A] Summary list of criticisms about the Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill, tabled in Rajya Sabha on Dec.5th, 2005

The bill has been referred to the Select Committee and the Ministry of Home Affairs is the nodal ministry. Two groups have announced themselves as preparing amendments to the bill for presenting before the Select Committee hearings - one led by NGO Anhad and the other by Movement for Peace & Justice and Adv. Y. H. Mucchala in Mumbai.

For the rest of us, a summary of the criticisms already raised by some of the above and others already, in the mainstream media and outside might be useful. (Declaimer: Summariser not being a lawyer, but an activist, this
does not claim to be an expert summary!)

I Anhad (Date unsure, but obviously after 5th Dec 2005

1.. Does not adequately address the complicity of the State Government (as against the Central Government) in such genocide, because public officials cannot be prosecuted without consent of the State Government. This is a very serious lacuna because the immediate cause for the bill was Gujarat genocide of Muslims in 2002, where state complicity was most striking.
2.. Power of the Central govt to deploy the Army in genocidal situation is negated, because once again, permission of State govt. is required.
3.. Bill silent on mass sexual violence against women in conflict situations. Sec 376 of IPC (rape) does not acknowledge forms noticed in Gujarat like stripping women in public etc. Evidentiary requirements remain the same as in 'normal' circumstances, which is virtually impossible to provide in genocidal situation.
4.. Does not acknowledge increasing communalization in society, like driving minorities out of mixed settlements
5.. Right to rescue, relief and rehabilitation has been watered down.
6.. The possibility of partisanship of State Government is denied and it has the power to nominate non-official members of the Rehabilitation committee.
7.. No financial liability has been placed on the government.


II Sukla Sen, 18-12-2005 (Ekta, Mumbai?)

All emphases mine - Ammu Abraham

1.. Bias of the State Govt is a major problem. To deal with it, create a Special, Autonomous body at the state level, with statutory powers to direct & supervise the State machinary, somewhat in the mould of the Election Commission, with representatives of the likely victims, reporting direcly to the President of India, but accountable to the State Legislature.

2.. Raise special, central security force, with representatives of minorities, including women, to be deployed by the above - mentioned Special Body.

3.. Special Courts to try cases of atrocities, with public prosecutors who
have consent of victims. Judges to be vetted by the 'Autonomous
Commission'.

III Tarunabh Khaitan, 21-12-2005, The Telegraph

1.. a - Too much power has been vested in the State Governments. Sec. 3 says that SG can "take all measures to deal with the situation, after declaring an area communally disturbed. The Competent Authority (appointed by SG), with the district magistrate, has preventive powers to regulate assembly, to confiscate arms etc.
b) - Multiple authorities cause confusion

2.. Too much power to the Police force. These will be used to harass minority communities, because the Police has targeted minorities in riot after riot. The new powers given to the police and the politicians will be
abused.

3.. Its good that the bill assigns accountability to individual officers in
Sec.17; but the requirement of prior sanction of the State Govt. before a
court can take cognizance of the complaints only strengthens the collusion
between the police and the elected leadership.

4.. Part II deals with the criminal justice system. It is a useful idea to
ensure the independence of judges in Special Courts by requiring the
concurrence of the Chief Justice of the High Court; but,

5.. .1. the problem of the police refusing to file F.I.R.s during communal violence, as in Gujarat 2002, is not addressed.
.2. attempts at Witness Protection are patchy; we need a comprehensive law for it.
.3. appointment of the Public Prosecutor should be made subject to concurrence of the court and the victims.
.4. Though participants in crime may get covered, the top political leadership is not implicated.

6.. The R & R measures are good; including the 3 - tier machinery at national, state and district levels, to prepare guidelines, to advise state govt & to assess compensation. But, all is heavily bureaucratic.

Involve the National Human Rights Commission, the National Women's Commission and the Minorities Commission. (Apparently all these have "special knowledge & expertise in dealing with communal violence.)

7.. Grant the Police professional independence.

IV Siddharth Narrain, 27-12-2005, The Hindu:

1.. Does not address the State Government's complicity in communal violence - a major point made by the Nanavati Commission on 1984 anti-Sikh riots in Delhi, by Justice Srikrishna Comm. for anti-Muslim riots in 1993 in Mumbai and in reports on Gujarat 2002.

2.. Offers nothing new in the way the Central Govt can overrule the State Govt. Article 355, read with Entry 2A of the Central List of the 7th Schedule, empowers Central Govt to deploy armed forces in a state, in aid of 'civil power'. But this was not done by the Bajpayee govt in 2002 in Gujarat. (note: It was done in 1993 in Mumbai, after intervention by a number of 'prominent citizens', but Narrain does not refer to that).

3.. Provisions for prosecution of public officials for misdeeds of omission and commission are nullified because of need of sanction from the state govt first.

4.. Bill violates obligations under the Genocide Convention. The immunities attached to the official capacity of a person under national and international law or claims of soverign immunity and privilege are not suspended. Genocide convention makes it mandatory to punish those who commit genocide, whether they are constitutionally responsible rulers, public officials or private individuals.

5.. The issues of partisanship of the prosecutor, investigative agency & lack of fair trial are not addressed properly; because the suggestions on Police Reforms are not implemented. Same applies to reform of criminal justice system. These should be implemented if any CV law is to be effective.

V Movement for Peace & Justice, Mumbai : Added on to sections in II above, after eliminating the word Election Commission. To be read with, and as part of II, in this summary. After all the provisions of II,

1.. Lists positive provisions in the Bill. Approves of the Witness protection measures, provisions of Special Courts outside the 'communally disturbed area', powers of sp. courts, Competent Authority etc., establishment of Permanent Councils with Human Rights activists & Minorities representation at all 3 levels, to promote communal harmony and for relief and rehabilitation.

2.. Critical of refusal to acknowledge that communal violence erupts due to 'lack of political will' on the parts of Central and state govts 3.. A 'near fatal folly' is that the State govts are given the choice to issue notification for commencing the bill. Only the R & R provisions can be brought into effect by the Central govt. The State govts can keep on dragging their feet. This is the central lacuna of this bill.

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B]

All commentators seem agreed on the undesirability of (1) making the prosecution of public officials subject to the approval of the State Government and (2) curtailing the existing power of the Central govt to deploy the armed forces in any state of the Indian Union to deal with genocidal situation, by making it expressly subject to approval by the State govt.

This is a lesson drawn especially from the experience of the genocide in the state of Gujarat in 2002, when the then Prime Minister rushed to the state at one point, then meekly gave a speech to the then and now Chief Minister about Raja Dharma (Duties of Rulers); and then returned to Delhi, as if all is well. Complicity of the State machinery in extreme communal violence amounting to genocide, has been India's experience time and again, since independence, in different states and regions. So these two aspects have to be rectified, if the new provisions are to make any sense at all.

The MPJ led critique raises the most crucial point about the refusal to acknowledge the certainty of state complicity. That the State govts are given the choice of notification. The Act must be notified in the Gazette by the Central government, or the whole exercise shall be seen to be more than just weak, it shall be seen to be an attempt to encourage those given to committing genocide of religious minorities in India.

Siddharth Narain in The Hindu mentions India's obligations under the Genocide Convention, which India was one of the first countries to sign and ratify. He points out that the failure to punish public officials and others responsible for genocide, is a violation of those obligations.

The exclusion in the bill, of the Genocide Convention is very disturbing; especially after Gujarat 2002, repeated and expanded the patterns of Bombay 1993. We as a country have an ideology of religious genocide, dating back to days of Nazi fascism and the World War II. It is imperative that the Anti-communalism Bill, above all meant to prevent another Gujarat from happening through punitive measures and awareness - raising about international standards on genocide, mention the Genocide Convention and use that as the model for definition of religion - based genocide in India, and make it central to the new law. Otherwise nothing is gained, since all provisions to deal with communal violence already exist. What is being addressed is the majoritarian violence against religious minorities, in the context of communalization at different levels of civil society and the state, leading to genocidal conflagrations in different parts, with the collusion and even collaboration of the state machinery. India was born in the fratricidal shedding of blood, on the basis of religious identity, with a democratic constitution; it is that Democracy that we have to protect, even more than 'secularism' defined as Sarva dharma samabhava. Because we can have 'secularism' without democracy, but not democracy without secularism. To protect democracy from descent into majoritarianism, it is necessary to give justice for genocide, with as little compromise as possible. To link the relevant existing provisions of the Constitution and the IPC to the Genocide Convention is the best and even the only way to move towards that justice. It is simply not sufficient to define Communal Violence under this bill as a combination of 'internal disturbance' and 'threat to secular fabric, unity, integrity or internal security of the nation'. (Secs. 19.1 & 2). We are talking about a situation where the Nation is being defined on the basis of formal religion.

Definition of Genocide (taken from the Rome Statute of the ICC, Article V:

"Any of the following acts, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such,

1.. killing members of the group
2.. causing serious bodily or mental harm to members of the group
3.. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
4.. imposing measures intended to prevent births within the group
5.. forcibly transferring children of the group to another group.
Obviously, there have to be minor adaptations, for eg the word national has to be removed; same for racial, since caste equation with race is not possible for all castes in India; and legislation already exists for the oppressed caste category likely to face genocide.

The Anhad led critique of the bill, sent before all others probably, mentions the absence of provisions to deal with mass sexual violence under conditions of communal violence.

Section 376 of the IPC, dealing with the offence of rape as full penetration, has long been criticised by women's groups in India for its failure to include other forms of sexual assault. The only other provision is 'outraging the modesty of women' and everything short of provable-in-a-court-of-law under vicious cross examination kind of rape is dumped under it. Forms noticed during Gujarat 2002, like stripping women in public, mutilation, insertion of objects into their bodies etc, as the Anhad critique mentions, is simply not recognized or provided for.

This has to be rectified; and without waiting for a reworked sexual assault law.

The way to do it is to go beyond the Genocide definition, and into War Crimes and Crimes Against Humanity, and draw from the Rome Statute of the International Criminal Court (July 1998), including the "elements" of the
crime as established. Article 7 of the Rome statute deals with Crimes against humanity, and 7.g mentions sexual crimes - "rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilisation, or any
other form of sexual violence of comparable gravity".

The 'elements' of Article 7 (1) g, (copied here from "An Introduction to the International Criminal Court", William A Schabas, Cambridge 2001) is very, very worth considering, for application to communal conflict, (and also for general definition of rape), amending it to remove gender nutrality.

Crime Against Humanity of Rape:

1.. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim (or of the perpetrator) with a sexual organ, or of the anal or genital opening of the victim with any object, or any other part of the body

2.. The invasion was committed by force or threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive envioronment, or the invasion was committed against a person incapable of giving genuine consent

3.. The conduct was committed as part of a widespread or systematic attack (directed against a civilian population)

4.. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack (directed against a civilian population) Sections 1 and 2 are the same under war crimes. For the Communal Violence Bill, the 'widespread and systematic attack' can be reworked into the Communally disturbed area clauses.

It is understood that it is not just the lacunae in legal definitions that prevent women from filing cases of sexual assault during communal violence. There are other compelling reasons, from the victims' point of view for not raising the issue. But provisions must be made for those who do want to file cases, under such circumstances. Stripping a woman in public, for example, is a time-honoured practice of humiliation of certain categories of women. These may vary from dead female dacoits to Dalit women when caste hierarchies are disturbed, or women who had intercommunity or intercaste marriages. Public stripping of women has occured under conditions of communal violence and genocide.

One hopes that those who plan to appear before the Select Committee hearings will pay attention to these points, and be successful in adapting such clauses to the situations we are dealing with in India, apart from merely asking that evidentiary norms be lowered.

Ammu Abraham, Mumbai