In the wake of massacre of Gujarat, 2002, civil society started demanding for a bill on prevention, control and rehabilitation of victims of communal violence. In 2004, UPA in its Common Minimum Program promised for a comprehensive legislation on the same and in 2005, they introduced a bill in Rajya Sabha. The Bill was roundly criticized and rejected by civil society and urged for the serious as it was complete betrayal from the promise. The Bill was sent to the Parliamentary Standing Committee on Home Affairs for its review and recommendations. But the Committee, which submitted its final report in December 2006 made no significant changes. In last months of 2009, Cabinet cleared the bill with slight changes and now planning to introduce in it coming session of the Parliament.

For a community that has been such a receiving edge of the communal paradigm of politics, that has been suffering for many decades now because of the deeply entrenched brahamanical powers holding the power levers in India, it is strange that the Sikhs have completely failed to engage with this Bill. It too must reject as useless and draconian the proposed Bill.

Of the view that punishment should be commensurate to the crime, they noted that other forms of punishment – such as disqualification from public office, debarring from professional associations or running for public office – should be included in the case of culpability of public officials. Clearly, the Congress will be on back foot on this as Sajjan Kumar and Jagdish Tytler will then again come into focus and people will judge that those who should have been cast aside were sent to Parliament by Congress.

“This Communal Violence Bill 2009, if passed, will not only be weak, it will be dangerous. It will not only fail to secure justice for communal crimes, but will actually strengthen the shield of protection enjoyed by those who plan and sponsor these crimes. Further, it continues to perpetuate the silence around gender-based sexual crimes”. 

Signed by

Justice K K Usha, former Chief Justice of Kerala High Court, Justice Rajinder Sachchar (retd), Justice Sardar Ali (retd.), AP High Court, Harsh Mander, Prof. Rooprekaha Verma, former V C of Lucknow University, Adv. Colin Gonzalves of Supreme Court of India, Dr. Rampunyani, V. N. Rai, former DGP, UP and many others.

Key Recommendations: 

Keeping the track record of communal violence in India, any such Bill will help only when new offences like “Forced Displacement, Gender Based or Sexual Offences, Genocide, Social and Economic Boycott, Illegal Dispossession, Transfer, Possession or Disposal of Immovable Property” must found place in the law. Provision for enhanced “punishment on subsequent conviction”, “in camera proceedings”, provision for “compensation to Waqf or religious trust on damage and destruction of religious property”, special mobile police stations for lodging complaints during and after communal violence, appointment of accredited paralegal and volunteers for assistance to survivors during filing of Complaint and trail need to be put in place. Further, special duty with regard to access to justice such as lawyer of choice, traveling expenses to complainant and witnesses, post trauma counseling etc. shall be imposed on the State Governments. Mechanism related to social insurance like 1% compulsory surcharge on all tax payers towards relief and rehabilitation of the survivors should also be incorporated. Last but the most, the rule of burden of proof in trial of offences related to communal violence must be relaxed and shifted from prosecution to the violator (accused) by adding a new chapter on presumptions such as presumption as to malafide commission and omission by public servant on duty and so on so forth.
 

 The Objections 

In the present given form, the Bill is entirely misplaced and disconnected with India’s past experiences of communal violence. The bill seeks to further empower the State and Central Governments rather than the survivors of communal or ethnic violence in particular and citizens in general. The Bill is reinforcing and strengthening the past situation where enough statutory powers have been given to the Government and therefore fails in providing an alternative to the existing laws and its instrumentalities and to supplement them to fill the gaps in Indian legislation in the situation of communal or ethnic violence/crisis. 

This Bill restricts the application to the communally disturbed areas declared/notified under this Bill; it means this law has no use unless the state government declares/notifies any area communally disturbed area. This theory is beyond all the limits of reasons and justification that is a crime by definition is always a crime and has no relation with any such declaration by the Government and is unheard of in the history of Penology. However, the declaration/notification has some relevance so far as the exercise of executive power and which is again a question of close scrutiny. Further, the ‘scale of violence’ may be relevant for deciding whether it falls under the special law on communal violence but the ‘scale’ cannot be linked to the temporality of an executive declaration. 

The Bill provides extra ordinary executive powers to the state government and the public servants in form of various provisions of the Bill and thus fails to address the past experience and history of communal conflicts/violence. On the basis of our past experiences, devolution of enhanced powers to State Government and public servants during communal disturbance and have been always misused and abused against the interest of minority community rather than protecting them. Further, the Bill negates the Central Government’s power to deploy Army in genocidal situations, as S. 55 mandates prior request by the State Government for such deployment. Also, giving powers to State government to notify the Bill for its commencement is suicidal and would have serious consequences. 

The Bill fails to create any new offence, rather it treats a set of already defined crimes as scheduled offences and leaves no room for the creation of newer offences to deal with crimes of genocidal nature (i.e. mass crimes or targeted crimes) during of communal or ethnic violence/conflicts, which India is obliged to recognize and legislate on the issue of genocide under the UN Convention on the prevention and punishment of the Crime of Genocide, 1948 (Ratified by India in 1959). Communal violence is by its very nature a targeted or mass crime perpetrated on a community of persons. However, Indian Penal Code, 1860 is inadequate to combat communal violence, failing repeatedly in the past to redress and protect the interests of the survivors of mass crimes and to enforce accountability of the perpetrators, including the state agencies complicit through act of commission and omissions of mass crimes. Yet the Bill fails to recognize this historicity of the impunity for the communal violence and to bridge this existing legal vacuum. 

The Bill in the present shape is unwilling to adequately enforce state accountability for the acts of commission and omission by the State agencies. There has been a history of enjoying absolute impunity by the state agencies because of a statutory pre condition of Government’s sanction for their prosecution. Such a qualification serves to ensure that state agencies will continue to enjoy immunity even after the passing of this Bill, thus nullifying the Bill’s own stated commitment to the principles of state accountability. Further, even the provision for punishment to the public servants either/both for ‘mala fide exercise of lawful authority’ or/and ‘willfully omitting to exercise lawful authority to prevent communal violence’ is adding further impunity for the state agencies and by creating a defense of ‘good faith’ in favor of them further dilutes it. 

The Bill lacks provision related to ‘command responsibility’ and no special efforts have been made under this Bill to ensure the same when persons in positions of power have it in their command to prevent the eruption or stop the continuance of communal violence, so that the responsibility for the same can be traced back to such person or persons in command with such power. 

This Bill completely ignores the fact of inherent distinction between the sexual assault at the peacetime and sexual assault with genocidal intent in a communal situation and fails to acknowledge and create a separate category of such offence. Crimes against women in a communal situation are horrific and of multiple types which are not even touched by the criteria of scheduled offences as created for the purpose of this Bill and completely fails to even acknowledge those crimes which do not defined under Indian Penology. 

The Bill provides an institutional arrangements for relief and rehabilitation, which is positive and encouraging to a small extent, but it fails to create a national framework of justiciable entitlements for the survivors of the communal violence and leaves it to the State Governments to prepare their own relief and rehabilitation standards and scheme and also the amount of compensation and therefore, it is not articulated as an inviolable legally enforceable rights of the survivors and seems more an act of charity than entitlement. Further, there is no mention of the rights of internally displaced persons leaving them entirely unprotected hence the Bill fails to acknowledge the UN Guiding Principles on Internal Displacement. Also, it fails to recognize the internationally accepted principle of payment of ‘reparation’ by the State to its citizens for failure to protect life and liberty during mass communal violence.