Reading the Riot Act
India has a history of not providing justice to victims of religious massacres, and civil rights activists believe that the proposed communal violence bill will not change things unless the state becomes accountable
ARATI R JERATH TIMES NEWS NETWORK
While the Manmohan Singh government struggles to satisfy Congress president and UPA chairperson Sonia Gandhi’s desire for a comprehensive food security law, the six-year long battle over another of her pet proposals — a bill for the prevention of communal violence — may be over soon. Bowing to pressure from Gandhi and her activist advisors, the government is putting finishing touches to a piece of pathbreaking legislation that could change completely the manner in which the state deals with incidents of mass communal carnage like the 2002 Gujarat riots, the 2008 Kandhamal violence or the 1984 anti-Sikh riots.
The prolonged tussle was not just a matter of legal details. It was a fundamental clash of philosophies with groups from civil society demanding the kind of accountability from the state that governments tend to resist. If the Right to Information Act was the first attempt to introduce transparency in government decision-making processes, the bill on communal violence being pushed by activists is an unprecedented effort to make the state criminally liable for both action and inaction in mass riot situations.
The debate between the government and civil rights activists has been long and heated. What is significant is that Congress president Sonia Gandhi has chosen to throw her weight behind the latter and through wide-ranging backroom consultations, in which she has brought face-to-face a cross section of civil society and minority groups and government representatives, including prime minister Manmohan Singh, she has subtly but firmly pushed for a paradigm shift in establishment attitudes.
The extent of her success will be put to test when the proposed bill, currently being finalised by the home ministry, is run past the National Advisory Council, which is scheduled to discuss it on July 15. If the Council gives a green signal, the government may take the bill to Parliament for passage in the July-August monsoon session.
The issues involved are complex and have farreaching constitutional and legal implications, most of which are best left to experts to argue and debate. But put simply, what civil rights groups have been demanding is a new law to deal with mass crime situations like the 1984 anti-Sikh riots or the 2002 violence in Gujarat and to punish all the guilty — the actual perpetrators, those who pull the strings from behind and governments if they fail to act and protect their citizens. Says lawyer-activist Teesta Setlavad, “We want a law that brings our criminal jurisprudence in line with the United Nations convention on genocide. Our laws deal with crimes on an individual basis, from crime to crime. As a result, we cannot address mass violence in its entirety or establish a chain of command responsibility that goes beyond the man on the spot.”
According to NAC member Harsh Mander, who has been at the forefront of the debate on the proposed new law, the nature of communal violence has changed drastically in the past three decades, shifting from localised incidents to mass violence spread over large areas. This kind of violence is obviously not the handiwork of one person or a small group of people. It is meticulously planned by non-state actors and supported by the state, which turns a blind eye to the violence, he argues. “In 2002, the (Narendra) Modi government allowed the violence to go on for days and days. The failure to act was evident, but under our present laws, this is not recognised as a crime. We need to change that,” he stressed.
Agrees Mander’s co-campaigner and human rights lawyer, Vrinda Grover, “Recent history shows that communal violence has become a form of governance in this country. The political dividends are very good. Unless people at the top in government are made criminally liable, there’s no deterrence for this kind of politics.” Clearly, the trigger for a new law has been the 2002 Gujarat riots, setting the stage for a protracted and fractious political battle between the Congress and the BJP. Because it is not part of the ongoing debate, the BJP has been cautious in its response so far. It has limited its comments to constitutional issues. “The objective may be laudable,” said BJP spokesperson Ravi Shankar Prasad. “But we have serious apprehensions about the misuse of such a law. It should not disturb the federal structure of our democracy by giving the central government sweeping powers to interfere with state governments on the pretext of preventing communal violence.”
However, civil rights activists are concerned with broader issues of redefining the very nature of communal violence. They have submitted multiple proposals and drafts to the government ever since the debate began six years ago.
One, they want communal violence to be defined as targeted mass violence against a particular group or community. Setalvad and some minority groups want the definition to be widened to include sectarian violence of all forms. “We feel that the concept of communal violence should not be limited to religious groups. It should include violence against linguistic, groups, caste groups, ethnic groups and so on,” said All India Muslim Personal Law Board member Kamal Farooqi.
Two, the law should establish the principle of command/superior responsibility so that the invisible forces that order and facilitate mass violence are also punished. “The buck should not stop with the man on the spot,” said Setlavad.
Three, the concept of gender crimes should be introduced, so that sexual violence goes beyond rape to include acts of stripping, genital mutilation and other forms of humiliation.
Four, public officials like police officers and district administrators, guilty of action or inaction, should be punished without having to get prior government permission for prosecution. As things stand today, it’s up to the government to decide whether an official should be prosecuted or not and invariably guilty officials go scot-free.
Five, reparation for victims should be codified instead of being left to the discretion of the government. “The survivors of the Nellie massacre of 1983 were paid just Rs 5,000 for each death, while the families of those killed in the Sikh massacres one year later were paid a total of around Rs 7 lakhs,” Mander pointed out. “Such differentiation is intolerable, which is why there should be a clear set of rules and regulations for compensation.”
Six, there should be an independent body to oversee the justice process to ensure speedy, time-bound trials, free legal aid for victims, adequate protection for witnesses and so on. “The government must recognise the rights of victims to reparation and justice,” emphasised Grover.
This is just a short list of the points civil rights activists want included in the new law. The debate has ranged from over-arching broad principles to technical legal points. “We’re talking about a new law, so the language has to be very carefully drafted,” said Grover. But what is emerging is a demand for a whole new approach to communal violence, which the government, with its statist mindset, has been resisting.
It has been an uphill task for Gandhi to get the ball rolling. A bill for the prevention of communal violence was a Congress party election manifesto promise in the 2004 Lok Sabha polls. It emerged from Gandhi’s pre-poll discussions with civil rights groups disturbed by the 2002 riots in Guajrat. The home ministry went to work immediately, but the bill produced in 2005 and placed in the Rajya Sabha in 2006 was firmly rejected by Gandhi’s activist friends. “It’s obvious that the people who drafted the law have no comprehension of the larger issue nor do they understand how international jurisprudence on mass crimes has developed in recent times,” said Grover.
Since then, the bill has gone back and forth with civil rights groups and minority organisations running a high-pitched campaign for changes. Home minister P Chidambaram agreed to review the first draft and introduced 59 amendments in an attempt to placate the critics. But his effort was criticised as “cosmetic”. With the bill running into a blank wall of resistance from the home ministry, Gandhi put law minister Veerappa Moilly to work. Moilly’s consultations with a wide range of activists resulted in some 84 amendments. Or, as an official in the law ministry put it, “The bill has been completely changed.”
According to activists who met him, Moilly was more sympathetic to their views and is understood to have incorporated most of their demands in the reworked bill before sending it back to the home ministry to pilot. A law ministry official admitted that Gandhi had advised Moilly to accommodate the views of the activist and minority groups. “The home ministry will have to accept the amendments, because that’s what Mrs Gandhi wants,” said the official who requested anonymity. Campaigners for the bill are waiting expectantly to see whether their faith in Gandhi is well placed.
• FOR A FAIR CHARTER
Non-negotiables: What civil rights groups absolutely insist must be included in the communal violence bill
A preamble that focuses squarely on the rights of victims
Incorporation of the concept of targeted violence against a group or groups of people
Acknowledgement and provision for gender-based violence that goes beyond rape to include other categories of sexual violence
Incorporation of the principle of command/superior responsibility to bring state and non-state actors into the net for punishment
Relief and rehabilitation should be an inviolable right of the victim-survivor; the concept of reparation to include compensation, rehabilitation, apology and guarantee of non-repetition
Provision for a national framework for compensation rather than leaving it to the discretion of state government agencies
Three-tier councils — district level, state level and national level — to oversee state actions including investigation and relief and rehabilitation; these should include as equal number of representatives from civil society as government nominees
Formulate new rules of procedure and evidence, taking into consideration the context of communal violence
Create and define new crimes that go beyond the purview of existing criminal laws
Preventive measures for hate propaganda, communalisation, build up to communal violence and punitive provisions for state agencies that do not take measures to stop the process of communalisation
The dispensables: Provisions that civil rights groups want definitely omitted Preamble that says state needs to be further empowered to deal with situations of communal violence
Provisions that give sweeping or unfettered powers to state officials in situations of communal violence
Reference to threat to “unity, integrity and internal security” of the nation in the context of communal violence
Declaration of an area as “communally disturbed”
Provisions that allow the government to disarm civilians of licensed weapons
Provisions that give immunity to government officials like prior sanction from the government for prosecution or presumption that the official acted in good faith HOMELESS: Sikhs seek shelter in a New Delhi schoolyard in the violent days of anti-Sikh riots following the assassination of Indira Gandhi by her bodyguards in October, 1984 VIOLENT HISTORY: (Clockwise from left) A Christian child at a relief camp in Bhubaneswar, Orissa, in 2008 after riots across the state left several Christians dead and their homes and churches destroyed; Mumbai descended into anarchy after the December 1992 demolition of the Babri Masjid in Ayodhya; In 2002, a Muslim mob torched the Sabarmati Express near Godhra in Gujarat, killing 59 people on board. The incident was followed by some of the worst riots India has known since Independence
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