All that hot air - A critique of Communal Violence Prevention Bill (Colin Gonsalves)

(Tehelka, Feb 18 , 2006)

All that hot air

The Centre is under no obligation to wait for a state’s consent in case of communal riots. But the new Communal Violence Prevention Bill might just betray its own agenda, writes Colin Gonsalves

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Gender violence, the insertion of objects in the genitals, social and economic boycotts, forcible evictions, residential segregation, deprivation of access to food and medicines, enforced disappearances and interference with police work need to be clearly defined in the new communalism statute
The Preamble of The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 makes it clear that the enactment is being done with a view to empower the government to take measures. The focus is not on how civil society is empowered to initiate and control prosecutions when communal crimes occur. Given that it is the government that is the principal wrongdoer, the thrust of the legislation is misplaced.

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. A state government may issue a notification bringing the statute into force and yet render it sterile by not issuing notifications declaring certain areas to be communally disturbed areas.

The Act can be invoked only in 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. Apart from the ipc crimes, communal crimes are nowhere defined. Gender violence, including the insertion of objects in the genitals, social and economic boycotts, forcible evictions, restraint on access to public spaces, residential segregation, deprivation of access to food and medicines, enforced disappearances, interference with the right to education, using religious weapons and ceremonies to intimidate, interference with police work, advocating the destruction of religious structure, need to be specifically set out in the statute.

A special section on communal crimes against women and children is solely needed covering sexual violence, penetrative assault, sexual slavery, enforced prostitution, forced pregnancies, enforced sterilisation and other forms of sexual violence. The rules of evidence need to be modified so that the victim is not victimised during the trial.

Chapter iii relates to the prevention of communal violence and appears to empower the district magistrate to prevent the breach of peace by, inter alia, curbing processions, externing persons, regulating the use of loudspeakers, seizing arms, detaining persons and conducting searches. This is a cosmetic section because the police have the powers to do all these things under the Criminal Procedure Code and various other criminal statutes in force today.

Section 17 is the seemingly progressive section enabling the prosecution of police officers acting malafide. But the entire section is negated by the requirement that no cognisance be taken unless the state government sanctions the prosecution. It is well known that hundreds of cases throughout the country are languishing because the state governments have refused to grant sanction for the 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 was unaware of the crimes that were committed on his beat.

The witness protection under Section 32 has been drafted without application of mind as to the Law Commission’s recommendations. Modern day witness protection method, which shields the witness from the accused, compensates her for the trauma of the trial and helps create a new life of hope 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.

Chapter vii deals with relief and rehabilitation in a 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 standard. 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?

Section xi deals with the special powers of the central government to act in circumstances where the state government does not take appropriate measures. But here too, Section 3(b) permits the Centre to deploy armed forces only on the request of the state government. This is a ridiculously retrogressive provision given the fact that even today the Centre is under no obligation to wait for consent when the situation goes out of control, as it did during the Sikh riots in 1984, the Bombay pogrom in 1992 and the Gujarat genocide in 2002.

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 DP Madan Commission (Bhiwandi riots), the Justice Joseph Vithyathil Commission (Tellicheri riots), the Justice J. Narain, SK Ghosh and SQ Rizvi Commission (Jamshedpur riots), the Justice RCP Sinha and SS Hasan Commission (Bhagalpur riots), and the Justice Srikrishna Commission (Bombay riots), have found the police and civil authorities passive or partisan and conniving with communal elements. And yet, the upa government backed by the Left is dilly-dallying. Why?


The writer is Executive Director,
Human Rights Law Network