At long last India’s lawmakers have shown some preparedness to enact a new law directly addressing the malaise that in recent times has threatened the very survival of Indian democracy. Praise is due to the UPA government for the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, which it has just introduced in Parliament. Though it remained in power for over two years after the genocide in Gujarat and despite its hollow rhetoric of a "riot free India", the NDA government did nothing, absolutely nothing, either to push for the punishment of the guilty or to introduce new measures to prevent future massacres. For those who believe there is nothing to choose between the NDA and the UPA, herein lies the difference. The UPA regime deserves praise also for the fact that the draft it has now piloted is a vast improvement on the virtually toothless Communal Violence (Suppression) Bill, 2005 it had earlier contemplated.

There is much in the revised Bill that is commendable, even path-breaking. In its historic verdict in the Best Bakery case last year, the Supreme Court ordered a retrial of the case outside Gujarat. The Bill now proposes to convert that legal precedent into law, simultaneously empowering the Centre and the state government concerned to establish special trial courts outside the communally disturbed area for the trial of perpetrators. The proposed power for the special courts to take cognisance 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.

In the critical area of witness protection, once the new law is in place, on an application from a witness or public prosecutor, the special court would have the authority, if need be, to ensure that the trial is conducted at a secure place and the names and addresses of witnesses are not made public at any stage. 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. Except in case of an offence that attracts the death penalty or life imprisonment, 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 for similar offences under the Indian Penal Code or any other Act specified in the Schedule.

Also included in the Bill are welcome measures to ensure proper investigation of offences and the establishment of permanent councils with adequate 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.

Taken together, the proposed measures could go a long way in the prevention of communal mass crimes in the future. Unfortunately, however, the Bill also contains some serious loopholes that need to be plugged. The most serious shortcoming of the Bill lies in its inability or unwillingness to address the problem of the complete impunity that those in authority currently enjoy. Central to laws against mass crimes elsewhere in the world today is the notion of command responsibility. Where such laws are in place, in the event of failure to prevent a mass crime, it is not just the police constable or junior officer on the trouble spot, but everyone in the entire chain of command – the district/city chief of police and administration, the home and chief secretary, the cabinet ministers and the chief minister right on top of the pyramid – who is held accountable.

The Bill is also silent on the equally crucial and long pending issue of police reforms which, among other things, must guarantee the independence of the police force from the executive and at the same time make it accountable. Instances of communal carnage such as Gujarat 2002 are not spontaneous acts. They are meticulously planned and organised over a long period of time where hate speech and hate propaganda play a major role. But the Bill fails to seriously address the hate-building process.

Having been an active part of the nationwide citizens’ campaign since 2002 for a law against mass crimes, Communalism Combat is happy that the revised Bill introduced in Parliament by the UPA government incorporates many of the major suggestions thrown up during the campaign. Now that the Bill is in Parliament, there is an urgent need to revitalise the campaign and ensure that the proposed legislation which otherwise shows promise does not end up as a half-baked law.