COMMUNAL VIOLENCE BILL- HOW USEFUL TO VICTIMS?

By Asghar Ali Engineer

The Government has got clearance from the Cabinet for introducing the Communal Violence Bill in the coming session of parliament. The Bill was drafted originally in 2005 after 2004 elections in view of the Gujarat carnage of 2002 under the BJP Government headed by Narendra Modi. It was because of Gujarat carnage that Muslims voted for the Congress massively as a result of which NDA was defeated.

The Congress party had promised in its manifesto that it would bring the bill to prevent Gujarat like carnage against minorities. It did draft the Bill in 2005 which we, along with several other NGOs, human rights activists and legal experts, studied and found it wanting in many respects. We organized number of consultations and suggested number of amendments to make it really serve the purpose for which the Bill was drafted.

Mr. Shivraj Patil, the then Home Minister also held number of consultations in few cities and promised to consider various suggestions given by various NGOs and individuals but he did not incorporate these suggestions when final draft was presented. The present draft after going through standing committee and Cabinet too, is hardly better than the original draft. One wonders what Government wants. I would say this cure suggested is worse than the disease.

The present Bill already cleared by the Cabinet, seeks to give more power to the police. In fact police has always been the part of the problem, rather than part of the solution. Had police been fair and impartial, no communal riot can last for more than 24 hours. Those governments which have intended to control communal violence do nothing but ask the police to control violence within 24 hours else office in charge would be suspended. And communal violence stops before 24 hours.

All those who have investigated communal riots know what role police plays in communal riots from remaining spectators to actively helping the rioters instead of controlling it. In Gujarat and Kandhamal, to give two latest examples, but for the role of police, communal violence would have been controlled in no time. In all major riots police have played openly partisan role. In some cases they have even led rioting mobs.

And if you empower police more in such circumstances, as the present Bill seeks to do, one can very well imagine what havoc it is going to cause. It is victims who need to be empowered, not the police. In a consultation held in Delhi on 12-13 February by ANHAD, Institute of Peace Studies and Conflict Resolution, Mumbai (part of CSSS) and several other organizations. They all unanimously rejected the present draft.

Also, another provision of the present draft Bill is to declare an area as disturbed area, if communal riots are not controlled. This is even worse than giving the police more power. It means to give police absolute power. Even when curfew is declared, it is enforced only in minority areas and police hardly enforces its provision in majority areas. Vibhuti Narain’s writings and his novel Shahar Mein Curfew brings this in sharp focus. Vibhuti Narain was a top police officer in the U.P. cadre.

If an area is declared disturbed area police will have powers to shoot anyone at its will. In Kashmir and in North Eastern states people have demanded repeal of disturbed areas act. The victims, instead of getting relief, would feel totally helpless. Any law which gives police more powers without making it accountable cannot be acceptable to those who care for human rights of victims.

Like any other official Bill, there is not a single clause to make administration, police or politicians accountable for their failure to control communal violence. If so, you don’t need any fresh law at all. Human rights activists have always maintained that present laws, if enforced sincerely, can very well take care of any situation. After all the Left Front Government in West Bengal and the RJD in Bihar successfully prevented and controlled communal riots for more than three decades in WB and one and half decade in case of Bihar.

If only state governments enforces section 153-A of Indian Criminal Code in right earnest and arrests all those who make hate speeches and vitiate communal amity, there will be no communal disturbances. No politician would like to go to jail for three years. My experience shows that right from Jabalpur riot in 1961 to Gujarat riots in 2002 to anti-Christian riots in Kandhamal, Orissa, not a single politician was arrested for openly and blatantly provoking communal violence.

Also, no standard and objective method has been laid down for working out reparations and relief measures. It all depends on the whims of chief minister today. Narendra Mody Government offered ridiculous amounts of Rs.500/- and Rs.300/- for houses completely damaged and defying public opinion closed down relief camps much before any concrete measures to rehabilitate the victims were made. Thanks to the private agencies that these camps could be run for a longer period.

Also, there is not much in the present Bill for investigations and successful trial of cases and launching of FIRs. It is well known that police is extremely reluctant to register FIRs and even when it does, it refuses to enter the names of the accused. And less said about the subsequent investigations, the better. The investigation is so shoddy that courts often dismiss the cases against the accused.

In most of the cases the police close them down saying not much evidence is available. In the case of Gujarat the police closed down hundreds of cases which could be reopened only under the Supreme Court orders. Despite all this the present Bill supposedly drafted to help the victims, make no provisions for all this.

It is, therefore, highly necessary to make drastic changes in the present Bill before it is discussed in the Parliament and if the Government is unwilling to introduce necessary changes, the M.P.s should study the Bill carefully and force the Government to bring about necessary amendments in the Bill. All the eminent participants of consultation in Delhi felt that the 59 amendments proposed by the government are nothing but mere tinkering.

The participants felt that neither do the proposed amendments make any structural changes to the Bill nor has the government factored in any of suggestions made by the civil society. The national consultation in Delhi on 12-13 February found fault even with the definition of the communal violence in the Bill. The consultation suggested the definition as “any targeted attack committed on the persons and property of individual 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.

The consultation also felt that the government’s proposal to declare certain areas as “communally disturbed” was rejected. In fact it demanded that the Chapter II of the Bill be dropped completely arguing that the State already has sufficient powers vested in it by law and further empowering the State and Central governments would, therefore not remedy the situation. The Consultation felt that co-relation between crimes and disturbed area is false, dangerous and untenable, and must not find place in a law on communal violence.

The consultation also felt that instead of doubling the punishment which courts would be reluctant to apply anyway, it noted that other forms of punishment - disqualification from public office, debarring from professional associations or running from public office – should be included in the case of culpability of public officials.

The good example of such disqualification form contesting elections etc. is from Mumbai High Court Judgment delivered by Justice Suresh in late nineties when Bal Thackeray of Shiv Sena made provocative speech in Vile Parle and won the seat for his candidate. Justice Suresh disqualified him for 6 years from voting in any election or contesting any election or even campaigning for his party.

It had restraining effect on him. But this was one instance which was exceptional. If politicians are made to meet such punishment, it would indeed have great effect on them and would desist from temptation to provoke communal violence to win elections in an easy way. The reason why some political leaders are tempted to provoke communal violence, more than ideological reasons, is to win elections by polarizing the voters.

It takes us to yet in another field i.e. that of electoral reforms. In highly diverse country like India with so much religious, linguistic and cultural diversity, the first past the post method which we have blindly copied from England which was then a mono-religious and mono-linguistic society, is highly problematic. We need to either introduce 51% votes for winning or proportional voting or combination of both to remedy the situation. Such electoral method would lead to inclusive rather than exclusive as it is today. Candidates win elections by excluding certain class of people rather than including everyone.

Well until then this Bill needs to be drastically amended to give relief from communal violence.

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.

PRESS STATEMENT

communal violence bill
NATIONAL CONSULTATION

ON

The Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill, 2009

February 12-13, 2010, New Delhi

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 in 2004 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. However, The Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill 2005, introduced in the Rajya Sabha in December 5, 2005, was a complete betrayal of that promise. The 2005 Bill was roundly criticized and rejected by civil society at all levels. Eminent jurists, legal experts, activists who worked with survivors, and all prominent minority groups rejected the Bill and urged the Government to make serious changes in it. The Bill was sent to the Parliamentary Standing Committee on Home Affairs for its review and recommendations. But the Standing Committee report, when it was finally tabled in Parliament in December 2006, suggested no significant changes.

Between 2005 and now, civil society groups have repeatedly engaged with the government at all levels and time and again communicated our serious objections to this Bill. We have written critiques, given alternative formulations, written alternative draft laws, and suggested changes in several specific Chapters and clauses. Civil society groups have met everyone over the last 4 years - from the Chairperson of the UPA, Prime Minister, two successive Home Ministers, officials in the Home Ministry, to members of parliament. And yet the Government appears unwilling to listen.

The UPA government has now introduced an impressive-sounding 59 amendments into the Communal Violence Bill 2009. These have been cleared by Cabinet, and we have been told that the government plans to introduce it in Parliament in the coming session. These 59 amendments have merely tinkered with the Bill. They do not make any structural changes and do not incorporate a single suggestion made by civil society.

This Communal Violence Bill 2009, if passed, will not only be weak, it will be dangerous. It will not only fail to secure justice for communal crimes, but will actually strengthen the shield of protection enjoyed by those who plan and sponsor these crimes. Further, it continues to perpetuate the silence around gender-based sexual crimes.

This Bill is of fundamental importance in addressing the challenges posed to the secular character of our society and in protecting all our citizens. At this National Consultation on the Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill 2009, we the undersigned, once again urge the UPA government to revise the Bill taking on board the following concerns, which have been articulated through wide national consultation:

1. Statement of Objects & Reasons: 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.

2. Communal violence must be defined as: 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. 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.The Bill must define 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.

4. Declaration of Communally Disturbed Areas - The basic scheme of the Bill which envisages the declaration of certain areas as communally disturbed areas, and gives greater powers to the state in these areas, runs entirely counter to the purpose of the proposed law. Chapter II of the Bill must be removed. The state already has sufficient power vested in it by law. However, experience during communal violence is the non-exercise or non-judicious exercise of this power.

5. 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 sexual crimes into this Bill.

6. Reparations: The Bill must include 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.

7. 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.

8. Command/ superior 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. This doctrine must be incorporated into the Bill.

9. Prior sanction: The present Bill requires sanction from the State government in order to even initiate prosecution against any officer for acts of omission or commission. This defeats the purpose of the proposed law and perpetuates impunity. Instead of the requirement of prior sanction, this should be a matter for judicial determination at the commencement of the trial.

New Delhi

February 13, 2010

NATIONAL CONSULTATION ORGANISED BY ANHAD, Institute of Peace Studies & Conflict Resolution, DELHI

Endorsed by:

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

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

Apoorvanand, Delhi University

V.N. Rai, IPS, Lucknow

Kavita Srivastava, Social Activist, Rajasthan

Avinash Kumar, Oxfam, Gujarat

Vrinda Grover, Advocate, Delhi

Usha Ramanathan, Senior Law Researcher, Delhi

Harsh Kapoor, sacw.net, France

Zakia Johar, Action Aid, Gujarat

Saumya Uma, WRAG, Mumbai

Gauhar Raza, Anhad, Delhi

Harsh Dobhal, Combat Law

Shabnam Hashmi, Anhad, Delhi

Gagan Sethi, Janvikas, Gujarat

Farah Naqvi, Delhi

Vahida Nainar, Mumbai

Father Ajay, Orissa

Rashmi Jena, Orissa

Rupesh Kumar, Bihar

Dhirendra Panda, Orissa

Father Anand Muttungal, Bhopal

LS Hardenai, Bhopal

Deepak Bhatt, Azam Khan, Yogendra Diwan- Madhya Pradesh

Madhu Chandra- All India Christain Council

Navkiran Sigh, LFHRI, Punjab

Brijendra Singh Sodi, LFHRI, Punjab

Shafeeq Mahajir, Hyderabad

Zaheeruddin Khan, Siasat, Hyderabad

Nisha Agrawal, Oxfam

Seema Kazi CWDS

Seema Misra, Marg

Pushkar Raj, PUCL

Abdul Shakeel –Haq

Shubhi Dwedi- Aali, Lucknow

Sadhna Arya- Saheli

Jawed Liaq

Zafar Agha

Birju Naik- Lok Raj Sangathan

Javed Khan- Pairvi- Madhya Pradesh

Mansi Sharma, Seema Duhan- Anhad

Tehmina Arora-Christian Legal Association

Mujibur Rahman-Jamia

Shweta Shalini, Justice and Peace Commission

Rakesh Bhardwaj- Peace

Tanveer Hussain- Kashmir

Sachin Pandya, Manisha Trivedi- Gujarat

Anubha Rastogi- Centre for Equity Studies

Gayatri Sharma- Partners for Law and Development

& others