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.
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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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