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Make State Officials Accountable

Seminar on the Communal Violence Bill Proposes Amendment

A memorandum proposing changes in the expected draft of the Communal Violence Bill was passed unanimously at the seminar that took place at the Indian Social Institute, here in Bangalore on October 23rd. The seminar was jointly organized by the Indian Social Institute and All India Secular Forum. The agenda of the seminar was to give recommendations to the drafting committee of the Bill before the 31st October.

The seminar was attended by around 60 participants who were activists working on the issues of Human rights, Dalits, minorities, women, communal harmony, freelance writers, teachers, students, academicians from the four states of Karnataka, Andhra Pradesh, Tamil Nadu and Kerala. They were welcome by Dr. George, the director of the Indian Social Institute, Bangalore who shared his experiences of the 1984 anti Sikh riots. Then Prof. Hasan Mansur who is a prominent Human Rights activist from Bangalore emphasized on the need for a cultural revolution and identified the roots of communalism to be in the caste system that pervades not only in India but also in Pakistan and Bangladesh. Irfan Engineer started the discussion on the Bill by first pointing out why the bill is required in the light of the institutionalized riot system as elaborated by Paul Brass and the impunity the state enjoys.

He briefly analyzed the first two drafts of the bill that were presented and subsequently withdrawn due to the pressure of the civil society organizations. He then pointed out that the following points must be included in the bill:

To state in the preamble that the bill seeks to make the state accountable and prevent communal violence instead of empowering the state.

To factor in new and progressive definitions of new crimes and sexual assaults on women as observed in recent instances of violence. Thus the definitions must go beyond outraging the modesty of the woman and rape.

To make state officials accountable for omissions and commission and pulling them up for dereliction of duty.

To have a well studied and researched witness protection program so that the CJS becomes more accessible to the victims.
International standards of reparation and a just policy of Relief and Rehabilitation to restore the prior status of the victim in terms of place and standard of living.

Advocate Irfan Engineer

Along with all the discussions and valuable suggestions of the participants,, it was decided that a memorandum will be send to the advisory committee who will have powers in framing the draft. This memorandum will have the demands which were unanimously passed in the seminar. This will strengthen the position of the civil society by clearly spelling out their demands and voices.
A convening committee for Karnataka was formed comprising of Elongo, Kaduraiah, Nirmal Das, Govind Raj, S. Prabhavati, Venkatesh, Sam
23rd October 2010

The Members of the Drafting and Advisory Committees
Working Group on Communal & Sectarian Violence Bill
National Advisory Council
Prime Minister’s Office
Respected Members,
At the Seminar on the Communal and Sectarian Violence Bill, 2010, Bengaluru organized by the Indian Social Institute – Bengaluru and Delhi  with All India Secular Forum (AISF), we, the concerned citizens of this country, working on issues of justice, peace, communal harmony, human rights, discussed and deliberated on the Communal Violence Bill.  The secular, rights-based platform, consisting of over 60 activists, advocates, academics, media persons and students, states below its recommendations for the kind consideration of the members of the Drafting and Advisory Committees of the Bill, formed by the NAC:

1.      Objectives of the Bill: The objectives of the Bill could be to ensure that the State and the Central governments take effective measures for preventing, controlling, prosecuting perpetrators for communal violence and providing relief and reparations to victims and survivors. The Bill, through its provisions, could address the twin objectives of a) providing justice, reparations and security to victims and survivors; and b) ensuring accountability of public officials responsible for addressing communal and sectarian violence for their wrongful actions and their inactions.

2.      Preventing Communal Violence: Since it has been observed that incidents of communal violence in recent times are not spontaneous outbursts but executed with meticulous planning and preparation, it would be desirable for the Bill to have adequate provisions for prevention of communal violence.  The provisions could focus on state responsibility for arresting hate rumours, speeches, writings and other actions (such as processions) that incite hatred and violence, and to properly implement the relevant provisions of the Criminal Procedure Code and other criminal law provisions without fear or favour.  State officials ought to be made accountable, through administrative, criminal and civil action, for failure to diligently exercise their duty to prevent communal and sectarian violence.

3.      Defining New Crimes: We are convinced that the Bill would have to define and introduce new crimes into Indian criminal law as the existing provisions of the Indian Penal Code are grossly inadequate and inappropriate in capturing the elements or the gravity of crimes committed in contexts of communal and sectarian violence. The restricted statutory definition of rape and the absence of the crimes of torture in Indian law are cases in point.  Based on the experiences of victims and survivors facing such violence, as well as by drawing upon international standards, new crimes could include: genocide, crimes against humanity, torture, enforced disappearance, a range of crimes related to sexual violence and persecution based on religion and other grounds, in addition to a precise definition of communal and sectarian violence.

4.      Registration of FIRs, Investigation & Prosecution: Given the past experience of institutional communal bias and prejudice, leading to deliberate refusal to register FIRs or registration of FIRs in a manner that would scuttle justice, innovative provisions ought to be worked out so that the entire case is not dependent solely on the FIR which is registered by the police personnel.  No adverse inference should be drawn of delayed lodging of FIR, absence of material evidence, discrepancies in statements recorded by the police. Any variance in the testimonies of the victim-witnesses should be taken as admissible evidence if they withstand the cross-examination. Investigation should be conducted by the police in a time-bound and transparent manner, with adequate checks and balances in place to ensure the investigating officers perform their duty with due diligence. Investigation wing of the police ought to be separated from the law and order wing. Prosecutors ought to have institutional discretion and functional autonomy in handling cases related to communal and sectarian violence, and be free from political / bureaucratic pressures.

5.      Victims and Witness Protection Measures: In the light of rampant intimidation of victims / survivors in recent incidents of communal violence, it is imperative that victims / survivors and other witnesses are provided adequate protection from the time of lodging the FIR till the end of the trial, and in relevant cases, even subsequently.  Their dignity, welfare and right to privacy ought to be respected at all times.  Law Commission of India’s recommendations in its 198th report, 2006, on this issue ought to be duly considered.

6.      Fair Trial Guarantees: The Bill ought to ensure that in its zest in providing for and protecting victims’ rights, fair trial guarantees are not diluted or compromised upon in any manner whatsoever.  It would be important to ensure that a balance is maintained between victims’ rights and the fair trial standards in all stages of the trial.

7.      Accountability: It is imperative that the Bill creates accountability for actions and inactions of public officials that contribute to communal and sectarian violence.  We believe that the requirement of prior sanction for prosecution of public officials (S. 197, Cr.PC) has led to a complete impunity that public officials enjoy for their wrongful acts of commission and omission.  Hence, the executive discretion for sanction to prosecute public officials ought to be replaced with judicial discretion at the beginning of the trial.  ‘Good faith clause’ ought not to be included in this Bill as presumption of the good faith of public officials is contrary to the ground level realities, where many have acted in a mala fide manner.  Instead, the issue of whether or not a public official acted in good faith ought to be a matter for judicial determination.  The doctrine of command / superior responsibility ought to be included.  This   would make persons in positions of official power (civil or military) or senior officials of non-state structures and organizations responsible for the acts or omissions of their subordinates that cause the violence, accountable in certain circumstances.

8.      Victims’ Right to Reparations: Any proposed law on Communal violence must incorporate the concept of reparations as an inviolable, legally enforceable right of the victim-survivor, and according to objective norms and scales that are binding on all governments. Reparations must include rescue, relief, compensation, restitution, rehabilitation, public apology and guarantees of non-repetition.  The law must specify criteria for identifying who is a victim/survivor and standards which will be applicable to all victims and survivors of communal violence, and not leave it to discretion at the state level.  Any determination of reparation measures must be through a mechanism that is inclusive of members of the affected community.  It would be desirable that provisions related to reparations are in conformity with international standards for internally displaced persons, including the UN guidelines on Internal Displacements.
Thanking you,

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