A People's Critique of the Communal Violence (Prevention, Control and Rehabilitation of Victims)

Betrayals and Missed Opportunities:
The Communal Violence (Prevention, Control and Rehabilitation of Victims)
Bill, 2005

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.