The communal violence
The Communal Violence (Prevention, Control And Rehabilitation Of Victims) Bill, 2005
Communal violence threatens the secular fabric, unity, integrity and internal security of a nation. With a view to empowering the State Governments and the Central Government to take effective measures to provide for the prevention and control of communal violence and to rehabilitate the victims of such violence, for speedy investigation and trial of offences including imposition of enhanced punishments, than those provided in the Indian Penal Code, on persons involved in communal violence and for matters connected therewith, it was decided to enact a law by in the parliament by the UPA Government. Wi the such aims the government came up with the Communal Violence (Suppression) Act, 2005. But as it was found that in its very basics only the bill was full of Constitutional flaws and irregularities, the government was forced to withdraw it. Then later in the year the improved Communal Violence( Prevention, Control & Rehabilitation of victims) Bill was tabled in the parliament. The bill is at present with the parliamentary committee on constitutional affairs for a review.
In the mean while there have been lot of debates going on whether the laws contained in Indian Penal Code are adequate to deal with the new forms of public violence like Bandha , Dharnas , Ghhearos , Rallies , Rasta Rokos, communal violence etc. The administrators, law and order enforcement agencies and civil servants consider the laws toothless and inadequate to deal with the menace of public violence. On the other hand the liberal ideologues and sociologists consider that such forms of dissent and protest are of the very essence of the true democratic polity. In a state owing allegiance to the rule of law and the principles of democracy, justice, liberty, equality and fraternity, dissent and protest are as vital as law and order. Neither the need for dissent nor the practical need for the enforcement of law and order can be denied. The crux consideration that has to be taken into account is that when do dissent and protest out step their limits and become problems for law and order. It is a well known fact that the some of the forms of dissent and protest have an in built potential for sparking of violence.
For proper understanding of the relevance of the proposed bill it is necessary to understand the provisions in the Indian Penal Code under the heading offences disturbing public tranquility. This paper is a critique on the new communal violence bill tabled before the Rajya Sabha in 2005.
The method of research adopted for this particular project and study is doctrinal in nature.
A doctrinal method has been used as it is more viable for the topic in question. As the project is a case comment on the pending Communal Violence( Prevention, Control & Rehabilitation of victims) Bill , an empirical approach of research will be futile. In this scenario to prepare questionnaires and to do a survey would be pointless as a layman would not be aware of the mention and concept of communal violence in legal sense, a doctrinal method proves to be more productive than any other method which can be adopted.
The resources available at the library of NALSAR, University of law were helpful as it enables the researcher to do a detailed study with ease. Both secondary as well as primary sources like reference books, commentaries, websites etc have been used.
Aim And Objectives
The aim and objective of this project is to do a detailed study of the Communal Violence( Prevention, Control & Rehabilitation of victims) Bill 2005. The researcher also in his research tried to mention the important loopholes in the bill , and to propose the changes which can be made
In The Indian Penal Code
The Indian Penal Code does answers the issue of communal violence . But with time it has been observed that the provisions are inadequate to encompass the various aspects of crimes which are usually witnessed during an incident of Communal Violence. The section may throw light over few such sections . The relevant sections of the IPC are listed below -
- Section 141 Unlawful assembly.
- Section 143. Punishment
Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.
Section 142. Being member of unlawful assembly
Section 144. Joining unlawful assembly armed with deadly weapon.
- Section 146 Rioting.
- Section 148 Rioting, armed with deadly weapon.
- Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly.
- Section 152. Assaulting or obstructing public servant when suppressing riot, etc.
- Section 154. Owner or occupier of land on which an unlawful assembly is held.
- Section 156. Liability of agent of owner or occupier for whose benefit riot is committed.
- Section 158 Being hired to take part in an unlawful assembly or riot
- Section 160. Punishment for committing affray.
Section 147 Punishment for rioting
Section 149 Every member of unlawful assembly guilty of offence committed in prosecution of common object
Section 151. Knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse.
Section 153. Wantonly giving provocation with intent to cause riot-if rioting be committed-if not committed. [153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. [153B. Imputations, assertions prejudicial to national-integration.
Section 155 Liability of person for whose benefit riot is committed.
Section 157. Harbouring persons hired for an unlawful assembly.
Section 159 Affray.
The concepts relevant here are rioting and section 153 and particularly section 153 A of the Indian Penal Code.
In Cases Of Rioting
Riots are the most hotly debated issues of the country. It seems like riots have become common place in this ‘secular' country. The riots in Gujarat, Meerut and Ahmedabad have shaken the basic roots of the country. Provisions are there in the Indian Penal Code for the prevention of riots. First to begin with what is a riot? It is in simple words is a more violent form of the Unlawful Assembly. It is only the use of force that distinguishes the riot from the unlawful assembly. When an unlawful assembly becomes violent it is called rioting. All other ingredients are same as that of the unlawful assembly. Now the question arises is what should be the level of violence to be committed as to be branded as a riot. Under the common law when members of an unlawful assembly actually carry out their unlawful common purpose with violence, so as to cause alarm, they are guilty of riot. However this principle has not been used in India. In India even the force against inanimate objects to come under the purview of S.146 of Indian Penal Code. The punishment for rioting with deadly weapon is provided S.148 of Indian Penal Code, the maximum being 3 years imprisonment with fine.
Section 153 of the Indian Penal Code deals with the provisions relating to the violence on the grounds of religion. This section talks about the violence in the religious worship place and provides punishment for any misconduct at the place. Though the element of communal violence is present it is not comprehensive enough. Only these laws are incapable for dealing with the communal violence. The Section 153 A of the Indian Penal Code has been enacted especially to deal with the offences related to communities or religion.
Provisions In The Constitution
The idea of the bill is based on the article 355 of the constitution of India. Article 355 of the constitution says: “Duty of the Union to protect States against external aggression and internal disturbance- It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.”
Public order comes under the State list provided in schedule VII of the constitution. On the perusal of the constitution it becomes clear that the public order is specifically the dominion of the state government. The central government has nothing to do with it. Entries have to be made in the Union List for the Union to interfere in the maintenance of public order. Though the Union has power to interfere in the matters concerning the working of the Indian Penal Code. The scope of this entry needs to be expanded so that it includes the communal violence as well.
Need For A Special Legislation
Today riots have become the major source for the disturbance of the public tranquility. Two riots one in Aligarh (UP) in April and other Vadodra (Gujarat) in May, 2006 reiterated the necessity of acts dealing with communal violence. A cursory look at the history of the communal riots in the country suggests that Aligarh and Vadodra are not isolated event but part of the larger picture of the communal program that's being carried out intermittently. Riots after riots have similar story to tell. The provisions in the Indian Penal Code appear to be inadequate to deal with such type of situations. To control such types of communal situations the UPA government introduced the Communal Violence (Suppression) Bill in the Parliament in 2005. The bill is still pending for approval. The Bill emphasises on the relief part, true to its name. The bill truly answers to the call of time as we don't have any particular legislation dealing with the relief and rehabilitation of the victims of communal violence.
The parliamentary standing committee of the Home Ministry is currently discussing the bill. The discussions are centering around two fundamental issues; can a communal situation in a state be dealt with by the central government without encroaching upon the state's rights of maintaining law and order? Second, can the deployment of central forces be done independently or at the request of the state government and, in any case, can such forces act independently or do they act under the command of the state government? Notwithstanding the rights of the states to be encroached upon, the fact remains that in the name of state autonomy and provinces exclusive right over 'law and order', the central government cannot remain a spectator to the instances of communal violence taking place in a state.
Critique Of The Bill
The Preamble of the Bill makes it clear that the enactment is being done with a view to empower the government to take measures. The Preamble of the Communal Violence (Suppression) Bill says that it is meant to "provide for the State government and the Central government to take more effective measures to suppress communal violence perpetrated on such a scale which threatens the secular fabric, unity and integrity of the nation". Section 11 deals with the special powers of the central government to act in circumstances where the state government does not take appropriate measures. But here too, Section 3(b) attaches a rider that this can be done only at the request of the concerned state government. This is a ridiculous provision that even today the central government has to take permission for the humanitarian work. The failing of this mechanism was witnessed in the Gujarat Riots 2002 and the Bombay Bomb blasts in 1994. The Human Rights activists point out that an “insensitive” government like in Gujarat would never have asked for the help from the center. The fear is that the provision in the bill that gives power to the state government to draft their own anti-communal laws will give draconian powers to the police. The bill borrows such powers heavily from the withdrawn Prevention of Terrorism Act and the Armed Forces (Special Powers) Act in operation in northeast India.
The thrust of the legislation is itself misplaced given that it is the government agents that are the principal wrongdoer. The provisions in the bill can be applied in a particular state only if the government of that particular state recognizes it by notification. All opposition governments could ignore this statute completely. It is totally in the hands of the state government to declare the areas to be “communally disturbed” the power which it is liable to misuse. The bill is silent about the social issues that are the steps taken for the protection of the children and women and other like issues. The rules of evidence need to be modified so that the victim is not victimised during the trial. Chapter III of the bill relates to the prevention of communal violence and appears to empower the district magistrate to prevent the breach of peace by, inter alia, curbing processions, regulating the use of loudspeakers, seizing arms, detaining persons and conducting searches. This particular section has no relevance because the police has already these powers through the Cr PC.
Chapter VII is a progressive part of the act. It deals with relief and rehabilitation in a ‘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 standard. When the state fails to provide maintenance to the victims should the victims not have the right to compensation so that they can enforce the government to pay heed to their pleas?
Sections 7 to 10 are taken almost word to word from Sections 3 to 6 of the AFSPA. Once an area has been declared communally disturbed any commissioned or non-commissioned officer will have the power to open fire on any person breaking law to the extent of causing death. The bill gives the power to the officer to arrest without warrant on the on the grounds of reasonable suspicion.
The new bill has provisions that empower the state or the central government to set up special courts. The judges to these courts can be appointed by the state in concurrence with the chief justice of high court. These courts have been given unprecedented power by the bill. If the court is satisfied with the report of the police that the accused is likely to commit some offence in the ‘communally disturbed' area the court can order him to leave the area for a period not exceeding 6 months. The court has the power to forcibly evict him of the place if he so refuses. The important thing about this provision is that it dispenses the provision contained in section 130 of the Cr. Procedure code which makes it mandatory for the armed forces to obtain the permission of the Executive magistrate before they use force to disperse an unlawful assembly. In a disastrous move that goes back to the POTA the maximum period of detention has been extended form 15 day to 30 days which can go upto 1 year. The Cr PC has the provision for the maximum detention for the period of 60 to 90 days when the charges have not been proved, depending on the severity of the offence. The maximum term for the jail punishment under this bill has been doubled except life term and death sentence. The conditions of the bail have been made stringent. No bail can be granted unless the public prosecutor is given the opportunity to contest the bail plea.
Communal Violence Relief and Rehabilitation Council consisting of the State Chief Secretary as ex-officio Chairperson, the Collector and the Superintendent of Police of the District as ex-officio members, two persons nominated by the Central government to represent social workers and four persons, again nominated by the Central government, to represent the minority community and the victims of communal violence. This council is responsible for the speedy distribution of relief and rehabilitating the victims. It has every power for the speedy dispensation of justice to the communal violence victims; it can also frame guidelines for the distribution of compensation amount.
The amended Section 144 of the CrPC to gives powers to the District Magistrates to ban any procession carrying weapons or any mass drill or mass training with arms in any place. The ban can be in force for up to six months. Human Rights groups have protested tooth and nail against the amendment. The bill is silent about the hate speeches given in the initial build up of riots. It does not say anything about the punishments that should be given to the officers who are unable to quell the rioters. It does not address economic boycotts of minority communities or propose ways to deal with Public Prosecutors who obstruct the course of justice in cases related to communal violence.
The police would be able to get judicial remand from a lower-ranked magistrate, who could also be an assistant commissioner of police, other than in normal circumstances. According to human rights groups a similar provision in POTA was severely misused. The former Chairperson of the National Human Rights Commission, Justice J.S. Verma is of the view that the Bill should be restricted to ensuring accountability of the State and Central governments and reparation and rehabilitation according to accepted international covenants. Justice Verma said the Bill was a "cosmetic exercise" and symptomatic treatment rather than dealing with violence. The Bill did not deal with anti-secular activities, which led to the communal violence, but only sought to punish after communal disturbances had occurred and after the appropriate government had declared the area as "communal disturbed."
Section 17 is the seemingly progressive section enabling the prosecution of police officers acting malafide. However the whole section is negated by the clause by which no cognizance is to be taken till the state government sanctions it. In any case, sections 217 to 223 of Indian Penal Code cover most of the offences to come under this section. 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 what he did was under the orders form a superior officer. No officer should be allowed to take the defence that he was not aware of what was going on his beat. The witness protection under Section 32 has been drafted without application of mind as to the Law Commission's recommendations. Modern day witness protection method, which shields the witness from the accused, compensates her for the trauma of the trial and helps create a new life of hope is totally missing. The provisions in the bill clearly lack the specific provision to deal with the protection of the witnesses. In the wake a number of suggestion by the Law Commission of India, it appears that none has been incorporated. 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.
The preamble of this Bill itself is of great relevance since it represents an official acknowledgment of the problem of communalism. The researcher feels that the fundamental drawback with the Bill is that it fails to address the issue of communalism as a socio-political issue and instead opts to deal with it as a pure law and order problem. This is not true entirely though, since the Bill does make provisions for three-tier Councils whose responsibilities inevitably tend towards dealing with communalism and not just communal violence. But this ends up as inadequate due to the centrality of the government in all these processes.
Also after the experience of Gujarat it was to be learnt that the credibility of state government can also be an issue of serious consideration, but this question is unanswered with regards to the proposed bill from the declaration of an area as communally disturbed, acceptance of the Plans of these Councils, to constitution of Councils at the different levels deployment of armed forces, all is left to the discretion of the state government. This needs to be changed , what is needed is the enhancement of the role of secular forces like NGOs and state authorities like National Human Rights Commission. What the law needed was to increase the democratic powers of the citizens to be able to hold their governments. But instead of strengthening the citizens the Bill further strengthens the State Governments giving it wide powers which we all know are largely used against the very minority groups which the Bill purports to protect.
The bill also fails to assign a chain of command responsibility from the district/city administration and police upwards to the commissionerate / collectorate and thereafter up to the chief secretary/home secretary, cabinet of ministers and chief minister in the eventuality of utter failure to prevent or contain widespread communal violence. This gross lacuna needs to be rectified through amendments, for the absence of these specific provisions threatens to render a much-needed law toothles
What the paper reflected are some of the serious shortcomings of this Bill that render it ineffectual and unless these are overcome through a process of consultation and involvement of the secular groups in this country, the possibility of this Bill, in its present form, resulting in being misused to the detriment of the minorities is not just unavoidable but inevitable. The need of the hour is a law having a humane face and accounting for the liability of the officials. Communal violence cannot be efficiently dealt with if the responsibilities of the officials are not fixed. But just shouldering all the responsibility on officials would not help. Politicians who technically exercise control over all the administrative machinery of the state , will have to be brought under the preview of the act to make it useful in practice. This would be tough but unless it happens the effect of the bill even if enacted would be just cosmetic and not substantive.
- Gour, Hari Singh, “Penal Law of India”, 11th ed. Vol.II. 1998, LAW publishers India Pvt. Ltd, Allahabad.
- Kumar, Vinay, “Anti-communal law: delay due to lack of clarity, confusion” Online edition of the Hindu, Sunday, December 19, 2004.
- Special Correspondent, “Draft Communal Violence Bill unsatisfactory” Online edition of the Hindu, Thursday, May 19, 2005.
- Asghar Ali Engineer, “Drafting A Law To Prevent Communal Violence” http://www.countercurrents.org/comm-engineer201004.htm (20 October,2004).
- Bhatt, Kirit, “An Interim Report to the National Human Rights commission”,http://www.pucl.org/Topics/Religion-communalism/2002 /Gujarat -nhrc-submission.htm,People's Union for Civil Liberties, Gujarat.
- Malimath Committee Report, Government of India.
“India introduces communal violence Bill” http://www.dailytimes.com.pk/divorce efau lt.asp?page=2005%5C12%5C06%5Cstory_6-12-2005_pg7_54, Tuesday, December 06, 2005
“Seminars on Communal Violence Bill”, Online edition of the Hindu, Friday, January 06, 2006.
Khan, Ehtasham “Rights groups propose law on communal riots”, http://inhome.rediff .com/news/2004/dec/08riots.htm .[Last Updated: December 08, 2004 08:56 IST]
“2002 Gujarat violence” http://www.indianmuslims.info/
156th Report of Law Commission on Indian Penal Code, August 1997, Government of India.