Communalism Communalism

The document discusses the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 and the Communal Violence Bill, 2011. The 2005 bill aimed to prevent and control communal violence, speed up investigations and trials, and rehabilitate victims. It allowed areas to be declared communally disturbed. The 2011 bill expanded the definition of communal violence and sexual assault. It created new offenses and increased accountability of public servants. It also established national and state authorities to address communal violence and provide relief and rehabilitation. While the 2011 bill improved on the 2005 version, some argue its scope should be narrowed and emergency provisions reduced. Overall the documents assess the need for and key aspects of Indian legislation aimed at preventing communal

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Communalism Communalism

Uploaded by

Krishna Swamy

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Download as DOCX, PDF, TXT or read online on Scribd

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Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005

Objective:
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Prevention and control of communal violence

Speedy investigation and trials
Rehabilitation of victims

Sets conditions for the state government to declare an area as communally

disturbed.
A competent authority can take measures (such as regulating assembly, directing
persons to deposit their arms etc) to control communal violence.
Special courts to try offences under this law. Increased punishment.
Features in the draft bill
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Union Home Minister headed 11 member national council to oversee relief

and the rehabilitation of victims. <Civil society is proposing instead a
Communal harmony Justice and Reparation Commission (CHJRC) with

national, state and district councils and wider powers>

There is a provision to declare certain areas as communally disturbed. <Civil
society objects to this on the ground that such declaration would give the
government a free hand to use draconian laws in such areas>

This bill has been amended by the NAC and a new draft introduced in 2011.

Communal Violence Bill, 2011

The draft law features

Defines communal and targeted violence as

o 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
Elaborate definition of sexual assault to cover not just women but men as
well

Apart from treating some of the offences under the IPC as crimes under this
law, the bill also creates certain additional offences like torture,
command responsibility, etc
Public Servants
o Penalises public servants for torture to specific groups
o Penalises for dereliction of duty
o Breach of command responsibility treated as an offence
o Public servants with the duty of maintenance of public order also given
the duty to prevent communal and targeted violence
o Command Responsibility: Any public servant in command of forces who
fails to exercise control over his sub-ordinates which results in offences
under the bill shall be guilty of breach of command of responsibility
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Emergency provisions can be invoked
o The occurrence of communal and targeted violence shall constitute
internal disturbance within the meaning of Article 355 of the
constitution and the Central Govt may take such steps as the nature
and circumstances of the case so requires.
Witness protection provisions are incorporated.
Accountability framework set up concerning the police.
Entails the provision of relief and rehabilitation. Creates the Communal and
Targeted Violence Relief and Rehabilitation Fund
National Authority for communal harmony, justice and reparation
o The authority can initiate investigation and enquiry into complaints
Similarly, state authorities for communal harmony, justice and reparation
The act waives constitutional immunity for the purpose of proceedings under
the act

Some issues with the draft

The law applies to only the minorities religious or linguistic in a state (+

SCs and STs)
o This assumes that the majority community is always the perpetrator of
violence and never the victim
o This criticism however misses the basic point of democracy: that
majority can take care of itself but minorities need certain protection
o Article 29 and 30 in the constitution are such provisions
o Worldwide minorities are protected through laws blacks in US,
aborigines in US
Communal violence defined in terms of an act that destroys the secular
fabric of the nation
o This definition is liable to be misconstrued

Even large scale riots may not present an actual threat to the secular
fabric of the nation.
The incorporation of the emergency provision
o

Conclusion

Amended draft of the Communal and Targeted Viiolence Bill is a major step
forward.
However, it needs to incorporate within it lessons learnt from recent
international advancement especially in matters pertainin g to reparation and
command responsibility.
The chapters concerning setting up of national and state level bodies need a
complete review as do the provisions concerning dereliction of duties and
witness protection

Possible questions.
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Is a communal violence bill needed? Arnt the existing provisions in law

enough?
What are the major features of the communal violence bill?
How can communal harmony be promoted in the country? Suggest steps.

Why a law needed?

Commissions of enquiry setup after every major conflagration have

consistently come down heavily on the State authorities as also certain
parties and organisations for their role in violence
However, it is in very rare cases that perpetrators have been convicted.
By and large, police and the administrative class have been left untouched by
the law
Hence, a carefully designed law on communal violence is the need of the
hour

More arguments for a separate law

It can be seen that various provisions exist in the IPC to punish the
perpetrators of violence. Under sections 153A and B of the IPC even hate
speeches are actionable. Similarly, even a public servant can be charged
under the ordinary law.
So it seems that at least a section of communal or targeted violence can be
dealt with under the existing criminal law.
Failure to implement the law rather than its absence is one of the
major problems confronting the prevention of communal violence.

But caveats exist

o Turning a blind eye to communal and targeted hate speech
o Refusal to register FIRs or registering them without naming the culprits
even when some of the perpetrators are identified
o Refusal to take adequate action to disperse mobs
However there are large areas where laws are absent or inadequate
Mass violence is a quantitatively different category from stray individual
violence. The impact and trauma of mass violence is long term and ongoing.
Second, though laws exist on hate speech, they cannot be set into motion
without the prior sanction of the government. In this case what really matters
is which party is in power.
Third, even to prosecute public servants it becomes necessary to obtain the
consent of the state which is a long, tedious process.
Fourth, a large number of cases in court collapse because witnesses are too
frightened to depose truthfully. Though an individual witness can ask for
police protection against threats there is no comprehensive witness
protection law in India
Fifth, while in the aftermath of every carnage, a relief and rehabilitation
package is announced, there is no uniformity in these packages. There is no
legislative mandate or compulsion for reparation including relief and
rehabilitation.
Besides, communal violence is a specific form of brutality which is required to
be dealt with in a holistic and comprehensive manner since it includes within
it element of hate propaganda, sexual assault, uprooting of communities,
societal bias, state complicity and judicial indifference.

A law which deals specifically with targeted or communal violence thus becomes
necessary