Kill the Bill

A critique on a seemingly progressive otherwise draconian Communal Violence Bill

By Nadim Nikhat,

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The Union Ministry of Home Affairs is all set to table the much criticized Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 during this winter Sessions of Parliament in its original form. To recall, this Bill was introduced in Rajya Sabha by the Ministry of Home Affairs headed by Shivraj Patil on December 5, 2005 and referred to the Parliamentary Standing Committee on Home Affairs for examination and report on the Bill. The Bill had attracted severe criticism from NGOs, activists, jurists, academicians etc.

This time also, the Bill has no major deviation from the original draft except some cosmetic changes made here and there.

To put this Bill in perspective the words of former Chief Justice of India Justice M Ahmadi needs mention here:

“The Bill came to be introduced in the Rajya Sabha generating lots of hope. At the first blush it is indeed good news for all who have been fighting against the evil of communal violence, which erupts in our country at regular intervals. At the same time care must be taken to ensure that it is not viewed as lip sympathy and does not turn out to be a mere paper tiger or a remedy worst than a disease, least a well intentioned piece of legislation does not get a bad name.”

To be very precise, if this Bill got passed in its present form, it will be one of the most draconian laws of the time as it empowers the state than the victims and is full of loopholes, which cannot be omitted by mere amending it but would require a redrafting exercise.

Undoubtedly, India needs a comprehensive law to control, contain and abate communal violence but any law drafted and passed without any serious evaluation of the ever-growing communal hate in the country would be suicidal for democratic, secular and multicultural fabric of India.

Critique of the Bill

1. Legislative intent

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.

2. Co-relation between crimes and declaration of disturbed area is false and untenable

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.

3. Undue devolution of executive powers to the Government and public servant

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.

4. Failure to create any new offence and add deterrence

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.

5. No accountability of the State and of public servants

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.

6. No command responsibility

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.

7. Failure to acknowledge and create offence of gender based violence

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.

8. Relief and Rehabilitation

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.

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 Bill can be accessed at