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An Evaluation Of The Communal Violence (Suppression) Bill, 2005

By Colin Gonsalves

14 August, 2005
The Indian Express

The big question is, would a communal violence law have prevented the 1984 riots? My guess is that the Communal Violence (Suppression) Bill, 2005, in its present draft, would have proved a dud. Today, when the country is confronting its history of riots, we should also think of ways to
come up with a more effective piece of legislation to deal with communal violence.

The fatal flaw in the Draft Bill is that it cannot be invoked even when communal crimes take place unless the state or the central government decides to declare an area as communally disturbed. Therefore, if a state has the support of the Centre, it can engage in the most heinous communal crimes and get away with it. The Act can only be invoked in the most extreme circumstances where there is criminal violence resulting in death or destruction of property and there is danger to the unity of India. There are myriad kinds of serious communal crimes which may not result in death, such as rape, and which are not considered to result in danger to the unity of the country. All these crimes fall outside the ambit of this Draft. Even if such circumstances do exist, it only prescribes that the government
'may' act. On the face of it, the duty to act is not mandatory.

Chapter III has the most controversial provisions importing the provisions of the Armed Forces Special Protection Act in order to allow the army to intervene at will, even kill. Section 10 which grants immunity to the police and the army is particularly insensitive. Various Commissions of
Inquiry have found the police and civil authorities either passive or partisan. Section 22 introduces the POTA provisions relating to bail and remand, doubling the maximum days of remand and making grant of bail impossible. These were some of the offensive provisions that led to the repeal of POTA.

Communal crimes are nowhere defined. Apart from the obvious crimes; gender violence including the insertion of objects in the genitals, social and economic boycotts, forcible evictions, restraint on access to public spaces, residential segregation, deprivation of access to food and medicines, enforced disappearances, interference with the right to education, using religious weapons and ceremonies to intimidate, interference with police work, advocating the destruction of a religious structure, need to be specifically set out in the statute. A chapter is necessary to punish the police and members of the security forces for their involvement in communal crimes particularly when FIRs are not registered or registered improperly, when security is not provided to minorities under attack, when
destruction of property is not prevented and when inadequate forces are deployed. Where the officers stand firm - and there were many such fine examples of bravery even in Gujarat - the rioters are quickly scattered. No communal riot can take place without the support of the police and the security forces. They must be severely punished for not doing their duty.

A chapter on preventive action to be taken by the authorities along the lines of the SC/ST Atrocities Act is also needed. Apart from section 21 which deals with the externment of persons there is nothing else. Immediately on receiving information the officials should visit the area, establish a police outpost, begin patrolling with special police forces and form vigilance committees. The abject failure of the criminal justice system because of the undermining role of the police and the public prosecutor, who often side with the accused, needs special legislative attention.

Commissions of inquiry

* Justice Ranganath Mishra Commission (Delhi riots)
* Justice Raghuvir Dayal Commission (Ahmednagar riots)
* Justice Jagmohan Reddy Commission (Ahmedabad riots)
* Justice D.P. Madan Commission (Bhiwandi riots)
* Justice Joseph Vithyathil Commission (Tellicheri riots)
* Justice J. Narain, S.K. Ghosh and S.Q. Rizvi Commission (Jamshedpur riots)
* Justice R.C.P. Sinha and S.S. Hasan Commission (Bhagalpur riots)
* Justice Srikrishna Commission (Bombay riots)

After the last racial riots in Britain, the McPhearson Committee recommended that complaints be registered at places other than police stations and suggested ways of overcoming 'institutionalised racism'. Complaints ought to be registered even electronically. Recognising the role of the police in communal riots, it is critical that the immunity granted under sections 195, 196 and 197 of the Criminal Procedure Code be omitted in any statute on communal crimes. No junior officer should be allowed to take the defence that he was ordered by his superior to commit the crime. Nor should any commanding officer be allowed to take the defence that he was unaware of the crimes that were committed on his beat.

Similarly, public prosecutors who side with the accused persons and enable them to be released on bail or are instrumental in their acquittal ought also to come under legislative scrutiny. A section is necessary to allow the trial judge, who finds the performance of the prosecutor unsatisfactory, to remove him from the case. Politicians must come in for special mention in the legislation. Any minister interfering with police work by shielding the accused, misdirecting police investigation or by preventing relief from reaching the victims should be treated as a common criminal.

There is no provision in the present Draft Bill relating to the duties of authorities after the riots takes place. A section is necessary requiring the authorities to provide immediate relief, protection from further acts of violence, to prepare a list of victims and their losses, to provide for legal aid and for allowances and facilities during legal proceedings. Likewise, provisions are required to enable the arrest and detention of people engaging in hate speeches and enabling the court to shift the investigation to the CBI in cases of involvement of the local police in the communal crime. Section 27 of the Bill deals with compensation to be paid to the victims but restricts the compensation to the amount of fine payable under the Code which is a few thousand rupees. In Chapter XIII of the Communal Crimes Bill submitted by Anhad, an anti-communal group, the suggested sections made it mandatory for government to set up relief camps, pay subsistence allowance, pay substantial compensation and provide reasonable rehabilitation including alternative sites and housing and reconstruct the destroyed places of worship at government's expense. All these victim's rights are missing from the government Bill.

There is, of course, a wishy-washy Section 31 in the Draft Bill requiring the government to plan and coordinate relief and rehabilitation measures but this section falls short of clearly enunciating a victim's rights enforceable in a court. Once again had government cared to look at the Atrocities Act, it would have noticed the provisions relating to the collective fine where the community harboring the aggressors could be substantially fined and the money used for the payment of compensation. A special section on communal crimes against women and children is solely needed covering sexual violence, penetrative assault, sexual slavery, enforced prostitution, forced pregnancies, enforces sterilisation and other forms of sexual violence. The rules of evidence need to be modified so that the victim is not further victimised during the trial.


The writer is the senior advocate with the Supreme Court


 

 

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