Re-examining the Communal Violence Bill
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COMMENTS 
The draft law on communal violence fails on many counts, says Sonal Makhija. In the first place, it vests the power to declare an area communally disturbed in the state government, although we have seen the complicity of the state itself in communal violence in recent times
In the eight years since the Gujarat carnage of 2002 India should have passed a law to protect its minorities and prevent communal violence. Instead, not only has the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 not yet been passed by parliament, but it does not seem to have incorporated any lessons from India’s failure to deal effectively with communal violence.
Although the bill recognises the need to intervene before violence occurs in order to prevent communal violence, it fails on many counts. The draft law vests the power to declare an area “communally disturbed” in the state government, thus failing to acknowledge and recognise the complicity of the state in instances of communal violence. An area can be declared “communally disturbed” under certain circumstances defined under section 3 of the bill which stipulates three qualifying factors to declare an area communally disturbed when communal violence is being committed in any area by any person or group of persons —(a) in such manner and on such a scale which involves the use of criminal force or violence against any group, caste or community, resulting in death or destruction of property; (b) such use of criminal force or violence is committed with a view to create disharmony or feelings of enmity, hatred or ill-will between different groups, castes or communities; and (c) unless immediate steps are taken there will be danger to the secular fabric, integrity, unity or internal security of India.
To define communal violence the bill relies on existing laws. Communal violence is defined in the schedule to the draft law to mean specific crimes committed under the Indian Penal Code, 1860, the Arms Act, 1959, the Explosives Act, 1884, the Prevention of Damage to Public Property Act, 1984, Places of Worship (Special Provisions) Act, 1991 and the Religious Institutions (Prevention of Misuse) Act, 1988.
Missing in this definition of communal violence is a vital provision recognising sexual violence and violence aimed at destroying women’s reproductive ability in communal violence situations. The sexual and reproductive torture inflicted on women in Gujarat mandates an exhaustive definition for violence committed against women in communal killings as opposed to merely the offences enumerated in the schedule to the draft law. The law needs to recognise that the violence directed at women and children in Gujarat was an act to dishonour, humiliate and annihilate the community.
This type of violence fits the definition of genocide provided in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The Convention defines genocide under Article II to include: “… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
While the bill does provide for speedy investigation and trials, one would have hoped it would provide for an investigating committee which is independent of the government in power. Instead, the investigation responsibility still vests with the police. The police, as we have seen, are not a politically neutral body and work as arms of the state. It is only when the state government concludes that the investigation of offences committed in any communally disturbed area was not carried out in a fair and impartial manner, that it may constitute Special Investigation Teams. It is not mandatory for it to do so.
Section 32 of the draft incorporates a provision protecting the identity and addresses of witnesses, as recommended by civil society organisations and the Supreme Court in Gujarat. The section states that on an application made by a witness or public prosecutor, a Special Court may hold proceedings at a protected place, and not disclose names and addresses of witnesses in any public documents or orders or judgments.
The question of how witnesses would be protected given a scenario where the state and the police have been complicit is not addressed. In cases of communal violence the imperative question is how many witnesses can be provided protection in a state that is hostile towards the targeted community, even if the witness protection programme recommended by the Supreme Court was to be implemented. A person in a witness protection programme requires, in addition to physical security, financial and emotional support to continue his/her life and support his/her family. The draft law does not take this into consideration.
The need for special courts is met under section 24 of the bill. The bill not only mandates the state to set up special courts, but also provides for establishment of additional special courts outside the state. The additional special courts may be set up if the state is of the opinion that the trial (a) is not likely to be fair or impartial or completed with utmost dispatch; or (b) is not likely to be feasible without occasioning a breach of peace or grave risk to the safety of the accused, the witnesses, the public prosecutor and the judge or any of them; or (c) is not otherwise in the interests of justice. The power to take the decision to set up additional special courts rests with the state government. The bill overlooks the state bias in instances of communal violence. The draft law should provide for setting up of an autonomous body to direct and monitor the state and its actions, thus making the state accountable to a body in situations of communal violence.
Section 17 does attempt to bring in some accountability. The section stipulates that a public servant who acts in a mala fide manner which causes or is likely to cause harm or injury to any person or property or fails to prevent the commission of any communal violence or disrupts essential supplies to the community shall be punished with one year imprisonment or/and fine. But the court has to take permission from the state government before it prosecutes a public servant for the offence.
The bill also fails to recognise ‘command responsibility’, which is a settled principle of customary international law on genocide. The theory of command responsibility makes senior officials responsible for failure to prevent crimes committed by their subordinates. With the Special Investigation Team summoning Gujarat Chief Minister Narendra Modi for questioning in the Ahsan Jafri murder case, the inclusion of command responsibility in the new law to book the highest in the chain of command for their failure to prevent commission of crimes by their subordinates becomes imperative.
The bill provides for setting up of relief and rehabilitation councils at national, state and district level. The councils would additionally also determine the compensation to be awarded to the victims. How the compensation would be assessed or quantified in case of losses suffered owing to “impact of sexual assaults or abuse on women” is not explained under the bill. And what the bill means by “impact of sexual assaults or abuse of women” is equally unclear. Parameters to assess sexual assaults and abuse would be different from parameters to assess losses suffered on account of (i) loss of life and injuries sustained; (ii) loss of, or damage to, homes, shops and such other structures and belongings; (iii) destruction of, or damage to, business and the loss of means of livelihood.
The role of state councils in directing the government to set up medical assistance, provide temporary identity proof and coordinate with organisations in order to channelise all efforts in the right direction appear to be some lessons learnt from the Gujarat carnage. Similarly, “guidelines for funding the restoration and repair of places of worship damaged or destroyed” is another credible effort. Whether these efforts would translate into action, remains to be seen.
Current developments and the renewed attention to the bill will hopefully compel the government to re-examine the proposed law and rectify its flaws to give India a legislation that responds effectively to instances of communal violence.
(Sonal Makhija is a Bangalore-based freelance legal consultant and researcher)
Infochange News & Features, April 2010