By Rehan Ansari, TwoCircles.net,
Compared to the 2005 draft Communal Violence Bill, the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 has improved on many counts. However, some serious concerns still persist in the new draft, which require to be addressed by the National Advisory Council and set right before the Bill is sent for cabinet’s approval, says Saumya Uma, member of the Advisory Committee of NAC’s Working Group on the Communal Violence Bill, in an interview with Rehan Ansari of TwoCircles.net.
What is your view on the Communal Violence Bill 2011?
There have been some advancements in this draft, as compared to the 2005 draft of the bill, particularly in terms of toning down of provisions that provided for powers to the government authorities without accountability. However, serious concerns persist in the present draft, which require to be addressed by the NAC and set right before the Bill is sent for cabinet’s approval.
You are the member of Advisory Committee of NAC for drafting this bill. What was the role of the Advisory Committee?
The role of the Advisory Committee was to provide guidance in terms of overall concept, framework and concerns related to the Bill, and to provide specific inputs to the Drafting Committee as and when required. The provisions of the Bill drafted by the Drafting Committee were presented to and discussed with the Advisory Committee. Despite this exercise having been undertaken, the Bill uploaded on NAC’s website includes some provisions of serious import, which were never discussed during the earlier deliberations.
Saumya Uma
What is your view on the reactions from the BJP?
The opposition of the BJP to this Bill comes as no surprise at all. In fact, it was expected. However, the concerns raised by me with the NAC draft emerge from my own engagement with the issue and my interactions with victim-survivors of communal violence in Mumbai, Gujarat and Kandhamal.
What is your concern regarding the bill and what do you suggest to improve the bill?
Several provisions in the bill, including the definition of communal violence need to be improved.
1. Definition of Communal & Targetted Violence
(S. 3(c) ) The definition requires that the violence has to be such that it ‘destroys the secular fabric’ for it to be considered CTV. This would be difficult to satisfy in many situations, resulting in many situations of communal and targetted violence not coming within the purview of this law.
My suggestion is to Remove the words.
2. Reference to organized CTV as an ‘internal disturbance’ for Art 355 of the Indian Constitution to be attracted (S. 20) – as an entry point for the Central government to intervene.
The term ‘internal disturbance’ / ‘disturbed area’ has a legal and political history that we cannot forget – in any situation of internal disturbance, the state acquires more power. We all know the Disturbed Areas Act and what its consequences are for people living in those areas. In the context of CTV, we do not want the state to assume more powers, but to be accountable for its exercise of power. Earlier proposal of ‘declaration of communally disturbed area’ which featured in the government’s draft Bill of 2005 was rejected by civil society. This has now been re-introduced.
My suggestion is Delete reference to “internal disturbance” and S. 20 could read as follows:
When an organised communal and targeted violence occurs, the Central Government may exercise its duties under Art. 355 of the Constitution of India, to ensure that the government of every state is carried on in accordance with the provisions of this Constitution.
3. Inconsistency in the Bill with regard to accountability of public servants
We had rejected the government’s 2005 draft because we wanted public servants to be made accountable, as the history of communal and targetted violence shows clearly the culpable acts of commission and omission by public servants in such contexts, not in their individual capacity but as an institution, i.e. institutional bias. The Bill lists out a series of acts of commission and ommission which amount to offences (dereliction of duties), giving the impression that it wishes to make public servants accountable, and then turns around and equips the government with powers to intercept messages (S. 67) – an extremely regressive and dangerous provision. This has appeared for the first time. We have never proposed or discussed this provision at the Working Group meetings on the Bill. In addition, there is a good faith clause (S. 130) – this may be explained as a ‘routine’ to ensure that the honest public servant faces no obstacles in performing his / her duties. Yet it is a misfit in a law of this kind, where Commission after Commission (appointed by governments) has observed that public servants act in a mala fide manner in contexts of communal and targetted violence. The provision related to sanction is also difficult to comprehend (see para below). So it appears that what the law attempts to do with one hand is neutralized by the other hand.
My suggestion is to delete S. 67 related to power of central government to intercept messages; delete S. 130 (protection of action taken by public servants in good faith)
4. Requirement of prior sanction from the government for prosecution of public servants
S. 197 of the Criminal Procedure Code requires prior sanction from the government for prosecution of public servants, for acts done in the discharge of official duty. As per the provisions of the Bill, no sanction required for Schedule III offences – which are to do with tampering of evidence / harbouring of criminals etc. For Schedule II offences (including murder, rape, grievous hurt – the graver offences) – sanction is required but to be issued in a time-bound manner (30 days). If not issued in 30 days, it is assumed to have been granted. The rationale for retaining the requirement of sanction for more serious crimes is hard to decipher, since murder and rape, for example, can surely not be considered as acts done in discharge of official duty.
The only reason seems to be to shield public servants from prosecution for more heinous crimes, which subverts one of the major aims and objectives of the Bill – ensuring accountability of public officials. Further, for offences created by this Bill – it is unclear if sanction is required or not required.
My suggestion is to include a clause stating that no sanction for prosecution is required for the offences under this Bill (Schedule II & III offences which already exist as well as new offences created by this Bill). Do away with gradation of sanction for different sets of offences.
5. Definition of sexual assault – consent (S. 7(b)(i)
We all know that the prosecution in cases of sexual assault depends heavily on the question of consent. This has been defined variously in the past, often to the detriment of women’s interests. The Criminal Law Amendment Bill, 2010 – a draft produced by women’s groups and other civil society groups across the country and submitted to the government last year -introduces a comprehensive definition of consent, that will guide prosecutors and judiciary in providing protection to victims of sexual assault. The definition of consent in that draft is far more comprehensive and nuanced, and explicitly states that no consent can be obtained when the victim is in coercive circumstances, as in such circumstances, the power of the perpetrator / mob to commit sexual assault is considerably enhanced. The definition of ‘coercive circumstances’ includes the following: “being a victim in an episode of collective violence; or a witness to such episode; or under fear or threat of collective violence”.
My suggestion is Define ‘consent’ in this Bill in conformity with what is stated in the Criminal Law Amendment Bill 2010 – and dispense with the requirement of the victim having to prove that she / he did not consent to sexual assault as it is in coercive circumstances
6. New standards of procedure and evidence for sexual assault
We have been stating for many years now, that we need to have special procedures and evidentiary standards for sexual assault perpetrated in contexts of communal and targetted violence. Yet the present Bill makes no mention of it. Unless new standards of procedure and evidence are formulated for sexual assault perpetrated in contexts of CTV, it would be difficult to successfully prosecute the perpetrators.
My suggestion is that these points need to be included in the Bill, or a cross reference made to the Criminal Law Amendment Bill 2010 (on sexual assault):
* Admission of evidence of prior or subsequent sexual conduct of a victim of sexual violence should be explicitly prohibited
* Sexual violence in a communal/sectarian situation should be equated to custodial rape as mob exercises complete control and is in a position of authority. Hence, the Bill should as in cases of custodial rape provide for enhanced punishment and also shift the burden of proof from the victim to the perpetrator;
* Section 114A of the Indian Evidence Act will apply.
* The court shall not draw any adverse inference on account of any delay in lodging the FIR or recording of the statements of the complainant and witnesses.
* The same shall be condoned by the Court if a reasonable explanation is given by the complainant/witness for the delay.
* The court shall not draw any adverse inference on account of absence of a medical examination report of sexual assault in cases of sexual assault during communal and targetted violence. The Court shall take into consideration the prevailing conditions and the explanation presented by the prosecutor.
7. Witness protection (S. 86-87)
The provisions on witness protection in the CTV Bill are very sketchy and inadequate. The provisions in the Bill put the onus of providing witness protection on the Designated Judge during investigation and trial. It is not clear as to whether victims / complainants / witnesses are eligible for protection in the pre-trial and post-trial phases, and if so, which body / department within the state would be responsible to provide such protection. The recommendations made by the Law Commission of India in its 198th report appear to have been considerably diluted in the CTV Bill, and this needs to be remedied.
My suggestion is that the Bill should provide for witness protection at all stages commencing from the time of lodging a complaint to post-trial phases. Draw upon recommendations of the Law Commission of India in this regard. Balance witness protection measures with aspects of fair trial guarantees including rights of the accused.
8. Failure to refer to international standards related to Internally Displaced Persons (IDPs)
There is no reference to international standards related to IDPs – the Guiding Principles on Internal Displacement. While the Guiding Principles do not constitute a binding legal document, they “reflect and are consistent with international human rights law and international humanitarian law,” and have become widely accepted at the international, regional and state levels. They are intended to guide governments and international humanitarian agencies in providing assistance to and protecting the rights of persons affected by internal displacement, through a human rights-based approach. The Guiding Principles address all phases of displacement – protection from displacement, protection and assistance during displacement, and guarantees for return, settlement or reintegration with safety and dignity.
My suggestion is that the Bill must acknowledge rights of internally displaced persons who face forced displacement due to communal and targetted violence. Reparations should be provided in conformity with international standards for internally displaced persons, including the UN Guiding Principles on Internal Displacements. These Principles must be domesticated through adoption of a national policy to include those affected by the violence and a nodal agency be constituted, so that all internally displaced persons have a justifiable framework of entitlements to protect them.