MEMORANDUM SENT TO : HON’BLE PRIME MINISTER DR MAN MOHAN SINGH, MRS SONIA GANDHI, CHAIRPERSON, UNITED PROGRESSI VE ALLIANCE, HOME MINISTER AND LAW MINISTER ON OCTOBER 8, 20 13
- MEMORANDUM SENT TO : Hon’ble Prime Minister Dr Manmohan Singh, Mrs Sonia Gandhi, Chairperson, United Progressive Alliance, Home Minister and Law Minister on october 8, 2013
date:october 8, 2013
MEMORANDUM: UPA GOVERNMENT FULFILL YOUR PROMISE TO ENACT A LAW THAT PROTECTS ALL AGAINST COMMUNAL AND TARGETED VIOLENCE
The 2004 Common Minimum Programme of UPA 1, held out the promise of a ‘comprehensive legislation’ that would strengthen the hands of the citizens to secure justice (commonly referred to as the CV Bill).
One main thrust of such a legislation should be to counter impunity by securing accountability of all persons exercising State power, and to ensure comprehensive justice for the victim- survivor of communal and targeted violence.
The legislation introduced by the government in the RajyaSabha on December 5, 2005, the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005, unfortunately betrayed that promise. The 2005 C.V. Bill, which took the path of `declaration’ of a `communally disturbed area’, and gave extraordinary powers to the Executive, was expressly rejected by all. The Bill was sent to the Parliamentary Standing Committee on Home Affairs that in its report tabled in Parliament in December 2006, did little to redeem the Bill. In early 2009, the UPA government introduced 59 amendments into the Communal Violence Bill 2005, which made no change at all to the architecture of the Bill and which Bill remained deeply flawed and entirely unacceptable.
It has been repeatedly observed that it is not that the Executive does not have the powers needed to prevent and control a situation of communal and targeted violence. It is the lack of accountability of public servants, officials and others exercising political, executive, administrative and law enforcement powers, further aggravated by institutional bias and complicity that leads to the non-use or misuse of such powers by State functionaries. Almost all incidents of communal violence reveal a pattern of planned or targeted violence; abdication by the state machinery of the responsibility to protect; occurrence of gender based crimes with specific targeting of women’s bodies; followed by indifferent or partisan investigations and consequently absolute impunity for the horrific crimes committed in these violent assaults. The survivors, debilitated and shattered by the violence, with no recognized rights to reparative justice are left to live on the margins of fear and destitution. In almost each incident of targeting of persons on account of their religion, caste, ethnicity or linguistic identity, this pattern has been discerned. There was therefore a clear and unequivocal call for rejecting a Bill that would in any way enhance the arsenal of state power.
In 2011 the NAC proposed a draft C.V. Bill which incorporated some elements of accountability, justice and reparations. However the framework and definitional formulations in the NAC draft Bill, led to serious misgivings and concerns were raised by many quarters.
We are of the view that a fresh initiative to draft the C.V. Bill is required and that a law against communal and targeted violence must provide protection to all victims-survivors, and it should respect the federal framework. The key features of such a law are enumerated below.
The recent outbreak of communal violence in Muzaffarnagar once again reminds us of the urgent and dire need for a law against communal and targeted violence. We the undersigned, secular and civil liberty activists, women’s rights activists, legal experts, academicians, organizations, urge the Government to draft a new legislation, the primary focus of which should be to secure accountability of public servants and to hold them responsible for communal and targeted violence, as well as make provision for providing reparative justice to all victims and survivors of such violence.
The key features that a law against Communal and Targeted Violence must include:
Objective – A law to protect ALL persons from communal and targeted crime through making persons in positions of public authority accountable; punishing all those responsible for perpetrating, planning, inciting, abetting and conspiring to cause the violence, harm, and loss; and just, fair and equitable reparation to ALL affected persons.
- The Executive, administrative authorities, law-enforcing agencies and all other public authorities exercising state power, to be held accountable and criminally liable for acts of omission and commission in relation to their duties.
- Codify new offences to make acts of commission and omission by public servants criminally liable.
- Elements of command responsibility and superior responsibility to be introduced in law to hold senior and supervisory public officials for failure to exercise authority:
Command/Superior Responsibility: To hold senior or superior public officials criminally responsible for crimes committed by subordinates where:
(i) the subordinates committed crimes while under the effective authority and control of the superior.
(ii) where the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing, or were about to commit such crimes;
(iii) the superior failed to take all necessary and reasonable measures within his power to prevent the commission of these crimes or to inform the investigating authorities of the same.
- Principle of constructive responsibility, culpable inaction and dereliction of duty, to be incorporated, by which persons in authority are held accountable for acts of omission and commission in the lead upto, during and following communal crimes.
- To prevent the abuse of doctrine of immunity that shields public servants through the statutory requirement of prior sanction for prosecution of public servant, the decision on sanction for prosecution to be made time-bound and be subject to judicial review.
- The excuse of a public official, that he acted or failed to act, on account of orders from a superior administrative or political authority shall not be available as a defence to public servants in situations of communal and targeted crime.
- Crimes of Torture and Enforced Disappearances should be introduced in IPC as they acquire a greater intensity during communal and targeted violence. at the earliest.
- The procedure relating to investigation, evidence gathering, and trial to be amended, taking note of situations of communal and targeted violence, while ensuring that fair trial rights of the accused are observed.
- Robust witness and victim protection provisions be made available at all levels to enable victims to access justice.
- The responsibility of the state to recognise the phenomenon of Internal Displacement in the context of communal and targeted violence, and to recognise and respect the rights of internally displaced persons (IDPs), as enumerated in the UN Guiding Principles for IDPs.
- Stipulate and establish principles of just and fair reparation and compensation applicable to all victims and survivors of communal and targeted violence for loss of life; all forms of property; failure to protect and all other harm and injury caused. Reparations include: (i) Responsibility of the government to immediately arrange to Rescue the targeted community and persons; (ii) Organise relief camps and provide for all needs with special attention to women and children; (iii) Ensure protection of movable and immovable property; (iv) Prompt dispersal of just and fair compensation, (v) Restitution of all victims and survivors of communal and targeted violence; (vi)Recognition for IDP populations and ensure that all their rights are respected; State to give Guarantee of non repetition of communal and targeted violence; and Public apology offered to all victims and survivors of communal and targeted violence.
1. AES, KORAPUT, ORISSA
2. AJOY ASHIRWAD, JOURNALIST, DELHI
3. ALEEM FAIZEE, MALEGAON,. MAHARASHTRA
4. ali asghar, socail activist, hyderabad
5. Amar Kanwar, Film maker , Delhi
6. ANHAD, DELHI
7. Annie Raja, GENERAL SECRETARY, National federation for Indian Women
8. ANTARANGA, KANDHAMAL, ORISSA
9. ANURADHA CHENOY, PROFESSOR, JNU
10. ARSHAD AJMAL, BIHAR
11. Asad Zaidi, Publisher and writer, Delhi
12. bhavna sharma, anhad
13. dev desai, socail activist, gujarat
14. DHIRENDRA PANDA, ORISSA
15. DILIP SIMEON, HISTORIAN AUTHOR, DELHI
16. DR KM SHRIMALI, HISTORIAN
17. DR MOHAMMAD ARIF, Centre for Harmony and Peace, Varanasi, UP.
18. DR. JYOTSNA CHATTERJI, JOINT WOMEN'S PROGRAMME, NEW DELHI
19. Dr. Mohd. Sajjad, AMU, Aligarh
20. Dr. Neshat Quaiser, Jamia Millia islamia, New Delhi
21. Dr.Mohan Rao , Professor, Jawaharlal Nehru University
22. FARHAT AMIN, bhartiya muslim mahila andolan, CUTTACK, ORISSA
23. GAGAN SETHI, CENTRE FOR SOCIAL JUSTICE and janvikas, GUJARAT
24. HARSH KAPOOR, DELHI
25. Helen Saldanha, cbci, women, New Delhi
26. jagori, delhi
27. JAIBUNNISA r, bhartiya muslim mahila andolan, tRICHY, TAMIL NADU
28. JAMAL KIDWAI, SOCIAL ACTIVIST, AMAN EKTA MANCH, DELHI
29. JAMIA TEACHER’S SOLIDARITY ASSOCIATION, DELHI
30. JAMILA KHAN, bhartiya muslim mahila ANDOLAN, AHMEDABAD, GUJARAT
31. JASVEEN JAIRATH, HYDERABAD
32. John dayal, MEMBER, NATIONAL INTEGRATION COUNCIL
33. KAILASH DANDAPAT, orissa
34. KAMAL MITRA CHENOY, PROFESSOR, JNU
35. KAMALA BHASIN, ACTIVIST, DELHI
36. Kaveri Gill, independent academic, Delhi
37. Kavita krishanan, CPI_ML
38. KAVITA SRIVASTAVA, PUCL, rajasthan
39. kedar mishra, poet, writer, bhubaneshwar, orissa
40. KHATUN SHAIKH, bhartiya muslim mahila andolan, MUMBAI
41. kunwar danish ali, secretary general, janata dal (secular)
42. Leila Passah – National General Secretary – YWCA of India.
43. LOPAMUDRA BEHERA, ORISSA
44. Madhumita Ray, activist, Bhubaneshwar, Orissa
45. MAHESH BHATT, FILMMAKER, PRODUCER, MUMBAI
46. MAHESH DATTANI, PLAYWRIGHT, DIRECTOR, MUMBAI
47. Mahesh pandya, social activist, Gujarat
48. MANISHA SETHI, JAMIA TEACHER’S SOLIDARITY ASSOCIATION, DELHI
49. mansi sharma, social activist, delhi
50. Maulana Mehmood Madani, Jamait Ul Ulema e Hind
51. Maulana Niaz Farooqui, Jamait Ul Ulema e Hind
52. MEERA RIZVI, TV PROFESSIONAL, DELHI
53. mehtab alam, CIVIL RIGHTS ACTIVISTS, DELHI
54. mohd azam, social activist, hyderabad, andhra pradesh
55. Mona Das, University of Delhi, Delhi
56. Nalini Taneja, Academic, Delhi
57. navsharan singh, researcher, delhi
58. NAVAID HAMID, MEMBER, NATIONAL INTEGRATION COUNCIL
59. NOORJEHAN SAFIA NIAZ, bhartiya muslim mahila andolan, MUMBAI
60. PRAMOD PATTANAIK, ORISSA
61. PROF KM SHRIMALI, HISTORIAN
62. prof kn panikkar, historian
63. Prof Ram Puniyani, Mumbai
64. Prof Rooprekha verma, Former Vice Chancellor, UP
65. Prof. Chaman Lal (Retd), JNU, New Delhi
66. PUNEET SHARMA, FILMMAKER, DELHI
67. PUSHPASHREE DEBA, ORISSA
68. RAHIMA KHATUN, bhartiya muslim mahila andolan, KOLKATA
69. Rajeev yadav, Rihai Manch, Up
70. ramjan choudhary, president, mewat vikas sabha, NUH, haryana
71. RITES, MALKANGIRI, ORISSA
72. Rupesh, KOSHISH, Patna, Bihar
73. SAFIA AKHTAR, bhartiya muslim mahila ANDOLAN, BHOPAL, mp
74. Salar M. Khan, Lawyer, Delhi
75. Saleem Kidwai, Historian and Activist, DELHI
76. Samuel Jayakumar,Executive Secretary, National Council of Churches in India
77. SAUMYA UMA, MUMBAI
78. SEEMA MUSTAFA, JOURNALIST DELHI
79. SHABNAM HASHMI, SOCIAL ACTIVIST, ANHAD
80. Shahnawaz Alam, Rihai manch, UP
81. SHARANYA NAYAK, ORISSA
82. sm hilal, foundation for civil liberties, kanpur, up
83. SQ MASOOD, HYDERABAD
84. TEHMINA ARORA, Alliance Defending Freedom, India
85. uma chakravarti, acadimician, delhi
86. usha ramanathan, delhi
87. vahida nainar, mumbai
88. vineet tiwari, sandarbh, indore, madhya pradesh
89. VRINDA GROVER, ADVOCATE, DELHI
90. WAQAR QAZI, SOCIAL ACTIVIST, GUJARAT
91. Zaheer Ali Khan, Hyderabad
92. zakia soman, bhartiya muslim mahila andolan, GUJARAT