Suggestions on Communal Violence Bill by groups in Mumbai

By Rehan Ansari, TwoCircles.net

Mumbai: Movement for Peace and Justice, Bombay Catholic Sabha, EKTA (Committee for Communal Amity), Citizens Initiative for Peace, Association for Protection of Civil Rights, BUILD and Human Rights Law Network have held several rounds of consultation on the Communal Violance Bill draft under the guidance of Adv Yusuf Muchhala, Adv Saumya Uma, Sukla Sen, Dolphy D’souza, Jyoti Punwani, Jatin Desai, Asad bin Saif, Adv Flavia Agnes, Adv Vijay Hiremath & Adv Mihir Desai. The civil society groups have serious concerns about various sections on the draft. The concerns and alternate suggestion have been compiled as mentioned below.

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Statement of Objects and Reasons: There seems to be no statement of object and reasons: Comments / Suggestions / Alternative

This could read as follows: “To ensure that the State governments and the Central government take measures to provide for the prevention, control and prosecution of individuals for communal and targeted violence, and to provide justice and reparations to persons affected by such violence.

Sec 1(3): It shall come in to force within one year from the date of the passing of this Act: Comments / Suggestions / Alternative

The provisions of the Act should come into effect immediately

Sec 3c (Definitions): “communal and targeted violence” means and includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation: Comments / Suggestions / Alterantive

Delete text from this section “which destroys the secular fabric of the nation” as it set a very high bar. The section sets an extremely high threshold which would have been difficult to satisfy in most contexts. The improvement from the 2005 draft to the present draft seems to be to increase the threshold further from that which ‘threatens’ the secular fabric to an act that ‘destroys’ the secular fabric! The idea of not including ‘crimes against humanity’ or ‘genocide’ within the present Bill was to similarly ensure that the threshold of crimes should not be too high. By reintroducing the requirement that the violence should destroy the ‘secular fabric’, there will be severe difficulties in bringing instances of violence to satisfy the requirements of this definition. While it is difficult to decipher if Gujarat carnage or Kandhamal violence would be interpreted as destroying the secular fabric, since crimes against the SCs / STs are also being brought within the purview of this law, one wonders the violations perpetrated in Khairlanji, Vakapalli or Kalinga Nagar would ever be considered to destroy the secular fabric. The term should therefore be deleted from the definition.

Sec 3e (Definitions):“group” means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India: Comments / Suggestions / Alternative.

a) Remove the word “minority” and replace it with “group”as it does not pass the test of equality
b) Add “regional group” along with religious & linguistic groups.

Sec 3(j) “victim” means any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate: Comments / Suggestions / Alternative.

It’s a narrow definition – The concept of a victim has been defined for the first time, albeit in a restricted manner, in the Code of Criminal Procedure (Amendment) Act 2008. The amended S. 2 (wa) of the Cr.PC defines the victim as “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.” The concept of ‘affected person’ which is broader than the ‘victim’ is important to recognize in a law of this kind, as neighbors, witnesses from the group would also be affected, not only those who have had direct injury and their family members. Relief, rehab etc – should be extended to affected persons from the group, not only those facing direct injury.

Sec.12 Definition of Torture: The proviso to the section, states that nothing in the section would apply to any pain, hurt or danger, inflicted in accordance with law.

Comments / Suggestions / Alternative.

Whom is this proviso made for and with what intention? Any law at present does not permit inflicting of pain, hurt or danger on a person. The wordings of the section suggest that the proviso is made for carrying out test such as the narco analysis, brain mapping etc. In a section defining torture there should not be any exceptions made.

Sec.13 (iii) – It talks about the dereliction of duty of the doctors from public hospitals: Comments / Suggestions / Alternative.

Any specific reason that the victim can not go to the private hospital? This will force the victims only to look for government hospitals even in cases of emergency.

Sec 20. Power of Central Government in relation to Organized Communal and Targeted Violence: The occurrence of organized communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and the Central Government may take such steps in accordance with the duties mentioned there under, as the nature and circumstances of the case so requires.

7. Sexual assault.– A person is said to commit sexual assault if he or she commits any of the following acts against a person belonging to a group by virtue of that person’s membership of a group: (b) against any person, without their consent or against their will. (i) the introduction by a man of his penis or any other body part or an object into vagina, mouth or anus, to any extent: Comments / Suggestions / Alternative

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”. A cross-reference to Criminal Law Amendment Bill 2010 on sexual assault is required in the CTV Bill in this regard.

Need to Include Special Procedures and Evidentiary Standards 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. Produced below para (f) of Recommendations stated in the memorandum dated 15 June 2006 submitted by some of us (on behalf of women’s groups and other civil society groups) to the Parliamentary Standing Committee on the issue:

Develop evidentiary standards appropriate to the context of a communally charged and violent situation for proving sexual violence. This is particularly in view of the fact that in situations of communal violence, women’s access to police stations (for lodging FIR), government hospitals (for medical examinations) and the confidence / ability to pursue legal procedures is substantially reduced during the period of the violence and till the return to a safe and non hostile environment for the survivors of the violence. Hence, appropriate evidentiary and procedural standards are imperative and should include the following:

• All investigation should be conducted in a gender-sensitive manner;
• Medical evidence should not be insisted upon as corroborative evidence;
• Uncorroborated victim’s testimony could form the basis for conviction provided it inspires the confidence of the court;

• Delay in lodging an FIR should not impact the case in any manner;
• Consent to sexual act as a defense to the perpetrator should be specifically excluded

• Admission of evidence of prior or subsequent sexual conduct of a victim of sexual violence should be explicitly prohibited

• Sexual violence in a communal situation should be equated to custodial rape as mob exercises complete control and is in a position of authority. Hence, the Bill should provide for enhanced punishment and also shift the burden of proof from the victim to the perpetrator

This was reiterated in the final statement that emerged from the National Consultation held in Delhi on February 12-13, 2010, organized by ANHAD. The Criminal Law Amendment Bill 2010 – drafted by women’s groups and handed over to the government last year, further repeats this suggestion. In this draft, the following suggestions were made:

• 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 mass crimes/sectarian violence. The Court shall take into consideration the prevailing conditions and the explanation presented by the prosecutrix.

It was further suggested that:

Judicial cognizance should be taken of the coercive circumstances under which the crime (sexual assault) has occurred, and accordingly delays in reporting, absence of medical evidence or lack of corroboration of victim’s testimony should not adversely impact the case.

Sec 10: Aiding financially, materially or in kind for commission of offence under this Act: Whoever knowingly expends or supplies any money or any material or aids in kind thereof, in furtherance or in support of an act which is an offence under this Act is said to be guilty of aiding financially in the commission of an offence under this Act. Comments / Suggestions / Alternative

Delete entire Sec 10 as it may be used against genuine relief workers of the victim group.

Sec 15. Offences by other superiors for breach of command responsibility.
Comments / Suggestions / Alternative

Delete entire Sec 15 as it may be used against organizations of the victim group by public servants with malafide interest.

Sec 21 (3). 41(3): Provided that, at all times, not less than four Members, including the Chairperson and Vice- Chairperson, shall belong to a group as defined under this Act. Comments / Suggestions / Alternative

Not less than 3 Members shall belong to National / State (21(3) / 44(3) minorities Applicable only if the definition of group undergoes change.

Sec 56(3): The Human Rights Defender for Justice and Reparations shall function to ensure that all persons affected by communal and targeted violence and entitled to be benefits under 90, are able to access their rights under the Constitution of India or this Act or any other law for the time being in force, and for the aforesaid purpose, do all such things as may be necessary to achieve that objective of access to justice. Comments / Suggestions / Alternative

Typo error: Remove the word “be” and add “Sec” 90

Additional Responsibility of the Defenders of Human Rights for Justice & Reparation.

Add 56(4): The HR DJR shall bring to the notice of State Authority any acts which attract Sec 153 A/B of IPC or amounts to an offence under this Act. Also it should work towards building communal harmony.

Sec 64. Recording of statements or evidence during investigation.- (1) The Investigating Officer shall, during investigation into organized communal and targeted violence, and may, during the investigation of other offences under this Act, produce the victim or the informant, when such informant is victim, before a Metropolitan Magistrate or a Judicial Magistrate, as the case may be, for recording his or her statement under section 164 of the Code of Criminal Procedure, 1973 and such statement shall not be recorded by the Investigating Officer under section 161 thereof. Comments / Suggestions / Alternative

Remove the text “and such statement shall not be recorded by the Investigating Officer under section 161 thereof.” And add “statement shall also be recorded under Sec 161 also”.

Sec 86. Rights of victims during trial under this Act Sec 87. Protection of victims, informants and witnesses: Comments / Suggestions / Alternative

While there has been considerable public discourse in recent years on the issue of witness protection, care needs to be taken that measures of witness protection are not reduced to tokenism, as has been done in the Fast Track courts set up to prosecute perpetrators of the Kandhamal violence. 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 Law Commission of India’s 198th Report, released in 2006, focuses on victim and witness protection. It has drafted a Bill on Witness Identity Protection (applicable during investigation and in court), as well as a detailed framework with elaborate rules of procedure for preventing the witness (including victim-survivors) from trauma and intimidation at the stages of investigation, during inquiry and before recording evidence at the trial, during the trial and post-trial. Some of the recommendations are significant and path-breaking for the manner in which they seek to balance the rights of the accused with the need for protecting the anonymity of the witness and the victim/survivor from further trauma. The recommendations made
by the Law Commission appear to have been considerably whittled down in the CTV Bill, and this needs to be remedied.

Sec 61 (1). Recording of information in relief camps: It shall be the duty of a police officer not below the rank of Deputy Superintendent of Police to visit every relief camp within. seven days of its establishment to conduct an inquiry and record statements into the circumstances and cause of each individual being displaced and put in a relief camp.

Comments / Suggestions / Alternative

Change “within seven days” to “within 3 days”

Sec115. Punishment for hate propaganda.- The offence of hate propaganda shall be punishable with imprisonment which may extend to three years or fine or both.

Comments / Suggestions / Alternative

Punishment for hate propaganda is too light

Sec 80 (5) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a Designated Judge shall hold the trial of an offence on day-to-day basis save and except for reasons beyond the control of anyone: Comments / Suggestions / Alternative

Trials to be time bound. Also some time restrictions on the matters arising from these cases before the high court and the Supreme Court.

S.61. – 7 days to visit the relief camp and record the statements: Comments / Suggestions / Alternative

It’s a long period. Statement of the witnesses and the victims should be recorded at the earliest. If a 7 day time period is given, there is always a fear that the police will not record the statements till the last day.

Sec. 76. Sanction not required for certain offences: The provision of section 196 and 197 of the Code of Criminal Procedure, 1973 shall not apply to offences by public servants under Schedule III and the Designated Judge may take cognizance of such offence when satisfied that the said offence has been committed : Comments / Suggestions / Alternative

All the serious offences are listed in Schedule II. Why can’t the sanction be taken away from Schedule II? It’s as good as impossible to prosecute unless the sanction goes away. No point of having a law if you are giving a free hand to the police officers. The only rationale here 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. Going by S. 57 of the Bill, which states that provisions of the Cr PC would apply except to the extent to which it is amended / modified in Chapter VI of the Bill, and since Chapter VI of the Bill makes no mention of sanction for offences created by the present Bill, it appears that S. 197 Cr PC would continue to be applicable for all such offences. It is unclear as to how this would further our efforts in ensuring the accountability of public officials

Sec 73 (Evidence). Inference from nature and circumstances of the act- Where any question arises whether an offence committed against a member of a group was committed against him or her by virtue of his or her membership of a group, it shall be inferred that it was so directed from the nature and circumstances of the act.

Comments / Suggestions / Alternative
The section is vague Proposed from our earlier recommendation: Include Rule of evidence: “If the link between acts of incitement and the acts of violence is established then it must be presumed that the inciter has culpable intention to create communal / sectarian violence.”