, by DR. S. AUSAF SAIED VASFI
To put it bluntly but mildly, the redrafted Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2010 needs a dispassionate second-look before its introduction in Parliament in the oncoming monsoon session.
In its present form, it is weak, inadequate, defective and replete with flaws. It fails to secure justice for the anti-minority crimes. It is likely to “strengthen the shield of protection, enjoyed by those who plan and sponsor” such crimes, and in addition to all this, it is silent about the gender-based sexual crimes.
The seriousness that this important subject deserves seems virtually absent from this draft also as reported in a section of the Press. It is fair to recall that the Common Minimum Programme of the UPA had, in 2004, publicly promised a comprehensive law on the subject. The December 2005 draft, prepared perhaps by some paranoid rather prejudiced novices, proved a total betrayal of that commitment. Eminent jurists, legal experts and social activists, with long experience of work for the survivors and victims, and the civil society as a whole, rejected it.
Muslim leadership did critiques, alternate formulations, even alternate draft laws and presented them to the Government. During the last four years, the Muslim representatives met the UPA Chairperson, the Prime Minister and two successive Home Ministers, and several Parliamentarians. However, the Government, sadly enough, seems unwilling to listen to the principal minority of the country. We are being led to believe that the Government has introduced 59 amendments in the Violence Bill. The truth appears to be different. The Government has only tinkered with the Bill, which does not make any structural changes and does not include a single suggestion made by the Muslim leadership and the feeling sections of the civil society. It goes without saying that the suggestions put forward by the Muslim leadership addressed the secular and plural character of society.
Through memoranda and resolutions, we have kept the powers-that-be well posted with Muslim thinking. At the risk of repetition, we once again bring to the notice of the public at large the said views and suggestions:
The object of the Bill should be to ensure that the State Governments and the Centre adopt measures to provide for the prevention and control of communal violence, which threatens the physical, social, economic, cultural, political and human security of the citizens.
The Muslim leadership rejects the definition of communal violence as propounded by the Government. To Muslims, the communal violence is any targeted attack committed on the persons and properties of individuals as a group of persons on the basis of their religious identity, which can be inferred directly or from the nature of circumstances of the attack. The Muslim leadership also rejects the scheme of the Bill, which envisages the declaration of certain areas as communally disturbed areas.
The State already has sufficient power vested in it by law. However, experience has it that during communal violence, the non-exercise or non-judicious exercise of the said power by the State functionaries causes havoc. The Muslim leadership feels that correlation between crimes and the disturbed areas is false and untenable.
In keeping with principles of rule of law and natural justice, punishment has to be commensurate to the crime. While grave crimes must carry enhanced punishment, a mechanical exercise of doubling the punishment is going to prove counter productive. Other forms of punishment such as disqualification from public office or other forms of debarring from professional association or running for public office must also be included in the case of culpability of public officials.
Giving the complete impunity that State agencies enjoy for misdeeds of omission and commission, because of the requirement of prior sanction from the Government for prosecution, the Muslim leadership suggests a modification in the existing provision that would safeguard the public servant from malicious or frivolous prosecution. Instead of the requirement of prior sanction, the same should be a matter of judicial determination at the initial stage of the trail. The Muslims also call for prior sanction to be required for 153, 153(B).
The Muslim leadership feels the doctrine of command / superior responsibility must be incorporated in any Bill dealing with communal violence. It implies that persons in positions of official power (civil or military) or senior / high officials of non-State structures and organisations, by reason of their position, have effective control and knowledge, or ought to have knowledge of the acts of omissions of their subordinates that causes the violence. When such officials fail to use their knowledge and authority to prevent violence, they should be held criminally responsible for the acts of commissions of their subordinates. Therefore the principle of Commands / Superior responsibility has to be incorporated into the law.
The Bill must define new criminal offences and new rule of procedure and evidence to adequately and appropriately reflect the realities of the crimes experienced by victims and survivors of communal violence. The Muslim leadership calls for the inclusion of the following crimes:
1. Sexual violence in situations of communal violence, unlike those in non-communal contexts, is often committed with malicious intent of intimidating, humiliating and degrading the dignity of the victim community, using the bodies of women. Inclusion of a wide ranging crimes of sexual violence, in addition to rape, therefore, assumes greater importance in a Bill to prevent and punish those responsible for communal violence. The Muslim leadership has therefore called for the inclusion of rape, forced pregnancy, and forced sterilisation, and other forms of sexual violence.
2. The Muslim leadership also calls for the criminalisation of social and economic boycott of certain groups of individuals on the basis of their religious identity.
Muslims feel there is need to develop evidentiary standards appropriate to the context of a communally charged and violent situation for proving sexual violence. This is particularly in view of the fact that in situations of communal violence, women’s access to police stations (for lodging FIRs), government hospitals (for medical examinations) and the confidence / ability to pursue legal procedures is substantially reduced during the period of the violence and till the return to safe and non-hostile environment for the survivors of the violence. Hence appropriate evidentiary and procedural standards or imperative should include the following:
a) All investigations should be conducted in a gender-sensitive manner.
b) Judicial cognizance should be taken of the coercive circumstances under which the crime has occurred and accordingly delays in reporting, absence of medical evidence and corroboration of victims’ testimony should not adversely impact the case.
c) Consent to sexual act as a defence to the perpetrator should be specifically excluded.
d) Introduction of evidence of prior or subsequent sexual conduct of a victim of sexual violence should be explicitly prohibited.
e) Sexual violence in a communal situation should be equated to custodial rape as mob exercises complete control and is in a position of authority.
f) Hence, the Bill should as in cases of custodial rape provide for enhanced punishment and also shift the burden of proof from the victim to the perpetrator.
g) Victim / witness protection regime for survivors of sexual violence.
h) Special efforts to be made to conduct the trial in a gender sensitive environment to ensure that the consequent trauma is diminished.
If there are any apprehensions of the possibility of fair trial in local courts or lack of congenial atmosphere for victims and witnesses to depose freely, the Bill must provide guidelines for transfer of such cases.
As far as reparations are concerned, the Muslim leadership feels any proposed law on communal violence must use 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. The law must specify criteria for identifying who is a victim / survivor.
The Bill must acknowledge rights of internally displaced persons who face forced displacement due to communal violence. Reparations should be provided in conformity with international standards for internally displaced persons.
The Muslim leadership feels the Bill must recognise comprehensive rights of victims and survivors. They must be provided a right to have information of the proceeding at all stages of proceedings, including copies of FIRs and other legal documents, right to participate and be heard at all stages of the trial, right to legal representation of their choice at State costs and right to appeal in the event of the State does not do it on their behalf. Legal aid should be provided to all victims and survivors of communal violence on the same scale as legal aid provided to the State actors.
This is just a brief summary of the Muslim standpoint on the Violence Bill, which to the Muslim leadership, is slipshod and ramshackle. In the light of the reportage of the oncoming Bill, it looks as if those who have done the job are callous, insensate and unconcerned about the question of life and death of the Muslim minority in plural Bharat.
We wish the Government had shown some sincerity while drafting the significant measure. Had the drafters gone through the various judgements of the Supreme Court before their cavalier exercise? If not, it appears to be a criminal negligence. This attitude does not speak of a healthy and salubrious domestic policy. That is why the Bill, say the cynics, grimaces at the disturbances like Neillie, Bhagalpur, Moradabad and above all Gujarat.