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


Law against communal violence-ii

By Manzoor Ahmad IPS (Rtd)

The Milli Gazette Online

As it has been said above the present composition of the machinery for the maintenance of order in general and the police force in particular, does not inspire confidence in the light of past experiences of the minorities and other deprived and weaker classes. While communal reservation in police force is not insisted, everyone will agree that the force should represent the various social and cultural groups adequately. In fact, the force should have a larger than population share of the persecuted and victimised minorities. This will create confidence in different sections and eliminate chance of the force working in a partisan manner. We all know that Muslim representation in police force of Uttar Pradesh, one of the most volatile and communally sensitive States, is ridiculously low. While Muslims form nearly 20% of the State population, their representation in the police force is 2%. A conscious and affirmative action is required to correct this imbalance in the force at every level. At the time of independence their representation was more than 35% in U.P. Surely their talent did not deplete suddenly so low on the morrow of the Independence that they came down to 2% of the force. It will be interesting to study how their representation in the police force came down to such an abysmal level. At one point of time, there was not even a peon in the State Intelligence Deptt. which collects and disseminates intelligence of communal nature. It also shows the bias against the Muslim policemen. Surely the senior officers in the force did not care for fair representation of the communities in the force and did not bother about collecting intelligence from one important community. National Police Commission headed by Sri Dharma Vira in its Report VI (1981) also observed that the force must represent the general mix of the population for generating confidence in it in the people at large. However, these recommendations were never acted upon and the representation level kept on falling. The Govt. should appoint a permanent Equal Opportunities Commission to determine the extent of discrimination against Muslims, minorities and other vulnerable, marginalised groups. A specially trained cadre of Intelligence officers should be raised from all communities for proper gathering of intelligence of communal nature.

Moreover, an even bigger question is the independent functioning of the law and order machinery. The National Police Commission, the National Minority Commission and many other Commissions of Inquiry in their reports have clearly recommended that the District administration should function independent of political direction and should be made fully accountable for its actions. Experience has, however, shown that the force looks to the political bosses for direction in the case of communal trouble. It is unlikely to function independently by itself when the police are seen as instrument of the party in power. Independent functioning of the law and order machinery with clear-cut accountability will minimise political interference in time of crises. 

The National Police Commission in its Report VI had recommended for (a) opening of several reporting centres in riots affected area under the charge of competent officer for recording all crimes (b) creating special investigation squads to work under a fairly senior officer to investigate riot case and (c) setting up Special Courts for expeditious trials. Unfortunately, these constructive recommendations which do not require much ado have also not been acted upon.

Further, the training of the Police force leaves much to be desired. In the absence of a system that could prevent entry of wrong type of people into the force, this lack of proper training in human rights and secular basis of our polity plays havoc. There should be a comprehensive scheme for periodic training for the policemen of all ranks in courses comprising of human rights, developing secular attitudes and impartiality. These courses should also dispel the notions of negative stereotypes of Muslims in the members of the force. The universities and the colleges could conduct such courses when these are closed for summer and winter holidays.

Mob violence is also a result of a feeling of alienation and demonisation of the target group. The hate-literature on minorities have been created for several decades and has been spoon-fed to a section of the majority community in the same way as Nazis did. The freedom of expression enshrined in our constitution does not protect people like Togadia also who day in and day out spit venom against Muslims and Christians. There are laws in our law books but the same are not used against them. For good governance as well as for social cohesion and harmony among the communities, relentless action both legal and social against hate-literature and hate-speech is called for. There should be stress on our common heritage, our composite culture and a pride in being Indian instead of ethnocentricity and xenophobia which have been the trademark of the Sangh Pariwar. Instead of digging unsavoury incidents from the past, we should aim at building a bright future for all Indians.

Saffronisation of education has played a negative role and has been responsible for creating hatred between the various communities. For the purpose of raising good citizens in future, we should examine the curricula, the syllabi and the books being used in Shishu Mandirs. We may also examine the Madrasa curricula, syllabi, etc. from this angle.

The media has to play a positive role and for this a high-power Media Watch Group should be composed. The newspapers by their irresponsible and wrong reporting have played havoc at times. The Press Council Act should be amended to empower it to start legal proceedings against persons / papers for publishing false reports to arouse communal hatred. The courts also should dispose off cases u/s 153A, 295, and 505 IPC expeditiously so that the people spreading hatred are dealt with severely and early.

The National Police Commission 1981 in its Report VI expressed the view that riot cases required not only special courts and prosecutors but also special procedure. Justice Khare also pointed out the need for a special jurisprudence to deal with special circumstances like that in Gujrat where communal discrimination has been institutionalized.

Padam Rosha, a retired IPS officer, has suggested vigorous use of certain sections like 149 of the IPC and adoption by the riot prone states of the procedures on the lines of J&K Criminal Law (Amendment) Act, 1981, which, interalia, provides for completion of investigation within two weeks, trial to start within one week of the charge sheet and proceedings to be completed on day-to-day basis within 3 months.

Common Minimum Programme (CMP) of the U.P.A. promised to "enact a model comprehensive law to deal with communal violence and encourage each state to adopt the law….." Although the draft of the CMP had proposed "to enact a comprehensive law on communal violence providing for probe by a central agency, prosecution by special courts and payment of uniform compensation", in the final shape the CMP stands much diluted in its present form. Though the law and order has been a State subject, we have taken recourse, since 1950, to special legislation (like POTA), to deal with widespread federal/national crimes. There was no harm if communal violence was included in these crimes. The Best Bakery case and the judicial pronouncement on several Gujarat cases show that we cannot leave the riot victims on the tender mercy of the tainted and partisan law and order state machinery.

The Concerned Citizens Tribunal on Gujarat 2002 (CCTG), comprising Justice V.R. Krishna Iyer, Justice P.B. Sanwat, Justice H. Suresh, Mr. K.G. Kannibiram and others characterised crimes in Gujrat as genocide. The National Human Rights Commission Report also levelled the same accusation. India acceded to Article V of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 on August 27, 1959. The Govt. of India is committed to enact a law for genocide which has been defined in the Convention as "any of the following acts with intent to destroy in whole or in part a national, ethinic, racial or religious group such as : (a) killing members of the group (b) causing serious bodily or mental harm to members of the group (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part". The law should provide for establishment of a Tribunal to try persons charged with the above or related acts and provide "effective penalties for persons guilty of genocide or any of the other acts related to genocide". Thus CMP or no CMP, the Govt. of India has to enact such a law in view of its treaty obligation under Article 253 of the Constitution. This will however, also be a fulfillment of the promise made in the CMP for enactment of comprehensive law on communal violence. It is recommended that the Govt. should establish a Standing National Crimes Tribunal to investigate and prosecute criminals, to rehabilitate the victims and determine compensation to the victims in riot cases.

Commissions of Inquiry are constituted after every major trouble but they take long to complete their inquiries. More often than not, the Report of the Commission is not made available to the people. In fact, an amendment was inserted later into the Commission of Inquiry Act, 1958 to empower the govt. to claim secrecy of a report if it so thinks fit. This is against the present trend of openness and right to know. This Act should be amended to make the Report of a Commission available to the public within a short time of completion of the inquiry. All previous reports of the commission of inquiry should also be made available to the people.

It is interesting to note that even the annual reports of the National Minority Commission are not tabled in the Parliament regularly. The Govt. should be compelled by law to table these reports in the Parliament within a reasonable time limit.

The police resorts to indiscriminate use of lethal weapons and firing especially against the minority groups in the case of riots and claims protection from prosecution under section 132 of CRPC. Justice V.R. Krishna Iyer and Justice H. Suresh have said that "this can never mean that the police can shoot to kill people on the pretext of controlling a riot. There is nothing in the Constitution or any law enacted by the Parliament or State Legislatures that the police have a right to kill. "The police may use provisions of Section 100 of IPC in its defence and it is for the court to decide its validity". The Model Rules regarding use of Force by the Police against Unlawful Assemblies (1973) the Guidelines for dealing with Communal Disturbance, Maharashtra State Govt (1986) and other such Regulations encourage the police force to resort to lethal methods for deterrence. The Amnesty International has severely criticised these methods. The National Minority Commission in its 1983 report summed up the attitude of the police and magistracy in just one sentence. "Since Muslims are aggressive……. It is necessary that Muslim mobs must be taught a lesson through arrests, firing and third degree methods." Emboldened by faulty law and procedures and having such an anti Muslim bias, the law enforcement has always resulted in large number of Muslims being killed in police firing. More often, byestanders, housewives and children are killed for no rhyme or reason. The police should be made legally accountable for such deaths. 

Compensation to the victims of the riots:
Justice V.M. Tarkunde was of the opinion that enactment of a law to provide compensation to the riot victims will make the State governments take more effective measure to prevent and control communal riots. The National Police Commission (1981) also in its Report VI considered it a duty of the administration to compensate the losses and assist the riot victims in rehabilitation. A definitive juristic opinion about state's responsibility to pay adequate compensation was given by the Delhi High Court's in its judgement of July, 1996 in the case of victims of anti-Sikh riots of 1984. A law based on this judgement should be passed for giving equal compensation to all victims of the communal violence after 1984.

As we have seen in Gujarat and in some previous riots also, the political executive was found involved. It is easy to punish officials/policemen for their acts of omission and commission; the real question is here to deal with the political part of the executive, who are sometime the prime-movers of the trouble. The Report of the National Human Rights Commission (May, 2002) held the Gujrat Govt. responsible for comprehensive failure of governance. Further, Justice Khare and Justices Arijit Pasyat and Doraiswamy Raju in their judgement delivered on 12th April, 2004 in the Best Bakery case severely indicted the Govt. for the riots. However, no one talked seriously about punishing the political leaders, heading the govt. This is a serious flaw in the system and all political parties should join heads to frame a law fixing responsibility and actions against political executive for failing to perform its duties. It will look ridiculous to punish a petty policeman for his failures and allowing the political executive to go scot free. And waiting for punishment at the hands of the people in the next general election is delaying and denying justice to the victims. 

Part 1 » Law against communal violence-i

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