in S. 58, made applicable to compensation and relief, but call for extending this principle to all sections of the Bill.

11. Special Public Prosecutors – Special Public Prosecutors ought to be appointed in consultation with victims and survivors and should inspire their confidence. Similar observations have been made in judgments of the Supreme Court

12. Victim’s Rights – the Bill must recognize comprehensive rights of victims and survivors. They must be provided a right to have information of the proceeding at all stages of the proceedings including copies of FIRs and other legal documents, right to participate and be heard at all stages of the trial, right to legal representation of their choice at state costs and right to appeal in the event the state does not do it on their behalf. Legal aid should be provided to all victims and survivors of communal violence on the same scale as legal aid provided to the state actors.