An Appreciative Enquiry into the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011
By Nadim Nikhat,
Thankfully, the Bill was finally handed over to NAC’s committee to undo the misplaced and misconceived Patil’s “The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005.” NAC has put life to the formerly dead and deadly Bill. The Committee undertook this task and did a complete 3600redrafting, to the extent that it proposed changes from its name to the objective, creating new offences, framework of relief and rehabilitation and so on so forth. The Bill indeed needs to be supported with full vigor.
The Bill has introduced new crimes such as Sexual Offence, Hate Propaganda, Organized Targeted Violence, Financial/Material Aid of Commission of Offence, Torture, Dereliction of Duties, Breach of Command Responsibility, Offences by Other Superiors for Breach of Command Responsibility and Preparation for Committing Offence under Act. Till date these offences and concepts are alien to Indian Penology.
One of victims of Moradabad riot in February 2011
For me, mere conceiving a law like the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 is a courageous stand in itself and a determinant of the strength and fate of India Secularism. At least it is and will be a historic event considered as a gesture of intent to revive of faith of religious minorities of India in the Constitution as well as in the institution of law and justice.
Quite interesting to mention here that while going through the provisions of Bill, you will find a sense that Gujarat Genocide 2002 is everywhere in both the back drop and forestage. You will also sense that this Bill tries to find answers and give answers to the problems Indian legal system as a whole was forced to face after 2002 genocide and is facing today as well. I strongly feel that it has a reflection of civil society’s post 2002 genocide consciousness.Jurisprudentially speaking, this Bill has introduced a whole lot of new dimensions including the legal taxonomy and concepts such as reparation, internal displacement and command head responsibility, victim/witness protection, Human Rights Defender etc.
Apart from all the major achievements of this Bill, it has some deficiencies in terms of vagueness of use of expressions; especially the definition of ‘Communal and targeted violence’ includes the act which ‘destroys the secular fabric of the nation’. What constitutes destruction of secular fabric of the nation is very subjective and vague. One must not forget that none of the FIRs registered in Gujarat carried any offense against religion. And it was only because the task was with the police which were already colored with permanent saffron dye of one shade. Such vague terms leaves immense room for construction to the police/executive/law enforcing agencies.
A damaged house during Moradabad riot February 2011
S. 3(f) of the Bill defines ‘Hostile Environment against a Group’ covering boycott, excommunication, deprivation of fundamental rights, deprivation of education, health services, transportation; forced displacement etc. In another words it covers untouchable practices against SC/ST/Minorities. But on other hand, there is no crime heads have been created to deter such practices. Therefore, it is pertinent to append new offences falling under following heads: (1) Forced Displacement; (2) Social and Economic Boycott; and (3) Illegal Dispossession, Transfer, Possession or Disposal of Immovable Property. Also, it doesn’t prescribe any enhanced punishment on subsequent commission. The provision enabling enhanced punishment on subsequent conviction should also be added.
So far as right of victim and witnesses are concerned following new rights related to TA/DA, Maintenance allowance etc. during investigation and trial of offences under this Act should be a responsibility of the state government.Noteworthy, this law puts extraordinary importance and reliance on the National and State Authorities for preservation of secular fabric of the nation and the protection of victims of communal and targeted violence as well. It is supposed to perform the role of change agent. Except on few places where the Bill has missed some important functions, in particular following new functions should also be added: (1) to file complaint on behalf of the victim in appropriate forum and (2) to supervise and monitor State Authorities.
Further, to ensure transparency in the functioning of the Authorities the reports, recommendations, orders, notifications etc. should be deemed a public document and the authority should ensure their periodic, timely and proactive publication on its official website and should be covered under the proactive disclosure under RTI Act, except where disclosure is expressly prohibited under this law such as name, address and other details of the complainant/victims i.e. confidentiality should not suffer.
At the risk of seeming ridiculous and ultra-optimistic, I believe that it could have also been used as an opportunity to test the concept of peace and reconciliation i.e. as an opening to a departure from the traditional approach of crime and punishment/vengeance and retribution.
Even after 2002 riots, distinct though feeble voice was raised to attempt reconciliation between Dalit/tribal/Muslims assuming that the dominant forces often instrumentalize the poorer/deprived section of one community against other, which to a large extent had apparently happened in this case. It had raised a question that how to make peace and reconciliation a means to peace and justice? Or rather is it really possible in a situation where eternal and utmost lack of acknowledgement of pain and grief topped and spiced up with the systemic and institutional denial of the injustice done to the victims of communal carnage/s? Admittedly, these are few questions within the larger question of peace and reconciliation.
Gujarat riot 2002
One can’t blame NAC/ Government/etc. for not incorporating it within this law as an alternative to the traditional institution of justice delivery. One is fully aware that it requires a different legal and democratic climate/atmosphere to enable/facilitate and even aspire for peace and reconciliation. Unfortunately, at this juncture, we as a society and democracy had moved rampantly to an era of confusion and disruption, where mere visualizing peace and reconciliation is a hazy dream, making it the difficult most tasks. The systematic damage has already been done actively by the communal forces and passively by the moderates, to different organs of democratic governance set up i.e. communalization of politics, police, judiciary, lawyers and bureaucracy.
And to undo this means a lot. Metaphorically, it means calling kettle and pot both black.
Though I also believe that it is still possible well within the present law as it also intents and attempts to create a situation conducive to communal amity and favorable to secular traditions and practices. By this I mean that institutional review; reform and restructuring is one of the major areas of work in order to meet the end of this law.Importantly, an additional function should be added to the functions of both National and State Authorities with regard to declaration for the constitution of peace and reconciliation commission/s with the sanction/approval of the Chief Justice of India or High Court respectively. Procedure for that should also be laid down and appended as a schedule to the Bill as standard operation guide.
Public Officers and Immunity– the Bill intents to punish offence of ‘Torture’ (S. 12 proviso) but at the same time provide protection/defense to public officers in circumstances where such torturous act is done in accordance of law. This defense of ‘acts done in accordance of law’ also means acts done in ‘good faith’ (S 52, IPC) by public officers and will also cover public servants acting under mistake of fact or under belief of being bound by law. For this purpose any action can be termed as action taken in good faith or under a mistake of fact or belief of being bound by law, especially where violence is done on the behest and under the direct or indirect protection of the government. This provision has adopted a conventional legal situation where highest degree of carelessness, negligence, misconduct needs to be proved for the prosecution of a public officer. Although in such a situation, a general burden of proving good faith is on the public officer under the Indian Evidence Act, but better if it is made a part of the present legislation i.e. a new provision relating the burden of proof of ‘conduct in accordance with law; good faith; mistake of fact and believe to be bound by law’ on the public servant claiming protection of such defenses.
Apart from this, a general protection is provided to public officers acting in good faith in pursuance of the direction of government except public servants’ actions amounting ‘dereliction of duties’ under the law.
Therefore, keeping this in mind, the Bill should have new provisions related to Presumption and burden of proof needs to be added such as presumption of the intentional dereliction of duties by public officers; presumption as to knowledge and Burden of proof on Public Officer claiming defense of exception of law.
Further the office bearers of National and State Authorities are public servants, which mean they can also be prosecuted for acts or omissions amounting to dereliction of their duties prescribed under this law whether done with good/bad faith. For instance, if the authority fails to act diligently on any complaint, prosecution is maintainable against the responsible authority’s officer/staff. It’s a double edged provision. I feel it necessary to share my apprehension on the effectiveness of this provision that this law tends to punish everyone and such laws usually have a tendency of showing low recording of incidents and low conviction rate.
Gujarat riots 2002
It is silent on the whether the offences under this law are compoundable (i.e. offences where compromise is legally permissible) or not. Corollary can be drawn that the offences which are compoundable by virtue of their being part of the existing IPC r/w CrPC. Apart from the already existing offences under various penal laws including IPC this Bill has introduced new crimes viz. Sexual Offence, Hate Propaganda, Organized Targeted Violence, Financial/Material Aid of Commission of Offence, Torture, Dereliction of Duties, Breach of Command Responsibility, Offences by Other Superiors for Breach of Command Responsibility and Preparation for Committing Offence under Act, which are alien to Indian Penology. The consequential question is that whether these crimes will be treated compoundable or non-compoundable crimes.
The Bill doesn’t provide for to prohibition on anticipatory bail to the accused and probation to the convict under this law.
In order to provide a conducive and comfortable atmosphere while recording statement of the victim/witnesses in the relief camps by DySP, the Bill imposes a duty to record the statement in presence of two persons from the same community and makes it subject to attestation of the statement by such two persons. Further under its proviso to the clause, a woman DySP is required to record the statement of victim/s of sexual violence but silent on whether such recording should take place before men or women as it doesn’t specify mandatory presence of women during recording of her statement. The assumption is that a victim of sexual violence will feel comfortable in company of women instead of in presence of men. Therefore this proviso needs little modification to be specific about the presence of women during such recording.
So far as appointments of Special Public Prosecutors are concerned, the scheme of 1/3rd reservation for SC/ST/Minority/woman should follow the rule of proportional representation. Precisely, out of the reserved membership for SC/ST/Minorities, the seat distribution should be in 1:1:1.Similarly, seats reserved for women should have 1/3rd representation from SC/ST/Minorities in the proportion of 1:1:1.
Strangely, it gives the state government, the power to transfer cases outside the state. Why a state government will do so? And where the state government itself is perpetrator or the targeted violence is perpetrated in connivance with the government. In addition to giving this power directly to the State Government/s, the power to recommend state/central government to transfer of case/s outside the state or from one court to other court within the state should also vest in the National and State Authorities.
Since its inception, this idea of law had attracted resistance from the right wing political forces and the real opposition is still due. Defending this idea on every front will be of utmost relevance and that may not be an easy job. Also, BJP led/supported state governments will device multiple strategies to question and scuttle this law on the grounds of its legality and constitutionality.
Therefore, this Bill has to undergo a serious and strong resistance from the opposition in the Parliament in the process of its passage and has also to pass through the tests of constitutionality especially on accounts of class legislations and federalism.
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Nadim Nikhat is a Senior Research Fellow, Centre for Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore.