Economic and Political Weekly
December 31, 2005
Resisting State Complicity in Communal Crimes
Missed Opportunities in UPA Bill
Though the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 introduced by the United Progressive Alliance government in the Rajya Sabha was awaited with great hope, the bill being considered is a grave let down. The foundation of the bill itself, or the objectives on which the entire edifice is constructed, is so flawed that its architecture cannot be remedied by improvements in specific components. Given the many episodes where democratically elected state administrations have been openly partisan and neglectful, or even actively participated in the massacre of segments of the populace, the bill sets out, perversely, to vest those same governments with even more powers.
by Harsh Mander
People wearied and battered by the politics of hatred that swept the country for almost the two preceding decades have been let down gravely by the bill recently introduced by the United Progressive Alliance (UPA) government in the Rajya Sabha, the Communal Violence (Prevention, Control And Rehabilitation of Victims) bill, 2005. 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 the foundation of objectives on which its entire edifice is constructed. This foundation is so flawed that its architecture cannot be remedied by improvements in specific components. The preamble of the bill itself states that it aims “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 active participants 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 of 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, Chhattisgarh 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 possible future 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 a result of disempowerment, or of criminally mala fide public authority in each of these cases? I have served in the Indian administration for two decades and handled several riots. I can affirm, along with several of my former colleagues in the civil and police administration, that even a junior local policeperson or civil administrator has all the powers under the law, as it exists, 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 powers of executive magistrates and policepersons delienated in the bill 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, “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 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 is a listing of powers of the government that mostly already exist, that may be used to protect them if it chooses 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 with 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)ilfully 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 cognisance of an offence under this section except with the previous sanction of the state government. In the context of state governments with communally driven mala fide intent, the chances of even police officials being punished under this clause are very remote.
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 Thackeray, Modi and Togadia routinely indulge in; the pedagogic content and methods used openly in Sangh schools; or refusal 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 a “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.
Rights of Survivors
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 provides for committees to be established to plan and oversee these, but these comprise mainly officials of the state government and non-officials nominated by the government. Once again, this 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”.
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 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 prescribed for widows and orphans.
The bill provides, once again on the initiative of the state government, for 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 was 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 welcome 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 any 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”. Based on international experience, these measures for witness protection can be extended further.
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.
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