SUBMITTED TO NAC SUB GROUP ON CV BILL ON JUNE 24, 2010
PROPOSED AMMENDMENTS TO THE COMMUNAL VIOLENCE (PREVENTION, CONTROL AND REHABILITATION OF VICTIMS) BILL, 2005
The demand for a law on communal violence emerged from a brutal record of recurring violence in our country, the increasing occurrence of gender-based crimes in communal conflagrations, and completes impunity for mass crimes.
The UPA Government's Common Minimum Programme in 2004 had promised to give the citizens of this country a ‘comprehensive legislation' to fill this legal vacuum. We were promised a legislation that would strengthen the hands of the citizens in the struggle against communalism. However, The Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill 2005, introduced in the Rajya Sabha in December 5, 2005 , was a complete betrayal of that promise. The 2005 Bill was roundly criticized and rejected by civil society at all levels. Eminent jurists, legal experts, activists who worked with survivors and all prominent minority groups rejected the Bill and urged the Government to make serious changes in it. The Bill was sent to the Parliamentary Standing Committee on Home Affairs for its review and recommendations. But the Standing Committee report, when it was finally tabled in Parliament in December 2006, suggested no significant changes.
Between 2005 and 2009, civil society groups repeatedly engaged with the government at all levels and time and again communicated our serious objections to this Bill. Anhad organized the first National consultation on the bill on June 17, 2007 . Activist, jurists wrote critiques, gave alternative formulations, alternative draft laws, and suggested changes in several specific Chapters and clauses.
The UPA government introduced 59 amendments into the Communal Violence Bill 2009. These were cleared by the Cabinet. These 59 amendments merely tinkered with the Bill. They did not make any structural changes.
Anhad organized the second National Consultation to discuss the Communal Violence Bill 2009 in February, 2010. Over 200 activists, jurists participated in the National Consultation from across India . A core group was formed after the consultation to engage with the government on behalf of various organizations which met during the national consultation.
The participants of the national consultation organized major public meetings across India to discuss the Bill. The Delhi core group that emerged after the national consultation met various ministers and political leaders. Several meetings took place with the Law Minister and his colleagues in the Ministry.
The core group submitted the Proposed Amendments to the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 on May 29th, 2010 to the Law Minister and to the Sub group on CV Bill, National Advisory Council Today, on June 24, 2010
The proposed amendments have been endorsed by the participants of the National Consultation and other groups as under:
Academy for Socio Legal Studies, Rajasthan
Ali Asghar, Hyderabad , Andhra Pradesh
Anasuya Byndoor, SWARAJ Network, Karnataka
Anil K. Chaudhary, Popular Education and Action Center (PEACE)
Annie Raja, National General Secretary, National Federation of Indian Women
Anuradha Marwah, Ajmer Adult Education Association, Ajmer , Rajasthan
Anwesa, At: SBI Colony, PO : Chatrapur, Dist: Ganjam, PIN: 761020
Asha, All India Dalit Mahila Adhikar Manch (AIDMAM)
Assocation for the Protection of Civil Rights, Rajasthan
Ather Moin, The Siasat Daily, Hyderabad , Andhra Pradesh
Avinash Kumar, Oxfam India
Bhoga Nanjunda, Co-ordinator, CIEDS Collective, Bangalore , Karnataka
Bimla, Ekta, Madurai , Tamil Nadu
C K Viswanath-, Kunnoor , Kerala
Chand Peer, Director, Indian Social Institute, Bangalore , Karnataka
Colin Gonzalves , Supreme Court Advocate, Delhi
Dalit Muslim Ekta Manch, Rajasthan
Dhirendra Panda, Common Concern, Orissa
Dr Angana Chatterjee, Professor, Department of Social and Cultural Anthropology, California Institute of Integral Studies, San Francisco.
Dr Beulah Shekhar , National General Secretary, YWCA of India
Dr. Asghar Ali Engineer , Chairman, Centre for Study of Society and Secularism, Mumbai
Dr. John Dayal - Secretary General, All India Christian Council
Dr. Joseph D'souza - President , All India Christian Council
Dunu Roy, Hazards Centre, New Delhi
Father Cedric Prakash , Director, Prashant, Ahmedabad, Gujarat
Father S Pranoy, Vishwajyoti Communication, Varanasi , UP
Fr Anand Muttungal, Catholic Church Bishop Council, Bhopal
Fr. Joy Thomas, Ishwani Kendra, Pune, Maharshtra
Friends of South Asia , San Francisco , Bay Area
Gagan Sethi , Janvikas, Ahmedabad, Gujarat
Gautam Thakker, PUCL, GUJARAT
Govind Desai, Urja Ghar, Sabarkantha, Gujarat
Hanif Lakdawala, sanchetna, Ahmedabad, Gujarat
Harsh Dobhal , Executive Director, Human Rights Law Network
Hozeffa ujjaini, Aman samudaya, Ahmedabad, Gujarat
Irfan Engineer , Institute of Peace Studies and Conflict Resolution, Mumbai, Maharashtra
Jatin Desai, Focus on the Global South, Mumbai, Maharshtra
Jaya Mehta, Sandarbh Kendra, Indore , Madhya Pradesh
Justice K K Usha , former Chief Justice, Kerala High Court
Justice Rajinder Sachar , former Chief Justice, Delhi High Court
Justice Sardar Ali Khan , former Judge, AP High Court
Kalpana Wilson, South Asia Solidarity Group, UK
Kavita Srivastava , Social Activist, Rajasthan
Khalid Chaudhry, Action Aid, Adipur, Kutch , Gujarat
Kherunnisa, Parwaz, Ahmedabad, Gujarat
LS Hardenia, Convener, All India Secular Forum, Bhopal , Madhya Pradesh
Madhu Chandra, All India Christian Council
Mangaraj Panda, United Artists' Association (UAA), At: Raula Street , Ganjam,
Mansi Sharma, Anhad, New Delhi
Marai Larasai, Director , Imkaan , UK .
Maulana Mohd Madani, Jamait Ulema e Hind
Maulana Niaz Faruqui, Jamait Ulema e Hind
Mazdoor Kisan Shakti Sangathan , Rajasthan
Mehnat Kalyan Evam Sandharbh Kendra, Rajasthan
Mihir Desai, Advocate, Mumbai
Mohammad Hasan, Jaipur, Rajasthan
Mohd Arif , Centre for Harmony and Peace, Varanasi , UP
Mohd. Azam Khan, Hyderabad
Mujibur Rehman, Centre for Dalit & Minority Studies, Jamia Milia Islamia
Nafisa Barot, uththan, Ahmedabad, Gujarat
Nasim Mansuri, Niswan, Ahmedabad, Gujarat
Nasirud u din Haider Khan, Lucknow , UP
National Muslim Women's Welfare Society, Rajasthan
Navkiran Singh(Advocate), LFHRI, Punjab
Neeraj Jain, Lokayat, Pune, Maharashtra
Nisha Agrawal, Oxfam India
Noorjahan Diwan, Bharitya Muslim Mahila Andolan
Orissa Marine Resource Conservation Consortium (OMRCC), Orissa
P Vinay Kumar, Constitutional Rights Protection Forum, Hyderabad
Pakiza Mansuri, Parishram Trust, Idar, Sabarkantha, Gujarat
Parveen Shaikh, Karnataka
People's Union for Civil Liberties , Rajasthan and National
Poonam Kathuria, SWATI, Ahmedabad, Gujarat
Prasad Chacko, Ahmedabad, Gujarat
Prof. Roop Rekha Verma , Secretary, Saajhi Duniya, Lucknow , UP
Progressive Writers Association, Rajasthan
Pushkar Raj, PUCL
Rajasthan Samgra Sewa Sangh, Rajasthan
Ram Puniyani, All India Secular Forum, Bombay
Rashmi Jena, Advocate, Orissa
Rita Kaushik, SKVS, Gorakhpur , UP
Rozi Roti Adhikar Samuh, Phagi, Rajasthan
Rushikulya Rayat Mahasabha, At: Devi Nagara, PO : Chatrapur
Sachin Pandya, Gujarat
Saeed Patel , New York
Sagar Trust, Varanasi , UP
Samudram, At: Katuru, PO : B. Aryapali, Via: Chatrapur, Dist: Ganjam,
Sandeep Pandey, Asha Parivar
Sandeep Pandey, NAPM
Sangat, New Delhi
Sanjay Kumar, Pandies' Theatre, Delhi
Sankar Vankar, Lok Yuva Trust, Idar, Sabarkantha, Gujarat
Saroop Dhruv, Insaf, Ahmedabad, Gujarat
Saumya Uma, Women's Research & Action Group
Sebastian Rodrigues, Goa
Seema Duhan, Anhad , New Delhi
Shabnam Hashmi, Anhad, New Delhi
Shahiuz Zaman, All India Secular Forum-Assam
Sheba George, Sahrwaru, Ahmedabad, Gujarat
Shweta Anand, Delhi
Shweta Shalini, Justice and Peace Commission
Sophia, Director, SAFAR, Ahmedabad, Gujarat
Subhash Mendhapurkar, SUTRA , Jagjit Nagar 173225 H.P.
Sukla Sen, EKTA (Committee for Communal Amity), Mumbai, Maharshatra
Sunita Dhar, Jagori, New Delhi
Sushila Prajapati, Action Aid, Ahmedabad, Gujarat
Swosti, At: Baladiadiha, PO : Huma, Dist: Ganjam, PIN: 761027
Tanveer Hussain, Kashmir
Tanweer Alam, Institute of Objective Studies
Tehmina Arora,Christian Legal Association
Uma Chakravarty, New Delhi
Usha Ramanathan, Senior Law Researcher, Delhi
Vahida Nainar, Women's Research and Action Group, Mumbai
Varsha Ganguly, Behavarial Science Centre, Ahmedabad, Gujarat
Vimochana, Bangalore , Karnataka
Vineet Tiwari, General Secreatary, Madhya Pradesh Progressive
Writers Association, Indore
Vividha Mahila Alekhan Evem Sandharbh Kendra, Rajasthan
Vrinda Grover, Supreme Court lawyer, New Delhi
Wilfred D' Costa, Indian Social Action Forum (INSAF)
Yogesh Dewan, Peoples Research Society, Bhopal
Yusuf Shaikh, Antarik Visthapit Hak Rakshak Samiti, Gujarat
Zaheeruddin Ali Khan , Siasat, Hyderabad
Zakia Soman, Bhartiya Muslim Mahila Andolan
Anhad, 23, Canning Lane , New Delhi -110001, Tel- 23070740/ 22
PROPOSED AMENDMENTS TO
THE COMMUNAL VIOLENCE (PREVENTION, CONTROL AND REHABILITATION OF VICTIMS) BILL, 2005
Statement of objects and reasons
Definition of Communal Violence
Crimes of sexual assault
National, State, District Communal Harmony, Justice and Reparation Commission or Council (CHJRC)
Duties/accountability of public officials
Investigation, trial and procedure (including victims rights, time-bound trials, special public prosecutors)
Witness and victim protection.
Policies and Institutional arrangements for rescue, relief, rehabilitation, reparation, and restitution, including rights of Internally Displaced Persons
1. PREAMBLE: to be inserted in the beginning of the CV Bill, 2005
Regretting that communal violence against members of groups, castes, and religious communities, on the basis of their identity has occurred with regularity, depriving citizens of their right to life, inflicting sexual violence to degrade and humiliate, inflicting injury, causing destruction of homes, property and livelihoods, forcing internal displacement and uprooting people, damaging fraternal social relations and trust, and wreaking misery and suffering.
Recalling t he findings and recommendations of various Commissions of Enquiry which show that where the police and civil authorities acted impartially and stood firm, communal violence was controlled, but where the police and civil authorities were passive or partisan and connived with communal elements, destruction of lives, livelihoods and dignity followed.
Recognizing that there have been many instances of the abuse of the state machinery for perpetrating communal violence, in the process communalizing such state machinery itself, leading to the break down of constitutional governance.
Desiring that state authorities must take prompt action so as to instill a sense of apprehension in the offenders and security in the victims.
Desiring the need to ensure that such public authorities are held accountable when they fail in the exercise of their duty.
Regretting that the failure of the criminal justice system to prosecute the perpetrators has eroded public faith in the administration of justice for communal violence, and desiring that this faith be restored.
Re-affirming principles of the Preamble of the Constitution of India, which has solemnly resolved to constitute India into a Secular Republic and to secure to all its citizens Justice and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.
Upholding Article 21 of the Constitution of India which guarantees life and personal liberty to all citizens; Article 14, which promises to all citizens equal protection of the laws within the territory of India; and Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
Recognizing that when enmity and hate propaganda against particular groups are used to justify communal crimes, and this is aggravated by State inaction and failure of the criminal justice system to prosecute for such hate crimes, the constitutional guarantees of justice, equal protection of laws, and freedom from discrimination stand severely challenged.
Desiring that victims of communal violence must be expeditiously provided relief, rehabilitation, restitution and reparations by the State as justiciable rights of citizens according to standard national norms.
In pursuance of the State's constitutional mandate and international treaty obligations have decided to enact this statute for the above purposes.
2. STATEMENT OF OBJECTS AND REASONS
TO CLARIFY THE PURPOSE OF ENACTING THIS BILL THE STATEMENT OF OBJECTS IN THE BILL BE SUBSTITUTED WITH THE FOLLOWING:
An Act to ensure action by and accountability of public authorities, including all State Governments and the Central Government, for the prevention and control of communal violence which threatens the physical, social, economic, cultural, political, and human security of citizens and the unity and secular fabric of the Nation; the speedy investigation, prosecution and punishment of those engaging in communal crimes; justice and security to victims and survivors; and guarantee of the rights of victims and survivors to comprehensive rescue, relief, rehabilitation, compensation, restitution and reparations.
3. DEFINITION OF COMMUNAL VIOLENCE
FOR THE PURPOSE OF THE PROPOSED LEGISLATION, THE PRESENT DEFINITION OF COMMUNAL VIOLENCE IS NOT ADEQUATE AS IT DOES NOT ADDRESS CERTAIN ACTS SUCH AS TARGETED ATTACK, PLANNED OR OTHERWISE AGAINST THE PERSONS AND PROPERTIES OF A PARTICULAR GROUP, CASTE OR RELIGIOUS COMMUNITY WHICH CAN BE INFERRED DIRECTLY OR FROM THE NATURE OR CIRCUMSTANCES OF THE ATTACK. IT IS THEREFORE PROPOSED THAT THE DEFINITION OF COMMUNAL VIOLENCE AS GIVEN INCLAUSE 2(1)(C) OF THE BILL MAY BE AMENDED ON THE FOLLOWING LINES
“2 (1) (c) communal violence means any act of omission or commission,-
i) committed as part of a targeted attack, planned or otherwise, against the persons and properties of any particular group, caste or religious community which can be inferred directly or from the nature or circumstances of the attack;
ii) which constitutes a scheduled offence and which is punishable under section 19;”
iii) any other new offence created under this statute.
3. A. The Schedule of Offences to be expanded to include Sections 109-120 Indian Penal Code in the Schedule of Offences of the Bill under Point 1
4. CRIMES OF SEXUAL ASSAULT TO BE ADDED AS OFFENCES UNDER THIS BILL
SEXUAL ASSAULT AS PART OF COMMUNAL VIOLENCE IS COMMITTED WITH THE MALICIOUS INTENT OF INTIMIDATING, HUMILIATING AND DEGRADING THE DIGNITY OF THE TARGETED COMMUNITY BY VIOLATING THE BODILY INTEGRITY OF WOMEN. IT IS THEREFORE PROPOSED THAT THE OFFENCE OF SEXUAL ASSAULT TO INCLUDE SEXUAL OFFENCES OTHER THAN THOSE ALREADY IN THE SCHEDULE, BE DEFINED ON THE FOLLOWING LINES AND ADDED TO THE BILL:
“Sexual assault including any of the acts, namely:-
(a) Introduction to any extent by a man of any body part, other than a penis, or an object into vagina, mouth, urethra or anal opening of a woman;
(b) The introduction to any extent by a man of penis into the mouth, urethra or anal opening of a woman;
(c) Mutilation of sexual and reproductive organs (including breasts, uterus, genital organs) of women;
(d)Forced public exposure of a woman's body or any part of her body or stripping and parading women publicly; forced nudity;
(e)Forced sexual contact of any sort, including forcing women to perform sexual acts;
(f) Exposing male sexual organs in front of women.
4A. BURDEN OF PROOF
SEXUAL ASSAULT IN A SITUATION OF COMMUNAL VIOLENCE SHOULD BE EQUATED TO CUSTODIAL RAPE AS THE MOB EXERCISES COMPLETE CONTROL AND IS IN A POSITION OF AUTHORITY. HENCE, IT IS NECESSARY THAT BURDEN OF PROOF IN COMMUNAL VIOLENCE SHOULD BE SHIFTED ON THE ACCUSED. THEREFORE A PROVISION ON THE FOLLOWING LINES MUST BE ADDED TO THE BILL:
“Burden of proof.32A. When a person is accused of having committed the offence of Rape under Section 375 IPC or Sexual Assault as defined above the burden of proving that the accused has not committed the offence shall be on the accused.”
5. NATIONAL, STATE, DISTRICT COMMUNAL HARMONY, JUSTICE & REPARATION COMMISSION OR COUNCIL (CHJRC)
Section 3 of Chapter II of Communal Violence Bill, 2005 to be deleted.
SINCE IT HAS BEEN ESTABLISHED BY MANY COMMISSIONS OF INQUIRY AND OTHER DOCUMENTS THAT BOTH CENTRAL GOVERNMENT AND STATE GOVERNMENT HAVE SUFFICIENT POWERS TO PREVENT AND CONTROL COMMUNAL VIOLENCE, IT IS NOT NECESSARY TO AWARD ANY GREATER OR ENHANCED POWERS TO GOVERNMENT FUNCTIONARIES. WHAT IS REQUIRED INSTEAD IS THAT THERE IS INDEPENDENT MONITORING AND OVERSIGHT BY A BODY TO ENSURE THAT THE CONCERNED GOVT. PERFORMS ITS DUTY TO PROTECT THE LIFE AND PROPERTY OF ALL CITIZENS.
IN VIEW OF THE FACT THAT THERE HAVE BEEN INSTANCES OF THE ABUSE OF STATE MACHINERY FOR PERPETRATING COMMUNAL VIOLENCE, IN THE PROCESS COMMUNALIZING SUCH STATE MACHINERY ITSELF, IT IS NECESSARY THAT AN INDEPENDENT BODY IS CREATED TO ENSURE THAT AT ALL STAGES OF COMMUNAL VIOLENCE THE RIGHTS OF THE VICTIMS ARE PROTECTED. IT IS SUGGESTED THAT THE MANDATE, AND FUNCTIONS OF THE NATIONALSTATE AND DISTRICT COUNCILS (REFER TO SECTION 2 (1)(e)(g) (n) , WHICH ARE RESPONSIBLE FOR THE RELIEF, COMPENSATION AND REHABILITATION BE ENLARGED TO INCLUDE POWER TO RECOMMEND THE NOTIFICATION OF THE APPLICATION OF THE COMMUNAL VIOLENCE LAW, ENSURING THAT THE VICTIMS HAVE ACCESS TO JUSTICE ETC. THIS EXPANDED COUNCIL MAY BE CALLED THE NATIONAL/STATE/DISTRICT COMMUNAL HARMONY, JUSTICE AND REPARATION COMMISSION ( CHJRC ).
It is therefore suggested that the following Sections be amended:
SECTION 2 (1)(e) of the Bill be amended to read as District Communal Harmony Justice and Reparation Commission
SECTION 2 (1)(g) of the Bill be amended to read as National Communal Harmony Justice and Reparation Commission
SECTION 2 (1) (n) of the Bill be amended to read as State Communal Harmony Justice and Reparation Commission
It is accordingly suggested that there is no need to declare any area as Communally Disturbed Area as provided under Sec 2(1)(b) of the present Bill. Accordingly Chapter II of the present Bill will have to be deleted and in its place the following amendment inserted.
Amended Section 3
(i)When offences described under communal violence as defined in section 2(1)(c), section 19 and other sections of this Bill occur, the State Government shall notify that the Communal Violence Law shall apply for those offences and for the jurisdiction specified therein.
(ii) In the event that the State Govt does not notify the application of the Communal Violence law the National/State/District Communal Harmony, Justice & Reparation Commission may recommend to the concerned Government to notify the application of the Communal Violence law.
(iii) After notification, all offences under this Bill and in the Schedule shall be investigated and prosecuted in accordance with the provisions detailed in this Bill insofar as it is contrary to the Criminal Procedure Code or any other law for the time being in force.
(iv) All recommendations made by the National and State CHRJC shall be binding upon the concerned Government.
Section 4 (1) to be amended to read as follows:
(1) Where the State Government has Government has notified that the Communal Violence law will be invoked under Section 3, it shall take such immediate measures as may be necessary to prevent and control communal violence in such area.
IN VIEW OF THE ABOVE THERE IS NO NEED FOR THE COMPETENT AUTHORITY TO BE APPOINTED IT IS THEREFORE SUGGESTED THAT
Section 2(1) (d) be deleted.
Competent Authority to be deleted from Section 5, 6, 7, 8, and 9
The functions of the National/State/District CHRJC in addition to those enumerated in chapters VII, VIII, IX &X shall be as follows:
i) In the event that the State Govt does not notify the application of the Communal Violence the National or State CHJRC may recommend to the concerned Government to notify the application of the Communal Violence Law. The CHJRC can arrive at this determination on its own assessment or upon receipt of an application from private citizens or government official.
ii) Recommend to the concerned government to take preventive measures to protect life and property- including calling more security forces, patrolling in sensitive areas, strict monitoring of any form of communication aimed at promoting enmity between groups, curbing hate speech and invoking Section 153A IPC if the situation so warrants.
iii) Receive complaints from victims of threats, intimidation etc and ensuring that the state government, agencies and functionaries take prompt and appropriate steps to address the same
iv) Receive and enquire into complaints received form victims regarding any dereliction of duty by the investigating and prosecuting agency
v) CHJRC shall approve and confirm the names of all lawyers appointed as Special Public Prosecutors in cases under this statute and can also recommend that a SPP be changed
vi) Supervision and monitoring of all rescue, relief, compensation, and rehabilitation measures by the government
vii) Appeals from the decisions of the district body shall lie with the State CHJRC . Appeals from the decisions of the State level body shall lie with the National CHJRC .
The recommendations of the CHJRC shall be binding on the concerned government
Suggested Composition to include, among others-
National CHRJC: Chairperson to be a retired Judge of the Supreme Court; Members - any retired judges of a High court, former civil servant, 5 non- official members, particularly women and members of different minority communities, groups etc.
Ex officio members: Chairperson of National Commission of Minorities; National Commission of SC&ST, National Commission for Women; Home Secy. Secy. Minority Affairs; Secy. Ministry of Law.
State CHRJC: Chairperson to be a retired High Court Judge; Members - former civil servant, 5 non- official members, particularly women and members of different minority communities, groups who have been engaged with issues of communal harmony and justice; Ex officio members of the relevant Ministries.
Appointment: The members shall be appointed in consultation with the Chairperson of the National Human Rights Commission; National Commission for Women; National Commission of Minorities; SC &ST Commission: and in consultation with civil society and minority groups affected or likely to be affected by communal violence, and be such that the composition inspires faith in the affected groups and communities.
6. COMMAND RESPONSIBILITY OF PUBLIC SERVANT AND NON-STATE ACTOR
A NEW SECTION 17A TO BE ADDED TO ENSURE THAT THOSE WHO MASTERMIND THE COMMUNAL VIOLENCE AND GAIN FROM DESTROYING COMMUNAL HARMONY AND DAMAGING THE SECULAR FABRIC OF THE NATION SHOULD BE PUNISHED. FOR THIS REASON THE DOCTRINE OF COMMAND AND SUPERIOR RESPONSIBILITY MUST BE INCLUDED IN THIS BILL.THE BILL SHALL HOLD BOTH PUBLIC SERVANTS AND NON STATE ACTORS CRIMINALLY RESPONSIBLE FOR THEIR ACTS OF OMISSION AND COMMISSION.
It is suggested that the Bill be amended to add section 17A
(1) COMMAND RESPONSIBILITY OF PUBLIC SERVANT
(a) A public servant as defined in Section 21 IPC shall be criminally responsible for crimes (which include both acts of commission and omission) committed by forces or other public servants under his effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That public servant either knew or, owing to the circumstances at the time, should have known that forces/ persons subordinate to him were committing or about to commit such crimes; and
(ii) That the public servant failed to take all necessary and reasonable measures within his power/ authority to prevent or control their commission or omission
(iii) Or to submit the matter to the competent authorities for investigation and prosecution.
(2) ACCOUNTABILITY OF NON-STATE ACTOR
SUPERIOR RESPONSIBILITY OF PERSONS OTHER THAN PUBLIC SERVANT
With respect to superior and subordinate relationships such as a political party or an organisation a superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority and control, as a result of his failure to exercise control properly over such subordinates, where:
(i) the superior either knew, or consciously disregarded information, which clearly indicated that the subordinates were committing or about to commit such crimes;
(ii) the crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) the superior failed to take all necessary and reasonable measures within his or her power to prevent or control their commission or to submit the matter to the competent authorities for investigation and prosecution.
Explanation – a subordinate for purposes of (b) is not limited to persons who are members of a party or organization.
7. DUTIES/ACCOUNTABILITY OF PUBLIC OFFICIALS
TO ENSURE THAT PUBLIC SERVANTS ARE HELD ACCOUNTABLE FOR THE DISCHARGE OF THEIR DUTIES THE BILL HAS INSERTED SECTION 17 IN THE PRESENT BILL. HOWEVER THE INSERTION OF THE WORDS “ mala fide ” IN SECTION 17 (1) (a), and “wilfully” in SECTION 17(1) (b) WOULD MAKE IT DIFFICULT FOR ACCOUNTABILITY TO BE SECURED. THE SECTION THERFORE NEEDS TO BE AMENDED. HOWEVER KEEPING IN MIND THE NEED TO PROVIDE ADEQUATE PROTECTION TO A PUBLIC SERVANT FROM BEING WRONGLY IMPLICATED A PROVISO SHOULD BE ADDED TO THIS SECTION WHICH PROVIDES THAT THE COURT SHALL CONSIDER WHETHER DUE DILIGENCE WAS EXERCISED BY THE PUBLIC SERVANT AND DESPITE OBSERVANCE OF ALL DUE CARE AND COMPLIANCE WITH THE LAW THE PUBIC SERVANT COULD NOT FULFILL THE MANDATE OF THE LAW. THIS MAY BE ASSESSED BY THE COURT AT THE INITIAL STAGE OF CHARGE AND IF THE PUBLIC SERVANT IS ABLE TO PRIMA FACIE ESTABLISH THE ABOVE, THE COURT SHALL HONOURABLY DISCHARGE HIM. THE SAME SHALL HOWEVER BE A MATTER OF JUDICIAL DETERMINATION. IT WILL NOT BE WITHIN THE PURVIEW OF THE EXECUTIVE TO GRANT OR WITHHOLD SANCTION FOR PROSECUTION OF A PUBLIC SERVANT. ACCORDINGLY SECTION 17(3) AND THE PROVISO IN THE BILL SHALL STAND DELETED.
IT IS SUGGESTED THAT SECTION 17 BE AMENDED TO READ AS FOLLOWS:
Whoever, being a public servant, -
Duty of Public servant to Prevent and Control Communal Crimes
(1) Whoever being a public servant or any other person authorized to act under any provisions of this Act or orders made there under:
Exercises the lawful authority vested in him under this Act in a manner, which causes or is likely to cause harm or injury to any person or property; or
Omits to exercise lawful authority vested in him under this Act and thereby fails to prevent the commission of any communal violence, breach of public order or disruption in the maintenance of services and supplies essential to the community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) For the purposes of sub-section (1) any police officer who, refuses-
to protect or provide protection to any victim of communal violence or;
to record any information under sub-section (1) of section 154 of the Code relating to the commission of any scheduled offence or any other offence under this Act or;
to investigate or prosecute any scheduled offence or any other offence under this Act,
Commits the offence of omission.
Exception: Notwithstanding anything contained in any other law, crimes committed during communal violence and those enumerated as offences under this law shall constitute an exception to Sections 45 and 197 Cr. P.C. and any other provision which requires prior sanction of the Government for prosecution.
Proviso – The Court having jurisdiction to try the offence shall at the initial stage of the trial determine if there was exercise of due diligence by the public servant and that despite the same the crime of communal violence or any of the offences contained in this Bill occurred. If in the opinion of the Court it is prima facie established that the public servant exercised due diligence in the performance of his duties he will not be held criminally liable under this section.
Section 17(3) and the Proviso to be DELETED
8. INVESTIGATION, TRIAL AND PROCEDURE
TO ENSURE THAT THE VICTIMS OF COMMUNAL VIOLENCE SECURE JUSTICE THERE IS A NEED TO AMEND THE PROCEDURAL LAW AND THE LAW OF EVIDENCE TO MEET THE EXTRAORDINARY CIRCUMSTANCES OF COMMUNAL VIOLENCE. FURTHER, RULES SHALL BE FRAMED BY THE CENTRAL GOVERNMENT/ NATIONAL COMMUNAL HARMONY, JUSTICE AND REPARATION COMMISSION FOR PROTECTION OF VICTIMS AND WITNESSES.
It is proposed that in addition to the provisions relating to investigation enumerated under Chapter V of the Communal Violence Bill the following may also be added after Section 23:
Notwithstanding anything contained in the Criminal Procedure Code for purposes of investigation of all crimes of communal violence under this statute :-
the complainant/victim shall have the right to copies of all his/her statements recorded under Section 161 Cr.P.C
the victim/ complainant shall also be given a copy free of cost all documents filed by the police in court under Section 173 Cr.P.C
the victims/ witnesses shall have the right to file an application before any metropolitan magistrate or judicial magistrate, whether or not he has jurisdiction in the case, for the said magistrate to record a statement under Section 164cr.p.c. in relation to any communal crime during the course of the investigation. The statement recorded by the magistrate under this provision shall be forwarded to the magistrate by whom the case is to be inquired into or tried.
the victims/ witnesses shall have the right to file an application before any metropolitan magistrate or judicial magistrate, whether or not he has jurisdiction in the case, seeking permission to file an affidavit in relation to any communal crime during the course of the investigation. the affidavit filed by the magistrate under this provision shall be forwarded to the magistrate by whom the case is to be inquired into or tried.
the court shall not draw any adverse inference on account of any delay in lodging the FIR or recording of the statements of the complainant and witnesses. the same shall be condoned by the court if a reasonable explanation is given by the complainant/ witness for the delay
In Chapter VI of the Communal Violence Bill a Section 24A to be added -
the trials shall be concluded in a time bound manner.
if the witness/ victim express apprehension or fear in appearing in person before he court to give her evidence the same shall be recorded through the use of video conference and the witness/victim including the examination in chief and cross examination. (refer to state of Maharashtra vs. Dr. Praful B. Desai (2003) 4 SCC 601.)
for purposes of this statute in all cases of communal crimes the victims of communal crimes shall be entitled to receiving free legal aid under the legal services act.
Section 26 of the bill to be amended with the insertion of clause (a)
Section 26(a): CHJRC shall approve and confirm the names of all lawyers appointed as special public prosecutors in cases under this statute and can also recommend that a SPP be changed.
9. WITNESS /VICTIM PROTECTION
Under the Communal Violence Bill, 2005 rules need to be framed to provide adequate protection to victims and witnesses in accordance with guidelines stated by the Supreme Court, reports of Law Commission of India, including its 198 th report and other existing standards of law.
A law on victim and witness protection would necessarily include the following components, all of which would need to be balanced with aspects of fair trial and rights of the accused:
- preventing the identification of victims and witnesses to the public and media;
- preventing further trauma to the victim-survivor caused by confronting the accused;
- ensuring anonymity from the accused and defence counsel;
- delaying the disclosure of witness identity prior to trial; and
- general measures concerning the protection of witnesses and victims prior to, during and subsequent to the trial (commencing from the stage of investigation and prosecution to conviction and appeal).
Victim and witness protection measures ought to specifically include:
a guarantee of the safety, physical and psychological well-being, dignity and privacy of victim-survivors, witnesses and their families;
Since family members are often at grave risk due to the testimony given in court, it is important to extend protective measures, security arrangements, counseling and other appropriate measures not only to victim-survivors and witnesses that appear before the court but also to their family members and other dependents;
Protecting the identity of such persons from the media and public by conducting any part of the proceedings by video camera or allowing the presentation of evidence by electronic or other special means;
A special obligation to protect women victims and witnesses, in particular, where the crimes involve sexual or gender-based violence; and
A special effort to protect child victims and witnesses from further trauma through court proceedings, including by conducting any part of the proceedings by video camera or presentation of evidence by electronic means, as well as assigning a child-support person to assist the child through all stages of the proceedings, with the consent of the child's parents or legal guardian.
A Victim –Witness Support Unit to be constituted either at the CHJRC or housed in the existing offices of the Legal Services Authority at the district and State level. It shall comprise of paralegals, legal aid lawyers, and NGO members appointed by the CHJRC or the Legal Services Authority. It shall be the duty and responsibility of the Investigating officer/ Agency and the SPP to keep this unit informed of the progress of the case. The victims – witnesses will be regularly informed of the proceedings in their case and shall be apprised of court procedures etc.
10. POLICIES & INSTITUTIONAL ARRANGEMENTS FOR RESCUE, RELIEF, COMPENSATION, REHABILITATION, REPARATION, AND RESTITUTION, INCLUDING THE RIGHTS OF INTERNALLY DISPLACED PERSONS
IT IS PROPOSED THAT A STATUTORY OBLIGATION BE PLACED UPON THE GOVERNMENT TO LAY DOWN NATIONAL STANDARDS FOR RESCUE, RELIEF, COMPENSATION, REHABILITATION AND RESTITUTION FOR VICTIMS OF COMMUNAL VIOLENCE AND INTERNALLY DISPLACED PERSONS. IT IS FURTHER PROPOSED THAT IMPLEMENTING RESCUE, RELIEF, COMPENSATION, REHABILITATION, AND RESTITUTION ACCORDING TO THESE NATIONAL NORMS BE MADE BINDING ON THE STATE GOVERNMENTS & THE NATIONAL, STATE AND DISTRICT COMMISSIONS
Insert a sub-clause (A) in Section 47 to read as:
National standards for rescue, relief, compensation, rehabilitation and restitution for victims of communal violence and internally displaced persons, to be laid down by the Central Government\National Communal Harmony Justice and Reparation Commission (CHJRC) within 2 months of enactment of this legislation.
Section 40(1) to read as follows:
The CHRJC shall have the statutory obligation of planning, coordinating and monitoring in accordance with national standards as proposed to be laid down in Section 47 :
the rescue of victims to safeguard their right to life and protection of their property and possessions against destruction and illegal appropriation
relief, including immediate relief,
rehabilitation and restitution measures and
issue suitable directions for their implementation as necessary:
Substitute Section 40 (2) (b) for the following:
Relief – relief camps to be established promptly and to continue till the CHRJC determines in consultation with the victims that it is safe for the victims to return home or are resettled.
Relief camps to provide for:
Arrangements for providing security
essential food and potable water
basic shelter and housing
essential medical services and sanitation
psycho-social support including trauma counseling
educational facilities for children
certain internally displaced persons, such as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs.
Certification of injuries at the camp
Issuance of medical cards with a validity of six months for purchase of free medicine
Issuance of temporary ration cards
Insert after Section 40(2) (b):
Provision should be made in the relief camp to enable victims to file FIRS and record statements in pursuance of any legal matters related to the communal violence.
Provision should be made to enable victims to claim compensation while still in the relief camp.
Existing Section 40(2)(c) be substituted for the following:
Establish single window, in the relief camp or near the relief camp, to complete all administrative formalities to issue to victims new documents or the replacement of documents lost during the communal incident, necessary for the enjoyment and exercise of their legal rights, such as ration cards, personal identification documents, passports, birth certificates and marriage certificates; without imposing unreasonable conditions, such as requiring the return to one's area of habitual residence in order to obtain these or other required documents.
It is suggested that the following sub-clause (4) be added to Section 40
CHRJC shall have the statutory obligation of planning, implementing, coordinating and monitoring the restitution, rehabilitation and resettlement of the victims of the communal violence.
to establish conditions and provide the means to allow victims to return to their place of habitual residence with dignity;
protected against threat, intimidation or attack to life and property;
ensure that such return is entirely voluntary.
resettle internally displaced persons in a new location in case they are unable to return to their original place of habitation.
Ensure that victims, whether returning to original habitations or resettled locations, are restored to levels of housing, habitat, means of livelihood, and economic standards, including all social and civic facilities that are at par or better than those they enjoyed before the communal violence.
In Section 53 (1) to be substituted by the following:
Compensation shall be paid to victims of communal violence as per the national standard laid down under the proposed Section 47 (A). This compensation norm shall be revised every three years. The amount of compensation for death shall not be less than 10 lakhs. Compensation for sexual violence shall not be less than 2 lakhs. Compensation for damage to property/possessions must be equivalent to the value of the property/possessions at current market prices .
Section 53(2) substitute the word “twenty” by the word “forty”
In view of the federal nature of the Indian state and the distribution of powers under the Indian Constitution it is suggested that Section 55(3) (a) of the Bill be deleted.
Section 57 to be deleted from the present Bill
The requirement of prior sanction for prosecution under Section 153A & 153B IPC should be deleted.