Why are secular and civil liberty activists disappointed with the NAC Draft Bill Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011
The need for a new legislative mechanism, to deal with communal violence targeting religious minorities, was confirmed by the experience of the 1983 Nellie killings in Assam, anti Sikh massacre of 1984, the genocidal pogrom against Muslims in Gujarat in 2002 among others. The abdication of all preventive measures, absence of protection for the lives and properties of the religious minorities and the absolute impunity thereafter for these crimes characterised each violent assault. State records, such as Commission of Inquiry reports, of the 1961 Jabalpur riots, the Madon Commission report of Bhiwandi riots in 1970, the report into the Bhagalpore riots of 1989 and the Srikrishna Commission report on Bombay riots of 1992-1993, all documented that, prior to, during and post the violent attacks on religious minorities, state complicity and institutional bias was evident among different public authorities and state officials. Time after time the protection of minorities was highlighted as an issue of concern and this placed centre stage the need for legal and other measures to be taken to ensure protection of religious minorities. Some of the issues that emerged from the narratives of these experiences reveal acts of omission and commission by officers of the state and others, who wield the power of the state. It was found time and again that violence could have been controlled or stopped if there had been willingness to act on behalf of the state. The problem of state complicity and impunity are recurring themes in all these episodes.
People impacted by communal violence do span all communities. However studies and data clearly indicate that religious minorities suffer greater harm and loss, and find less protection from the law, due to institutional bias in the performance of statutory duties. This has been a serious lacuna that has for some decades required to be addressed.
The constitutional promise of equality before the law, as embodied in Article 14, requires us to make rational discrimination in our treatment of problems that come before us. The mounting evidence in the decades past, show that the legal protection secured for religious minorities has declined, gravely infringing their enjoyment of the right to life and other fundamental rights, as citizens. This calls for a corrective measure in the exercise of state power and actions of state agencies, to restore equality in the working of the law. This explains why a special legislation for religious minorities is being proposed. The outcry by the BJP against a law for protecting the rights of religious minorities is neither legally nor factually tenable. In so far as Scheduled Castes and Scheduled Tribes are concerned the State under Article 15(4) Constitution can make laws for their protection.
Campaign for a CV law initiated by civil society activists
The campaign, for a law to protect religious minorities and punish the sponsors, abettors and perpetrators of communal and targeted violence, was initiated by civil society groups and activists. (This legislation is commonly referred to as the CV Bill). The CV Bill placed before Parliament by the UPA Government in 2005, was rejected outright by civil society. Through 2 National Consultations, the key elements and a draft outline of the law was prepared, drawing upon experience, insights and discussions with victim survivors, activists and legal and other experts. There was unanimity that a new law was required to respect and protect the rights of religious minorities Scheduled Castes and Scheduled Tribes, cognizant of the contours of communal and targeted violence. The primary focus of such a law, it was agreed, would be making those exercising state authority and power accountable to the law; through the setting out of offences by public officials and those with the power to protect persons and communities affected by communal and targeted violence; hold the superior functionaries culpable; dilute the shield of impunity. Enabling provisions to allow the victim/ witness to access the criminal justice system would be incorporated, mindful that fair trial standards and rights of the accused are respected. The new law would also introduce the rights of all affected persons to reparation from the State. From the analysis of communal and targeted violence, it was clear to the activists that the new legislation should not in any way enhance the arsenal of State power. A draft outline of the CV Bill was submitted by civil society activists to the Hon’ble Law Minister, in May 2010.
In July 2010 the NAC Working Group on the Communal Violence Bill set up an Advisory Group and Drafting Committee, to prepare a draft legislation on the subject. The Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, prepared by NAC and on which comments are invited, has some disturbing features which we believe are contrary to the purpose and objectives of such a law. It is a cause of serious concern for all of us that a Bill which contains regressive and draconian principles, has been adopted by the NAC and proposed as its draft CV Bill.
The pernicious idea of “disturbed area” was proposed in the Government CV Bill of 2005. Well aware that the accumulation of extraordinary powers in the hands of state authorities leads to gross violations of human rights, as witnessed in Punjab, Nagaland, Manipur and Kashmir, civil society contested any use of the mechanism of disturbed area on the pretext of providing protection to victims. The Key Elements of the CV Bill as enumerated on the NAC website also state that the “Basic framework of law must not rest on declaration of “disturbed areas””. This has been the consistent position through the discussions on the making of the law. The NAC draft Bill however in Clause 20 reintroduces the idea of “internal disturbance” and states that organized communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution, and empowers the Centre to take such measures as required. During the drafting process it was suggested to the NAC that reliance for Entry point of the law should be on the latter part of Article 355, “to ensure that the government of every state is carried on in accordance with the provisions of this Constitution”. It is therefore extremely puzzling and worrisome as to what prompted the insertion of the clause relating to “internal disturbance”. The inclusion of any form of “ disturbed areas” device to concentrate power in the hands of certain government functionaries is not acceptable. Clause 20 also attempts to reconfigure the federal equation between the Centre and State, a move that is ill advised and counterproductive. It would indeed be short sighted of civil society to support any provisions that further legitimise use of draconian measures by the state against the citizenry.
Central to the drafting of a new CV Bill is a definition that describes what constitutes ‘’communal and targeted violence”. Civil society groups had through public consultations arrived at a working definition in May 2010, and forwarded the same to the Law Minister. The NAC Draft CV Bill, proposes in Clause 3© “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.” This definition is central to the Bill, and all offences and rights of victims to justice and reparation will ensue only if the action warrants description as a communal and targeted violence. It is arguable, if any event of violence in post independent India, whether against religious minorities or Scheduled Castes or Scheduled Tribes, can be said have destroyed the secular fabric of India. The aim of the civil society campaign for a CV Bill is to provide statutory protection against all and each act of communal and targeted violence. The NAC draft Bill has raised the threshold so high that no act of communal and targeted violence against Dalits, Scheduled Tribes or religious minorities would come within the ambit of the CV Bill. This preliminary definition, by shifting its focus away from affected people, whose security, equality and citizenship are jeopardized by communal and targeted violence or organized communal and targeted violence, has ousted the most vulnerable from its statutory protection, rendering this Bill toothless and meaningless.
One main thrust of this legislation is to counter impunity by securing accountability from all persons exercising State power, for acts of omission and commission, relating to communal and targeted violence. This requires the acknowledgment of certain offences in the CV Bill. At the same time since this Bill deals with offences it is important to define them sharply and clearly. The NAC Bill falters on both these counts. It fails to incorporate crimes such as disappearances, although India is already a signatory to the Convention Against Enforced and Involuntary Disappearances and has in its recent pledge before the Human Rights Council at the UN, stated that it would work towards ratification of the Convention. The definition of Torture in Clause 12 of the NAC draft Bill falls short of the definition proposed by the Rajya Sabha Select Committee on the Prevention of Torture Bill. Definition of command or superior responsibility in Clauses 14-15 as well as offences by public servants in Clause 13, which extend criminal liability to those who mastermind, sponsor and allow communal and targeted violence, lack legal certainty and precision. Inclusion of phrases such as ‘impartial’, ‘fairness’, ‘respectful’ or ‘dignity’, do not secure any rights for the victims nor do they place any legal obligation on duty bearers. For impunity to be reined in, particularly at the top echelons of political and administrative authority, much more purposeful drafting is required.
The NAC draft Bill makes a half-hearted attempt to address the difficult circumstances in which victims of communal and targeted violence find themselves in the aftermath of an attack. Clause 61 of this Bill, recognizes the need to assist displaced victims to initiate legal proceedings. However it is baffling why the police officer visiting the relief camp, “will record statements and conduct an inquiry into the circumstances and cause of each individual being displaced and put in a relief camp”. Would the cause of justice not be better served if the police officer records statements of victims with respect to commission of cognizable offences, dispatch such statements to be registered as FIR and investigated by the Police Station of competent jurisdiction. Similarly Clause 64 (1) is misconceived, as it makes it compulsory for the statement of victim- informant to be recorded by a Magistrate on oath. This does not recognize the situation in which victims find themselves after a communal and targeted assault and will only heighten their vulnerability, particularly in light of the scant protection offered to witnesses by this Bill. Clause 64 (4), which permits a victim or witness to submit any statement or material directly to the Designated Court and the same shall form part of the charge sheet is contrary to all norms of fair trial standards and deserves deletion.
For victims and witnesses of communal and targeted violence to access justice, a few enabling provisions are required. The NAC Bill fails to draw upon the advances made in the jurisprudence and practices of victim and witness protection and restricts victim protection only to ‘the period of investigation and trial’ (refer to Clauses 86-87). The NAC draft Bill places no obligation on the State to protect witnesses after they depose against the socially and politically powerful. This Bill claims to offer protection during trial by keeping the identity of the witnesses confidential. However Clause 88 of the NAC draft Bill makes it mandatory for all court proceedings under this law to be video recorded and a copy of this recording to be given to the accused person among others. While apparently enhancing transparency, there is a serious apprehension that in the short term and long run, these video recorded proceedings may increase the vulnerability of the victim/witnesses.
Further to withstand legal scrutiny, the deviation from, the Criminal Procedure Code and the law of evidence in this legislation, must be minimal. It is extremely unfortunate that the NAC draft Bill draws upon provisions found in draconian laws such as MCOCA and earlier in TADA and POTA, to modify criminal procedure. Illustrative of this is Clause 82, which authorises attachment of property of the accused at the stage of charge, without the usual guidance that such property should be linked to the offence. Again Clause 85, increases the period of detention of the accused and places a heavier burden on the accused for securing bail. Similarly Clause 67, of this Bill gives the state and central government the power to intercept telephonic communication, and censor and control the same. The draft Bill states that "any message or class of messages to or from any person or class of persons or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the government …" This could well be used to stop messages going out to, or from, victim groups. Why would we want to risk legalising this kind of power? It is regrettable that no lessons seem to have been learnt, that the whittling down of civil liberties in one sphere provides the state with an alibi to erode rights across the board. The very ‘group’ that this Bill seeks to protect could well become the target of such excessive measures.
Clause 78 of this Bill is based on a flawed understanding of the criminal justice system. The Special Public Prosecutor (SPP) in a criminal trial represents the state and not the victim/ informant or witness. The role of the SPP is to advance the interests of justice in a criminal trial and not the interests of a victim or witness. Accordingly the appointment or dismissal of a SPP cannot be decided through “general public comments” or to serve the interests of any party before the Court. Fair trial standards demand that the SPP discharges his duty without bias against any party.
With 178 human rights institutions already in existence, clearly any proposal to establish newer bodies must be approached with maturity and sobriety. The limited purpose why a National Authority is needed is only to ensure that the changes brought in through this CV law, particularly in relation to offences committed by public servants, superiors and commanders are operationalised. That is the specific purpose and it is to ensure this that that the latter part of Art. 355 is operationalised. This is an important function of the Union government at the Centre, not to be intrusive, not to be usurping of the power of the state, but to ensure that the laws are implemented and the State performs its functions in accordance with the constitution. If there is a state authority, as envisaged in the NAC draft Bill, the drafts persons may need to explain how an authority located within the state will keep itself aloof from the immediacy of the violations and not be open to use and abuse.
The most promising aspect of the relief and rehabilitation chapter of the NAC draft Bill, is that it recognizes that while the religious minority suffer a particular disadvantage in terms of impunity and complicity of the state, all victims of communal and targeted violence need to be recognized in law for purposes of compensation, relief, rehabilitation etc. That has been acknowledged in the law and this is an important acknowledgment. However due to tardy drafting, rights for all affected persons regardless of denomination, is not reflected in Clause 90.
The way relief and rehabilitation has been conceptualized in this Bill however is quite problematic, it is paternalistic and does not invest rights in the affected persons. The term reparation under international law encompasses within it aspects of rescue, relief, compensation, rehabilitation, public apology and guarantee of non-repetition. The term ‘reparation’ in the NAC draft Bill has been used alongside relief, compensation etc. which is confusing and misleading. A clear articulation of the right to reparation and what it encompasses is required in the law.
The idea that loss of earning capacity should be a criterion for determination of compensation for victims of communal and targeted violence is contrary to any notion of reparative justice. The draft Bill does not recognise that victims of targeted and communal violence are not akin to victims of natural disaster, or victims of industrial disaster, or victims of workplace accidents (Schedule IV). Introducing loss of income as the basis for determining compensation misses the distinctiveness of victims of targeted and communal violence, which often includes dislocation, exclusion, difficulties of return, the failure of responsibility of the state to protect. The present Schedule is a partial compilation of existing provisions, but it is difficult to see how these may be relevant in the context. More thinking needs to go into what would constitute compensation where communal and targeted violence occurs. The Bill sees State assessment committee and District Assessment committees as agencies that will identify victims, make lists, issue identity cards and certificates. There is an objectification of the victim that apart from other things is not in consonance with the way international law has developed to help us see the place occupied by victims. There is a token mention of agencies of victims with the full participation of the victims but the same is not actualised in the way the chapter is set out. Revamping of this chapter to recognise the rights of the victims, the responsibility and obligations of state actors, liabilities of the state and consequences when these obligations are not fulfilled, is necessary.
Clause 111 of the draft Bill seems to have strayed into this Bill. It is taken from the Bhopal Claims Act 1985, which was later introduced in Schedule to the National Environment Tribunals Act 1995 (which passed into oblivion without ever being notified). The Bhopal Claims Act dealt with a situation where a corporation, as an economic centre of power, may be required to pay for all costs, injuries and losses arising from an industrial disaster. The CV Bill does not share any aspect of the situation. The idea that administrative costs and litigation costs, for example, are to be recovered does not acknowledge the complicity of the state nor how the offender will be identified who should pay for the costs set out in the Schedule. This is inapposite, and adds to the confusion on compensation and reparation.
Among the disturbing equivalences made in the draft Bill is the use of the standard in the Land Acquisition Act 1894 in computing loss due to injury to property. It is widely known that `compensation’ in the 1894 Act is as contested as the power of the state to compulsorily acquire under that Act. Reference to compulsory acquisition as setting the standard, and relying on the highly contested 1894 Act to dictate compensation for injury to property, is inexplicable.
The retention of requirement of prior sanction for prosecution of public servants and the good faith clause for actions done in pursuance of the Bill, subvert the main objective of this Bill and is a contradiction in terms. Interestingly Clause 76 of this draft Bill excludes prior sanction for offences detailed in Schedule III, which are largely offences under the Indian Penal Code pertaining to the performance of official functions by public servant. However the requirement of prior sanction has been retained for graver offences enumerated in Schedule II and more significantly for all the crimes formulated in this draft Bill. Clause 130 of this draft Bill, retains the good faith clause for all acts done by public servants of the Central government, State government, National Authority and State Authority, sowing the seeds for lack of accountability and transparency in discharge of public functions.
We, the undersigned, secular and civil liberty activists, organizations, members of the three National Consultations on the CV Bill cannot accept the present NAC Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. We will continue our struggle for a meaningful and effective CV Bill.
ANHAD 23, Canning Lane New Delhi 110001 Ph: 23070722/23070740