The Communal Violence Bill 2005 has been mired in controversy since its inception. The very opening line of the draft sparks a debate. It states; “a bill to empower the state and central governments…”The question here that arises is: ‘aren’t there already enough statues, ordinances, rules, laws conferring power in the hands of the governments which if exercised judicially can not only contain/suppress but also prevent any disturbance of peace in the State. It is the lack of political will to work towards peace and tranquility rather than the paucity of laws. Even if these facts for a moment are ignored and the bill is welcomed as a more concrete and integrated law for prevention and suppression of communal frictions and upholding justice, one can’t close his eyes on the fact that its provisions speak otherwise. The draft bill, though publicized aspro-victim, in reality comes nowhere even close to it. In all honesty it is nothing but eyewash.
COMMUNAL VIOLENCE: DRAFT BILL
Riots, blood baths, massacre are few of the many names used for the communal riots that have haunted India since independence. But nothing was as horrific as the Gujarat riots wherethehuman rights being blatantly violated and people were butchered in the name of the God. Subsequently, following the so called protocols,enquiry committees and commissions were set up and thousands of people were arrested. But the state government, its affiliates and the authorities in power who instigated the riots were never caught. This was not the first planned massacre and not the first time when politicians used communal friction to monopolize the polls or dissolve the current governments. The protectors became mute spectators and even active participants while those who started or aggravated the chaos were rewarded while the central government turned a blind eye.Never before the people felt a greater need for a binding law potent enough to deter the offenders while providing rehabilitation to the victims.
The First DraftBill
Finally waking up about a year later after the Gujarat carnage, the central government under its Common Minimum Program (CPM), which promised a comprehensive legislature against sectarian/communal violence,circulated the first draft of Communal Violence (Suppression) Bill in the parliament on 5th December 2005[7]. Later, it was sent to the StandingCommittee on Home Affairs for reviews and recommendation. Few minor changes were made but no sincere effort was done to understand the implications of each provision. The modified draft was titled “Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005”
ANALYSIS OF THE PROPOSED DRAFT BILL
The proposed draft bill on communal violence was envisaged to address macro issues like prevention of communal violence, mechanism to control it and most importantly the rehabilitation of victims. But when it came out and was actually discussed and debated by the activists and the parliamentarians, the bill faced wide and active opposition. One of the main reasons for this was the obnoxious amount of power it granted to the Governmentand the declaration of the affected area as ‘Communally Disturbed’. The fact that it gave greater authority to the Central Government over the State Government did not go down too well either.
Fundamental Defects
Detailed scrutiny of the proposed draft raises some serious concerns.These are as follows:
Immunity to the State Government and its Affiliates: It is evident from the unabashed active and passive participation of the political power holders and people working under their delegated authority in the communal riots, that there is a strong need to make them answerable and liable for their acts or abstinence to carry out their duties in disturbed circumstances. The bill makes no provision for making them accountable on the other hand it offers the State government and its official’s immunity from any legal action for acts done bona fide. In times of peace “bona fide act” is anything done in good faith which any person exercising reasonable care would do. But in times of riots the same interpretation of the term does not apply as harsh circumstances may require aggressive measures. Only a person present during the commission of such offence can provide whether the act was or was not done in good faith. To find such witness is practically difficult thus allowing the officials to interpret their actions in such a manner so as to fit it within the scope of the term “bona fide”. This in addition to the lack of governments desire to prosecute its own officials is the main reason behind lack of accountability of the affiliates of the government.
Punishment to the Offenders: Though this seems a great step forward but instead of deterring the law makers and protectors from delinquency of their duties it acts in a counterproductive form as there is no political desire to prosecute them. The stringency of punishment will only encourage the authorities to turn a blind eye.
Friction between the Centre and the State: The provisions in order to be implemented require a smooth relationship between the center and the state governments which in many cases are different parties. This coupled with the “muck throwing attitude” and their desire to embarrass and defame each other results in adding to the state of utter chaos.
Communally Disturbed Area: Declaring an area as communally disturbed gives draconian powers to the police and the State. People in north eastern states have already demanded the repulsion of the disturbed area act as it provides no relief to the victims but merely aggravates the situation of mayhem and total anarchy(by the state and its affiliates). It is more or less like a state of curfew. Businesses are thrown into losses, education is affected, and the daily wage earners are forced to starve while the essential commodities become scarce. This coupled with police’s and state authority’s despotic rule turns life of the citizens into a nightmare with no ray of hope.
Commencement of the Act: Various provisions of the act can be brought into force on such dates as Central Government may appoint by notification in the Official Gazette and different dates for different provisions may be specified. Thus the law will be effective based on the fancies of the party ruling at the center and its relationship with the State government. This provision can also be further misused in order to remove/dissolve a particular government of a state by refusing to implement the required provisions or by implementing those unnecessary or executing with delay. Thus this serves to fulfill many political ambitions but provides no help to those who suffer.
Powers of the District Magistrate: Clause 5empowers the District Magistrate with the powers to take preventive measures when there is an apprehension of breach of peace or creation of discord between members of different religious groups, it is provided that he may, by order in writing, prohibit any act which in his opinion is likely to cause apprehension in the minds of another community or caste or group that it is directed to intimidate, threaten or otherwise promote ill will against that community or caste or group[1]. This unfortunately is merely a chained dog’s bark because it carries with it no provisions providing for consequences on failure to comply with the District Magistrate’s order.
Powers to State Officials The State government shall appoint its officers as a competent authority which shall take all such steps as may be necessary to ensure harmony. It does not only give power to the state officials who in most of the cases are directly or indirectly involved in the offencebut also does not define the extent of their power which may easily be abused.
Competent Authority Clause 7 empowers the Competent Authority to direct any person or class of persons, or all persons, in a communally disturbed area, to deposit forthwith all arms, ammunition, explosives and corrosive substance, with the nearest police station. It also gives the Competent Authority the power to exempt any individual or class of individual at its discretion from complying with clause 7[1].The question here is what is the test to judge, whether an individual or a class of individual qualifies for the exemption. This will only lead to a serious security threat and nullify the objective of this clause as no guidelines have been provided by the bill.
Involvement of the Centre It states that the state government if fully satisfied may request for the assistance of the Central government. In cases where the state government is involved with the offenders there is no authority to make it accountable.
Ban only on the Orthodox Means Clause 9 and in any many other provisions the bill provides a ban on the exhibition of person or corpses of figures or effigies, the public utterances of cries, singing of songs, playing of music, use of gestures or threats and the preparation exhibition or dissemination of pictures, symbols, placards or any other object or thing which may cause breach of peace [1]. Though this seems a reasonable preventive measure but on a closer scrutiny it reveals a major lacuna. There has been no mention of the use of internet, social networking sites, bulk SMS, voice messages, You-Tube and the likes which are the most important source of mass communication in the modern world.
Power to Search Clause 8 allows the police to search the house of any person residing in a communally disturbed area, if it believes that such person is keeping any sort of arms and ammunition even though authorized, which may cause any hindrance in the maintenance of law and order. This clause can be misused to harass any particular individual or class of individuals as there is no provision for inquiring whether the actions were done with an intention to exercise reasonable care or were to cause harassment.
Power to Regulate the Conduct of People Clause 10 authorizes the competent authority in a communally disturbed area to pass orders regarding the conduct of people in such sensitive zones. If the other provisions of the bill and the laws already in force are judicially executed then this clause is an unnecessary addition. But on the other hand it can easily be abused by applying it against selective minority groups or a particular class of individuals.
Prohibition from entering a Particular Area The power of the State government to prohibit the use of any street or area is a provision meant to make the situation of common man worse. This will not only cause difficulty to the people in commuting from one place to another but also be a major issue for those who own commercial or housing property or have schools or colleges in that area or street. For a middle class family and those keeping barely above the poverty line a loss in the daily earnings can force their families to starve, the severity of which needs to be understood.
Increase in Police Vigilance and Authority Clause 11 prohibits loitering in the vicinity of communally disturbed area. Any person may be ordered to leave it, by a police office, or any other person authorized in this behalf by the competent authority. Whoever contravenes the provision of this section without just and sufficient cause is liable to be punished with imprisonment of one year or with fine or both. This places in the hands of police absolute power which can be easily misused by them or by their superior authorities to fuel the situation as has been seen in the past. This also is a breach of the fundamental right of movement.
Rule of Punishment Clause 12 provides for various punishments to the offenders. Clause 13 and 14 provides punishment for assisting an offender for commission of offence involving communal hatred or sectarian violence. But the truth remains that the punished are mere pawns in the hands of powerful, which are never caught[4].
Utopian Accountability of Bureaucrats Clause 17 makes any public servants who exercise or abstain from exercising the authority vested in him with a mala fide intent. Thus failing to prevent or suppress the commission of any communal disturbance will be punished with up to three years of imprisonment or fine or with both. However, no court can take cognizance of such offence except with previous sanction from the State Government. This procedure is not only cumbersome but indirectly nullifies the object of this clause. If the State Government refuses to grant the sanction then there is no remedy available to the aggrieved person.
The Review Committee Clause 22 makes provisions for a Review Committee headed by an officer of the level of Inspector General of Police to be constituted by the State Government. There is an ambiguity about the qualifications of such members. The involvement of state government draws concerns as it will definitely attract undue influence.
Special Investigation Team The special investigation team is to be constituted by the State government when it is satisfied that the investigation of offences in a communally disturbed was not in accordance with the law. The unenthusiastic attitude of the state governments coupled with their habit of shielding their personal supporters and sympathizers has led to the failure or biased reports from numerous such committees and investigating teams. This unfortunately is a fact that can’t be ignored.
Communal Relief And Rehabilitation Councils It is to consist of bureaucrats and government nominees bringing us back to square one as far as the question of actual relief being provided is concerned. But this is a small issue compared to the fact that this body shall only act in advisory sphere. Its reports shall not be binding on the concerned governments.
Clause 53 – A Mockery of the Victims It provides for the provisions regarding payment of compensation to the victims. Under this clause this compensation is to be paid by the people who are convicted of communal offences. Though it might sound like true justice, it is so only theoretically. In practice those who are caught are poverty stricken uneducated men who are enticed into mobocracy by people who don’t mind going to any extent to feed their political ambitions.
PROPOSED AMENDMENTS TO THE BILL
Even though the draft suffers from major flaws but it does not mean that it needs to be completely discarded, rather it needs to be amended. These amendments need to be objective and comprehensive in nature and be able to address all the open issues raised on the draft. The cause-effect analysis of the defects observed in the current form of the draft and the desired scope of the envisaged bill led to following suggestive amendments:-
Provisions for AccountabilityThe local administration, police, State machineries and instrumentalities need to be made accountable for dereliction of their duties. It is a proven truth that no communal violence or riot can sustain beyond few hours without the supportive involvement and active participation of the State and/or state authorities.
Tab on the Unrestricted Powers of Military /Paramilitary ForcesIt is clearly evident from the past experiences in Assam, Manipur and Kashmir that unfretted military power is no cure for the malady of communal violence. There is a strong need to put a lid on their unchecked power.
Ban on Hate Politics Stringent action needs to be taken against the preachers of Hate Politics. Anyone caught giving hate speeches or instigating/aggravating mobocracy needs to be dealt with strictly. In a lone judgment delivered by Justice Suresh (Mumbai High Court), Bal Thackeray of Shiv Sena was disqualified from voting or contesting in elections or campaigning for his party for a period of six years. The court showed such strict attitude when Bal Thackeray won the seat for his candidate by making provocative speech in Vile Parle. This practice of disqualification will not only deter them but also make politics a much cleaner affair. This case needs to be treated as a moral precedent by all jurists and followed against any politician who dares disturb the peace and tranquility of the State.
Immediate Enactment The law must not be left, to be implemented at the whims and fancies of a particular ruling party. There should be immediate and effective implementation of all the provisions without any delay. In case of a failure to do so the governments should be answerable to the Supreme Court.
Consolidated Implementation Separate application of the provisions is a time consuming exercise in circumstances where quick action is required. It also puts the victims at the mercy of the central government which might or might not execute certain provisions depending on its sweet will. The provisions need to be implemented with an immediate and consolidated manner. This will deter the governments from using the bill for their ulterior motives.
Autonomous Authority The Commissions of Enquiry set up after communal violence in various States have revealed that it is the connivance or negligence of the State authorities that leads to such bedlam. Thus there is a strong need for a sovereign authority that is free from executive control on similar lines of election commission. This will end the monopoly of the political parties.
Dire Penal Consequences The miscreants must be dealt with strongly irrespective of their social stature. Non- bail able criminal proceedings must be held against those who actively or passively participate in creating such recalcitrant circumstances or give it their express or implied consent.
Removal of Provisions on ‘Declaration of Communally Disturbed Area Instead of declaring an area as communally disturbed and creating a curfew like situation the authorities in charge should work towards bringing normalcy. On the eve of Ayodhya verdict the sensitive areas were marked and quick response teams were installed, sending of bulk emails and SMS were prohibited and the authorities maintained a tab on the various group leaders whose comments may instigate any mob frenzy. A similar fashion can be followed in areas facing communal friction.
Modification of the Definition The definition proposed by the “Consultation of eminent personalities” is as follows: “Any targeted attack committed on the persons and property of individuals or a group of persons on the basis of their religious identity which can be inferred directly or from the nature or circumstances of the attack.” The definition though still needs to include social and economic boycotts, forced segregation and discrimination which prime-a-facie may not look like communal riot but are a serious communal offence [5].
Competent Authority’s Power to be Redefined The discretionary power of the competent authority needs to be redefined so as to prohibit individuals in power positions from taking unfair advantage and putting the life of others at a risk. The discretionary power can be placed in the hands of the judiciary, to be exercised only in rare and exceptional cases. Thus ensuring a more unbiased approach. In case of allowing the competent authority to decide on this matter, detailed guidelines must be laid down and it should be made answerable to the high court of the concerned State or a superior authority of the same stature.
Law against the Real Players In a rare example Justice Srikrishna Report indicted Bal Thackeray for conducting riots through his party workers even though he was not physically present at the scene of crime but was made solely responsible for the severe amount of damage that was done. We need legally binding rules with severe consequences in case of non-compliance, against anyone who acts as the mastermind of the riots – planning, giving orders, and doing such act or refraining from doing such acts which either lead to the commencement or intensification of the riots.
National Commission It should consist of luminaries from various backgrounds and activists who carry a non-communal approach. The authority to nominate such members should be with the judiciary ensuring its independence. It should be provided with greater power so as to allow it to function to its full capacity.
Mandatory participation of women in various councilsEach of the various councils constituted under the bill should have a mandatory nomination of a minimum of three women representatives. This will allow the councils to act in a more integrated manner towards protection and rehabilitation of women and children.
Rehabilitation Fund This needs to be placed in a separate bill altogether keeping in mind not only its importance but also its vast nature. There should be provisions to make the actual offenders compensate including the government and bureaucrats if they are found negligent in discharging their duties instead of few provoked poor people who are generally caught. The State government should be exclusively responsible for the rehabilitation and payment of compensation to the victims as it’s their responsibility to ensure peace and tranquility in the state and provide protection to the people.
Fixing of a Minimum A minimum amount needs to be fixed, for the amount of compensation to be given and a monetary system needs to be laid down for the procedure of rehabilitation to ensure that the victims are not exploited. It should be reviewed every year and proper records are to be maintained to prevent the real victims from being side lined.
Communal Riots and Genocide Article 2 of the Genocide Convention of 1948(to which India acceded in 1949),defines genocide as ”any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group[8].”The acts constituting communal violence fit perfectly within the scope of the above definition and thus need to be treated on par with Genocide as per the provisions of the convention. This would not only put indirect pressure on the governments to take this seriously but also deter the political elements from being a participant.
Application of Doctrine of ‘res ipsa loquitur’ This doctrine states that the elements of breach of duty can be sometimes inferred from the very nature of the accident, even without direct evidence of how any defendant behaved. If any rioting activity takes place in any area, then the nearest police station and the authorities in charge of that zone should be held responsible, while the senior officers should be held vicariously liable. The consequences may include immediate suspension and even dishonorable discharge from their post depending on the gravity of their role in failing to suppress or prevent the riots. The vicarious liability should extend to the ministers making them answerable on account of abuse of power by their inferiors. The sentence should include grave and exemplary punishments including removal from office[2].
Definition for Dereliction of Duty A definition needs to be provided to ascertain without any ambiguity as to what should be the dereliction of duty. Proposed definition: “Doing of any act or abstinence to do an act including the delinquency in performing the official duty or failure to take reasonable care with a mala fide intention, under either undue influence of a superior or voluntarily, resulting in the failure to suppress or prevent any communal/sectarian violence”.
Consequential Backing to Clause 5 Failure to comply with the order or directives issued by the District Magistrate should be backed with rigorous imprisonment and fine. This would ensure that the preventive measures are taken seriously and the objective of the clause is achieved.
Review Commission and the Special Investigation Team Theyshould comprise of people with non-communal ideology, selected from diverse fields instead of police, bureaucrats and other state government officials to ensure that there is no influencing of reports or cover ups and the truth is safe guarded.
Special Courts Special courts to be set up to deal with cases relating to such atrocities with an aim to provide speedy and immediate relief to the victims.
Filing of FIR An autonomous and independent body free of the control of the concerned state government should be given the authority to take down FIR. This is highly important keeping in mind that in past wherever such riots arose the police have many times refused to take down, FIR against any influential person.
Punishment for Political Figures Usuallywhere political power houses are involved in the role of an offender, imprisonment or fines are not good enough as a deterrent punishment. In addition to the prescribed consequences there should be expulsion from contesting or voting in the elections, prohibition from canvassing for his party, addressing any public gathering or making known his views to any large number of people through any medium, that might instill in them a feeling of hatred against any individual or class of individual or instigate them to do any act that might lead to disruption of peace. The time limit for such punishments should not be less thansix years.
Widening the ambit of the term sexual offenceShabnamHashmi of Anhad and Mr John Dayal of the All India Christian Council have suggested for the widening of the scope of the term “sexual offence”. It should include any act done to publicly humiliate or ruin the character or integrity of a woman or to cause mental or physical torture[9].
Submission of Reports The reports made by the investigating authorities need to be submitted to the court instead of the Senior Police or State government officials. This will ensure an immediate action against the offenders instead of it biting dust or being destroyed.
Concentration on Sources of Communal Hatred The authorities should focus on the sources of communal friction and hatred and take preventive actions. This should include the monitoring of such people or institutions that are likely to cause trouble.
Intervention of Supreme Court Not only communal violence, massacre the elementary human rights but they are also are a breach of the fundamental rights including the most significant right guaranteed under Article 21 i.e. the right to life. Thus the Supreme Court should not only take the matters in its hands from the very beginning but also deal with the offenders in a stringent manner.
Transparency Every investigation that is carried out or the actions taken must be made known to the public. This will not only assure them that the government is working for their protection but also help in bringing normalcy and order in the sensitive areas.
Prohibition on Spread of Hatred through Technological Means There is a need for strong cyber vigilance to control and contain the dispersion of bulk sms, emails or voice messages in the same way as exercised in many areas of Jammu and Kashmir. Also the authorities need to keep a watchful eye on the social networking sites and blogging sites. Uploading of any content visual or audio, that might instill in the people a feeling of hatred against any particular caste/community or lead to disruption of peace and tranquility should be prohibited and made punishable.
Bona fide Intentions In many provisions the bill allows the state authorities, police and bureaucrats to get away from any legal action, for any act done by them with a bona fide intention. Whether an act was or was not done in good faith is purely circumstantial. One can easily prove any offence to be done in good faith in circumstances of chaos because it is the perspective that is of most importance. In sensitive zones or in situations of communal violence the actions that would constitute good faith might be far more aggressive than those exercised in times of peace. Thus a guideline or basic sketch needs to be laid down to decide what actions would constitute good faith so as to ensure that the authorities don’t hide behind this provision and get away after committing a crime.
WAY AHEAD
The bill since the time it has come in existence has been mired in a never ending debate between civil society and the bureaucracy. When no conclusion seemed in sight the National Advisory Council (NAC) which had been given the humongous task to draft the bill decided to completely recast it[6]. The bill will now be redrafted by the NAC sub-group headed by Farah Naqvi and Harsh Mandar along with senior legal luminaries. In order to harvest the full potential of the bill, NAC took the assistance of a jumbo 32-member group, including Solicitor General GopalSubramanium, Left-leaning lawyers and human rights activists. It has also provided through its official website an outlet for the common man to contribute his expectations and opinion. The single fold objective of including such myriad thoughts is to remove any such lacuna that might lead to further injustice in the future[3].
CONCLUSION
It was the need for a safer and protected world where one could develop to his optimum capacity, which led to the formation of modern States.Thus making the right to life with dignity and without fear by far the most essential and indispensible right guaranteed by the constitution. But when this right is brutally snatched from a person by those in whom he has vested his trust to protect him, what does he do and where does he go? Politics in India has forever been a dirty game. Political powerhouses do not shy away from anything in order to feed their vote banks including disruption of peace and creating a chaos that runs havocs into the lives of innocent. This hatred for one another is instigated by people who use uneducated poverty stricken people to achieve their selfish motives.
For ages, human rights have been violated in India and the justice is never delivered. Generations after generations, the victims have spent their lives groveling and begging for – protection and compensation that is rightfully theirs. After all these years, the victims of Sikh riots (1984) and the Gujarat riots (2002) are still seeking justice. There is a need for a strong public and political influence with an object to bring justice and create a safer environment. The perpetrators of riots irrespective of their social stature need to be objectively punished so as to deter others from following the suit. Not only the victims of riots but also the rest of India sees the bill as a promise of a safer world where human rights are not massacred in the middle of the roads. Everyone has high expectations but will it be able to achieve them is a protracted debate. Truly this is a wait and watch situation for only time can conclude whether the bill is going to be the silver lining in a dark cloud or a beautiful illusion.
Not the least, one must not forget that prevention of communal violence in also a social responsibility of each one of us. An enriched society exhibiting the universal brotherhood and mutual respect for each other’s religion is the call of the day.