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