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The Communal Violence Bill and Suggested Amendments

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  • Sukla Sen
    The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 Current Status and Suggested Amendments Background The state sponsored
    Message 1 of 1 , May 22, 2006
      The 'Communal Violence (Prevention, Control and
      Rehabilitation of Victims) Bill, 2005'
      Current Status and Suggested Amendments

      Background
      The state sponsored pogrom in Gujarat in early 2002
      was a watershed in the history of independent India,
      even if of the terribly wrong kind.
      This is not the first time when people, and
      'minorities' to be more specific, were brutally done
      away with aided and abetted - and at times actively
      supported, by the state machinery. In fact, India's
      history abounds with such dark spots. But never before
      had a state government, and the party in power and its
      affiliates, so openly and brazenly fuelled the fire of
      gory violence targeted at the members of a specific
      community.
      The killers and rapists were lionised. The
      commander-in-chief attained a larger than life status
      and became virtually a cult figure. A very large
      segment of the local populace got intoxicated with
      communal frenzy and violence. The state election was
      forced by prematurely dissolving the assembly to
      capitalise on the ambience of insecurity, paranoia and
      violence deliberately caused. As designed, the
      architects of majoritarian violence and mayhem were
      handsomely rewarded. The central government acted as a
      somewhat less enthusiastic but nevertheless pliant
      accomplice.

      Even though the organised massacres of Sikhs in
      Oct.-Nov.1984 to an extent had anticipated the Gujarat
      of Feb.-March-April 2002, the enactment of a 'legal'
      remedy to such a malaise was never wished for as
      strongly ever before.

      Mercifully, in the parliamentary election to follow in
      early 2004 ? again held before time, the ruling NDA
      got defeated belying all poll predictions and a
      coalition government at the Centre led by the Congress
      under the banner of the UPA could eventually be
      cobbled up with a collectively drafted Common Minimum
      Programme (CMP) as its road map. It is in line with
      the commitment made therein, about a year later, the
      central government had first circulated a draft
      Communal Violence (Suppression) Bill in April 2005.
      The bill faced wide and virulent opposition mainly on
      the ground that it had proposed to confer draconian
      powers in the hands of the armed forces deployed by
      the Central government in an area declared as
      'communally disturbed'. That the Centre would arm
      itself with overriding powers vis-a-vis the states was
      another principal sore point.
      Modifications were made in stages and now a redrafted
      Communal Violence (Prevention, Control and
      Rehabilitation of Victims) Bill, 2005 has been tabled
      at the Rajya Sabha on December 5 and thereafter
      referred to the Parliamentary Standing Committee for
      the Ministry of Home Affairs for detailed
      examinations.

      What the Act Must Provide?
      I. Any serious Act, meant to prevent, deter, and
      reduce incidences of large-scale communal violence,
      must encompass a three-phased approach. It must have
      provisions to ensure (i) adequate monitoring and
      scuttling of build up of tensions through hate
      propaganda and spreading of rumours etc.; (ii) prompt,
      unbiased and effective intervention to contain or
      quell violence and protection for the actual and
      likely victims; and finally (iii) relief and
      rehabilitation for the victims, speedy identification
      of and strict justice for the perpetrators and also
      stringent punishment for the negligent/colluding State
      officials. There must be adequate provisions for
      effective interventions in all the three stages:
      before, during and after.

      II. As our experiences show, the biased approach of
      the state machinery is one of the major problems. But
      their services can hardly be dispensed with. So the
      Act must ideally create a special or autonomous body
      at the state level, which will have
      statutory/executive powers to direct and supervise the
      operations of the state machineries pertaining to
      communal violence declared by it as 'communally
      disturbed'. The body must be so constituted that it
      enjoys enough credibility in the eyes of the potential
      'victim' communities. Or, at the very least, in case
      of failure to scuttle/contain violence the complete
      command chain up to the highest echelons of the state
      administration must be held accountable and be made to
      pay for such failure. Full monetary compensations for
      the victims by the state would be another way of
      discouraging pre-planned pogroms.

      III. Special central security force, having adequate
      representation of various 'minorities' including
      women, must be raised. They may be deployed at the
      request of the special body constituted at the state
      level. Once deployed, they should directly report to
      such bodies. Both the 'special' force and the state
      police must be sensitised through proper training etc.


      IV. There must be special court to try the cases of
      atrocities. Public prosecutors are to be appointed
      only with the consent of the victims. The judges need
      be vetted by the autonomous body, in case there is
      one.

      V. Vesting of unfettered powers in the existing
      structures, who are by all means the parts of the
      problem, would lead only to further victimisation of
      the victims. This must be avoided like plague.

      How Does the Bill Fare?
      The very framing of the Bill gives the official stamp
      of recognition to the extreme seriousness of the
      problem and is hence welcome.

      The most major improvement in the redrafted Bill is
      perhaps the change in its nomenclature, which
      acknowledges - at least in principle, the necessity
      for intervention in all the three stages: before,
      during and after. Apart from that, the draconian
      powers that were earlier proposed to be vested in the
      law enforcing machinery have been very substantially
      curtailed. Special provisions for witness protections
      have been made. The Bill also proposes to
      simultaneously empower the Centre and the state
      government concerned to establish special trial courts
      outside the communally disturbed area (so as to
      eliminate biases).

      The proposed power for the special courts to take
      cognisance of and try offences brought to its
      attention by human rights bodies, minority groups,
      media reports or even a concerned citizen is also very
      welcome. Wide-ranging powers are proposed for the
      'competent authority' as also district magistrates to
      prevent breach of peace. District magistrates who fail
      to ensure the rule of law despite such powers would
      then be answerable for their acts of omission and
      commission.
      Those held guilty of relatively less serious communal
      offences would stand to serve a jail term or asked to
      pay a fine that is twice that stipulated otherwise.
      There are provisions for more effective investigation
      of offences and the establishment of permanent
      councils with representation of human rights activists
      and minorities at the district, state and national
      levels to promote communal harmony and formulate
      humane and appropriate rehabilitation and reparation
      schemes for victims of communal violence.

      The central and the most glaring flaw of the Bill is,
      however, that it refuses to acknowledge that communal
      violence erupts and spreads mostly because of the lack
      of political will on the part of the state government
      concerned and also the Centre. In case of Gujarat the
      state government was actually actively complicit and
      the Centre connived.

      The now proposed Bill further compounds this
      near-fatal folly by leaving the very commencement of
      the Act, let alone its execution, to the sweet mercies
      of the respective state governments, and the Centre in
      case of Union Territories.
      Only the provisions relating to relief and
      rehabilitation (excluding the provisions of
      suppression and prevention of communal violence) can
      be brought into force by the central government
      through appropriate notification. Therefore, on the
      passing of the Act, by the parliament, none of the
      provisions will automatically come into force and this
      will depend on further whims and fancies of the
      central and state governments. And even after the Act
      having become operative, it is again for the concerned
      state government to declare a particular area as
      'communally disturbed', upon which the various
      provisions of the Act will apply to such areas so
      declared.
      So the state government, under the provisions of this
      Bill, can very well keep on dragging its feet in
      issuing the appropriate gazette notification to make
      the Act operative. And, more vitally, delay, or
      altogether avoid, declaring the affected areas as
      ‘disturbed’ and thereby making the whole exercise
      nothing more than some sort of elaborate window
      dressing.

      While there can be many more improvements in the Bill,
      this central lacuna of the Bill must engage all our
      attentions at the moment. In fact, most of the states
      are reportedly reluctant to even issue notifications
      to make the Act operative.

      The list of proposed amendments will eventually be
      presented before the Standing Committee, to which the
      Bill has been referred to, for incorporation.
      But a strong wave of public pressure is imperative to
      make it happen.

      Suggested Changes

      Broad Framework
      1. 'Communal violence' has three clearly identifiable
      stages: before during and after.
      The Act, in order to be effective must have provisions
      to adequately intervene in all the three stages.
      It must aim to nip the build up, in the form of rumour
      mongering, hate campaigns etc, in the bud. It must
      control the violence, while it's on, and
      protect/rescue the (actual and potential) victims. And
      finally, after the violence is over the victims must
      be compensated and rehabilitated and the culprits
      quickly identified and brought to book.
      2. It's our experience that the state administration
      and the political leadership, more often than not, are
      complicit. Even the central government connives.
      The Gujarat bloodbath is the grossest, but not the
      only, example. Hence, there must be autonomous
      institutions with adequate representations from the
      likely victim communities to ensure proper
      implementation of the Act. Other measures must also be
      taken to ensure unbiased approach on the part of the
      State.
      3. Unaccounted powers in the hands of the
      administration are only going to further compound the
      woes of the victims, so a fine balance is to be
      maintained.

      Specific Points
      I. The name be changed to 'Communal and Sectarian
      Violence (Prevention, Control and Rehabilitation of
      Victims) Bill, 2005'.The change of nomenclature (i.e.
      the addition of “and Sectarian”) is called for to
      widen the ambit of the Act to include violence
      directed against any 'minority/marginalized group'
      defined/constituted in terms of religion, caste,
      language, ethnicity etc. This definition must be
      suitably incorporated in the body of the Bill.
      II. The Bill must come into operation all over the
      country, except for J&K, once it's passed by the
      parliament and the gazette notification is issued in a
      time bound manner.
      III. The Bill must provide for the constitution of a
      body at the state level to be appointed by the
      governor consisting of the representatives of the
      SHRC, State Minorities Commission, State Women's
      Commission and State SC and ST Commission to be
      chaired by a sitting High Court judge nominated by the
      Chief Justice of the High Court. (The states where any
      of such bodies is/are not in existence, the
      corresponding national body would nominate a member
      who would be otherwise eligible to be a member of such
      a state level body.) This body would advise the state
      government in the subject context, either suo moto or
      on receipt of complaints. Its advice as regards
      declaration of 'disturbed areas' would be mandatory.
      The NHRC should also be empowered to issue formal
      advices to this Committee in this behalf, which has to
      be taken due note of.
      IV. The Section 153(a) of the IPC must be
      incorporated, with the deletion of the provision
      pertaining to the requirement of prior state sanction.

      V. No prior state sanction must be required for
      proceeding against any delinquent state functionary.
      VI. The provision for vicarious criminal liability
      must be incorporated to cover up to the highest level
      of command chain.
      VII. Loss of life must be compensated by the states on
      a uniform basis throughout the country. Loss of
      property must be compensated to the extent of full
      replacement value.
      Norms must be fixed for compensation for sexual
      violence, properly defined.
      The case for compensation must be reviewed by the
      state level committee mentioned above.
      The compensation must be paid fully and quickly. This
      must not be linked with the criminal cases filed
      against the perpetrators.
      VIII. The bar for declaring an area 'disturbed' must
      be clearly defined and not kept too high.
      IX. The prosecutors for criminal trials must be
      appointed only after due consultation with the victims
      and with the approval of the state-level committee.
      X. Special forces must be raised with adequate
      representations from the various minorities and women.
      They must also undergo special training for
      sensitisation.
      XI. All the provisions of the Bill must be brought in
      alignment.




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