A Communal Violence bill has been tabled as a response to the killings in Gujarat of over 3000 people. While the bill does present a response to the need for accountability in governance, it lacks the wherewithal to enforce political will.

Background
The state sponsored pogrom in Gujarat in early 2002 was a watershed in the history of independent India, even if of the terribly wrong kind.

This is not the first time when people, and ‘minorities’ to be more specific, were brutally done away with aided and abetted - and at times actively supported, by the state machinery. In fact, India’s history abounds with such dark spots. But never before had a state government, and the party in power and its affiliates, so openly and brazenly fuelled the fire of gory violence targeted at the members of a specific community.

The killers and rapists were lionised. The commander-in-chief attained a larger than life status and became virtually a cult figure. A very large segment of the local populace got intoxicated with communal frenzy and violence. The state election was forced by prematurely dissolving the assembly to capitalise on the ambience of insecurity, paranoia and violence deliberately caused. As designed, the architects of majoritarian violence and mayhem were handsomely rewarded. The central government acted as a somewhat less enthusiastic but nevertheless pliant accomplice.

Even though the organised massacres of Sikhs in Oct.-Nov.1984 to an extent had anticipated the Gujarat of Feb.-March-April 2002, the enactment of a ‘legal’ remedy to such a malaise was never wished for as strongly ever before.

Mercifully, in the parliamentary election to follow in early 2004 – again held before time, the ruling NDA got defeated belying all poll predictions and a coalition government at the Centre led by the Congress under the banner of the UPA could eventually be cobbled up with a collectively drafted Common Minimum Programme (CMP) as its road map. It is in line with the commitment made therein, about a year later, the central government had first circulated a draft Communal Violence (Suppression) Bill in April 2005.

The bill faced wide and virulent opposition mainly on the ground that it had proposed to confer draconian powers in the hands of the armed forces deployed by the Central government in an area declared as “communally disturbed”. That the Centre would arm itself with overriding powers vis-à-vis the states was another principal sore point.
Modifications were made in stages and now a redrafted Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 has been tabled at the Rajya Sabha on December 5 and thereafter referred to the Parliamentary Standing Committee for the Ministry of Home Affairs for detailed examinations.

What the Act Must Provide?
I. Any serious Act, meant to prevent, deter, and reduce incidences of large-scale communal violence, must encompass a three-phased approach. It must have provisions to ensure (i) adequate monitoring and scuttling of build up of tensions through hate propaganda and spreading of rumours etc.; (ii) prompt, unbiased and effective intervention to contain or quell violence and protection for the actual and likely victims; and finally (iii) relief and rehabilitation for the victims, speedy identification of and strict justice for the perpetrators and also stringent punishment for the negligent/colluding State officials. There must be adequate provisions for effective interventions in all the three stages: before, during and after.

II. As our experiences show, the biased approach of the state machinery is one of the major problems. But their services can hardly be dispensed with. So the Act must ideally create a special or autonomous body at the state level, which will have statutory/executive powers to direct and supervise the operations of the state machineries pertaining to communal violence declared by it as “communally disturbed”. The body must be so constituted that it enjoys enough credibility in the eyes of the potential ‘victim’ communities. Or, at the very least, in case of failure to scuttle/contain violence the complete command chain up to the highest echelons of the state administration must be held accountable and be made to pay for such failure. Full monetary compensations for the victims by the state would be another way of discouraging pre-planned pogroms.

III. Special central security force, having adequate representation of various ‘minorities’ including women, must be raised. They may be deployed at the request of the special body constituted at the state level. Once deployed, they should directly report to such bodies. Both the ‘special’ force and the state police must be sensitized through proper training etc.

IV. There must be special court to try the cases of atrocities. Public prosecutors are to be appointed only with the consent of the victims. The judges need be vetted by the autonomous body, in case there is one.

V. Vesting of unfettered powers in the existing structures, who are by all means the parts of the problem, would lead only to further victimisation of the victims. This must be avoided like plague.

How Does the Bill Fare?
The very framing of the Bill gives the official stamp of recognition to the extreme seriousness of the problem and is hence welcome.

The most major improvement in the redrafted Bill is perhaps the change in its nomenclature, which acknowledges - at least in principle, the necessity for intervention in all the three stages: before, during and after. Apart from that, the draconian powers that were earlier proposed to be vested in the law enforcing machinery have been very substantially curtailed. Special provisions for witness protections have been made. The Bill also proposes to simultaneously empower the Centre and the state government concerned to establish special trial courts outside the communally disturbed area (so as to eliminate biases).

The proposed power for the special courts to take cognizance of and try offences brought to its attention by human rights bodies, minority groups, media reports or even a concerned citizen is also very welcome. Wide-ranging powers are proposed for the ‘competent authority’ as also district magistrates to prevent breach of peace. District magistrates who fail to ensure the rule of law despite such powers would then be answerable for their acts of omission and commission.

Those held guilty of relatively less serious communal offences would stand to serve a jail term or asked to pay a fine that is twice that stipulated otherwise. There are provisions for more effective investigation of offences and the establishment of permanent councils with representation of human rights activists and minorities at the district, state and national levels to promote communal harmony and formulate humane and appropriate rehabilitation and reparation schemes for victims of communal violence.

The central and the most glaring flaw of the Bill is, however, that it refuses to acknowledge that communal violence erupts and spreads mostly because of the lack of political will on the part of the state government concerned and also the Centre. In case of Gujarat the state government was actually actively complicit and the Centre connived.
The now proposed Bill further compounds this near-fatal folly by leaving the very commencement of the Act, let alone its execution, to the sweet mercies of the respective state governments, and the Centre in case of Union Territories.

Only the provisions relating to relief and rehabilitation (excluding the provisions of suppression and prevention of communal violence) can be brought into force by the central government through appropriate notification. Therefore, on the passing of the Act, by the parliament, none of the provisions will automatically come into force and this will depend on further whims and fancies of the central and state governments. And even after the Act having become operative, it is again for the concerned state government to declare a particular area as “communally disturbed”, upon which the various provisions of the Act will apply to such areas so declared.

So the state government, under the provisions of this Bill, can very well keep on dragging its feet in issuing the appropriate gazette notification to make the Act operative. And, more vitally, delay, or altogether avoid, declaring the affected areas as “disturbed” and thereby making the whole exercise nothing more than some sort of elaborate window dressing.

While there can be many more improvements in the Bill, this central lacuna of the Bill must engage all our attentions at the moment. In fact, most of the states are reportedly reluctant to even issue notifications to make the Act operative.

What to Do Now?
That the UPA government was impelled under strong public pressure to include in the CMP the commitment to legislate such an Act and thereafter draw up successive drafts to that end gives us immense hope that organized public opinion and its determined demonstration can ensure further improvement in the Bill and eliminate the central lacuna.

It is with this goal in mind, the Movement for Peace and Justice (MPJ), Mumbai, in collaboration with all those who are willing to collaborate, has launched a nationwide campaign. Advocate Y. H. Muchhala, an eminent and well-known legal practitioner from Mumbai, has taken the initiative to form a group of legal and social activists to draw up amendment clauses to the proposed Bill to convert it into an effective instrument from an ornamental showpiece.

The list of proposed amendments will eventually be presented before the Standing Committee, to which the Bill has been referred to, for incorporation. But a strong wave of public pressure is imperative to make it happen and it is for all of us – each one of us, to ensure that it happens. So all the right-thinking and concerned citizens of India - irrespective of caste, creed, language and gender, must immediately join hands in the determined efforts to make India a safer and better place.

So, let’s all join together! Let’s make it happen, all together!
Mohammed Anees (Spokesperson, Movement for Peace & Justice), Convenor, Initiative on the Communal Violence Bill, ph:9820796098,
Mumbai-Initiative-4-Bill@googlegroups.com, anees.mohammed@rediffmail.com

The Organising Committee Includes
Adv Yusuf Muchala (Chairman), Mohd Anees(Convenor), Js H Suresh, Dr Ram Puniyani, Adv Mihir Desai, Dolphy Dsouza, Adv Saeed Akhtar, Kamayani, Adv Sameena Dalwai, Syed Iftekhar, Jatin Desai, Sukla Sen, Adv Qazi Mehtab, Farid Batatawala, A.D.Golandaz, Meena Menon, Shanti Patel, Flavia Agnes, Jyoti Punwani, Ravi Duggal, Louis Dsouza, Lionel Fernandes, Adv Sagheer Khan, Haroon Mozawala, Dr Azeemuddin, Fr Allwyn D’silva

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