December 2005 
Year 12    No.113

Cover Story


Breaking ground

 

The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005

By Teesta Setalvad

Drastic situations require drastic remedies. Which is why the chilling spectre of orchestrated com-
munal pogroms, Delhi 1984, Bombay 1992-93, Gujarat 2002, have resulted in the rather peculiar scenario of even eminent civil libertarians articulating the need of the hour and strongly voicing a demand for the President of India ‘to send in the army’.

Veteran constitutional experts, HM Seervai and Nani Palkhivala made this plea in a telephonic conversation to the then president, Shankar Dayal Sharma, when the Maharashtra state government refused to respond to the dance of death directed by Shiv Sena chief Bal Thackeray on Bombay’s streets in January 1993. A shockingly complicit Sudhakarrao Naik-led Congress government had then mutely watched. To former judge of the Bombay High Court, the late Justice Bakhtawar Lentin, the streets of Bombay had "resembled the streets of Nazi Germany". Ten years later, with Führer Modi in unfettered power in nearby Gujarat, the horrors of Bombay 1992-93 were magnified a thousandfold and replayed before the Indian people on a macro screen. The post-Godhra violence against the state’s minorities was aptly described by the Concerned Citizens Tribunal (CCT) report, Crimes against Humanity, 2002, as a state-sponsored genocide.

The critical decision to ‘seek’ the help of the army to supplement a burdened and often partisan state police force was, however, still left entirely to the chief executive of the state. As was the army’s authority to operate once called in to help. This often rendered the exercise, if not entirely ineffective, something of a farce. So, repeatedly, we experienced situations where the army had been called in but, for want of precise orders by the state government through its district magistrate, did not or could not jump promptly into the frenzy of communal violence and help restore some sanity.

Breaking substantial ground, for the first time in the history of Indian law-making, the recently introduced Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 seeks to confront this reality and squarely authorises both the state government in question and the central government in power to intervene during drastic outbreaks of communal violence, declare an area to be communally disturbed and send in central forces to assist the local police.

Treading cautiously on the sensitive terrain of Centre-state relations, the Bill squarely places the responsibility for maintaining the rule of law and for containing communal disturbances within the concurrent responsibilities of the state(s) and the Centre.

It was the CCT report, authored by Justices Krishna Iyer and PB Sawant among others, which first recommended the constitution of a National Statutory Crimes Tribunal armed with a Law for the Prevention and Punishment of Genocide. Thereafter, a National Consultation in New Delhi (August 2004), which included in its drafting committee Justices PB Sawant and Hosbet Suresh, penned the Prevention and Punishment of Genocide and Crimes against Humanity Bill 2004 (Alternate Bill) and submitted it for consideration to the government and the National Advisory Council. While the first draft circulated by the UPA government, the Communal Violence (Suppression) Bill, 2005, was a poorly drafted piece of legislation, the reworked draft is an improvement wherein many crucial areas suggested by this alternate bill have been factored in.

Special courts

The proposed law also charts new territory on the critical issue of a state’s jurisdiction over crimes committed within its geographical location. The new law takes cognisance of the reality on the ground, draws from the collective experiences of 1984, 1992-93 and most especially Gujarat, and empowers both the state and the Centre to establish special courts located outside the communally disturbed area if circumstances so decree. It similarly empowers the special court to relocate itself if the public prosecutor makes a suitable plea on grounds of the safety (and/or intimidation of) witnesses and finally, specifically empowers the Supreme Court, if it so decides, to transfer a case from one special court to another.

The National Human Rights Commission, NHRC, had in its critical report on Gujarat (May-July 2002) recommended exactly such measures which were, alas, not taken cognisance of. Thereafter, the historic judgement of the Supreme Court in Zahira Sheikh vs State of Gujarat laid substantial legal grounds for implementing such legislative provisions. The new law seeks to make it statutory that special courts, outside a state’s jurisdiction, may be set up if and when communal disturbances take place on a vast scale.

Unconventional measures

Another path-breaking measure is the power granted under Section 30 to the special court to take cognisance of a scheduled offence without an accused being committed to it for trial. Simply receiving a complaint of facts that constitute such an offence or a police report of such facts is enough for a special court to take cognisance of and try a crime. This is a radical breakthrough in criminal jurisprudence and provides the much needed entry-point for human rights groups, minority groups and even individuals, including persons from the media, to send in such complaints to the courts.

Witness protection

Recognising the acute vulnerability that victims and eyewitnesses of major crimes face, especially when they reside in the same areas where the perpetrators roam free, special provisions have been made under the proposed law on the critical issue of witness protection. Under Section 32(1), a special court may, on an application made by a witness in any proceedings before it or by the public prosecutor in relation to such a witness, or on its own motion, take such measures as it deems fit to keep the identity and address of the witness secret. Other measures that a special court may take under Section 32(1) are (a) holding of proceedings at a protected place (b) avoiding the mention of names and addresses of witnesses in its orders or judgements or in any records of the case accessible to the public (c) issuing of any directions necessary to ensure that the identity and addresses of witnesses are not disclosed. Any person who is found disobeying an order of the court can be punished with imprisonment of up to one year.

Failure to assign chain of command responsibility

While making breakthroughs in conventional jurisprudence on critical areas of concurrence of responsibility on law and order issues and the jurisdiction of crimes, where the new Bill tabled by the UPA government fails miserably is in its reluctance to assign a chain of command responsibility from the district/city administration and police upwards to the commissionerate/collectorate and thereafter up to the chief secretary/home secretary, cabinet of ministers and chief minister in the eventuality of utter failure to prevent or contain widespread communal violence. This gross lacuna needs to be rectified through amendments, for the absence of these specific provisions threatens to render a much needed law toothless.

From the first ever communal riot in Jabalpur in the early sixties to the full-blown massacres and pogroms of the eighties and nineties and finally to the state-sponsored instances of carnage that followed, the sheer impunity with which police officials, administrators, politicians, ministers and their chief(s) have been allowed by Indian law to get away with heinous crimes has bred the certain belief among those that govern that to be a communal murderer or criminal, and be known as such, costs no one dear. The impunity enjoyed by persons in authority has not only allowed criminals in uniform and positions of authority to go scot-free but worse, created an atmosphere of laissez-faire for those who indulge in hate speech or writing, actually incite or lead mobs and fail in their oath of office to the Indian Constitution.

 Secular justice

In the wake of the national outrage following the Nanavati Commission report (on the anti-Sikh pogrom of 1984), tabled in Parliament this August, Prime Minister Manmohan Singh apologised to the minority Sikh community on behalf of the nation.

Given the pathetic levels of accountability in Indian governance coupled with the marginalisation of religious minorities, Adivasis and Dalits, especially with relation to the Gujarat genocide of 2002, issues of acknowledgement, reparation, restitution, justice and reconciliation are rarely looked upon by our authorities in squarely equitable terms.

A payment of Rs two lakh (with interest) was made to the next of kin of all those who were killed in Delhi (1984) in compliance with the judgement of the Delhi High Court in July 1996, but similar cases of compensation for those Sikhs killed in Kanpur, Bokaro and Jabalpur etc. in the same year –1984 – are still pending. In fact, there have been reasoned arguments made to increase the amount to at least Rs five lakh.

It is a matter of shame that to date, 18 years after 41 Muslims were brutally killed by the Provincial Armed Constabulary, PAC, in Hashimpur, Meerut (1987), their next of kin have been paid a mere Rs 40,000 each. The writ petition for adequate compensation filed by victims in 1995 is still lying in court and the trial of the indicted PAC personnel is yet to start. The case of the victims of the Nellie massacre (1983) is worse.

As the debate on the new law enfolds, a critical aspect could be a public declaration by the Centre and states on issues of compensation and justice in all instances of mass communal crimes in the past. Attempting some transparency and a measure of equity to victims of past crimes will ensure how serious the UPA government’s intentions on reparation and restitution really are.

Coupled with the absence of any clear-cut provisions to assign criminal liability to IAS/IPS officials, elected representatives and cabinet ministers who have committed crimes, as detailed in Sections 16, 17, 18 and 19 of the Alternate Bill (see CC, September 2004), the proposed law retains the sanction provision that protects a public servant from direct prosecution until the government permits it. The inclusion of this legal provision – which has prevented the prosecution of many a public figure due to the reluctance of the state executive to allow it – is found in Section 17(2) of the Bill, which necessitates sanction (under Section 197 of the Code of Criminal Procedure, CrPC) for the prosecution of a public servant. The only check against misuse of the sanction provision is the requirement under the proposed law that a state government has to dispose of every request for sanction within 30 days. A full-fledged campaign by minority and human rights groups must be launched to ensure that suitable amendments are included after the Bill is sent to a parliamentary committee, to see that the chain of command responsibility is included as also to ensure that the sanction provision, a major obstacle in prosecuting public servants, is removed.

Statutory powers to NHRC absent

If there was a significant institutional contribution made while the Gujarat pogrom unfolded from March-May 2002, it was the role played by the NHRC and independent human rights groups. The NHRC’s report on Gujarat 2002 paved the way for both national and international acknowledgement of the horrors being unleashed by the top brass in Gujarat. The role played by the NHRC was in no small measure due to its statutory authority and independence. This aspect needs to be statutorily recognised and an amendment needs to be proposed in the new law granting the NHRC statutory powers to investigate and report on outbreaks of communal disturbance, and for these reports to be submitted to Parliament. The NHRC must also be granted statutory powers to monitor the functioning of the special courts trying offences under the law.

Competent authority unsatisfactory

Under the proposed law, once an area has been declared ‘communally disturbed’ by the state or the Centre, Sections 9(1) (2) (3) (4) (5) and 10 empower a ‘Competent Authority’ constituted under the law to take strict measures to prevent the spread of violence. This competent authority is neither a permanent nor a diverse entity and its composition under the Bill, inadequate.

The competent authority so appointed by the state or Centre under Section 3(4) of the Bill consists of one or more officer(s) of the state government alone. (In the Alternate Bill, the ‘Authority’ – the National Authority for the Prevention of Genocide and Crimes against Humanity – suggested therein under Sections 5 and 6, was envisaged as a permanent body and its composition was much less bureaucratically limiting. Under Section 6 of the Alternate Bill, the ‘Authority’ consisted of (i) the Prime Minister of India (ii) the leader of the opposition (iii) the chairperson of the National Human Rights Commission and (iv) Two retired/serving officers of the rank of director general of police who shall be appointed by the foregoing three members.)

Unified command

To handle the law and order situation once an area has been declared communally disturbed, the creation of a unified command has been provided for under Section 55(4) of the new law "for the purpose of coordinating and monitoring the role and responsibilities of the forces of the union and states and for giving appropriate directions to such forces".The forces so deployed shall act under the control and as per the directions of the district magistrate or any officer nominated by the state government or the unified command.

After taking the significant step of placing the maintenance of law and order as a concurrent responsibility and power, this clause could mean again the devolution of command powers to the state alone, which could – given the experiences of Gujarat 2002, Bombay 1992-93 and Delhi 1984 – be counterproductive or limiting and defeat the purposes for which the Bill is being introduced.

Welcome powers to district magistrates

Chapter III, Sections 5 to 18, dealing with the critical issue of Prevention of Acts leading to Communal Violence, empower both the competent authority once appointed as well as individual district magistrates to take actions to prevent a breach of peace. This is significant for, once empowered to take these steps at a district level, the district magistrate is therefore answerable when he/she fails to do so.

These powers include the power to direct the conduct of any assembly or procession in any place or street and specify, by general or special notice, the routes by which and the times at which such processions may or may not pass; the power to prohibit or regulate the use of loudspeakers, music or sound amplifiers or any other noisy instrument in any street or public place or in any private place if the use of these causes annoyance to neighbours; the power to order the deposit of arms, ammunition, etc. and the power to search, detain and seize arms etc. in communally disturbed areas. The competent authority is empowered to prohibit certain acts, such as (a) the carrying of arms, cudgels, swords, spears, bludgeons, guns, knives, sticks or lathis, or any other article capable of being used to cause physical violence (b) the carrying of any corrosive substance or explosives (c) the carrying, collection and preparation of stones or other missiles or instruments or means of casting or impelling missiles (d) the exhibition of persons or corpses of figures or effigies thereof (e) the public utterances of cries, singing of songs, playing of music (f) delivery of harangues, the use of gestures or threats and the preparation, exhibition or dissemination of pictures, symbols, placards or any other object or thing which may, in the opinion of such an authority, lead to a breach of public peace.

Failure to identify hate speech/writing

The failure to identify hate speech and hate writing as specific and clear-cut components of the build-up to communal pogroms (before the violence breaks out) marks an official reluctance to acknowledge that hate speech and writing have frequently been handy tools for the build-up of a communally explosive situation. The far more powerful provisions of Sections 153a and 153b of the Indian Penal Code (IPC) and Sections 295 and 505 of the CrPC, which deal with the issue of hate speech and writing, breach of public peace and incitement to violence against a section of the citizenry through speech and writing, are missing.

Enhanced punishment for communal crimes

With a desire to provide specific deterrence for communal crimes, Chapter IV, Section 19, deals with the enhanced punishment for crimes committed under the law. Except in the case of an offence punishable by death or imprisonment for life, the enhancement of sentence may extend to twice the longest period of imprisonment and twice the highest fine provided for that offence in the IPC or in any other Act specified in the Schedule, as the case may be.

There is similarly stringent punishment provided in the new draft law for any public servant or any other person authorised to act by the competent authority under any provisions of this Act who commits communal violence. Such a person shall be punished with imprisonment of not less than five years (Section 19(2)). Equally significant, Section 19(3) expressly prohibits any person who is guilty of such an offence from holding public office, specifically stating that such a person shall be disqualified to hold any post or office under the government for a period of six years from the date of such a conviction.

Investigation

Recognising the failure of investigating officers in the recording of crimes (first information reports, FIRs) and thereafter in prosecuting them, Chapter V of the Bill details requirements for investigations. The Bill states in Section 22 that once an area has been declared ‘communally disturbed’, every investigating officer must file a charge sheet within three months of an FIR being lodged.

Constitution of a supervisory review committee

Any and every failure to file the charge sheet within three months is required to be reviewed by a review committee headed by an officer of the level of inspector general of police. This committee is empowered to order reinvestigation by an officer not below the rank of deputy superintendent of police.

Public prosecutors

The consistent and deliberate subversion of the office of the public prosecutor by many state governments at ‘normal’ times reached astronomical proportions during the Gujarat genocide of 2002 when office bearers of those very outfits who claimed proud credit for carrying out mass rape and murder (the Vishwa Hindu Parishad, the Bajrang Dal and the Bharatiya Janata Party) were hand-picked to prosecute at the major criminal trials. This was one of the reasons why the Supreme Court of India intervened and has even stayed major trials concerning incidents in Gujarat 2002 – Godhra, Gulberg, Naroda Gaon and Patiya, Sardarpura and Ode.

This experience should indicate that some measures need to be factored into the new law to ensure a bare modicum of transparency and accountability in the calibre and appointment of public prosecutors. These safeguards are missing from the new Bill and need to be brought in.

Prevention of communal violence

The establishment of state, district and national councils as permanent bodies under Sections 38, 42 and 45 respectively – all three bodies with representations from minority and human rights groups – is a welcome institutional measure. The state and national bodies are empowered to formulate schemes for both proper rehabilitation and reparation, which allows for more modern and humane concepts of reparation for loss of life, sexual assault, loss of livelihood and property.

These three bodies are also empowered to formulate plans for the establishment of communal harmony (which could and must include schemes and provisions for stringent action under law, and with the help of the active participation of civil society, to prevent the build-up of communal crimes).

These councils are independently empowered to investigate, visit and report on communally disturbed areas, and their reports have to be submitted to the government. It is necessary, in the interests of transparency, that the reports of all three bodies are tabled in Parliament, state assemblies and most importantly, made public.

Compensation

It is the special courts under Section 53 in Chapter X of the proposed law that are empowered to award compensation. Though not specified, it is to be hoped that the schemes formulated by the district, state and national councils are taken into consideration in the awarding of compensation. To date, ad hoc-ism or worse, partisan considerations in the awarding of compensation have further complicated the issue. Section 53 specifies that the special court may award compensation directly from the offender who would also bear the cost of litigation.

Under Section 54, the district council has been authorised to decide upon the immediate payment of compensation within one month after due inquiry, the amount to be deducted when a final award of compensation is made.

Impotent without police reform

The concluding, critical words must touch on the overarching and long overdue need for police reform. Despite the realisation that radical police reform is not simply the need of the moment but an essential prerequisite for any and all laws or special laws to be effective, no political formation, from either side of the ideological divide, has had the courage of conviction to propose and pursue this goal. Eight reports of the National Police Commission between 1981 and 1989 have recommended structural and administrative police reform, the absence of which has contributed to the existence of a subservient and supine force that lacks the stature, spine and autonomy to independently investigate and prosecute crimes. A police force in a dynamic democracy must not be in constant fear of the ‘fire and transfer’ power of the executive.

It remains imperative that each time we agitate for a special legislation for specific crimes, we do so with the acknowledgement that to put any of our laws in place i.e. for their effective implementation, radical police reform is a non-negotiable necessity. Similarly, adequate judicial reform, which ensures time-bound trials, is a must.

Witnesses turning hostile, trials dragging on or grinding to a halt, the non-investigation and premature closure of serious cases and poor prosecution in those that do get committed to trial, all these factors together contribute to the abysmal rate of conviction. Within this overall grim scenario, the rate of conviction in communal crimes has been the worst.

It was the common minimum programme of the newly elected UPA government that promised the enactment of a "comprehensive law on communal violence". At present we have no less than 15 different laws applicable in a riot situation, yet they were all found wanting in situations like the Gujarat carnage, 2002, mainly because the concerned state authorities lacked the political will to effectively enforce them.

What happened in Gujarat and in earlier instances of carnage elsewhere was not merely a breakdown of law and order. Each of these instances reflected organised crimes against targeted groups, the state governments either actively conniving with the majority group or remaining as bystanders, resulting in a total collapse of the rule of law and the justice system altogether.

In Gujarat, more than three years later, a process of making the state government, the politicians and the police accountable has emerged entirely as a result of the tenacity of civil and human rights groups, the National Human Rights Commission and most significantly, the Supreme Court of India.

This, however, cannot be the permanent feature of India at all times. The state(s) and the union government cannot be allowed to abdicate their constitutional mandate. Institutional mechanisms need to be put in place to ensure that pogroms and genocides are not perpetrated.

Despite being signatory to, accepting and ratifying the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, which puts it under an obligation to enact necessary legislation, India has stubbornly failed to honour these obligations and resisted enacting such a law. The convention, apart from defining the crime itself, makes all persons committing genocide punishable, whether they are "constitutionally responsible rulers, public officials or private individuals".

The union government has a fundamental duty under Article 51(c) of the Indian Constitution to foster respect for international humanitarian law and treaty obligations and ensure that such legislation is enacted. With the renewed promise made by the UPA after it came to power in the wake of the Gujarat genocide to enact a comprehensive law on communal violence, the essential factor needed to make such a law effective, a chain of command responsibility, simply has to be included in the amendments to the proposed law. Else, electoral promises and all good intentions notwithstanding, the proposed law could well be a non-starter.


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