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.
