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Published in the 1-15 June 2005 print edition of MG; send me the print edition

Communal Violence (Suppression) Bill, 2005

Toothless bill

By Andalib Akhter

The Milli Gazette Online

New Delhi: Even as minorities, particularly Muslims, played an important role in bringing Congress-led UPA to power, nothing concrete has been done for the community so far. In fact, minorities are skeptical about the performance of the government in the first year. Though the UPA had promised a lot for the betterment of the community, nothing substantial was done. The UPA's major promise of enacting a law to check communal violence is still unfulfilled. Minorities have attached much hope from the proposed law as they are worst victims of such violence. 

Though the Home Ministry has drafted a Bill 'Communal Violence (Suppression) Bill, 2005, an in-depth study of the draft suggests that the proposed law would be nothing but old wine in a new bottle. The poorly drafted bill has completely ignored the drafts suggested by civil society groups who prepared them after extensive consultations with NGOs. It has been drafted not by the Law Ministry but by the Home Ministry and apparently by the same group that drafted POTA earlier. Human right activists see the bill as an extension of the Armed Forces (Special Powers) Act (AFSPA) to the whole country.

The proposed bill arms the government with wide-ranging powers to control communal violence, including arrests and searches without warrant. It enhances the punishment that can be awarded for offences in communal riots, and permits the government to set up special courts and police stations. These courts can hear cases at any protected place, and can order that the confidentiality of witnesses is maintained. For relief and rehabilitation, the state government is mandated to nominate a committee of mainly official and some non-official members selected by it.

The government claims that the new law will assist future governments to better control communal violence and ensure justice to the survivors. However, rights activists question the merits of the proposed law. Had the proposed law been in place when the Gujarat mass violence unfolded, or the 1984 Sikh riots or the 1992 Mumbai riots, would it have influenced the conduct of recalcitrant state authorities in any way for ensuring that they take all necessary steps for prompt and non-partisan protection of the victims of the violence, and the arrest and prosecution of the guilty? "The law would have made absolutely no difference to a government driven by a communal agenda," says Shabnam Hashmi, who runs an NGO, ANHAD.

The problem is not that the state lacks the powers to take any of the steps envisaged in the new law. It enjoys such powers even today if it chooses to use the army, undertake search and arrest and set up special courts and rehabilitation committees. The predicament in the communal holocaust of the past is that governments chose not to use the powers that they were equipped with for the defence of justice. Worse, they used the powers malevolently against the victims if they were minorities. "The new law does nothing whatsoever to ensure that governments are forced to perform their most fundamental duties to their citizens, or face legal action", says a rights activist.

The law as proposed is at best irrelevant to the challenges of communal governance, and at worst dangerous, because many of the special powers such as search and arrest can be misused against minorities, in the same way as Modi consistently misused POTA. "The governments of today do not require greater powers, but greater moral and legal accountability for acts of commission and omission that are nothing short of State crimes" says Hashmi.
People have expected that the government will enact such a law that would prevent the communal elements from playing communal politics which led to the violence but the proposed Act 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 central government 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 such crimes fall outside the ambit of the Act. Section 10 which grants immunity to the police and the army is particularly insensitive because various commissions of enquiry including 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 (Bhagalpore riots), and Justice Srikrishna Commission (Bombay riots) have found the police and civil authorities passive or partisan and conniving with communal elements. 

The bill fails to define communal crimes. A chapter must have been there to punish police, paramilitary and army members 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" suggests a victim of riots.
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