Context of the Bill:

The Union Home Minister Shivraj Patil announced on 24 April that the UPA government has prepared a draft bill to enact a law against communal violence. The Minister expressed the government's intention to put up the bill in the public domain to invite suggestions and discussions, and to introduce it in Parliament after detailed discussions with its allies. The draft Bill, finalised by the Home Ministry is currently being studied by the Prime Minister's Office and the National Advisory Council (NAC) headed by Sonia Gandhi.

The government sees this proposed law as a fulfillment of one of the promises made in the Common Minimum Program announced when the UPA came to power. At the same time, many citizens' groups and organizations have been demanding that the government be accountable for preventing the kind of criminal communal violence that was perpetrated on the people of Gujarat. People have been demanding that the guilty must be punished and the victims must be compensated. Several prominent citizens have even drawn up a draft bill and held public discussions on it. Now, the government has made its official proposal.

Provisions of the Bill

The Communal Violence (Suppression) Bill, 2005, as it is called, contains some provisions that are of serious concern and need to be discussed widely. These are:

• Whenever the State Government or the Central Government is of the opinion that one or more scheduled offences are being committed in any area by any person or group of persons, which involves the use of criminal force against religious, racial, language or regional group /caste /community or use of criminal force or violence is committed with a view to create disharmony or feelings of enmity between different religious /racial /language /regional group, caste or community, it may by notification declare such an area as ''communally disturbed.''
• The period specified under this notification may not in the first instance exceed thirty days, but the State or Central Government may amend such notification to extend such period from time to time by any period not exceeding thirty days at any one time. Once the area is declared ''communally disturbed,'' as per the Bill, the Centre can deploy armed forces and nominate one or more Central officers-not below the rank of Additional Secretary-to ''coordinate steps taken for dealing with the situation.''
• Where any area has been declared as a communally disturbed area, ''any commissioned officer, warrant officer, non-commissioned officer or any person of equivalent rank in the armed forces'' can:
  • Fire, even cause death, after ''giving such due warning as he may consider necessary.''
  • Arrest, without warrant and use ''such force as may be necessary'' any one who has committed a cognizable offence or ''against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence.''
  • ''Enter and search without warrant any premises'' to make any such arrest or to recover property ''reasonably suspected'' to be stolen property
  • Stop, search, seize any vehicle suspected of carrying any person who is believed to have or has committed or is ''about to commit'' a non-cognizable offence.
  • Power to break open any ''door, almirah, safe, cupboard, drawer or other thing, if the key thereof is withheld.''
    
• No prosecution, suit or legal action can be instituted, except with the previous sanction of the Centre, against any person in respect of anything done under the Act.
• Clause 21 of the Bill gives a special court (established by notification) an extraordinary power to direct-on being satisfied with a complaint or a police report-those likely to commit an offence to ''remove himself beyond the limit of such area not exceeding six months, as may be specified in that order.'' Failing which, the people may be ''removed in police custody.''
• Under Clause 28 of the Bill, if it is proved that an accused has given any money to a person accused or ''reasonably suspected'' of a scheduled offence, the ''special court shall presume, unless the contrary is proved, that such person has abetted the offence.''
• Similarly, the next clause says that if fingerprints of the accused were found at the site of the offence, the special court "shall draw adverse inference against the accused."

Concerns:

Some of the provisions of this bill are as draconian as other black laws such as the UAPA and its predecessors, POTA and TADA, and the hated AFSPA, against which the people of the Northeast have been agitating for decades. This is evident in the sweeping powers it gives to the Central government to declare any region as "communally disturbed", to deploy the armed forces against civilians and the power it gives to the state machinery to search, arrest and kill people, merely on the basis of suspicion. Under the provisions of this Bill, people will not have a legal recourse even in the case when the suspicions are ill-founded. Many innocent people may also be harassed or persecuted on the grounds of suspicion of having "abetted the offence".

The bill is based on the assumption that people are responsible for communal violence, while the state machinery works to maintain communal harmony and peace. This assumption has been proven to be totally false in several major cases of communal violence and genocide, such as the violence against the Sikh community in Delhi and other places in November 1984, the violence against Muslims following the destruction of the Babri Masjid in 1992-93, and the communal holocaust in Gujarat in February 2002. In each of these cases, facts show incontrovertibly, that the state machinery actively assisted in organizing and executing the communal violence. Evidence provided by many witnesses clearly shows that if the state machinery failed to control the violence or to protect the people who were targeted, it was because the state machinery received orders in many cases, to allow the communal violence to occur and not for lack of powers to control it. Therefore, giving the state machinery additional powers, as the bill proposes to do, is not going to help to solve the problem. What will prevent the state in organising and targeting any section of the people under the cover of "communal violence".

The bill presumes that the Central or State governments are seriously interested in maintaining communal peace and harmony, whereas the people are violent on the basis of a communal divided. But in all the cases of communal violence cited above, the hand of definite political parties in power, either at the Centre or in the State, in organising the communal violence has been shown beyond doubt. How can the suppression of communal violence then be left in the hands of the Central or State governments, as the Bill proposes? The Bill has no provision to enable citizens' groups or people's organisations to take legal action against a government in power.

In all the previous cases of communal violence stated above, many political leaders and others enjoying patronage of big political parties, who have been named guilty by witnesses, continue to go scot-free and no action has been taken against them. This continues, even after political parties in power at the Centre or in the State have changed. Can it be expected that "special courts" set up by the government will take legal action against its own legislators and officials? The Bill contains no provision for people's organisations or citizens' groups to set up "lok adalats" or peoples' courts to try those accused of organising and abetting the communal violence, irrespective of their position or power. Only such a provision can actually ensure that the guilty are punished and that such cases of communal genocide are not repeated.

It is vital that all those who are concerned about putting an end to communal violence and genocide seriously consider, discuss and debate on these issues. We must organise to put forth before the government, the people's proposals for ending communal violence. Lok Raj Sangathan is of the view that our proposals must be firmly based on the conclusions and demands of the people's movement, such as

• We cannot leave it to the Central and State governments and the state machinery to maintain communal harmony, because it has been proven beyond doubt, that they are the organisers and abettors of communal violence.
• People have to be empowered to take action against legislators and members of political parties as well as state officials who are guilty of organising or abetting communal violence.