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Flaws in the Communal Violence Bill

A law that differentiates between Hindu and Muslim victims and proposes separate courts to try Hindu and Muslim accused only legitimises communal resentment and polarisation, writes Jyoti Punwani in this analysis of the Communal Violence Bill

Communal riots in India

Will the new Communal Violence Bill finally be the panacea for communal riots and the inevitable after-effects of justice never being done?

Policemen not shy of admitting that their force treats only one community as guilty during communal riots, and judicial commissions inquiring into riots, have both concluded that a riot can be prevented, or at least contained within 24 hours, given the will, both of the government and the police force. This has happened in Maharashtra, Bihar and West Bengal.

In Maharashtra, when the Shiv Sena came to power four years after the 1992-93 riots in which it was a major player, it was keen to rid itself of its communal image and therefore succeeded in controlling the one Hindu-Muslim riot that took place within its reign within a day. (That doesn’t mean it provided a secular government.) In Bihar, which had seen the horrific Bhagalpur riots in 1989 (and others earlier), Laloo Prasad, for whom secularism is serious business, was determined not to allow communal riots. Not only would he camp at riot sites, but he had made it clear that the concerned district magistrate and superintendent of police would be held responsible for any communal violence. That worked like magic. The CPI(M) that ruled Bengal for three decades did not play communal politics, hence little communal violence took place there and when it did, it was handled swiftly.

But mostly, riots are allowed to run their course. Sometimes politicians and policemen themselves instigate and indulge in the violence. None of them is made to pay, at least not in terms of legal punishment.

Prevention is even easier than containment. The police are supposed to monitor inflammatory speech and writing. The Srikrishna Commission of Inquiry into the 1992-93 Mumbai riots revealed that the Mumbai police were in fact keeping a record of communal utterances and writings prior to the riots, but they didn’t arrest the offenders, nor did they deny permission for gatherings where such speeches would most certainly be made, right up to D-Day (December 6, 1992, the day the preparations for the construction of the proposed Ram temple were to begin. The Babri Masjid was demolished that afternoon). The reasons the police gave to the Commission for this inaction were many, but can be summarised as i) the police didn’t think these speeches were inflammatory and ii) arresting Shiv Sena activists was a no-no because of the `backlash’ that would follow.

The new Communal Violence Bill addresses these concerns by creating new offences such as `dereliction of duty’ and `breach of command responsibility’ applicable to public servants, which include both prevention of communal violence as well as acts of commission and omission, as also failure to control subordinates. The range of `dereliction of duty’ is wide, but its punishment inadequate -- imprisonment from two to five years, and a fine. Surely those who enjoy power over citizens’ lives need more stringent punishment for not exercising those powers?

The offence relating to breach of command responsibility is seriously flawed. The commanding officer can be held liable only if he knew, given the circumstances, that those under his command would commit an offence relating to communal violence, and (not or) he failed to take necessary steps to prevent the offence or failed to submit the matter to the competent authorities for investigation and prosecution.

Now, can a commanding officer know the extent to which those under him will exceed the brief given to them? And even if he does, will he testify that he did know?

In Mumbai, a few citizens have been trying to get the state government to punish ex-commissioner R D Tyagi, indicted by Justice Srikrishna for the death of eight innocents, for the last 13 years. On directions of the Supreme Court, the government filed a charge of murder against him and 17 of his subordinates. But within two years, he and eight of his co-accused were discharged by a sessions court. The state government, which worked actively to help him get this discharge, naturally didn’t appeal against it. But one of his victims did, all the way to the Supreme Court which upheld his discharge in early-July.

Under the new Bill, Tyagi would have been prosecuted only if it prima facie seemed that he knew that the men whom he sent into the Suleman Usman Bakery, with orders to ``use minimum force’’ and arrest the terrorists allegedly firing from its terrace, would go berserk and kill eight unarmed innocents. Who could imagine that they would shoot point blank into someone who was clutching their feet, pleading his innocence? Or that they would drag a handicapped maulana down the stairs and shoot him? Even as hardened a cop as Tyagi might not have known this.

The next question is – who will prosecute these public servants?

The Bill provides for a National Authority which will receive and act on complaints against public servants. This is both good and bad. Until now, citizens have had to go to court to get public servants punished. In Mumbai, despite the Srikrishna Commission Report recommending `strict action’ against 31 policemen, citizens have had to move court, and 13 years after the Report was tabled, none of these 31 policemen have been punished (unless you count withholding increments and promotions as punishments). This isn’t only due to routine judicial delays, but also to active thwarting of the judicial process by the Maharashtra government which is bent on protecting its cops.

Governments, made up of bureaucrats and politicians, aren’t likely to change when it comes to punishing policemen for targeting Muslims. Let’s remember that the `secular' Congress-NCP, not the Sena-BJP, have been in power in Maharashtra since 2000. So, there needs to be someone above communal governments to see that the men in uniform are held accountable for the unnecessary deaths of innocents.

But will the National Authority serve the purpose? The Bill makes it out to be almost a superstate, with civil servants sending the same reports to it that they are supposed to send to the home ministry. But its recommendations are not binding. However, instead of being thrown into the dustbin, as are the recommendations of judicial commissions, or the National Human Rights Commission (NHRC) and the National Minorities Commission (NMC), governments must give their reasons for not acting on them within seven days.

What prevents a state government from saying that its own inquiry has exonerated the police officer against whom the NA wants action to be taken? The Maharashtra government has done this to save at least six of the 31 cops indicted by Justice Srikrishna.

The NA can also approach the courts. Of course, courts are more likely to pay heed to petitions filed by a body appointed by the PM and the leader of the opposition, rather than those filed by private citizens. The NHRC’s intervention in the Gujarat matter was pretty effective. Do we need another National Body to intervene solely in cases of communal violence? Why not then the National Minorities Commission?

The only body whose writ runs across states and parties is the Election Commission. That’s because it is truly autonomous, and has proved a pain for all political parties without exception. The NHRC and the NCM are neither autonomous nor are their advisories binding, so they remain toothless. Ditto with judicial commissions. What then is the use of another advisory body meant to deal with communal violence?

It’s the continuing failure of central and state governments to prevent and control communal violence that has resulted in the quest for a non-government authority that would monitor the continuing communal propaganda of Hindutva parties, take steps to curb them and arrest the offenders to ensure the security of minorities. Then there are organisations like SIMI. It was banned in 2001, but it had been active for a decade before that. No action was taken when it put up inflammatory posters and conducted huge meetings where incendiary speeches were made. The politicians, bureaucrats, and policemen who allow such propaganda and activities, which act like slow poison, need to be punished.

This Bill recognises this; indeed, one of its most welcome clauses is the presumption that where communal acts of a widespread or systematic nature have occurred, the concerned public servant who could have prevented it has failed in his/her duty. It also holds the head of an organisation responsible for the actions of his/her subordinates. Thus the constant blackmail by all the Thackerays that they can’t be blamed if their followers react to a certain demand not being met, also would become an offence.

But who will bell the cat? The NA? Through the very institutions on which we have depended until now -- communal governments and a slow-acting judiciary?

There is an even more basic flaw in this Bill. Undoubtedly, most communal riots have ended with Muslims bearing the brunt of both Hindutva and state violence. The Indian state has shown itself to be communal, whichever party may be in power. But there are enough instances of violence against Hindus by Muslims, sometimes large-scale, sometimes incredibly brutal. The Radhabai Chawl incident of the Mumbai riots, in which masked Muslims set afire six Hindus, of whom only one was a man, and the burning of Coach S6 of the Sabarmati Express at Godhra are two recent examples.

However, this Bill makes only that communal violence an offence which is directed against a religious or linguistic minority. This includes Hindus in Kashmir and Punjab and Nagaland. But this Bill would not apply to the Radhabai Chawl incident or the Godhra incident because in Maharashtra and Gujarat, Hindus are a majority. To these incidents, only the normal laws would apply.

The framers of this Bill say that whenever the majority is attacked, the state loses no time in arresting members of the minority community. That is true. When the minority is attacked, the state tends to look the other way, they argue. That too is true. But does the remedy lie in a separate law for the minorities or in forcing the state to be impartial by having the same law for all?

Imagine a situation in a Hindu-majority state, in which 90% of the violence is against Muslims or Christians, but 10% is against Hindus. When the cases come to trial, separate laws would apply!

This Bill provides for special courts with special judges and public prosecutors to try the offences listed under it. Special courts are an absolute must after every communal riot. This Bill also has wonderful provisions empowering the victims in the legal process. Currently, unless they are witnesses, victims are kept out of the entire legal process. It also provides for witness protection once the trial begins.

But these vital provisions will not apply to Hindu victims of Muslim violence! Do the framers of this Bill think that accused Muslims are not capable of threatening Hindu victims/witnesses? In one TADA case of the Mumbai riots, two brothers, notorious in their area, were acquitted because the complainant, a Hindu, himself turned hostile. Yet, the framers of this Bill have made him ineligble for protection from the court that his neighbour, a Muslim riot victim, will be able to get.

It needs to be pointed out here that TADA was applied to the Radhabai Chawl case and the TADA court had convicted 11 Muslims for the incident. They were acquitted by the next court of appeal, the Supreme Court. For the burning of Coach 6 at Godhra too, POTA was applied, then challenged and finally withdrawn from the case. Thirty-one Muslims were convicted and 63 acquitted under normal laws by the Gujarat High Court.

So the framers of the Bill would seem to be right – where Hindus are the victims, very strict laws are applied to punish the Muslim accused; and the lower courts tend to convict the accused.

But that’s not the entire story. And Gujarat is not the rest of India. After the Mumbai riots, TADA was applied to many cases, not just the Radhabai Chawl case. In most of them, Muslims, not Hindus, were the victims. The accused included Shiv Sainiks. Though all of them were acquitted, they did spend time in jail as bail was almost impossible under TADA. Now, under this new Bill, will such even-handed treatment be possible? The state, which is not going to suddenly turn secular, will see that Muslim victims are protected by a special law. So, it will not only make sure that Hindu victims are similarly protected (by using draconian laws such as MCOCA and UAPA), but will go out of its way to see that Hindus accused under this new law get acquitted.

This happens anyway. In Gujarat, the public prosecutors (PPs) supposed to represent Muslim victims were aligned to the BJP – the main perpetrator of the Gujarat violence. In Mumbai, the PPs were underpaid and indifferent – except in the Radhabai Chawl case. Where Tyagi was the accused, the PP was openly on his side. But in not-so-serious cases of the Mumbai riots, involving rioting and arson, both Hindu and Muslim victims got the same legal (mis)treatment -- indifferent PPs, lethargic judges, policemen unwilling to find the real culprits... I have seen enough instances in court of Hindu and Muslim accused cursing the police equally, often in the same case! Hindus have forgiven Muslims charged with destroying their properties, and gone home with them.

Now you have a law that differentiates between Hindu and Muslim victims. You have separate courts trying Hindu and Muslim accused. You legitimise communal resentment and polarization more successfully than the BJP can ever do.

Unless the definition of a `group’ changes to include all communities, be they majority or minority, this Bill cannot be supported.

(Jyoti Punwani is a freelance journalist based in Mumbai. She has reported extensively on issues related to communalism in India)

Infochange News & Features, July 2011