Communal Violence Bill 2005
Amend It to Make India Riot Free!
Background
The state sponsored pogrom in Gujarat in early 2002
was a watershed in the history of independent India,
even if of the terribly wrong kind.
This is not the first time when people, and
‘minorities’ to be more specific, were brutally done
away with aided and abetted - and at times actively
supported, by the state machinery. In fact, India’s
history abounds with such dark spots. But never before
a state government, and the party in power and its
affiliates, so openly and brazenly fuelled the fire of
gory violence targeted at the members of a specific
community.
The killers and rapists were lionised. The
commander-in-chief attained a larger than life status
and became virtually a cult figure. A very large
segment of the local populace got intoxicated with
communal frenzy and violence. The state election was
forced by prematurely dissolving the assembly to
capitalise on the ambience of insecurity, paranoia and
violence deliberately caused. As designed, the
architects of majoritarian violence and mayhem were
handsomely rewarded. The central government acted as a
somewhat less enthusiastic but nevertheless pliant
accomplice.
Even though the organised massacres of Sikhs in
Oct.-Nov.1984 to an extent had anticipated the Gujarat
of Feb.-March-April 2002, the enactment of a ‘legal’
remedy to such a malaise was never wished for as
strongly ever before.
Mercifully, in the parliamentary election to follow in
early 2004 – again held before time, the ruling NDA
got defeated belying all poll predictions and a
coalition government at the Centre led by the Congress
under the banner of the UPA could eventually be
cobbled up with a collectively drafted Common Minimum
Programme (CMP) as its road map.
It is in line with the commitment made therein, about
a year after, the central government had first
circulated a draft Communal Violence (Suppression)
Bill in April 2005.
The bill faced wide and virulent opposition mainly on
the ground that it had proposed to confer draconian
powers in the hands of the armed forces deployed by
the Central government in an area declared as
“communally disturbed”. That the Centre would arm
itself with overriding powers vis-à-vis the states was
another principal sore point.
Modifications were made in stages and now a redrafted
Communal Violence (Prevention, Control and
Rehabilitation of Victims) Bill, 2005 has been tabled
at the Rajya Sabha on December 5 and thereafter
referred to the Parliamentary Standing Committee for
the Ministry of Home Affairs for detailed
examinations.
What the Act Must Provide?
I.
Any serious Act, meant to prevent/deter/reduce
incidences of large-scale communal violence, must
encompass a three-phased approach. It must have
provisions to ensure (i) adequate monitoring and
scuttling of build up of tensions through hate
propaganda and spreading of rumours etc.; (ii) prompt,
unbiased and effective intervention to contain/quell
violence and protection for the actual and likely
victims; and finally (iii) relief and rehabilitation
for the victims, speedy identification of and strict
justice for the perpetrators and also stringent
punishment for the negligent/colluding State
officials. There must be adequate provisions for
effective interventions in all the three stages:
before, during and after.
II.
As our experiences show, the biased approach of the
state machinery is one of the major problems. But
their services can hardly be dispensed with. So the
Act must ideally create a special/autonomous body at
the state level, which will have statutory/executive
powers to direct and supervise the operations of the
state machineries pertaining to communal violence
declared by it as “communally disturbed”. The body
must be so constituted that it enjoys enough
credibility in the eyes of the potential ‘victim’
communities. Or, at the very least, in case of failure
to scuttle/contain violence the complete command chain
up to the highest echelons of the state administration
must be held accountable and be made to pay for such
failure. Full monetary compensations for the victims
by the state would be another way of discouraging
pre-planned pogroms.
III.
Special central security force, having adequate
representation of various ‘minorities’ including
women, must be raised. They may be deployed at the
request of the special body constituted at the state
level. Once deployed, they should directly report to
such bodies. Both the ‘special’ force and the state
police must be sensitized through proper training etc.
IV.
There must be special court to try the cases of
atrocities. Public prosecutors are to be appointed
only with the consent of the victims. The judges need
be vetted by the autonomous body, in case there is
one.
V.
Vesting of unfettered powers in the existing
structures, who are by all means the parts of the
problem, would lead only to further victimisation of
the victims. This must be avoided like plague.
How Does the Bill Fare?
The Positives and Negatives
The very framing of the Bill gives the official stamp
of recognition to the extreme seriousness of the
problem and is hence welcome.
The most major improvement in the redrafted Bill is
perhaps the change in its nomenclature, which
acknowledges - at least in principle, the necessity
for intervention in all the three stages: before,
during and after. Apart from that, the draconian
powers that were earlier proposed to be vested in the
law enforcing machinery have been very substantially
curtailed. Special provisions for witness protections
have been made. The Bill also proposes to
simultaneously empower the Centre and the state
government concerned to establish special trial courts
outside the communally disturbed area (so as to
eliminate biases). The proposed power for the special
courts to take cognizance of and try offences brought
to its attention by human rights bodies, minority
groups, media reports or even a concerned citizen is
also very welcome. Wide-ranging powers are proposed
for the ‘competent authority’ as also district
magistrates to prevent breach of peace. District
magistrates who fail to ensure the rule of law despite
such powers would then be answerable for their acts of
omission and commission. Those held guilty of
relatively less serious communal offences would stand
to serve a jail term or asked to pay a fine that is
twice that stipulated otherwise. There are provisions
for more effective investigation of offences and the
establishment of permanent councils with
representation of human rights activists and
minorities at the district, state and national levels
to promote communal harmony and formulate humane and
appropriate rehabilitation and reparation schemes for
victims of communal violence.
The central and the most glaring flaw of the Bill is,
however, that it refuses to acknowledge that communal
violence erupts and spreads mostly because of the lack
of political will on the part of the state government
concerned and also the Centre. In case of Gujarat the
state government was actually actively complicit and
the Centre connived.
The now proposed Bill further compounds this
near-fatal folly by leaving the very commencement of
the Act, let alone its execution, to the sweet mercies
of the respective state governments, and the Centre in
case of Union Territories. Only the provisions
relating to relief and rehabilitation (excluding the
provisions of suppression and prevention of communal
violence) can be brought into force by the central
government through appropriate notification.
Therefore, on the passing of the Act, by the
parliament, none of the provisions will automatically
come into force and this will depend on further whims
and fancies of the central and state governments. And
even after the Act having become operative, it is
again for the concerned state government to declare a
particular area as “communally disturbed”, upon which
the various provisions of the Act will apply to such
areas so declared. So the state government, under the
provisions of this Bill, can very well keep on
dragging its feet in issuing the appropriate gazette
notification to make the Act operative. And, more
vitally, delay, or altogether avoid, declaring the
affected areas as “disturbed” and thereby making the
whole exercise nothing more than some sort of
elaborate window dressing.
While there can be many more improvements in the Bill,
this central lacuna of the Bill must engage all our
attentions at the moment. Even more so, as most of the
states are reportedly reluctant to even issue
notifications to make the Act operative.
What to Do Now?
That the UPA government was impelled under strong
public pressure to include in the CMP the commitment
to legislate such an Act and thereafter draw up
successive drafts to that end gives us immense hope
that organized public opinion and its determined
demonstration can ensure further improvement in the
Bill and eliminate the central lacuna.
It is with this goal in mind, the Movement for Peace
and Justice (MPJ), Mumbai, in collaboration with all
those who are willing to collaborate, has launched a
nationwide campaign. Advocate Y. H. Muchhala, an
eminent and well-known legal practitioner from Mumbai,
has taken the initiative to form a group of legal and
social activists to draw up amendment clauses to the
proposed Bill to convert it into an effective
instrument from an ornamental showpiece. The list of
proposed amendments will eventually be presented
before the Standing Committee, to which the Bill has
been referred to, for incorporation. But a strong wave
of public pressure is imperative to make it happen and
it is for all of us – each one of us, to ensure that
it happens. So all the right-thinking and concerned
citizens of India - irrespective of caste, creed,
language and gender, must immediately join hands in
the determined efforts to make India a safer and
better place.
So, let’s all join together! Let’s make it happen, all
together!
Mohammed Anees (Spokesperson, Movement for Peace &
Justice)
Convenor, Initiative on the Communal Violence Bill
9820796098
Mumbai-Initiative-4-Bill@googlegroups.com
anees.mohammed@rediffmail.com
Organising Committee
Adv Yusuf Muchala (Chairman), Mohd Anees(Convenor), Js
H Suresh, Dr Ram Puniyani, Adv Mihir Desai, Dolphy
Dsouza, Adv Saeed Akhtar, Kamayani, Adv Sameena
Dalwai, Syed Iftekhar, Jatin Desai, Sukla Sen, Adv
Qazi Mehtab, Farid Batatawala, A.D.Golandaz, Meena
Menon, Shanti Patel, Flavia Agnes, Jyoti Punwani, Ravi
Duggal, Louis Dsouza, Lionel Fernandes, Adv Sagheer
Khan, Haroon Mozawala, Dr Azeemuddin, Fr Allwyn
D’silva
|
