A Bill and some concerns

(Article By Siddharth Narrain)
The Communal Violence (Suppression) Bill, drafted with the aim to check communal violence, is criticised as being a draconian and potentially dangerous piece of legislation.

ONE of the crucial promises of the United Progressive Alliance (UPA) government when it assumed power was to prevent another Gujarat-like anti-minority pogrom by enacting a law to check communal violence. But the Communal Violence (Suppression) Bill, 2005, drafted by the Home Ministry, is a draconian and potentially dangerous piece of legislation.

The Bill, currently under the consideration of the Prime Minister's Office and the National Advisory Council (NAC) chaired by Congress president Sonia Gandhi, borrows provisions from the Armed Forces (Special Powers) Act (AFSPA), 1958, and the Prevention of Terrorism Act (POTA). The government had promised to review the AFSPA in the wake of the violent incidents in Manipur in July-August 2004 (Cover Story, Frontline, September 10, 2004). POTA was repealed in 2004, as promised in the UPA's Common Minimum Programme (CMP).

While a separate law to tackle all forms of communal violence fulfils the promise made in the CMP, it is important to note that India has signed and ratified the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Article 4 of the Convention makes it obligatory for India to enact legislation to ensure that persons, whether they are constitutionally responsible rulers, public officials or private individuals, guilty of genocide are punished. Moreover, the Union government has a fundamental duty under Article 51 (c) of the Constitution to foster respect for international humanitarian law and treaty obligations, and under Article 253 Parliament has the power to make any law to implement international conventions.

The Preamble of the Communal Violence (Suppression) Bill says that it is meant to "provide for the State government and the Central government to take more effective measures to suppress communal violence perpetrated on such a scale which threatens the secular fabric, unity and integrity of the nation". It refers to Article 355 of the Constitution by saying that the Constitution imposes a duty on the Centre to protect States against external aggression and internal disturbance. The Bill is meant to fulfil the CMP's commitment to enact a comprehensive law to deal with communal violence and encourage each State to adopt that law to generate faith and confidence in the minority communities.

The proposed law gives the government extraordinary powers. Once the Centre or the State has declared an area "communally disturbed", the Central government can nominate government officials not below the rank of an Additional Secretary to coordinate steps to deal with the situation and to constitute judicial zones. The maximum jail term and penalty for any offence committed in a "communally disturbed" area has been doubled (except for life imprisonment and death penalty).

Sections 7 to 10 are taken almost word to word from Sections 3 to 6 of the AFSPA. They give the armed forces the power to arrest, without warrant, a person who is suspected to have committed a cognisable offence. Once an area has been declared "communally disturbed", any commissioned or non-commissioned officer, or an officer of the same rank in the armed forces, has the power to open fire or use force, even to the extent of causing death, against a person who breaks the law. He or she has the power to arrest any person without a warrant on the reasonable suspicion that the person has committed or is about to commit a cognisable offence. The Bill gives the officer the power to stop, search and seize any vehicle or vessel which is carrying the suspect, and to break open the lock of a door, cupboard and so on to make a search. No one who acts under the powers conferred by the Bill can be prosecuted in court.

The Bill has provisions that enable the Central or State government to set up special courts. The government has the power to appoint a judge and additional judges with the concurrence of the Chief Justice of the High Court concerned. If, in the opinion of the Public Prosecutor, the trial needs to be held in another court in order to protect the accused or a witness, the whole or part of the trial can be transferred to another setting. The special court has the power to take measures to avoid mentioning the names and addresses of the witnesses in its orders or judgments or in any public records and can issue directions to protect their identity.

The Bill has given the special court an unprecedented power. If satisfied by a complaint or a police report that a person is likely to commit an offence in a "communally disturbed" area, the special court can direct him or her to leave the area for a time period not exceeding six months. If the person does not leave, the special court has the power to order his or her arrest and removal from the area. Under Section 130 of the Code of Criminal Procedure (CrPC), 1973, an Executive Magistrate has to give permission to armed personnel before they use force to disperse an unlawful assembly if it is necessary for public security. The current Bill dispenses with that provision.

Under Section 167 of the CrPC, whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within 24 hours, and there are grounds for believing that the accusation or information is well-founded, the police officer in charge of the investigation, if he or she is not below the rank of sub-inspector, is required to transmit a copy of the case diary to the nearest Judicial Magistrate and produce the accused before the Magistrate. The Magistrate has the power to authorise the detention of the accused up to a maximum of 60 days. The Magistrate cannot authorise detention under Section 167 unless the accused is produced before him or her.

The current Bill says that the investigating agency has the option of choosing between a Judicial Magistrate and an Executive Magistrate (officers of the rank of mamlatdar or tehsildar, or police officers not below the rank of Assistant Commissioner, who is a junior civil servant). In a move that goes back to the excesses of the Terrorism and Disruptive Activities (Prevention) Act (TADA), and POTA, the maximum period of detention has been changed from 15 to 30 days and it can be extended up to one year. Under the CrPC, an accused cannot be detained without charges beyond 60 or 90 days, depending on the severity of the offence.

Under the Bill, if a death sentence is passed against the accused, it has to be confirmed by the Supreme Court instead of the High Court, thereby doing away with one level of appeal. There is no provision for anticipatory bail for offences committed in the "communally disturbed" area. The conditions for bail have been made more stringent. Bail cannot be granted unless the Public Prosecutor has been given the opportunity to oppose the bail application. If it is proved that a person has financially assisted another person accused of, or reasonably suspected of, committing such an offence, the special court shall presume that the former has committed the offence. The Bill says that the special court shall draw an adverse inference against the accused if it is proved that he or she possessed arms and explosives, and there is reason to believe that they were used to commit the offence, or if the fingerprints of the accused were found at the site of the offence or on anything used in connection with committing the offence.

The Bill provides for a Communal Violence Relief and Rehabilitation Council consisting of the State Chief Secretary as ex-officio Chairperson, the Collector and the Superintendent of Police of the District as ex-officio members, two persons nominated by the Central government to represent social workers and four persons, again nominated by the Central government, to represent the minority community and the victims of communal violence. The council is responsible for planning relief and rehabilitation measures and their coordination, monitoring and implementation. It has extensive powers to facilitate the speedy prosecution of cases related to communal violence and to draw up guidelines for the assessment of compensation for losses suffered during communal violence. The State government can set up a Communal Violence Disturbance Relief and Rehabilitation Fund, but the State and Central governments can decide the amount to be contributed.

The government has amended Section 144 of the CrPC to give powers to the District Magistrates to ban any procession carrying weapons or any mass drill or mass training with arms in any place. The ban can be in force for up to six months. But human rights groups, which presented their draft bills to the government after extensive consultations, feel that the Bill does not take into account previous experiences of riots where several factors resulted in the riot. The Bill does not address hate speeches or make police and government officials responsible to prevent communal violence. There is no provision to ensure that officials who fail to perform their duty are punished. It does not address economic boycotts of minority communities or propose ways to deal with Public Prosecutors who obstruct the course of justice in cases related to communal violence.

Judicial Commissions of Inquiry, such as the Srikrishna Commission set up to probe the communal violence in Mumbai in 1993, point to the complicity of the police in attacks against the minority community. However, the current Bill, instead of making the police accountable in the exercise of its powers, has given it further powers coupled with legal immunity against prosecution. Harsh Mander, activist and a former Indian Administrative Service (IAS) officer, said: "We need a law that makes the state more accountable, in order to make it exercise these powers. There has to be a clear system of accountability so that the duties of those responsible for preventing communal violence are defined. The idea is to prevent a build-up before violence, using as little time as possible. This Bill, however, has lifted portions from draconian laws, a bad idea considering that states tend to act against minorities in such situations. The answer does not lie in arming the state with more powers. This is a dangerous Act [Bill] that has been drafted without a debate despite the fact that this [preventing communal violence] remains one of the most important commitments of the UPA government."