Let us consider by way of illustration Gujarat as the most recent, and the most disgraceful of all of these acts of state abdication and collusion with communal organisations. The state machinery was found by many independent citizen investigators to be gravely complicit in planning and executing the most brutal massacre since Independence of women and children of the minorities. It did little to control the violence for weeks, refused to set up relief camps or to rehabilitate the victims. Almost four years later, many more than half those who lost their homes are unable to return because of continuing fear. The legal process has been subverted.
To legally prevent the recurrence of situations like this is a matter not just of security and restored trust, but actually of life and death for millions of citizens of minority faiths. Its urgency is enhanced by the fact that over the last two decades, political formations with openly communal agendas have directly or through their political proxies, captured political power in many states of the country, and indeed along with a bunch of opportunistic political formations have emerged as the main alternative contenders for power in the central government in the future. The prospect of the infamous Gujarat experiment of a state sponsored terrorising of minority citizens is a realistic imminent fear with which millions of citizens are living in states like Rajasthan, Orissa, Madhya Pradesh, Chatisgarh and Jharkhand. It is for this reason that the Bill pledged in the common minimum programme of the coalition government was so eagerly awaited. But what this law sets out to do is not to protect innocent citizens from future possible acts of criminal communal collusion of their elected rulers, and the civilian and police arms of their administrations. Instead, in its statement of objectives itself, it sets out perversely to vest those same state administrations with even more powers.
Do the framers of the Bill, or the members of the union cabinet who approved its submission to Parliament, genuinely believe that Narendra Modi in 2002, or indeed the administrations of Delhi, Nellie, Bhagalpur or Mumbai when these also burnt in the past in raging communal fires, did not act because they did not have enough powers to do so? Was the failure of disempowered, or of criminally malafide public authority in each of these cases? Even a junior local policeperson or civil administrator has all the powers under the law as it exists, that is needed to quell any communal conflagration. Indeed, no riot can continue beyond even a few hours without the active, wanton, and in my opinion manifestly criminal complicity of state authorities. If this is the case, what purpose is served by a law that sets out as its objective to further 'empower' these same state and central governments?
The core sections of the Bill from Chapter II to Chapter VI, relating to the prevention of communal violence, the investigation of communal crimes and the establishment of special courts will only come into effect if the State government issues a notification. All opposition governments could ignore this statute completely. Moreover, a state government may issue a notification bringing the statute into force in the state and yet render it sterile by not issuing notifications declaring certain areas to be communally disturbed areas. The Act can be invoked only in very extreme circumstances where there is criminal violence resulting in death or destruction of property and there is danger to the unity or internal security of India. There are many serious communal crimes which may not result in death such as rape. Similarly, social and economic boycotts, forced segregation and discrimination will not fall within the ambit of the statute because they do not result in death or the destruction of property. Even in such extreme circumstances the Act only prescribes that the government 'may' act by issuing a notification. On the face of it, the duty to act is not mandatory.
Chapter III relates to the prevention of communal violence and appears to empower the district magistrate to prevent the breach of peace. The powers of executive magistrates and police-persons delineated here already exist under numerous statutes, such as to requisition the armed forces to control communal violence; to control any assembly or procession; prohibit loudspeakers; confiscate arms, ammunition, explosives and corrosive substances; conduct searches; prohibit displays or 'harangues', or gatherings that may incite communal sentiments; and externment of those who may disturb communal peace. The listing of these powers in the new Bill is at best cosmetic and redundant, as it adds little to what is already legally permissible for these authorities to suppress communal violence. The earlier draft had included new powers, attempting to reintroduce through the backdoor draconian provisions from the repealed POTA and the abused and feared Armed Forces Act. The government was mercifully sensitive to protests that enhanced state powers in communal situations will mainly be misused against minorities, and it withdrew these provisions from its new draft.
For citizens living under the shadow of communally driven (or opportunistic) governments, then, what this Bill offers a listing of powers of the government that mostly already exist, that they *may *use to protect them if they choose to do so. What they needed instead was a law that enhanced the powers of citizens in relation to such governments, and not of the governments in relation to its citizens. They needed a law that did not merely enable their governments to act when communal violence unfolded. They needed a law which made it mandatory for the government to act, in clearly codified ways, before, during and after communal violence, and which made failures of these governments to act, leading often to the avoidable loss of life and property, or sexual violence, criminal acts for which they can be charged, tried and punished. There is virtually nothing in the law that does this; indeed, as observed, this is not even the stated intention of the law. That is why this is not a Bill that can be improved by tinkering with a few of its clauses. Its basic premises are so flawed, that it needs to be rejected in its entirety and replaced by a law of very different objectives, which genuinely protects the human rights and security of citizens in communal contexts and enables them to hold their governments accountable for their acts of omission and commission.
The Bill does contain one clause for punishment of public officials who fail to perform their duties. Section 17 (1) provides for punishment with imprisonment which may extend to one year, or with fine, or with both, for any public servant who '(e)xercises the lawful authority vested in him under this Act in a mala fide manner, which causes or likely to cause harm or injury to any person or property'; or '(w)illfully 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.' It is explained that offences under this section include willful refusal by any police officer to protect or provide protection to any victim of communal violence; to record any information relating to or to investigate or prosecute the commission of any scheduled offence.
There are however two fatal catches to this otherwise promising segment of the Bill. It neglects to hold accountable the command authority of elected leaders like the chief minister and home minister for these lapses, and at best can result in the mild punishment of some junior policepersons. Even more fatal is the proviso that no court shall take cognizance of an offence under this section except with the previous sanction of the state government. In the context of state governments with communally driven malafide intent, the chances of even police officials being punished under this clause are very remote.
It is well known that hundreds of cases throughout the country are languishing because the state governments have refused to grant sanction for prosecution of public servants. In any case sections 217 to 223 of IPC cover offences by public servants such as the shielding of criminals, preparing false records, making false report in courts, initiating false prosecutions and allowing criminals to escape.
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 or she was unaware of the crimes that were committed on one's 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.
Chapter XII which grants immunity to the police and army is particularly insensitive. Various Commissions of Enquiry including the Justice Ranganath Mishra Commission (Delhi riots), the Justice Raghuvir Dayal Commission
(Ahmednagar riots), the Justice Jagmohan Reddy Commission (Ahmedabad riots), the Justice D.P. Madan Commission (Bhiwandi riots), the Justice Joseph Vithyathil Commission (Tellicheri riots), the Justice J. Narain, S.K. Ghosh and S.Q. Rizvi Commission (Jamshedpur riots), the Justice R.C.P. Sinha and S.S. Hasan Commission (Bhagalpore riots), and the Justice Srikrishna Commssion (Bombay riots) have found the police and civil authorities passive or partisan and conniving with communal elements.
There are other problems with the Bill as well. The definition of 'communal violence' is limited to a listing of offences under existing acts, such as the Indian Penal Code,1860; the Arms Act, 1959; the Explosives Act,1884; the Prevention of Damage to Public Property Act, 1984; the Places of Worship(Special Provisions) Act, 1991; and the Religious Institutions(Prevention of Misuse) Act,1988. Given the character of communal violence as it is unfolding in many parts of the country, a much wider definition is needed, not just of violence, but of discrimination and human rights violations on communal grounds.
The act should cover communal crimes such as hate speeches and mobilisation; spreading ill-will and distrust between communities; communal literature and textbooks as well as classroom teaching; forced ghettoisation and expulsion and exclusion from mixed settlements; discrimination in employment, tenancy, admission to educational institutions etc on communal grounds; discrimination on communal grounds by professionals like doctors and lawyers; and so on. Many of these such as hate speeches are addressed by existing laws, but the flaw is the same, that there are no binding duties of the state to act against these. In fact, governments are mostly known to withhold permission to prosecute hate speakers and writers, even when complaints are registered against them by human rights groups. The mandatory duties of the state under this Bill should therefore include prevention of these communal crimes as well, such as prohibiting and punishing (in a purely illustrative list) hate speeches and writings of the kind that Bal Thackerey, Modi and Tagodia routinely indulge in; the pedagogic content and methods used openly in Sangh schools; or refusals to rent a house or employ someone on the grounds of their faith, caste or gender.
The Bill does little to address gender violence, which has become the feature of most communal incidents, where the bodies of women are used as battlefields to establish dubious communal male superiority. Incidents like Gujarat in 2002 alert us to the need for a much wider definition of sexual violence (generally, but also specifically in the communal context) to include acts like stripping before women or stripping them, insertion of objects, piercing, sexual taunts etc, and should not require evidence of actual penetration of the kind required under rape laws. The Bill needs to change rules of evidence to shift the burden of proof to the accused, rather than place it on the women survivors. It needs to protect the dignity and confidentiality of the survivors of violence at all stages, from recording of complaints and statements, to investigation and trial. There should be mandatory services of counselling and medical attention to the survivors.
An unresolved controversy relates to whether the powers of the central government should be extended in the event of a state government failing to perform its legal and moral duties in expeditiously and impartially controlling large-scale outbreaks of communal violence. This would be important if the central government is comprised of parties and coalitions of different political persuasion from those of the state government. The Bill remains conservative in this, and section 55 requires the Central Government, in cases where it is of the opinion that 'there is an imminent threat to the secular fabric, unity, integrity or internal security of India which requires that immediate steps' to 'draw the attention of the State Government to the prevailing situation'; and to direct it 'to take all immediate measures to suppress' the violence. If the state government fails to act, the Bill provides first for the central government to declare any area within a State as 'communally disturbed area' under this Bill; but this is not significant because, as we observed, such declaration does not require mandatory actions by the state government to control the violence. The Bill also provides for central 'deployment of armed forces, to prevent and control communal violence', which would have been very significant, but the provision is neutralised by the requirement that this central deployment is legally permissible only in the event of 'a request having been received from the State Government to do so'. In other words, only the state government still retains the power to decide about the deployment of armed forces to control communal violence. Once more the Bill elaborately ensures that nothing changes in the prevailing legal position, although it is made to appear superficially that it does.
The Bill takes some halting steps to fill one major gap that exists in the law at present. There is no law that defines the rights of survivors of communal violence to rescue, relief and rehabilitation. The Bill once again provides no protection against a government like that of Modi, who refused for the first time in a major communal conflict after Independence, to even set up relief camps, announced no rehabilitation package, and has yet to take steps to secure the return of more than half the survivors who fled or lost their homes in the carnage of 2002. There is no defence against the contempt displayed by Modi against a segment of his own citizens when he was asked why he did not set up relief camps. He is reported to have replied, 'I refuse to set up baby-producing factories'.
Instead Chapter VII deals with relief and rehabilitation in a largely ceremonial manner. It calls for the setting up of national, state and district level 'Communal Disturbance Relief and Rehabilitation Councils' but nowhere in the Statute does the right of the victim to relief, compensation and rehabilitation emerge *as* *a right *according to an acceptable international standards. When the state does not protect the lives and properties of the minorities during communal carnages, should the victim not have a right to compensation and alternative livelihoods at the cost of the state? An answer to this was expected in the statute. Is a relief camp to lie at the discretion of government and NGOs with shabby provisions being made on a temporary basis, or is it the right of the victim to be provided immediate relief according to well established norms? All this is sadly missing in the Bill.
Chapter IX deals with the funds for relief and rehabilitation and once again the shallowness of the central government stands exposed. The financial memorandum to the Bill which is supposed to indicate the liability of government ends on a dismal note: "As involvement of expenditure depends mainly on the occurrence of communal violence, it is difficult to make an estimate of the expenditure from the Consolidated Fund of India". The entire orientation is in keeping with the approach seen in the rehabilitation of Tsunami victims of getting the NGOs to spend for the entire rehabilitation.
The Bill needs instead to lay down once again legally binding duties of rescue, relief and rehabilitation; the relief camps must meet internationally endorsed standards for refugees; the government must give a subsistence support until it is possible for survivors to return with a sense of security to their homes; and rehabilitation must ensure that people who survive must be restored to a situation better than that in which they were placed before the violence. There must also be special measures prescribes for widows and orphans.
The Bill provides once again on the initiative of the state government, the establishment of special investigation teams and special courts. It lays down time limits for investigation of communal crimes of three months, beyond which the cases will be reviewed by senior police officials. The only qualification it lays down for public prosecutors is seven years of service, but there is no impartial process of selection, and no bar to those with known partisan links hostile to the interests of the victims. (It is established before the Supreme Court that many public prosecutors were members of Sangh organisations in Gujarat, therefore instead of prosecuting the accused, they openly acted as their defence.) The law needed to go much further in defending the rights of the victims, and the role that their lawyers could play if the prosecution is partisan. There is also the arguable provision for enhanced punishment of those convicted of communal crimes, but the conventional wisdom remains that the certainty of punishment is a much greater deterrence than its severity.
The Bill contains some provisions for witness protection under section 32, which provides that for keeping the identity and address of the witness secret. These measures include '(a) the holding of the proceedings at a protected place; (b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in nay records of the case accessible to public; and (c) the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed.'
These measures are welcome but hardly go far enough. The witness protection under Section 32 has been drafted without application of mind as to the Law Commission's recommendations. The main aspects of modern day witness protection which shields the witness from the accused, compensates her for the trauma of the crime and the trial and creates new identities and a new life for the witness is totally missing. Genuine witness protection includes a substantial financial obligation of the state to take care of the witness and her family in secrecy, often for the rest of their lives.
No law by itself can defend people against injustice. People need to be mobilised and organised to secure their rights. But laws can be vital democratic instruments by which people can resist and shield themselves against injustice, particularly when the governments they elect defy their moral and constitutional duties by failing to secure them against communal mobilisation and crimes. The law that Parliament is considering is critical for the defence not just of the lives and properties of minorities, but of their equal rights and protection under the law, and indeed the secular character of the polity. Let our law-makers not miss this critical moment in our history to allow mounting and endemic state injustice in communal situations to persist unchallenged.
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