India: Draft - The Communal Crimes Act, 2004 [Part 1] (drawn up by citizens Groups)

DRAFT THE COMMUNAL CRIMES ACT, 2004 [Part 1]

[drawn up by citizens Groups]

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THE COMMUNAL CRIMES ACT, 2004
PREAMBLE
1. Recalling that communal riots have taken place with alarming regularity causing large scale disturbances, numerous fatalities and injuries, destruction of property, dislocation of lives, sexualized violence against women, violence and trauma to children, threatened the right to life and livelihood, and inflicted untold misery and social suffering, particularly on minority communities.
2. Recalling the findings and recommendations of various Commissions of Enquiry set up such as 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 Commission (Bombay riots).
3. Regretting the fact that these Commissions found, inter alia, that where the police and civil authorities acted impartially and stood firm, the flames of communal passion were quickly doused but where the police and civil authorities were passive, or partisan and connived with the communal elements, abject destruction and loss of lives followed.
4. Regretting the fact that the recommendations of the various Commissions of Enquiry have been largely ignored by successive governments.
5. Noticing that the Commission of Enquiry Act has only a limited jurisdiction and powers and its findings are not enforceable, nor are the proceedings capable of being used in legal proceedings, nor does the Commission have powers in contempt.
6. Noting that in communal riots victims often allege that the magistracy and the police force do not respond to their complaints, do not register FIRs or register them improperly, do not arrest the offenders and do not conduct the investigations and prosecutions properly in a non-partisan, expeditious and fair manner.
7. Noting that there is a growing tendency of the rulings political parties to use the State machinery for perpetrating communal violence and in the process communalizing the state machinery itself leading to the break down of the constitutional governance.
8. Noticing that the constitution does not permit any person or group of persons to engage or indulge in any activity, political, social or cultural which promotes communal hatred or propaganda.
9. Alarmed at the failure of the criminal justice system to successfully prosecute the culprits, as a result of which public faith in the administration of justice is eroded.
10. Deploring the growing tendency for hate speeches and communally oriented writings.
11. Desiring that the victims of communal riots and other incidents be provided relief, rehabilitation and compensation expeditiously.
12. Desiring further that the state authorities take prompt action so as to instil a sense of apprehension in the offenders and security in the victims.
13. Have decided to enact this statute for the above purposes and also to ensure that the authorities are held accountable when they fail in the exercise of their duty.

CHAPTER – I
PRELIMINARIES
1 (i) The Preamble shall be read as an aid to the interpretation of this Act.
(ii) This Act shall be called the “Communal Crimes Act, 2004”.
(iii) It shall come into force on notification in the official Gazette.
(iv) It shall extend to the whole of the territory of the Republic of India.

CHAPTER – II
DEFINITION
2 (i) ‘Group’ means any collective of persons having a common religion, ethnicity, background, race, language, or cultural composition.
(ii) ‘Communal’ means any Group or community organized on the basis of religion, ethnicity, race, gender, sexuality, culture, sub-culture or specific identity for the mobilization of, or conspiracy to mobilize, hate speech or action with the intent to harm and\or destroy, in whole or in part, a group organized on the basis of religion, ethnicity, race, gender, sexuality, culture, or specific sub-cultural or identity group.
(iii) ‘Communal Group’ means any Group engaging in or having engaged in, or likely to engage in or having a tendency to engage in, or preparing to engage in a communal crime.
(iv) ‘Media’ means the print media, including the press, pamphlets, posters or any other material which can be distributed or broadcast, the audio media, including radio, and audiovisual media, including television, films, audiovisual presentations, etc.
(v) The words and expressions not herein defined will have the same meaning as contained in the code of Criminal Procedure, 1973, the Indian Penal Code, 1860, and the General Clauses Act, 1987. 

CHAPTER – III
COMMUNAL CRIMES GENERALLY
3. Communal Crime means :
(a) any act or omission which amounts to an offence under the Indian Penal Code committed on account of the victim’s religious, racial, ethnic, cultural, language or regional identity.
(b) any public speech made or any article written, or any public communication, or audio or video recording, or any direct and public incitement, ridiculing or denigrating a particular group or aimed at ill will towards that group.
(c) deliberately disseminating false information about a particular group.
(d) any educational material ridiculing or denigrating a particular group of aimed at ill will towards that group or deliberately disseminating false and malicious information about a particular group.
(e) asserting, insinuating, counseling, advising, propagating or publishing that any group be deprived of their rights in law.
(f) imposing measures intended to prevent interaction between members of a group and other persons.
(g) imposing, participating in or encouraging an economic or social boycott of a particular group.
(h) forcible evictions or enforced migration of a group.
(i) torture of members of a group.
(j) imposing any form of social or cultural disability on a member or members of a group because of their membership of the group, such as restraints on access to public speaces, public services like public drinking water sources, equal services in an eating establishments, restrictions on worship or cultural practices, forced residential or livelihood segregation etc.
(k) impose measures intended to prevent births within a group
(l) forcibly transferring children of the group to another group
(m) causing serious bodily or mental harm to members of a group
(n) imprisonment and deprivation of liberty of members of a group in violation of law.
(o) all forms of individual or collative sexual violence and intimidation against members of a group.
(p) enforced disappearances of members of a group
(q) other inhumane acts against members of a group.
(r) advises, advocates, suggests, insinuates, encourages or prompts an illegal act be committed against the members of a group
(s) abuses a member of a group specifically referring to her or his identity in that group
(t) causes, instigates, participates in, encourages, abets, supports a communal riot,
(u) interferes with the right to education of children of a group because of their membership of a group without sanction of law.
(v) interferes with any religious practice or creation of a group without sanction of law,
(w) the use of religious and cultural symbols displays and practices, as well as weapons, to intimidate, assault or otherwise commit crimes against members of a particular group.
(x) for any person to interfere in any manner with police work in respect of a communal crime.
(y) participating in a religious ceremony or practice with a view to, directly or indirectly, intimidate a particular group or to create fear and apprehension in their minds.
(z) advocating, instigating, supporting or participating in the desecration, disrespect to destruction or demolition of a religious structure or place.
(aa) Communal Riots means clash between two or more different Communal Groups resulting in death or bodily injury, causing loss of property in any manner whatsoever or the alienation of the properties of the members of any of the Groups or any act prejudicial to the maintenance of harmony and peace by any other activity which promotes disharmony, enmity, hatred or ill-will on grounds of religion, place of birth, residence, language, ethnicity, race, or community between different groups of people.
(bb) Communal Carnage means conspiracy or planning by any Communal Group or any member of any Communal Group to commit any act for causing or would likely to cause or that causes death or bodily harm and\or injury to one or more members of any other Group or cause the loss of property in any manner whatsoever or causes the forced alienation or eviction of the members of any other Group from their property and livelihood resources.
(cc) For any party to discriminate against an individual or community in providing concerned persons with respect to land, employment, housing, trade and the like on account of the person belonging to a particular group and acting against the right to life and livelihood.
(dd) For any party to discriminate against an individual or community in ways that interfere with the right to freedom of information and freedom of movement of a group. A threat or act of rioting, assault, causing death or bodily injury, causing loss of property in any manner whatsoever, making imputations and assertions by words, spoken or written, by visible representation or by acts prejudicial to the maintenance of harmony or by any other activity which promotes disharmony, enmity, hatred or ill-will on grounds of religion, place of birth, residence, language, ethnicity, race, tribe or community between different groups of people identifiable on any of the above grounds, such violence being overt or covert and indulged in singly or in groups.
(ee) Promoting enmity between different groups by making imputations and assertions prejudicial to National Integration as in Section 153 A and 153 B of Indian Penal Code.
(ff) Whoever being a member of any political party or any Group canvasses for himself, herself, or for some other person or for any Group or political party and/or seeks any vote for any election in the name of any particular religion or uses any religious symbol for that purpose.
(gg) Whoever within the territory of India,
(i)    Preaches, propagates or broadcasts by word of mouth, in writing, by visual representation, any matter which tends to incite hatred or ill-will against any group or individual belonging to that group on account of religion, ethnicity, race, place of birth, residence, language, caste, tribe or community.
(ii) Preaches, propagates or promotes violence, including bodily harm and damage to property against any group.
(iii) Aids or abets the physical, social or economic harm to any person or persons belonging to a particular group from her, his or their area of normal residence.
(iv) Encourages the social or economic boycott of any group.
(v) Preaches or propagates the removal of a person or persons belonging to a particular group from her, his or their area of normal residence.
(vi) to use the education system to promote, instigate, support, assist or encourage the doing of a communal crime.
CHAPTER IV
COMMUNAL CRIMES BY POLICE PERSON, PARAMILITARY FORCES AND MEMBERS OF THE ARMED FORCES AND ALL CIVIL AUTHORITIES
4. It shall be an offence for a member of the police force, or a paramilitary force or the armed forces, or all civil authorities to :
(i) participate in, abet, or encourage a communal crime,
(ii) fail without due cause to take effective steps to prevent the planning and execution of a communal crime,
(iii) collude with those engaging in communal crimes,
(iv) engage in communal crimes,
(v) not register FIRs in accordance with law when a communal crime is reported,
(vi) not investigate a communal crime in accordance with law and expeditiously,
(vii) not play her or his role in accordance with law in the prosecution of a communal crime offender,
(viii) threaten, abuse, intimidate the victim of a communal crime,
(ix) through acts of commission and omission, side with the alleged offenders in a communal crime case against the victim,
(x) deliberately fail to prevent the commission of communal crimes,
(xi) fail to protect or provide security to a victim of a communal crime,
(xii) fail to react promptly to information relating to a communal crime, inter alia, by immediately visiting the victim and by providing security,
(xiii) fail without cause to prevent damage to property,
(xiv) fail to provide adequate deployment of forces in an area subjected to or likely to be subjected to communal crimes.
CHAPTER V
COMMUNAL CRIMES BY MEDIA PERSONS
5. It shall be an offence for any media person or any other individual or group :
(i) to write, publish, disseminate, broadcast or telecast, print any information relating to a group or in respect of a communal crime that is patently false, or known to be false or such that the person ought to have known the material to be false.
(ii) to write, publish disseminate, print broadcast, telecast any material likely to result in the commission of a communal crime.
(iii) to misreport, exaggerated, or mischievously broadcast, distort facts, spread rumors or create an environment which promotes enmity between groups or individual.
(a) Provided that the person writing, reporting, broadcasting and the editor, the head of the media service used and the proprietor of the media service shall be also held liable under this section.
(b) Provided further that the trial court may suspend or cancel the press registration, license of the offending media service on a conviction under this section.         

CHAPTER VI
COMMUNAL CRIMES BY MEMBERS OF THE HEALTH PROFESSION
6. It shall be an offence for any person in the medical or health profession
(i) to discriminate against any person of a group
(ii) to refuse to treat or to treat inadequately any member on account of her or his membership in a group.
(iii) to prepare a false or misleading document in respect of a member of a group on account of her or his membership.


CHAPTER – VII
COMMUNAL CRIMES BY MEMBERS OF THE LEGAL PROFESSION
7. It shall be an offence for any advocate :
(i) to prepare a false or misleading document in respect of a member of a group on account of his or her membership
(ii) to advise, tolerate, encourage, instigate or in any way promote the giving of false evidence against a member of a particular group.
(iii) to commit a professional misconduct where the victim is a member of a particular group and on account of that membership.
(iv) to refuse to provide legal aid to a member of a group who has been the victim of a communal crime on account of that membership.
(v) To act in partisan and unprofessional ways.

CHAPTER – VIII
BANNING OF COMMUNAL GROUPS
8(i)  Declaration of an organization as a communal group.-
(I) For the purposes of this Act, an organisation is a communal group if—
(a) it is listed in the Schedule, or
(b) it operates under the same name as an organisation listed in that Schedule.
(II) The Central Government may by order, in the Official Gazette,—
(a) add an organisation to the Schedule;
(b) remove an organisation from that Schedule;
(c) amend that Schedule in some other way.
(III) The Central Government may exercise its power under clause (a) of sub-section (2) in respect of an organisation only if it believes that it is involved in communal crime.
(IV) For the purposes of sub-section (3), an organisation shall be deemed to be involved in communal crime if it—
(a) commits or participates in acts of communal crime,
(b) prepares for communal crime,
(c) promotes or encourages communal crime,
(d) is engaged in a conspiracy or is complicitous in a conspiracy to commit communal crimes
(e) is otherwise involved in communal crime.
8(ii). Denotification of a communal group.-
(I) An application may be made to the Central Government for the exercise of its power under clause (b) of sub-section (2) of section 18 to remove an organisation from the Schedule.
(II) An application may be made by—
(a) the organisation, or
(b) any person affected by inclusion of the organisation in the Schedule as a communal group.
(III) The Central Government may make rules to prescribe the procedure for admission and disposal of an application made under this section.
(IV) Where an application under sub-section (1) has been refused, the applicant may apply for a review to the Review Committee constituted by the Central Government under sub-section (1) of section 60 within one month from the date of receipt of the order by the applicant.
(V) The Review Committee may allow an application for review against refusal to remove an organisation from the Schedule, if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review.
(VI) Where the Review Committee allows review under sub-section (5) by or in respect of an organisation, it may make an order under this sub-section.
(VII) Where an order is made under sub-section (6), the Central Government shall, as soon as the certified copy of the order is received by it, make an order removing the organisation from the list in the Schedule.
8(iii). Offence relating to membership of a communal group.-
(I) A person commits an offence if he or she belongs or professes to belong to a practising communal group:
Provided that this sub-section shall not apply where the person charged is able to prove—
(a) that the organisation was not declared as a communal group at the time when he or she became a member or began to profess to be a member; and
(b) that he or she has not taken part in the activities of the organisation at any time during its inclusion in the Schedule as a communal group.
(II) A person guilty of an offence under this section shall be liable, on conviction, to imprisonment for a term not exceeding ten years or with fine or with both.
8(iv) Offence relating to support given to a communal group.-
(I) A person commits an offence if—
(a) he or she invites support for a communal group, and
(b) the support is not, or is not restricted to, the provision of money or other property within the meaning of section 22.
(II) A person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he or she knows is—
(a) to support a communal group, or
(b) to further the activities of a communal group, or
(c) to be addressed by a person who belongs or professes to belong to a communal group.
(III) A person commits an offence if he or she addresses a meeting for the purpose of encouraging support for a communal group or to further its activities.
(IV) A person guilty of an offence under this section shall be liable on conviction, to imprisonment for a term not exceeding ten years or with fine or with both.
Explanation.—For the purposes of this section, the _expression "meeting" means a meeting of three or more persons whether or not the public are admitted.
8(v). Fund raising for a communal group to be an offence.-
(I) A person commits an offence if he or she —
(a) invites another to provide money or other property, and
(b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of communal crime.
(II) A person commits an offence if he or she—
(a) receives money or other property, and
(b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of communal crime.
(III) A person commits an offence if he or she—
(a) provides money or other property, and
(b) knows or has reasonable cause to suspect that it will or may be used for the purposes of communal crime.
(IV) In this section, a reference to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether or not for consideration.
(V) A person guilty of an offence under this section shall be liable on conviction, to imprisonment for a term not exceeding fourteen years or with fine or with both.

CHAPTER – IX
EXTERNMENT
9. (i) Where the Court is satisfied, upon a complaint or a police report that a person is likely to commit an offence under this Act, it may, by order in writing, direct such person to remove himself or herself beyond the limits of such area, by such route and within such time as may be specified in the order, and not to return to that area from which he or she was directed to remove himself and herself for such period, not exceeding two years, as may be specified in the order.
(ii) The Court shall, along with the order under sub-section (1), communicate to the person directed under that sub-section the grounds on which such order has been made.
(iii) The Court may revoke or modify the order made under sub-section (1), for the reasons to be recorded in writing, on the representation made by the person against whom such order has been made or by any other person on her or his behalf within thirty days from the date of the order.
(iv) If a person to whom a direction has been issued under section 10 to r remove himself or herself from any area-
(a) fails to remove himself or herself as directed; or
(b) having so removed himself or herself enters such area within the period specified in the order, otherwise than with the permission in writing of the Court under sub-section (2), the Court may cause him or her to be arrested and removed in police custody to such place outside such area as the Court may specify.
(v) The Court may, by order in writing, permit any person in respect of whom an order under section 10 has been made, to return to the area from which he or she was directed to remove himself or herself for such temporary period and subject to such conditions as may be specified in such order and may require him or her to execute a bond with or without surety for the due observation of the conditions imposed. 
(vi) The Court may at any time revoke any such permission.
(vii) Any person who, with such permission, returns to the area from which he was directed to remove himself or herself shall observe the conditions imposed, and at the expiry of the temporary period for which he or she was permitted to return, or an the revocation of such permission before the expiry of such temporary period, shall remove himself outside such area and shall not return thereto within the unexpired portion specified under section 10 without a fresh permission. 
(viii) If a person fails to observe any of the conditions imposed or to remove himself accordingly or having so removed himself enters or returns to such area without fresh permission the Court may cause him to be arrested and removed in police custody to such place outside such area as the Court may specify.
(ix) Every person against whom an order has been made under section 10 shall, if so required by the Court, allow her or his measurements and photographs to be taken by police officer.  
(x) If any person, when required to allow her or his measurements or photographs to be taken resists or refuses to allow her or his taking of such measurements or photographs, it shall be lawful to use all necessary means to secure the taking thereof. 
(xi) Resistance to or refusal to allow the taking of measurements or photographs shall be deemed to be an offence under section 186 of the Indian Penal Code.
(xii) Where an order under section 10 is revoked, all measurements and photographs (including negative) taken shall be destroyed or made over to the person against whom such order is made. 
(xiii)  Any person contravening an order of the Court made under section 10 shall be punishable with imprisonment for a term which may extend to one year and with fine.

CHAPTER X
PREVENTIVE ACTION
10(I) (i) A District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate or any police officer not below the rank of a Deputy Superintendent of Police may, on receiving information and after such inquiry as he or she may think necessary, has reason to believe that a person or a group of persons, residing in or frequenting any place within the local limits of her or his jurisdiction is likely to commit an offence or has threatened to commit any offence under this Act and is of the opinion that there is sufficient ground for proceeding, declare such an area to be an area prone to communal crimes and take necessary action for keeping the peace and good behavior and maintenance of public order and tranquility and may take preventive action.  
(ii) The provisions of Chapters VIII, X and XI of the Code shall, so far as maybe, apply for the purposes of sub-section (1) 
(iii) The State Government may, by notification in the Official Gazette, make one or more schemes specifying the manner in which the officers referred to in sub-section (1) shall take appropriate action specified in such scheme or schemes to prevent communal crimes and to restore the feeling of security amongst the members of a group.
II. Precautionary and preventive measures.-

With a view to prevent communal crimes the State Government shall :

(i) identify the area where it has reason to believe that a communal crime may take place or there is an apprehension of reoccurrence of an offence under the Act;

(ii) order the District Magistrate and Superintendent of Police or any other officer to visit the identified area and review the law and order situation;

(iii) if deem necessary, in the identified area cancel the arm licenses of the persons engaging in the communal crime against the victims, their near relations, servants or employees and family friends and get such arms deposited in the Government Armory;

(iv) seize all illegal fire-arms and prohibit any illegal manufacture of fire-arms;

(v) with a view to ensure the safety of person and property, if deem necessary, provide arms licenses to the members of the victim group;

(vi) take strict action to prevent hate mobilisation, hate speeches, hate writings against members of a group in order to prevent the spread of communal crimes.

(vii) constitute a high power State-level committee, district and divisional level committees or such number of other committees as deem proper and necessary for assisting the Government in implementation of the provisions of the Act.

(viii) set up a vigilance and monitoring committee to suggest effective measures to implement the provisions of the Act;

(ix) set up Awareness Centers and organize Workshops in the identified area or at some other place to educate the persons belonging to the victim group about their rights and the protection available to them under the provisions of various Central and State enactments or rules, regulations and schemes framed thereunder;

(x) encourage Non-Government Organizations for establishing and maintaining Awareness Centers and organizing Workshops and provide them necessary financial and other sort of assistance;

(xi) deploy special police force in the identified area;

(xii) by the end of every quarter, review the law and order situation, functioning of different committees, performance of Special Public Prosecutors, Investigating Officers and other Officers responsible for implementing the provisions of the Act and the cases registered under the Act.