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Communal Violence (Prevention) Bill: Some Critical Comments and the Text

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  • Sukla Sen
    [The following is an introductory note from a legally illiterate activist. I. Any serious Act, meant to prevent/deter/reduce incidences of large-scale communal
    Message 1 of 1 , Jun 1 4:52 AM
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      [The following is an introductory note from a legally
      illiterate activist.


      I.
      Any serious Act, meant to prevent/deter/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/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.


      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 create a special (largely autonomous) body at
      the state levels, which will have statutory powers to
      direct and supervise the operations of the State
      machineries pertaining to communal violence. In order
      to ensure its unbiased character it must include
      authentic representatives of the likely victims /
      intended beneficiaries - the religious, linguistic,
      ethnic minorities. The state human rights / minority
      commissions, reorganised for this purpose, or some
      specific wings of theirs may be the appropriate
      agency. These bodies must directly report to the
      president of India but accountable to the
      legislatures.




      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.


      IV.
      There must be special courts to try the cases of
      atrocities. Public prosecutors are to be appointed
      only with the consent of the victims. The judges must
      be vetted by the autonomous commission. Provisions
      similar to those in (Dalit) Atrocities Act must be
      incorporated. Any negligence in lodgement of FIRs must
      be treated as a serious offence.


      CONCLUSION
      Vesting of additional 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.



      Sukla Sen]



      HUMAN RIGHTS & LAW UNIT DOCUMENTATION
      INDIAN SOCIAL INSTITUTE
      Centre for Reseach, Training and Action for
      Socio-Economic Development and Human Rights
      Lodhi Road, New Delhi - 110003 (INDIA)
      Email: hru@..., Phone:24622379/ 24625015
      Web Site : http://www.isidelhi.com

      Communal Violence (Prevention) Bill 2005. A Criticism

      Dr. Mukul Sinha, Jansangharsh Manch, Gujarat.

      1. The proposed law aspires to prevent and/or
      punish any person or a group of persons from
      indulging/ instigating or perpetrating communal
      violence and also provide relief/rehabilitation and
      compensation for the victims of communal violence.

      2. The method and mechanism proposed to achieve
      these objectives are:

      1.
      Declaration of areas as "communally disturbed
      areas" u/s 3(1) either by the State Government or the
      Central Government OR by the Central Government u/s
      4(1) and empowering the respective Governments "to
      take all measures which may be necessary to deal with
      the situation"
      2.
      Empowering the Central Government to deploy the
      armed forces u/s 5(a) and further empowering "any
      commissioned officer, warrant officer, noncommissioned
      officer or any other person of equivalent rank in the
      armed forces" u/s 7(l)(a) "to fire upon or otherwise
      use force even to the causing of death, against any
      person who is acting in contravention of any law or
      order.."
      3.
      Appropriate Government (the one which issues the
      notification u/s 3(1)) to establish special courts and
      also appoint Public Prosecutors to give speedy justice
      under Chapter IV and give enhanced punishments as
      provided u/s 6.
      4.
      Special Court empowered to order compensation to
      the victim u/s 27.
      5.
      Establishment of a "Communal Violence Relief and
      Rehabilitation Council" u/s 31 consisting of (1) Chief
      Secretary of the State (2) DGP (3) District Collector
      (4) DSP of affected area (50 two social workers to be
      nominated by CG and (6) four persons to represent
      minority community by CG.
      6.
      CVRRC to be empowered u/s 32 to advise the STATE
      government in matters relating to relief and rehab
      etc.


      3. Will this bill, if enacted, become an
      efficacious law to prevent communal violence? This
      question is best answered by putting into operation
      the proposed law in context of the post Godhra
      violence that destroyed the life and property of
      thousands of Muslims. It may be recalled that as on
      28th February 2002, the day the carnage started, BJP
      ruled the State of Gujarat and NDA ruled at the Center
      and BJP was the major partner of NDA. Thus both the
      Government had BJP as the major player there was no
      bar whatsoever "to take all measures which may be
      necessary to deal with the situation"! Yet the worst
      carnage took place, killing thousands of innocent men,
      women and children and destroying hundred of crores of
      their property. Till date, the victims have not been
      able to return back to their villages and most of the
      riot cases have resulted in the acquittal of the
      accused for the want of witnesses or witnesses turning
      hostile. As the powers to prevent, prosecute and
      rehabilitate is conferred on either the Central
      Government and the State Government in the present
      Bill, all such powers existed under either Cr. P.C. or
      IPC or other existing law as on 28l February, 2002.
      Yet the carnage took place. The only conclusion that
      one can arrive at is that the author of the present
      Bill has completely failed to understand the dynamics
      of the post Godhra violence and therefore the present
      Bill does not even attempt to address itself to the
      real issues that need to be dealt with.

      4. The basic flaw of the present Bill which is
      proposed as a reaction to the Gujarat carnage, does
      not take into account the dynamics of the violence. It
      must be clearly understood that the post Godhra
      violence was not a communal conflict but a systematic
      violence unleashed by an organized political force
      against the members of the minority community with the
      active connivance, help and sanction of the entire
      state machinery. Since the political forces which
      perpetrated the valence was the ruling political party
      itself and further since the Government of the State
      as well as Center aided and abetted the entire
      violence, it would be naive to suggest that the same
      Government can and will prevent or suppress the
      violence which it has itself abetted. The proposed
      Bill therefore has no answer to the actual ground
      realities.

      5. It may be recalled that while giving evidence
      before the Nanavati Commission, it has been stated by
      the Police officers in their cross examination that in
      the cases of Naroda Patia , and Best Bakery, they did
      not even go near the place of carnage though over a
      hundred persons were being brutally killed over a
      period of six to eight hors! In the case of Gulberg
      society, Inspector Erda has admitted in his cross
      examination that though he was present at the place
      where Shri Ehsan Jafri and 60 others were being
      slaughtered, he did not fire a single round to prevent
      the carnage. The State machinery deliberately refused
      to take any preventive action to stop the carnage. Why
      do we expect the same Government and their officials
      will "take all measures which may be necessary to deal
      with the situation" as piously drafted in the Bill??

      6. In a recent letter to the Nanavati
      Commission, the ex- President Shri K.R.Narayanan has
      unequivocally stated that the Prime Minister Shri Atal
      Behari Bajpai did not carry out his instruction to
      effectively deploy the army in Gujarat nor did he
      allow the army to shoot at sight to prevent the
      violence. Why do we expect the Central Government to
      deploy army in the manner suggested if the same
      combination are in power both in the State and the
      Center?? It may be recalled that the total deaths in
      police firing are (1) 80 hinds (2) 103 Muslims. Do we
      want to give special powers to kill more minorities to
      carry out the carnage?

      1.
      The DSP Shri Rahul Sharma of Bhavnagar (Gjarat)
      had single handedly withot any help from the DGP had
      pt down the entire violent mob in Bhavnagar since he
      had the will to do so. His men had effectively fired
      and killed 5 hinds and one Muslim casing the then Home
      Minister Shri Zadapiya to comment that the ratio of
      death was not good! Let's therefore learn from that
      experience. If we need a law, we must remove the
      control from the hands of the erring Government and
      its ruling political establishment and regulate
      policing through statutory bodies, which should be
      independent of the Government in power. Then only we
      can have some semblance of prevention of State
      sponsored violence!


      The above critiques is by Dr. mukul Sinha who is a
      high court lawyer with strong human rights bend of
      mind and committed to the marginalised and excluded
      communities. He has been present during the
      depositions at Nanavati commission in Gujarat dealing
      with Gujarat Carnage Cases.

      Dr. Jimmy Dabhi
      Executive Director

      HUMAN RIGHTS & LAW UNIT DOCUMENTATION
      INDIAN SOCIAL INSTITUTE
      Centre for Reseach, Training and Action for
      Socio-Economic Development and Human Rights
      Lodhi Road, New Delhi - 110003 (INDIA)
      Email: hru@..., Phone:24622379/ 24625015
      Web Site : http://www.isidelhi.com

      Draft Communal bill:

      Deadly Cocktail of TADA, POTA and Armed Forces Act.



      The UPA government is doing it again, killing the
      democratic fabric of India. The TADA-loving Congress
      had foxed the minorities and secular activists by
      magically-repealing POTA by changing its name. It had
      fooled the citizens of North East States by promising
      to review the Armed Forces Special Powers. And now,
      with pressure from secular activists to
      constitutionally pre-empt a Gujarat-type situation, it
      has snatched the golden opportunity to fulfil its
      hunger to devour human rights.



      A new cocktail of TADA, POTA and Armed Forces Special
      Powers Act into a law all over the country. “Lets do a
      Kashmir & Manipur of the entire country!”



      And the bosses of this government in ADB/WB/WTO are
      having the last laugh: “what the communal saffron
      fascists couldn’t achieve, the UPA will – they will
      gag all opposition to our grand economic designs of
      converting the entire country into a shopping mall.”



      The draft bill allegedly “to suppress communal
      violence” does everything to suppress democracy,
      leaving communal forces and their activities intact.
      It loves to unleash the armed forces of the Union “to
      suppress the commission of such offences and to
      restore communal harmony and public peace and
      tranquillity.” It has nothing to do with the fascist
      poisons being spread by the Sangh Parivar through its
      ekal schools or media or its un-civil organs in civil
      society. It has nothing to do with flushing out Sangh
      Parivar infiltrations in the army, police, home
      guards, bureaucracy, education, media, etc. Actually
      it is not supposed to suppress anything communal, it
      is only deployed to suppress everything that human
      society yearns for ……. freedom.



      The Central or State government can declare any area
      as a communally disturbed area. It will the unleash
      “any commissioned officer, warrant officer,
      non-commissioned officer or any other person of
      equivalent rank in the armed forces” take over “the
      maintenance of public order” and go to any extent:
      “fire upon or otherwise use force, even to the causing
      of death, against any person who is acting in
      contravention of any law or order for the time being
      in force in the communally disturbed area prohibiting
      the assembly of five or more persons or the carrying
      of weapons or of things capable of being used as
      weapons or of fire-arms, ammunition or explosives
      substance.”



      This officer can just dump the Constitution of India
      and go ahead to:

      “- arrest, without warrant, any person who has
      committed a cognizable offence or against whom a
      reasonable suspicion exists that he has committed or
      is about to commit a cognizable offence and may use
      such force as may be necessary to effect the arrest;

      - enter and search without warrant any premises to
      make any such arrest as aforesaid or to recover any
      person believed to be wrongfully restrained or
      confined or any property reasonably suspected to be
      stolen property or any arms, ammunition or explosive
      substances believed to be unlawfully kept in such
      premises, and may for that purpose use such force as
      may be necessary.

      - stop, search and seize any vehicle or vessel
      reasonably suspected to be carrying any person who is
      believed to have or has committed a non-cognizable
      offence or against whom a reasonable suspicion exists
      that he has committed or is about to commit a
      non-cognizable offence, or any person who is carrying
      any arms, ammunition or explosive substance believed
      to be unlawfully held by him, and may, for that
      purpose, use such force as may be necessary to effect
      such stoppage, search or seizure, as the case may be.
      “



      Any cop or army persons in his team have “the power to
      break open the lock of any door, almirah, safe, box,
      cupboard, drawer, package or other thing if the key
      thereof is withheld.”



      And “any person arrested and taken into custody under
      this Act and every property, arms, ammunition or
      explosive substance or any vehicle or vessel seized
      under this Act, shall be made over to the officer in
      charge of the nearest police station with the least
      possible delay, together with a report of the
      circumstances occasioning the arrest, or occasioning
      the seizure of such property, arms, ammunition or
      explosive substance or any vehicle or vessel as the
      case may be.”



      Whatever he does, the so-called citizens of India have
      to praise him, as “no prosecution, suit or other legal
      proceeding shall be instituted, except with the
      previous sanction of the Central Government, against
      any person in respect of anything done or purported to
      be done in exercise of the powers conferred by this
      Act. “



      To take advantage of all charitable out-pouring, the
      act also wants to rope all humanitarian NGOs into the
      States’ network by creating a Communal Disturbance
      Relief and Rehabilitation Council in the state
      notified. The Central or State government is empowered
      to create the council. As per the reservation of the
      seats in the council, it would serve no purpose “to
      suppress communal violence.”



      For example, if the Council is now created in Gujarat,
      it would be named as the Gujarat Disturbance Relief
      and Rehabilitation Council by this Act, and would be
      composed of:

      1. Chief Secretary…ex officio Chairperson (Modi’s
      man)

      2. Director General of Police …ex officio Member
      (Modi’s man)

      3. District Collector or District Commissioner of
      the district affected by communal violence …ex officio
      Member (Modi’s man)

      4. Superintendent of Police of the district
      affected by communal violence…ex officio Member
      (Modi’s man)

      5. Two persons to be nominated by the Central
      Government to represent social workers ………Members
      (professional social workers or RSS workers)

      6. Four persons to be nominated by the Central
      Government to represent minority community and victims
      of communal violence….Members (dumb and useless
      Congress supporters from the minority community)



      Thank you UPA!



      And this committee also, like the armymen and cops
      will not be accountable to the citizens as “no suit,
      prosecution or other legal proceedings shall lie
      against the State or the Central Government or any
      officer or authority of such Government or any other
      person or any member of the State Council or any
      officer of the State Council for anything which is in
      good faith done or intended to be done under the Act
      or the rules made thereunder.”



      And the Act goes on to create Special Courts: haven’t
      we had enough of them to try out atrocities on
      women/dalit, now communal? The Congress seems to be
      taking over the task launched by the NDA to revamp the
      constitution. The law, if at all needed, should
      concentrate on sources of communal hatred and fascist
      mobilisation, instead of its manifestation.



      Thank you PM for recently inaugurating the
      Chhattisgarh irrigation project, without telling
      anyone that $46 million was a high-interest ADB loan
      (LOAN: IND 37056-01) to be paid by the citizens. And
      we are nowhere anywhere near the ‘secular concerns’ of
      your government. Does anybody know whose concerns are
      being served at New Delhi?

      Wilfred D. (General Secretary, INSAF)<willy@...>


      THE COMMUNAL VIOLENCE (SUPPRESSION) BILL, 2005



      A

      BILL



      to provide for state government and the central
      government to take more effective measures to suppress
      communal violence perpetrated on such a scale which
      threatens the secular fabric, unity and integrity of
      the Nation and for matters connected therewith or
      incidental thereto.



      WHEREAS secularism is a basic feature of the
      Constitution;



      AND WHEREAS the Constitution imposes a duty on the
      Union to protect State against external aggression and
      internal disturbance;



      AND WHEREAS communal violence tends to create internal
      disturbance, destroy the secular fabric and threaten
      the unity and integrity of the Nation;



      AND WHEREAS it is necessary to generate faith and
      confidence in minority communities;



      NOW, THEREFORE, it is expedient to provide for
      suppression of communal violence effectively;



      Be it enacted by Parliament in the Fifty-sixth Year of
      the Republic of India as follows:





      CHAPTER I

      PRELIMINARY



      1. (1) This Act may be called the Communal Violence
      (Suppression) Act, 2005.



      2. (2) The extents to the whole of India except the
      State of Jammu and Kashmir



      3. (3) It shall come into force on such date as the
      Central Government may, by notification appoint; and
      different date may be appointed on different
      provisions of this Act and any reference in any such
      provision regarding commencement of this Act shall be
      construed in relation to that State as a reference in
      the coming into force of the said provision in that
      State.



      2. (1) In this Act, unless the context otherwise
      requires, -

      (a) “appropriate Government” means the State
      Government or the Central Government which has issued
      a notification under section 4;

      (b) “Code” means the Criminal Procedure Code, 1973;

      (c) “communally disturbed area” means an area
      disturbed as such under section 3 or section 4, as the
      case may be;

      (d) “notification” means a notification published in
      one Official Gazette;

      (e) period of disturbance, in relation to a
      communally disturbed area, means the period during
      which is to be a disturbed area for the purposes of
      section 3 or section 4;

      (f) “prescribed means prescribed by rules made
      under as this Act by the appropriate Government;

      (g) “scheduled offence” means an offence under the
      Indian Penal Code, 1860, specified in the Schedule
      being an offence committed while a declaration under
      section 3 or under section 4 is in force;

      (h) “Special Court” means a Special Court
      constituted under section 9;





      CHAPTER II

      DECLARATION OF CERTAIN AREAS AS COMMUNITY DISTURBED
      AREAS



      3. (1) Whenever the State
      Government or the Central Government is of the opinion
      that one or more scheduled offences are being
      committed in any area by any person or group of
      persons -



      (a) in which such manner and on such a scale which
      involves the use of criminal force or violence against
      any religious, racial, language or regional group,
      caste or community resulting in death or destruction
      of property; and

      (b) such use of criminal force or violence is
      committed with a view to create disharmony or feelings
      of enmity hatred or ill will between difference
      religious, racial, language or regional group, caste
      or community; and

      (c) unless immediate steps are taken there will be
      danger to the secular fabric, integrity or unity of
      India,



      it may by notification, declare such area as
      communally disturbed areas and take all immediate
      measures to suppress such violence or the use of
      criminal force.



      (2) A notification under sub-section (1) in respect
      of any area shall specify the period during which the
      area shall, for the purpose of this section, be a
      communally disturbed area:



      Provided that the period specified in such
      notification shall not, in the fast instance, exceed
      thirty days, but the State Government or the Central
      Government as the case may be, may amend such
      notification to extend such period from time to time
      by any period not exceeding thirty days of any one
      time, if in the opinion of that Government public
      peace and tranquillity continues to be disturbed in
      such areas



      (3) Where any area has been notified as communally
      disturbed area under sub-section (1), then, it shall
      be lawful for the State Government or the Central
      Government, as the case may be, to take all measures,
      which may be necessary to deal with the situation.



      4. (1) A notification under sub-section (1) of
      section 3 may be issued by the Central Government
      notwithstanding that the State Government had already
      issued a notification under sub-section (1) of section
      3 declaring such area as a communally disturbed area.



      (2) Where a notification is issued by the Central
      Government under sub-section (1), after a notification
      by the State Government under sub-section (1) of
      section 3, the notification of the Central Government
      shall prevail and the notification of the State
      Government shall be of no effect.








      Chapter III

      SPECIAL PROVISIONS FOR COMMUNALLY DISTURBED AREAS



      5. Without prejudice to the provisions of
      sub-section (3) of section 3, the Central Government
      may –



      (a) deploy the armed forces of the Union in such area
      to suppress the commission of such offences and to
      restore communal harmony and public peace and
      tranquillity;

      (b) nominate one or more officers of that Government
      not below the rank of an Additional Secretary to the
      Government of India, to coordinate the steps to be
      taken for dealing with the situation prevailing in the
      communally disturbed areas;

      (c) constitute such area into a single judicial zone
      or into as many judicial zones as it may deem fit.



      6. Notwithstanding anything contained in the
      Indian Penal Code, 1860, whoever commits any scheduled
      offence, in any communally disturbed area, punishable
      with imprisonment or with fine or with both, except an
      offence punishable with death or imprisonment for
      life, shall be punished with imprisonment for a term
      which may extend to twice the longest term of
      imprisonment and twice the highest fine provided for
      that offence.



      7. (1) Where any area has been declared as a
      communally disturbed area, then any commissioned
      officer, warrant officer, non-commissioned officer or
      any other person of equivalent rank in the armed
      forces may, in such area, -



      (a) if he is of opinion that it is necessary so to do
      for the maintenance of public order, after giving such
      due warning as he may consider necessary, fire upon or
      otherwise use force, even to the causing of death,
      against any person who is acting in contravention of
      any law or order for the time being in force in the
      communally disturbed area prohibiting the assembly of
      five or more persons or the carrying of weapons or of
      things capable of being used as weapons or of
      fire-arms, ammunition or explosives substance;

      (b) if he is of the opinion that it is necessary so
      to do, destroy any arms dump, prepared or fortified
      position or shelter from which armed attacks are made
      or likely to be made or are attempted to be made, or
      any structure used as a training camp for armed
      volunteers or utilized as a hide-out by armed gangs or
      absconders wanted for any offence;

      (c) arrest, without warrant, any person who has
      committed a cognizable offence or against whom a
      reasonable suspicion exists that he has committed or
      is about to commit a cognizable offence and may use
      such force as may be necessary to effect the arrest;

      (d) enter and search without warrant any premises to
      make any such arrest as aforesaid or to recover any
      person believed to be wrongfully restrained or
      confined or any property reasonably suspected to be
      stolen property or any arms, ammunition or explosive
      substances believed to be unlawfully kept in such
      premises, and may for that purpose use such force as
      may be necessary.

      (e) stop, search and seize any vehicle or vessel
      reasonably suspected to be carrying any person who is
      believed to have or has committed a non-cognizable
      offence or against whom a reasonable suspicion exists
      that he has committed or is about to commit a
      non-cognizable offence, or any person who is carrying
      any arms, ammunition or explosive substance believed
      to be unlawfully held by him, and may, for that
      purpose, use such force as may be necessary to effect
      such stoppage, search or seizure, as the case may be.



      8. Every person making a search under this Act
      shall have the power to break open the lock of any
      door, almirah, safe, box, cupboard, drawer, package or
      other thing if the key thereof is withheld.



      9. Any person arrested and taken into custody
      under this Act and every property, arms, ammunition or
      explosive substance or any vehicle or vessel seized
      under this Act, shall be made over to the officer in
      charge of the nearest police station with the least
      possible delay, together with a report of the
      circumstances occasioning the arrest, or occasioning
      the seizure of such property, arms, ammunition or
      explosive substance or any vehicle or vessel as the
      case may be.



      10. No prosecution, suit or other legal proceeding
      shall be instituted, except with the previous sanction
      of the Central Government, against any person in
      respect of anything done or purported to be done in
      exercise of the powers conferred by this Act.





      CHAPTER IV

      SPECIAL COURTS



      11. (1) For the purposes of providing for speedy trial
      of scheduled offences committed in a judicial zone,
      the appropriate Government may, establish, by
      notification in the official Gazette, a Special Court
      in relation to such judicial zone.

      (a) within such judicial zone; or

      (b) if the appropriate Government having regard to
      the exigencies of such situation prevailing in such
      judicial zone considers it expedient so to do, at any
      place outside such judicial zone but within the State
      in which such judicial zone is situated.



      (2) Notwithstanding anything contained in sub
      section (1), if, having regard to the exigencies of
      the situation prevailing in a State, the appropriate
      Government is of the opinion that it is expedient to
      establish in relation to a judicial zone, or in
      relation to two or more judicial zones, in the State
      and addition Special Courts outside the State, for the
      trial of such scheduled offences committed in the
      judicial zone or judicial zones, the trial whereof
      within the State -

      (a) is not likely to be fair or impartial or
      completed with utmost dispatch; or

      (b) is not likely to be feasible without occasioning
      a breach of peace or grave risk to the safety of the
      accused, the witnesses, the Public Prosecutor and the
      Judge or any of them; or

      (c) is not otherwise in the interest of justice,



      the appropriate Government may establish in relation
      to such judicial zone or judicial zones an Additional
      Special Court outside the State and thereupon the
      appropriate Government may, after taking into account
      the information furnished by the State

      Government and making such inquiry, if any, as it may
      deem fit, establish, by notification in the Official
      Gazette, such Additional Special Courts at such place
      outside the State as may be specified in the
      notification.



      12. (1) A Special Court shall be presided over by a
      Judge to be appointed by the appropriate Government
      with the concurrence of the Chief Justice of the High
      Court.



      (2) The appropriate Government may also appoint, with
      the concurrence of the Chief Justice of the High
      Court, Additional Judges to exercise jurisdiction in a
      Special Court.



      (3) A person shall not to be qualified for appointment
      as a Judge or an Additional Judge of a Special Court
      unless he is immediately before such appointment a
      Sessions Judge or an Additional Sessions Judge in any
      State.



      (4) For the removal of doubts, it is hereby provided
      that the attainment by a person appointed as a Judge
      or an Additional Judge of a Special Court, of an age
      of superannuation under the rules applicable to him in
      the Service to which he belongs, shall not affect his
      continuance as such Judge or Additional Judge.



      (5) Where any Additional Judge or Additional Judges
      is, or are, appointed in a Special Court, the Judge of
      the Special Court may, from time to time, by general
      or special order, in writing, provide for the
      distribution of business of the Special Court among
      himself and the additional Judge or Additional Judges
      and also for the disposal of urgent business in the
      event of his absence or the absence of any Additional
      Judge.



      13. A Special Court may, if it considers it expedient
      or desirable so to do sit for any or its proceedings
      at any place other than the ordinary place of its
      sitting, in the State in which it was established.



      Provided that if the Public Prosecutor certifies
      to the Special Court that it is in his opinion
      necessary for the protection of the accused or any
      witness or otherwise expedient in the interest of
      justice that the whole or any part of the trial should
      be held at some place other than the ordinary place of
      its sitting, the Special Court may, after hearing the
      accused, make an order to that effect unless, for
      reasons to be recorded in writing, the Special Court
      thinks fit to make any other order.



      14. (1) Notwithstanding anything contained in the Code
      or in any other law, a scheduled offence committed in
      a judicial zone in a State at any time during the
      period during which such judicial zone is, or is part
      of, a communally area shall be triable, whether during
      or after the expiry of such period, only by the
      Special Court established for such judicial zone in
      the State.



      Provided that where the period specified under
      sub-section (2) of section 3 as the period during
      which an area declared by notification under
      sub-section (1) of that section to be a communally
      disturbed area commences from a date earlier than the
      date on which such notification is issued, then –



      (a) nothing in the foregoing provisions of this
      sub-section shall apply to a scheduled offence
      committed in such area in which the whole of the
      evidence for the prosecution has been taken before the
      date of issue of such notification; and

      (b) all other cases involving scheduled offences
      committed in such area and pending before any court
      immediately before the date of issue of such
      notification shall stand transferred to the Special
      Court having jurisdiction under this section and the
      Special Court to which such proceedings stand
      transferred shall proceed with such cases from the
      stage at which they were pending at that time.

      (2) Notwithstanding anything contained in sub-section
      (1), if in respect of a case involving a scheduled
      offence committed in any judicial zone in a State, the
      Central Government, having regard to the provisions of
      sub-section (2) of section 4 and the facts and
      circumstances of the case and all other relevant
      factors, is of the opinion that it is expedient that
      such offence should be tried by the Additional Special
      court established in relation to such judicial zone
      outside the State, the Central Government may make a
      declaration to that effect:



      Provided that no such declaration shall be made unless
      the State Government has forwarded to the Central
      Government a report in writing containing a request
      for making of such declaration.



      Explanation – Where an Additional Special Court is
      established in relation to two or more judicial zones,
      such Additional Special Court shall be deemed, for the
      purposes of this sub-section, to have been established
      in relation to each of such judicial zones.



      (3) A declaration made under sub-section (2) shall not
      be called in question in any court.



      (4) Where any declaration is made in respect of any
      offence committed in a judicial zone in a State, any
      prosecution in respect of such offence shall be
      instituted only in the Additional Special Court
      established in relation to such judicial zone outside
      the State, and if any prosecution in respect of such
      offence is pending immediately before such declaration
      in any other court the same shall stand transferred to
      such Additional Special Court and such additional
      Special Court shall proceed with such case from the
      stage at which it was pending at that time.



      15 (1) When trying any scheduled offence, a Special
      Court may also try any offence other than the
      scheduled offence with which the accused may, under
      the Code, be charged at the same trial if the offence
      is connected with the scheduled offence.



      (2) If in the course of any trial under this Act, it
      is found that the accused person has committed any
      offence, the Special Court may, whether such offence
      is or is not a scheduled offence, convict such person
      of such offence and pass any sentence authorised by
      law for the punishment thereof. .



      16 (1) For every Special Court, the appropriate
      Government shall appoint a person to be the Public
      Prosecutor and may appoint one or more persons to be
      the Additional Public Prosecutors:



      Provided that the appropriate Government may also
      appoint for any case or class of cases a Special
      Public Prosecutor.



      (2) A person shall be eligible to be appointed as a
      Public Prosecutor or an Additional Public Prosecutor
      or a Special Public Prosecutor under this section only
      if he has been in practice as an Advocate for not less
      than seven years or has held any post, for a period of
      not less than seven years, under the Union or a State,
      requiring special knowledge of law.



      (3) Every person appointed as a Public Prosecutor or
      an Additional Public Prosecutor or a Special Public
      Prosecutor under this section shall be deemed to be a
      Public Prosecutor within the meaning of clause (u) of
      Section 2 of the Code, and the provisions of the Code
      shall have effect accordingly.



      17. (1) A Special Court may take cognizance of any
      scheduled offence, without the accused being committed
      to it for trial, upon receiving a complaint of facts
      which constitute such offence or upon a police report
      of such facts.



      (2) Where a scheduled offence is punishable with
      imprisonment for a term not exceeding three years or
      with fine or with both, a Special Court may,
      notwithstanding anything contained in sub-section (1)
      of section 260 or section 262 of the Code, try the
      offence in a summary way in accordance with the
      procedure prescribed in the Code and the provisions of
      section 263 to 265 of the Code shall, so far as may
      be, apply to such trial:



      Provided that when, in the course of a summary trial
      under this sub-section, it appears to the Special
      Court that the nature of the case is such that it is
      undesirable to try it in a summary way, the Special
      Court shall recall any witnesses who may have been
      examined and proceed to re-hear the case in the manner
      provided by the provisions of the Code for the trial
      of such offence and the said provisions shall apply to
      and in relation to a Special Court as they apply to
      and in relation to a Magistrate:



      Provided further that in the case of any conviction in
      a summary trial under this section, it shall be lawful
      for a Special Court to pass a sentence of imprisonment
      for a term not exceeding two years.



      (3) A Special Court may with a view to obtaining the
      evidence of any person supposed to have been directly
      or indirectly concerned in, or privy to, an offence,
      tender a pardon to such person on condition of his
      making a full and true disclosure of the whole
      circumstances within his knowledge relative to the
      offence and to every other person concerned whether as
      principal or abettor in the commission thereof, and
      pardon so tendered shall, for the purposes of section
      308 of the Code, be deemed to have been tendered under
      section 307 thereof.



      (4) Subject to the other provisions of this Act, a
      Special Court shall, for the purpose of trial of any
      offence, have all the powers of a Court of Session and
      shall try such offence as if it were a Court of
      Session so far as may be in accordance with such
      procedure prescribed in the Code for the trial before
      a Court of Session.



      (5) Subject to the other provisions of this Act,
      every case before an Additional Special Court shall be
      dealt with as if such case had been transferred under
      section 406 of the Code to such Additional Special
      Court.



      18. Whenever it is made to appear to the Supreme Court
      that an order under this section is expedient for the
      ends of justice, it may direct that any particular
      case be transferred from one Special Court to another
      Special court.



      19. (1) A Special Court may, or an application made by
      a witness in any proceedings before it or by the
      Public Prosecutor in relation to such witness or on
      its own motion, take such measures as it deems fit for
      keeping the identity and addresses of the witness
      secret.



      (2) In particular and without prejudice to the
      generality of the provisions of sub-section (1), the
      measures which a Special Court may take under that
      sub-section may include-



      (a) the holding of the proceedings at a protected
      place;

      (b) the avoiding of the mention of the names and
      addresses of the witnesses in its orders or judgements
      or in any records of the case accessible to public;

      (c) the issuing of any directions for securing that
      the identity and addresses of the witnesses are not
      disclosed.



      (3) Any person who contravenes any direction issued
      under sub-section (2) shall be punishable with
      imprisonment for a term which may extend to one year
      and with fine which may extend to one thousand rupees.



      20.Where after taking cognizance of any offence, a
      Special Court is of opinion that the offence is not a
      scheduled offence, it shall, notwithstanding that it
      has no jurisdiction to try such offence, transfer the
      case for trial of such offence to any court having
      jurisdiction under the Court and the court having
      jurisdiction under the Court and the court to which
      the case is transferred may proceed with the trial of
      the offence as if it has taken cognizance of the
      offence.



      21. (1) Where a Special Court is satisfied, upon a
      complaint or a police report that a person is likely
      to commit a scheduled offence in any communally
      disturbed area, it may, by order in writing, direct
      such person to remove himself beyond the limit of such
      area, by such route and within such time as may be
      specified in the order, and not to return to that area
      from which he was directed to remove himself for such
      period, not exceeding six months, as may be specified
      in order.





      (2) The Special Court shall, along with the order
      under sub-section (1) communicate to the person
      directed that, under sub-section the grounds on which
      such order has been made.



      (3) The Special Court may revoke or modify the order
      made under sub-section (1), for the reasons to be
      recorded in writing, on the representation made by the
      person against whom such order has been made or by any
      other person on his behalf within thirty days from the
      date of the order.



      22. (1) If a person to whom a direction has been
      issued under section 21 to remove himself from any
      area -



      (a) fails to remove himself as directed, or

      (b) having so remove himself enters such area within
      the period specified in the order,



      otherwise than with the permission in writing of the
      Special Court under sub-section (2), the Special Court
      may cause himself to be arrested and removed in police
      custody to such place outside such area as the Special
      Court may specify.



      (2) The Special Court may, by order in writing, permit
      any person in respect of whom an order under section
      19 has been made, to return to be area from which he
      was directed to remove himself for such temporary
      period and subject to such conditions as may be
      specified in such order and may require him to execute
      a bond with or without surely for the due observation
      of the conditions imposed.



      (3) The Special Court may at any time revoke any such
      permission.



      (4) Any person who, with such permission, returns to
      the area from which he was directed to remove himself
      shall observe the conditions impose, and at the expiry
      of the temporary period for which he was permitted to
      return, or on the revocation of such permission before
      the expiry of such temporary period, shall remove
      himself outside such area and shall not return thereto
      within the unimpaired portion specified under section
      19 without a fresh permission.



      (5) If a person fails to observe any of the conditions
      imposed or to remove himself accordingly or having so
      removed himself enters or returns to such area without
      fresh permission the Special Court may cause him to be
      arrested and removed in the police custody to such
      place outside such area as the Special Court may
      specify.



      23 (1) Every person against whom an order has been
      made under section 21 shall, if so required by the
      Special Court, allow his measurement and photographs
      to be taken by a police officer.



      (2) If any person referred to in sub-section (1), when
      required to allow his measurements or photographs to
      be taken, resists or refuses to allow the taking of
      such measurements or photographs, it shall be lawful
      to use all necessary means to secure the taking
      thereof.



      (3) Resistance to or refusal to allow the taking of
      measurements and photographs (including negatives)
      taken under sub-section (2) shall be deemed to be an
      offence under section 186 0f the Indian Penal Code.



      (4) Where an order under section 19 is revoked, all
      measurements and photographs (including negatives)
      taken under sub-section 2 shall be destroyed or made
      over to the person against whom such order is made.



      24. (1) Notwithstanding anything contained in the Code
      or any other law, every scheduled offence shall be
      deemed to be a cognizable offence within the meaning
      of clause (c) of section 2 of the Code and “cognizable
      case” as defined in that clause shall be construed
      accordingly.



      (2) Section 167 of the Code shall apply in relation to
      a case involving a scheduled offence subject to the
      modifications that –



      (a) the reference in sub-section (1) thereof to
      “Judicial Magistrate” shall be construed as a
      reference to “Judicial Magistrate or Executive
      Magistrate”.

      (b) the references in sub-section thereof to
      “fifteen days” , “ninety days” and “sixty days”,
      wherever they occur shall be construed as references
      to “thirty days”, “ one year” and “one year”.
      respectively; and

      (c) sub-section (2A) shall be deemed to have been
      omitted.



      (3) Section 366 and 377 and section 392 of the Code,
      shall apply in relation to a case involving a
      scheduled offence, subject to the modifications that
      the references to “Court of Session” and “High Court”,
      wherever occurring therein shall be construed as
      references to “Special Court” and “Supreme Court”
      respectively.



      (4) Nothing in section 483 of the Code shall apply in
      relation to any case involving the arrest of any
      person on an accusation of having committed a
      scheduled offence in communally disturbed area.



      (5) Notwithstanding anything contained in the Code, no
      person accused of a scheduled offence shall, if in
      custody, be released on bail or on his own bond unless
      –



      (a) the Public Prosecutor has been given an
      opportunity to oppose the application for such
      release, and

      (b) where the Public Prosecutor opposes the
      application, the court is satisfied that there are
      reasonable grounds for believing that he is not guilty
      of such offence and that he is not likely to commit
      any offence while on bail.



      (6) The limitations on granting of bail specified in
      sub-section (5) or in addition to the limitations
      under the Code or any other law for the time being in
      force on granting of bail.



      25. Where the area are comprising a judicial zone has
      ceased to be a communally disturbed area and no cases
      are pending before a Special Court or an Additional
      Special Court established in relation to such judicial
      zone, the Central Government may, by notification in
      the Official Gazette, abolish such Special Court or
      Additional Special Court.



      26 (1) Whenever an area has been declared under
      sub-section (1) of section 3 or sub-section (1) of
      section 4 as a communally disturbed area, the State
      Government shall without prejudice to clause (s) of
      section 2 of the Code, declare any post or place
      within such area to be a police station and the
      provisions of Chapter XII of the Code shall so far as
      may be, apply in relation to information to the police
      and their powers to investigate.



      (2) The State Government shall provide as many women
      police officers as possible to record any information
      relating to the commission of a scheduled offence
      committed against women or children in the communally
      disturbed area and to investigate any such offence.



      27. Whenever a Special Court convicts a person for an
      offence punishable under Chapter XVI, Chapter XVII or
      Chapter XXI of the Code, it may, by its sentence,
      order that the offender shall make such monetary
      compensation as may be specified therein to the person
      mentioned in sub-section (5) for any loss or damage
      arising from such offence.



      (2) The amount of compensation directed to be made
      under sub-section (1) shall not exceed the amount of
      fine which the court is empowered to impose.



      (3) An order under sub-section (1) may be made in
      addition to any other punishment to which the person
      convicted has been sentenced or where the offences is
      punishable with fine only, or with imprisonment for a
      period not exceeding three months, such order may be
      in lieu of any other punishment.



      (4) Before passing any order under sub-section (1) the
      court shall take into consideration the nature of the
      offence, the motive therefore, the economic, status of
      the offender and the person in whose favour such order
      is made, and all other relevant factors.



      (5) The compensation under sub-section (1) may be
      directed to be paid -



      (i) to any person who has incurred expenses in
      prosecution, for defraying expenses properly incurred.



      (ii) to any person form any loss, damage or injury
      caused by the offence, when the compensation therefore
      is in opinion of the court, recoverable by such person
      in civil court;



      (iii) in the case of a conviction for any offence for
      having caused the death of another person or of having
      abetted the commission of such an offence to the
      person who are, under the Fatal Accidents Act, 1855,
      entitled to recover damages from the person sentenced,
      for the loss resulting to them to such death;



      (iv) in the case of a conviction for any offence which
      included theft, criminal misappropriation, criminal
      breach of trust, or cheating or of having dishonestly
      received or retained, or of having voluntarily
      assisted in disposing of stolen property knowing or
      having reason to believe the same to be stolen to any
      bona fide purchaser of such property for the loss of
      the same, if such property is restored to the
      possession of the person entitled thereto.



      (6) At the time of awarding compensation in any
      subsequent civil suit relating to the same matter, the
      court shall take into account any sum paid or
      recovered as compensation under this section.



      (7) For the purposes of this Act, an award of
      compensation under sub-section (1) shall be deemed to
      be a sentence of fine.



      28. In a prosecution for a scheduled offence, if it is
      proved that an accused has rendered any financial
      assistance to a person accused of, or reasonably
      suspected of, committing such an offence, the Special
      Court shall presume, unless the contrary if proved,
      that such person has abetted the offence.



      29. In a prosecution of a scheduled offence, if it is
      proved that –



      (a) any arms or explosive or any other material or
      substance were recovered from the possession of the
      accused and there is reason to believe that such arms
      or explosive or other material or substance were used
      in the commission of such offence; or

      (b) the finger-prints of the accused were found at
      the site of such offence or on anything including arms
      and vehicles used in connection with the commission of
      such offence,



      the Special Court shall draw adverse inference against
      the accused.





      CHAPTER V

      RELIEF AND REHABILITATION



      30. In this Chapter, unless the context otherwise
      requires –



      (a) “Council” means the Communal Violence Relief
      and Rehabilitation Council constituted by the State
      Government under section 31;

      (b) “Fund” means the fund of the Council
      constituted under section 33;

      (c) “Member” means a member of the Council;

      (d) “relief and rehabilitation” includes providing
      counselling, medical care, food, shelter, clothing,
      education and vocational training to a victim of
      communal violence.



      31. (1) Whenever any area is notified as a communally
      disturbed area under sub-section (1) of section 3 or
      under sub-section (1) of section 4 by the State or the
      Central Government, as the case may be, a Council to
      be known as (Name of the State) Communal Disturbance
      Relief and Rehabilitation Council shall forthwith be
      constituted by the State Government, which shall
      consist of the following Members, namely: -

      (a) Chief Secretary…ex officio Chairperson;

      (b) Director General of Police …ex officio Member;

      (c) District Collector or District Commissioner of
      the district affected by communal violence …ex officio
      Member;

      (d) Superintendent of Police of the district
      affected by communal violence…ex officio Member;

      (e) two persons to be nominated by the Central
      Government to represent social workers ………Members;

      (f) four persons to be nominated by the Central
      Government to represent minority community and victims
      of communal violence ………..Members;



      (2) The Council shall have the responsibility of
      planning, relief and rehabilitation measures and
      co-ordination, monitoring the implementation of such
      measures.



      32 (1) Without prejudice to the generality of the
      provision of sub-section (1), the Council shall –



      (a) advise the State Government in matters relating
      to relief and rehabilitation of victims of communal
      violence;

      (b) establish a system of single window to complete
      all administrative formalities in relation to
      providing quick relief and rehabilitation to the
      victims of communal violence;

      (c) co-ordinate, control and monitor the functioning
      of the relief and rehabilitation;

      (d) make available ration cards or other identity
      cards;

      (e) certify loss or damage of educational or other
      certificates of ownership or other documents in
      respect of the victims of communal violence;

      (f) facilitate the students of the areas affected
      by communal violence to appear for any examination and
      to provide security for the purpose;

      (g) establish centers for rehabilitating the
      children of victims of communal violence;

      (h) establish a single window clearance scheme for
      speedy disposal of insurance claims and for providing
      soft loans by financial institutions or measures
      relating to re-scheduling of loans and interest
      payments in cases of affected victims of communal
      violence in consultation with the financial
      institutions;

      (i) undertake awareness generation programme to
      prevent occurrence of communal violence;

      (j) draw up guidelines for the assessment of
      compensation in respect of the losses suffered by
      every individual in communal violence so as to assess
      the –



      (i) loss of, or damage to, homes and belongings;

      (ii) loss of life and injuries sustained;

      (iii) destruction of, or damage to, business and the
      loss of means of livelihood;

      (iv) impact of sexual assaults or abuse on women;



      (k) recommend welfare measures to be adopted and
      implemented by the appropriate Government with a view
      to ameliorating the conditions of victims of communal
      violence;

      (l) facilitate speedy prosecution of cases
      arising of communal violence;

      (m) restore and repair the places of worship damaged
      or destroyed during the communal violence, in
      consultation and with consensus of the members of the
      affected community;

      (n) formulate a comprehensive and affirmative scheme
      for welfare of victims of communal violence and devise
      a programme for implementing such schemes with the
      approval of the appropriate Government and implement
      the scheme;

      (o) activate the functioning of the district
      communal harmony committee;

      (p) maintain comprehensive data bank relating to the
      social economic development of victims of communal
      violence;

      (q) to report the appropriate Government the
      inadequacies or shortcomings in any law for the time
      being in force and also on the remedial measures; and

      (r) perform such other functions as may be
      incidental or ancillary thereto as may be assigned by
      the appropriate Government from time to time.



      (4) The procedure of the Council shall be such as may
      be prescribed.



      33 (1) Where any area is notified under section 3 or
      section 4 as a communally disturbed area and a Council
      has been constituted, then, the State Government may
      establish a Fund to be called the (Name of the State)
      (Communal Disturbance Relief and Rehabilitation) Fund
      and these shall be credited thereto –



      (a) all moneys received from such Government;

      (b) all moneys received by the Council by way of
      grants, gifts or donations, from such Government or a
      local authority or an individual or organisation,
      whether incorporated or not, for all or any of the
      purposes of this Act;

      (c) amounts received as aid from the international
      organisations or organisations in India, where
      necessary, with the prior approval of the Central
      Government, for the rehabilitation or welfare of
      victims of communal violence;

      (d) any amount borrowed by the Council, and

      (e) such other sums as may be received by the Council
      in any other manner or from any other source.



      (2) All moneys belonging to the Fund shall be
      deposited in such bank or invested in such manner as
      the Council may, subject to the approval of the
      appropriate Government, decide.



      (3) The Fund shall be applied for the following
      purposes, namely: -

      (a) for the purpose of grants for relief and
      rehabilitation;

      (b) for the construction of, or giving grants to
      non-Governmental organisations to build homes for
      victims of communal violence;

      (c) for establishing and running educational
      institutions for imparting education to the children
      of victims of communal violence;

      (d) for meeting the expenses for exercising or
      performing other powers and functions of the Council
      under section 32; and

      (e) for such other purposes as may be prescribed.



      34. The Council shall have the power to receive such
      contributions as may be fixed by the State or the
      Central Government from time to time from the public.



      35. No suit, prosecution or other legal proceedings
      shall lie against the State or the Central Government
      or any officer or authority of such Government or any
      other person or any member of the State Council or any
      officer of the State Council for anything which is in
      good faith done or intended to be done under the Act
      or the rules made thereunder.



      36. Save as otherwise provided, the provisions of this
      Act shall be in addition to and not in derogation of
      any other laws for the time being in force except to
      the extent the provisions of other laws are
      inconsistent with the provisions of this Act.



      37. (1) The Central Government may, by notification in
      the Official Gazette make rules for carrying out the
      purposes of this Act.



      (2) Every rule made under this Act shall be laid, as
      soon as may be after it is made, before each House of
      Parliament, while it is in session for a total period
      of thirty days which may be comprised in one session
      or in two or more successive sessions, and if, before
      the expiry of the session immediately following the
      session or the successive sessions, aforesaid, both
      Houses agree in making any modification in the rule or
      both Houses agree that the rule should not be made,
      the rule shall thereafter have effect only in such
      modified form or be of no effect, as the case may be;
      show however, that any such modification annulment
      shall be without prejudice to the validity of anything
      previously done under that rule.



      38 (1) The State Government may, by notification in
      the Official Gazette, make rules for carrying out the
      purposes of this Act.



      (2) Every rule made under this act shall be laid, as
      soon as may be after it is made, before the
      Legislative Assembly while it is in session for a
      total period of fourteen days which may be comprised
      in one session or in two successive sessions, and if
      before the expiry of the session in which it is so
      laid or the session immediately following, the
      Legislative assembly makes any modification in the
      rules or decides that the rule should not be made, the
      rule shall thereafter have effect only in such
      modified from or be of no effect, as the case may be,
      so however, that any such modification or annulment
      shall be without prejudice to the validity of anything
      previously done under that rule.



      39 (1) If any difficulty arises in giving effect to
      the provisions of this Act, the Central Government
      may, by order do anything not inconsistent with such
      provisions, which appear to it necessary for the
      purpose of removing the difficulty:



      Provided that no order shall be made under this
      section after the expiry of two years from the
      commencement of this Act.



      (2) Every order made under this Act shall, as soon as
      may be after it is made, be laid before each House of Parliament.
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