The Communal Violence Bill and Suggested Amendments
- The 'Communal Violence (Prevention, Control and
Rehabilitation of Victims) Bill, 2005'
Current Status and Suggested Amendments
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
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
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
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
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
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
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
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
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.
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
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
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
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
XI. All the provisions of the Bill must be brought in
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