India: Draft - The Communal Crimes Act, 2004 [Part 2] (drawn up by citizens Groups)

India: Draft - The Communal Crimes Act, 2004 [Part 2]
[drawn up by citizens Groups]

[URL Part 1: http://communalism.blogspot.com/2004/12/india-draft-communal-crimes-act-2004.html ]
[...]
CHAPTER – XIX

PUNISHMENT ON COMMITTING COMMUNAL CRIME

19 (i) All communal crimes are cognizable and are bailable only by the Special Court constituted under section 22.
(ii) Any person or persons convicted of committing Communal carnage that has resulted in the death of any person shall be punished with rigorous imprisonment for Life and shall also be punished with fine which may range upto ten times the value of property loss caused during the course of the carnage.
(iii) Any person or persons convicted of committing Communal carnage in all other cases shall be punished with rigorous imprisonment ranging upto twenty years and shall also be punished with fine which may range upto ten times the value of property loss caused during the course of the carnage.
(iv) Any person or persons convicted of committing or participating in Communal Riots that has resulted in the death of any person shall be punished with rigorous imprisonment for a period that may range upto imprisonment for life but not less than ten years and shall also be punished with fine which may range upto the value of property loss caused during the course of the carnage.
(v) Any person or persons convicted of committing or participating in Communal Riots in all other cases shall be punished with rigorous imprisonment ranging upto ten years or the maximum sentence as provided for any offence under IPC in case of any such offence being committed during the course of the riots, whichever is more and shall also be punished with fine which may range upto the value of property loss caused during the course of the carnage.
(vi) The punishment for committing all other communal crimes as defined under section 2 shall be rigorous imprisonment for a period ranging upto life imprisonment but not less than seven years and a fine upto Rs. 10 lakhs or the value of property destroyed and loss caused whichever is greater

CHAPTER – XX

COMPENSATION FOR THE VICTIMS OF COMMUNAL CRIME
20 (i) The victims of communal crimes shall be compensated by the State Government at least to the extent to which they have suffered loss of property, loss of life, injuries, trauma and losses relating to the communal crime. However, the governing principle will be that survivors of communal crimes must be made better off, in terms of shelter and livelihoods, than they were before the crime. Since many urban victims of communal crimes are urban poor people without legal title to their shelters and livelihoods, this compensation will be payable without regard to the legal title to the properties destroyed.
(ii)   This compensation shall be paid by the state within 8 weeks of the commission of the communal crime on an assessment made by the State Government. With the help of respected human rights organizations and representatives of the victims themselves.
(iii) It is the mandatory duty of the state government to expeditiously establish relief camps in the immediate aftermath of any communal crimes in which people have either lost their shelter or are fearful to return to their shelters. In these relief camps, the state government will extend full security, and all facilities prescribed for internal refugees by the United Nations. The state government will also give a monthly stipend equivalent to the minimum wage to all adult members, and as soon as it is feasible may provide wage work for those willing and able to work.
(iv) The state government will make every effort to create a conducive environment for the early return of the victims to their secured and rebuilt homes. However, it will in no circumstances coerce people to return if they still feel too insecure and terrified to return to their original homes. In the event that people decide never to return to their original homes, it is the duty of the state to resettle them on the same standards as in the National Rehabilitation Policy for people displaced by large development projects.
(v) The state government must provide the financial resources for the rebuilding of all places of worship that are destroyed wholly or partially in communal crimes.
(vi) The state shall be at liberty to recover from the perpetrators of the communal crime, the compensation paid to the victims. This money may also be recovered from the perpetrators as arrears of land revenue. The compensation payable to a victim of a communal crime shall be in accordance with Annexure II to this Act, wherever applicable, and in other cases, the determination of the compensation payable shall be made by the State Government keeping in view the levels of compensation payable as set out in Annexure II.
(vii) The state shall set up an independent Commission to revise from time to time the level of compensation fixed at Annexure II to this Act and this Commission shall, at least once every two years, revise upwards the payment of compensation payable under this Act.
(viii) Where communal crimes occurs and there is loss of life, injury to person or loss of property, the High Court may appoint a commissioner and on the basis of her or his report make a suitable order regarding payment of compensation to the victim and apportion the cost of such compensation amongst the persons liable for payment. This will be in addition to any collective fine, which may be imposed by the State Government.
(ix) The Central Government on the basis of the commissioner’s report shall compensate the bereaved families, the injured persons and those suffering financial damages as a consequence of the communal crime. 
(x) The above provision shall not come in the way of the Central Government giving interim compensation or making ex-gratia payments immediately after or during the commission of a communal crime. Such interim compensation or ex-gratia payment shall not be adjustable against the final compensation payable to the victims.  
(xi) The central government will direct the Reserve Bank of India to direct both nationalized and private banks to extend adequate soft loans to enable the survivors of communal crimes to rebuild their damaged or destroyed shelters and livelihoods.

CHAPTER XXI

COMMISSIONS OF ENQUIRY
21(i) Subject to sub-section (i) of this section, the Commissions of Enquiry Act 1952 shall apply in respect of any allegation relating to the commission of a communal crime.
(ii) Section 6 of the Commissions of Enquiry Act 1952 shall not apply in respect of any Commission set up in respect of an alleged commission of a communal crime.
(iii) the Commission shall be deemed to be a Court within the meaning of the Contempt of Courts Act which shall apply in respect of proceedings of a Commission set up in respect of the allegation relating to a communal crime.
(iv) all statements made by a person in the course of giving evidence before the Commission can be used against her or him in any civil or criminal proceeding.
(iv) an entire report of the Commission of Enquiry including its findings and recommendations shall be binding on the State Government and shall be implemented by the State Government forthwith.
(v) any action under this Act will not be deferred or cancelled merely
because an Enquiry Commission has been set up to go into the circumstances of the communal crime or crimes.
(vi) the Reports spelt out in S.12 should also be periodically submitted to
the National Human Rights Commission, State Human Rights Commission (if any), National Women's Commission, State Womens Commission(if any) and Minorities Commission.
(vii) all wireless messages and other forms of communication such as notes, e
mails, faxes, etc. from and by the Collector, District Magistrateand the
Police Control Room in relation to the communal crime as also the police
vans in the locality of the communal crime and officers and police stations
in whose jurisdiction the communal crime has been committed should be
retained as long as proceedings are pending in respect of the Communal Crime before any Court, Authority or Commission of Enquiry.

CHAPTER XXII

INVESTIGATION BY AN AGENCY OTHER THAN THE STATE POLICE
22. A court trying an offence under this Bill may, if it is satisfied that the investigation of the case has not been done in a proper, unbiased and professional manner, may direct that investigation will be entrusted to any other investigating agency, including the CBI. Notwithstanding anything contained in any other Act, the investigating agency so entrusted will have all the powers of investigation enjoyed by a station officer of police under Chapter XII of the code of Criminal Procedure, 1973.

XXIII

SPECIAL COURTS
23.(i) The State Government shall constitute Special Courts of Sessions to try cases under this Bill. These courts will be constituted in consultation with the Chief Justice of the respective High Court and shall try all offences under this Bill and shall conduct trials on a day-to-day basis so as to obviate delay and generally take all measures to ensure expeditious conclusion of the case.
(ii) No court other than the Special Courts constituted under subsection 22(ii) shall have the jurisdiction to try any of the offences that defined under this Bill.
(iii) The Special Court shall follow the same procedure as prescribed under the Code for the trial of any warrant case by the Session Court for trying any of the offences as defined under this Bill.
(iv) No person who is accused of having committed the offence of Communal carnage or Communal Riot resulting in the death of any person shall be enlarged on bail during pendency of investigation or trial and in case of conviction by the Special Court shall not be entitled for any bail during the period of Appeal in any higher forum. However, it shall be the duty of the prosecution to establish that prima facie case exists against the accused. In any other case of the commission of Communal Crime, no person accused of committing any such offence shall be enlarged on bail till the charge sheet is submitted under section 173 of the code and the Special Court may grant bail to any such accused after being satisfied that the said accused will not commit any communal crime after being enlarged on bail. In case of any complaint that the accused has committed any communal crime while set free on bail, the Special Court shall suo moto or otherwise cancel the bail granted and send the accused to the appropriate custody.
(v) Appeal shall lie against all convictions and orders of the Special Court to the Division Bench of the respective High Court including any order of refusal of the grant of bail or grant or refusal to grant remand, however no appeal shall lie against any interlocutory order that may be passed by the Special Court.

XXIV

DIRECTIONS BY THE CENTRAL GOVERNMENT
24. (a) The Central Government may issue suitable directions regarding the enforcement of the law and all the authorities concerned will be duty bound to carry out such directions. In this behalf the Central Government may ask for returns and reports from the State Governments.
(b) The authority shall also submit to the Central Government a list of the names and addresses of individuals and organizations or parts of such organizations promoting disharmony amongst groups, and engaging in or tending to engage in communal crimes.

XXV
APPOINTMENT OF COMMISSIONERS
25. (a) After every act of Sectarian Violence, as defined in this Act, irrespective of the number of those killed, wounded or maimed and the value of the property destroyed, the Central Government may appoint a commissioner to ascertain the perpetrators of the violence and destruction of the property, whether it be an individual, group or individuals or organizations, if the State Government has not done so.
(b) The Commissioner to be appointed whether by the State Government or the Central Government shall be a retired judge of the Supreme Court of India or the High Court of any of the States.
(c) The Commissioner to be appointed shall be so appointed in consultation with the Chief Justice of India, the Chief Justice of the State where the Act of Sectarian violence occurred or the second senior most judge of the Supreme Court of India.
(d) The Commissioner shall have all the powers of the civil court to issue summons to the witnesses, record evidence on oath or solemn affirmation, take affidavits in lieu of evidence and call upon any person to produce documents in her or his custody.
(e) The report to be submitted by the Commissioner shall be submitted as early as possible and in any case within 12 months of the appointment of the commissioner.

XXVI

IMPOSITION OF LEVY
26. The Central Government may impose a surcharge on all persons paying income tax, service tax, property tax, or any of them a suitable levy to be known as “Levy to Relieve Distress”.

XXVII

DISQUALIFICATION FROM PUBLIC OFFICE
27. Disqualification from Public office, including participation in elections :- person convicted of an offence under this bill will be ineligible for any public office under the Central Government, State Government or local Government or in any public or semi-public undertakings or institution. A person so convicted will also be debarred from contesting or canvassing elections at all levels in any representative body, including cooperatives, for a period of10 years as reckoned from the date of conviction being finally confirmed.

XXVIII

MISCELLANEOUS
28.(i) The provisions of section 360 of the Code and the provisions of the Probation of Offenders Act, 1958 shall not apply to any person above the age of eighteen years who is found guilty of having committed an offence under this Act. 
(ii) Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.
(iii) The police shall ensure immediate videography of the place of communal
crime.
(iv) If the communal violence does not stop in a District within 48 hours
there will be a rebuttable presumption that the senior most police officer of
the area as also the senior inspectors of the police station within whose
jurisdiction the communal crime has occurred had failed to discharge their
duties.
(v) Any person who is part of a gathering or mob which has committed
communal crime will be presumed to be present in the gathering or mob for
the purpose of committing such communal crime
(vi) All offences punishable under this act shall be cognisable and non-bailable.
(vii) This Bill will be supplemental to the normal laws of the land and will not derogate or replace them. Offences under the Bill may be jointly tried with offences under other laws for the same act or they may be independently tried by a Special Court. In case of joinder or charges all the cases, whether under other laws or this Bill, will be tried by a special court constituted under this Bill.
(viii) Conflict of Interest :- In case of conflict of interest between this Bill and other laws, the provision of this Bill will prevail to the extent of such conflict.