Christian community observations on Draft of Bill to Prevent Communal Violence 2011

[Dr. John Dayal]

Christian community’s observations on National Advisory Council Draft
Bill on ‘Prevention of Communal and Targeted Violence (Access to
Justice and Reparations) Bill, 2011

The following note was endorsed at a National Consultations of
Christian Leaders on Saturday, 11th June 2011, presided over by the
Archbishop of Delhi, His Grace Vincent M Concessao, and attended by
Bishops, Church leaders from the CBCI, NCCI, CNI, EFI, aicc,
Evangelical and Pentecostal churches, NGOs and lawyers and Scholars
from across India endorsed the following response and commentary on
the National Advisory Council Draft Bill on ‘Prevention of Communal
and Targeted Violence (Access to Justice and Reparations) Bill, 2011.
Supreme Court advocate and Human Rights activist Ms Vrinda Grover
facilitated the Consultations, held at the India International
Centre, and hosted by the All India Christian Council.

This note articulates major issues of agreement with the NAC draft,
which is a great improvement on the 2005 Bill now in the Rajya Sabha,
but also some points of serious disagreement. It also answers the
questioned in some political quarters as to why the law on Communal
Violence must specifically address protection of religious minorities.

Dr John Dayal, Advocate Sister Mary Scaria and Advocate P I Jose were
members of the NAC working group. Of them, Adv P I José was on the
drafting committee and Dr Dayal and Sister Mary on the advisory
Committee. At all stages of the year long discussions we had filed our
points of view, suggestions and objections in writing to the NAC. We
worked in the backdrop of the anti Christian violence ion Kandhamal in
2007-2008, in Gujarat and Karnataka and in 12 other states in the last
ten years. These states were ruled by the BJP, the Congress and by
various regional parties.

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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 lacunae 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”.

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(c) “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 chargesheet 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, cannot accept the present NAC Draft ‘Prevention of Communal and
Targeted Violence (Access to Justice and Reparations) Bill, 2011. We
continue our struggle for a meaningful and effective CV Bill, fully
engaging government and civil society in the process.