by Irfan Engineer
With the defeat of Congress in the 4 states results of which were declared on 8th December 2013, one does not know the fate of the Prevention of Communal Violence (Access to Justice and Reparations) Bill 2013 that was to be introduced in the last winter session of the Parliament under UPA II. Some may say the UPA II government is now a lame duck govt. and would not introduce such a legislation. On the other hand the UPA has a duty to redeem its electoral promise and should introduce the legislation to gain support of democratic and secular forces.
The Indian National Congress had promised in its election manifesto in 2004, “The Congress will adopt all possible measures to promote and maintain communal peace and harmony, especially in sensitive areas. It will enact a comprehensive law on social violence in all its forms and manifestations, providing for investigations by a central agency, prosecution by Special Courts and payment of uniform compensation for loss of life, honour and property.” Towards redeeming this promise, the UPA – I Govt. proposed a Bill in 2005 which was draconian and rejected by the civil society and human rights organizations. The 2005 Bill sought to empower the state and double the punishment for scheduled offences if they were committed within the area and during the period it was declared as “communally disturbed”. The malaise why riots broke out was that the administration, either because of political leadership or otherwise, omitted to use the powers vested with them or misused the powers and discretion vested in them. Secondly, those guilty were not brought to justice. Therefore, more powers in the hands of the state was going to be counterproductive and doubling the punishment meaningless if prosecutions were not launched in the first place. The voice of civil society was heeded to and the 2005 Bill was withdrawn. However, the civil society kept demanding that the election promise of the Congress Party be redeemed.
The promise was repeated in its 2009 Manifesto - “The Indian National Congress believes in ensuring the right to compensation and rehabilitation for all victims of communal, ethnic and caste violence on standards and levels that are binding on every government. The Indian National Congress will propose a law that empowers the National Human Rights Commission to monitor investigation and trial in all cases of communal and caste violence.” There was substantial difference in the promise of anti-riot legislation in the two manifestos. The first difference is that the vague term “social violence” was spelt out more precisely as “communal, ethnic and caste violence”. The 2009 Manifesto emphasises more on right to compensation and rehabilitation of victims. While the 2004 Manifesto promised investigation by a “central agency”, the 2009 Manifesto proposed empowering “National Human Rights Commission to monitor investigation and trial in all cases of communal and caste violence.”
National Advisory Council chaired by Ms. Sonia Gandhi then consulted peace activists and legal experts and proposed a draft Bill in 2011. The 2011 draft Bill in spite of some minor flaws, appeared to be legislation in the right direction. By and large organizations working for peace and communal harmony supported the Bill with some having few reservations and suggestions for further strengthening of the Bill. On the other hand, the BJP and pen pushers subscribing to Hindutva ideology started a vicious misinformation campaign against the Bill. They firstly attacked NAC headed by Sonia Gandhi as a non-Constitutional body (though NAC had drafted other Bills too, the attack was for the first time). However more vitriolic comments were on the ground that the Bill was anti-majority as it could be invoked only when minorities were under attack. It was alleged that the Bill would in fact stoke communal fire and polarize the communities. The third ground was more to appeal to the non-Congress parties and that was, that the 2011 draft Bill violated the federal structure and encroached upon the powers of the state.
The UPA – II Govt. did not disclose its view on the Bill either way. It called a meeting of the National Integration Council and let the BJP Chief Ministers, including Narendra Modi to attack the Bill. One Chief Ministers from Congress ruled state feebly opposed the Bill and the Union ministers did not respond to the attack. One thought that the 2011 Bill was given a quiet burial.
BJP’s worry:
BJP and the Sangh Parivaar have always benefitted by the communal polarization following a communal riot. Gujarat 2002 riots installed Modi firmly in power. All predictions are that the BJP is likely to increase its tally in UP during the 2014 Lok Sabha elections after the Muzaffarnagar Communal riots in 2013. There already exists a powerful and efficient network for spreading rumours. Hatred against minorities is poured out continuously through public speeches, media, social media, using educational institutions and all available platforms. We are familiar with slogans like “Babar ki aulad”, “Mussalman jao Pakistan”, “All terrorists are Muslims”, referring relief camps set up after riots as “children producing factory” etc. and are labelled as “Congress vote banks”. These are just a few of many hate titles seeking to portray Muslims and Christians as unwanted foreigners who should be deprived of their citizenship rights and if possible thrown out of the country. Given such hate attitudes, communal tensions prevail all the time in various degrees. The theatre of this tension has spread from urban to rural areas now. Given these communal tensions and rumour spreading network, communal riots are easy to organize in India. An insignificant incident can be exploited to trigger off a riot. This situation is compounded by lack of will on the part of the law enforcing agencies to prevent a riot when there are early warnings of it like hate speeches being spouted. Or counter rumours and prevent mobilization on streets and disperse rioting mob with minimum force if already mobilized. Some members of the law enforcement agencies even collude with the rioting mobs. And finally lack of prosecution of the guilty who planned and executed the riots.
The proposed Bill makes dereliction of duty on part of public servants, including colourable exercise of (or omission to exercise) authority vested in him/her and which leads to communal offence a punishable offence. For example, allowing lakhs of people to gather during the Jat Mahapanchayat armed to the teeth when Muzaffarnagar was communally tensed and when the Mahapanchayat was banned would have constituted offence of dereliction of duty on part of all the police officers who were in charge of the area. Similarly in the Gujarat 2002 riots, all the police officers who handed over the bodies of the karsevaks to VHP leaders to be taken in a procession from Godhra to Ahmedabad or the officers who allowed the huge crowd to assemble on 27th February outside V S Hospital, or the policeman during Mumbai riots in 1992-93 whose wireless communication was intercepted and in which he is telling his colleague let the residence of Muslims burn and not to inform the fire brigade, all would have been guilty of dereliction of duty had the Bill been passed in the Parliament.
The Bill makes it a duty of every public servant who holds the charge of maintaining public order and tranquillity to prevent any act of communal violence without delay and in fair, impartial and non-discriminatory manner and act against unlawful assemblies. The guilty officer claiming to be following unlawful or illegal order of a superior would not relieve her/him of criminal responsibility.
The Bill has accepted the doctrine of command responsibility. A commanding officer who fails to exercise command, control or supervision and as a result of such failure persons under the command of the officer fail to discharge their duties and offences under the Act are committed, would be guilty of breach of the offence of breach command responsibility.
Any legislation that seeks to make the law enforcement agency accountable for their omissions and commissions in preventing and / or controlling riots and / or compel them to bring the guilty to justice and make the criminal justice system victim friendly and victim driven will make organizing riots more risky and difficult. For the BJP to benefit from riots and consequent communal polarization will be a loss. This is the real worry of the BJP. All the grounds on which the Bill is being attacked by the BJP are sham and slogan mongering. Let us examine.
Violation of Federal Polity:
The case of intrusion into the domain of the state can probably be made out because of constitution of National and State Authority for Communal Harmony, Justice and Reparations. This Authority is now proposed to be replaced by the National and State Human Rights Commissions in the amended version, may be in order to avoid attracting the charge of violation of federal nature of polity as no new authority is being created. However, the proposed functions of the Authority were more in the nature of advisory and recommendatory. Just sample some of its functions “Authority shall observe, monitor and review the performance of duties by public servant in relation to the following....” the issues on which the Authority was to monitor include effectiveness of steps taken by public servant; recording of information by public servant; provision of timely and adequate measures related to relief, rehabilitation, reparation and restitution of survivors of the riots; etc. The Authority was also to receive and collect information on ... any act that indicates build up ... of offence under the Act; any form of propaganda or mobilization; likely occurrence of offences of communal and targeted violence; issue advisories to state and non-state actors; frame schemes for making reparations; frame guidelines for prevention and control of communal and targeted violence; receive report on patterns of communal and targeted violence, visit relief camps and receive information on arrangements; visit jails; observe and intervene in proceedings in courts where trials of communal and targeted violence are being conducted and such other functions as may be considered necessary. The Authority may also conduct an inquiry however, there is nothing in the Act to indicate that the Authority will have powers of police and will be performing the function of investigation agency under Code of Criminal Procedure and file charge sheet in courts. That job will still have to be done by the police under normal laws of the country. There is no provision that advisories and recommendations of the Authority would be binding. The Sangh Parivaar is scaring State Governments and regional parties without any reason.
In any case, Art. 355 of the Constitution of India imposes a duty on the Union “to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution”. Situation of communal riots amounts to internal disturbance, wherein the life and liberty of minorities in particular people of the area where riots are going on in general is under grave threat. The State is temporarily unable to enforce law and guarantee security to citizens. Often in such a situation, armed forces of the Union have to be requisitioned and it is the duty of the Union to ensure that the Government of the State is carried on in accordance with the provisions of the Constitution. The Union is within its right to frame laws where appropriate measures are laid down to deal with communal violence since it is such a regular occurrence.
Art. 246 read with 7th Schedule of the Constitution of India enlists the subject matter of the laws to be made by Parliament and State Legislatures. There are three lists in the 7th Schedule – List – I is Union List, List – II is State List and List – III is Concurrent List. Parliament has exclusive power to make laws pertaining to matters enlisted in List I. The State legislatures have exclusive power to make laws with respect to matters enlisted in List – II. The Parliament and State legislatures can both make laws with respect to matters enumerated in List – III. Entry 2 in the Union List is: “Naval, military and air forces of the Union” and entry 2A is: “Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. Entry 1 in the State List is: “Public order (but not including the use of any naval, military or Air Force or any other armed for of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power)”.
Though public order is within the jurisdiction of the state, in case of riots, often armed forces of the Union have to be requisitioned and deployed to restore order. As per entry 2 and 2A of the Union List and entry 1 of the State List, it would be clear once again that the Union has a duty to frame laws to prevent and control communal violence. Further, entry 1-3 in the Concurrent List, are matters like criminal law, criminal procedures and preventive detention on which the Union as well as the States have power to enact laws.
When laws draconian laws like TADA, POTA, ostensibly to deal with terrorism, or legislation pertaining to National Investigating Agency or preventive detention legislations are enacted by the Union the BJP fully supports such legislation. Unlike the National Investigation Agency (the constitution of which BJP never opposed), the Authority has neither powers to, nor obligation to investigate the criminal cases launched after the riots. That would continue to be done by state police. In fact TADA and POTA also defined new offences and laid down draconian procedures making it easy to convict accused even with lazy and half hearted investigation and in some cases on contrived and manufactured evidence. Legislations like TADA, POTA, AFSPA, Disturbed Areas Act, and other such draconian legislations invest much power with less or nil accountability in the security forces and enable security forces to violate human rights with impunity. The BJP never considered these legislations as intrusion into the domain of the states and damaging the federal polity even though these legislations are essentially pertaining to public order and all of the aforesaid legislations successfully faced Constitutional challenges.
Anti-Hindu Law:
All indications are that the in the new 2013 Bill, the term “communal and targeted violence” will be reworded as “communal violence”. In the 2011 draft of the Bill, the provisions of the Act could be invoked if offences like sexual assaults, hate propaganda, organized communal and targeted violence, extending financial, material or any kind of aid for committing any offence under the Act or torture were committed targeting linguistic or religious minorities or members of SCs and STs were targeted. That was so because minorities, both religious and linguistic, SCs and STs are more vulnerable being non-dominant community. Officials of the state, more often than not, nurture biases and prejudices against the non-dominant sections of the society. Prejudicial attitude of the officials colours their judgment in taking action against those responsible for communal and targeted violence, particularly against the dominant section of the society who are politically well networked. The Rationale of the NAC in their Explanatory Note states “The Bill is only concerned with ensuring that when the group under attack is non-dominant in that State, then the officers of the State machinery must not be allowed to let bias to breach their impartiality or colour the performance of their sworn legal duty.”
As the upper castes belonging to the majority community (belonging to either religion) are well networked with institutions and enjoy disproportionate influence over levers of power, including the politicians and bureaucracy, they are less vulnerable and unlikely to be targeted on the basis of their caste or religion or language. The 2011 Bill nevertheless could be invoked when either Hindus or Muslims were targeted. The 2011 Bill could be invoked when offences linguistic minorities or SC or STs were (belonging to any religion) were committed. The Bill did not classify members of any religion to be perpetrators of communal and targeted violence and they could belong to any group. But the Hindutva followers created a scare that the communal violence Bill was against Hindus as they alone would be assumed to be perpetrators of the communal violence.
Though now the 2013 does away with the concept of “targeted violence” and offences against any person during communal riots will attract the provisions of the Bill, the propaganda continues that the Bill is anti-Hindu. Neither the 2011 draft Bill was anti-Hindu nor the 2013 draft Bill is anti or pro Hindu. Both the draft Bills were anti communal offenders and communal rioters who disturbed the peace communal harmony and public order; who gained from the polarization that followed communal riots. It is against the environment of impunity that followed the communal riots wherein the rioters went unpunished.
Justice and Reparations:
In the proposed Bill likely to be tabled in the Parliament, the National and State Human Rights Commission (NHRC) will monitor the trials of offences committed during communal violence. The trial itself is proposed to be made become more victim-friendly, right from registering FIRs in relief camps to having a say in appointment of public prosecutors, and if necessary, shift the trial outside the district in which riots have occurred. The provisions also include witness protection programme to ensure that they are not intimidated and the process of law is not subverted. The Bill provides right of the survivors to relief of adequate standards as laid down in the Act and right to compensation, rehabilitation and restitution, including guarantee of non-repetition of communal violence and safety and security of the survivors in relief camps as well as after rehabilitation. For setting up adequate, fair and reasonable rehabilitation and restitution, the Bill provides for Dist. and State Assessment Committees that will assess the extent of damage caused to the survivors.
Conclusion:
The UPA II should accept the gauntlet of communal forces and take speedy steps to enact a law without any delay. The Prevention of Communal Violence (Access to Justice and Reparations) Bill 2013 would deepen democracy as the state is sought to be more accountable and makes relief and reparations right of the riots survivors and duty of the state. The trial procedures would be more survivor friendly leading to bringing the communal offenders to justice. The Bill will strengthen the forces of peace and harmony.
However, the 2013 Bill is likely to be much watered down then the originally conceived. The sting of the Bill will be less virulent if it is allowed to be invoked even by dominant sections who can misuse the provisions of the Bill.
The second area of worry in introducing the 2013 Bill in Parliament is replacing the National and State Authority for Justice and Reparations with National and State Human Rights Commissions. Many Human Rights organizations are dissatisfied with the functioning of the Commission in upholding Human Rights. The Commission is over burdened with cases and effective action is taken up in rarest of rare cases. National Human Rights Commission played a salutary role in the case of Gujarat communal violence in 2002. However after that the Commission has done nothing in the riots thereafter, though within its mandate. The work and responsibility of the Authority was slated to be very heavy and demanding a lot of time and effort if we are serious about preventing communal violence that are more than a dozen every year. The work of Authority includes receiving information and discerning patterns of communal violence as a preventive measure. This requires not only a dedicated Authority but also having expert knowledge of patterns of communal violence and violence based on hate on the basis of religion, caste, region, language, race, or ethnicity in different countries of the world. The NHRC, already over burdened with cases of human rights violations would be eminently unsuitable. It would amount to having no body that would discharge the functions of the Authority under the 2011 Bill.
The dilution of the principle of breach of command responsibility is also a worrisome matter.
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