THE COMMUNAL VIOLENCE BILL, 2005

A Critique

Newsletter Jan - Apr 2006

Background

Women’s organisations in India since the 1980s have actively engaged with rising communalism in the country and its specific impact on women of various communities. Relief work during the 1984 anti-Sikh carnage in many parts of the country set us thinking about how communalism could make people insecure and strengthen their religious identities with far reaching effects on women. Our worst fears came true two years later when a young widow Roop Kanwar was made to perform ‘sati’ after her husband’s death in Deorala, Rajasthan in 1987. Communalism was already making inroads into the polity with the Shah Bano controversy and the subsequent Muslim Women’s Act, which highlighted how religious and political forces could join hands to divert the issue of rights of women in marriage and family into a ‘minority- majority’ debate. The following years saw the women’s movement struggling to get the anti-sati law amended and enforced; an egalitarian civil code for women of all communities; campaigning to highlight the impact of communal riots on women and questioning communal thinking and fundamentalist attitudes.

Rise of communal and conservative forces had emerged as a clear threat to the women’s movement because more and more of our energies were now getting diverted to maintaining existing rights rather than moving ahead for positive changes. By the 1990s, the women’s movement was faced with a graver challenge as religious-political forces started mobilization of women on the basis of religion and community. The riots that followed the demolition of Babri Masjid saw an emerging phenomenon of targeting women during communal riots as ‘honour’ of the ‘other’ community. As the women’s movement was grappling with these serious challenges thrown up by the rising communal, casteist and conservative forces, the anti-Muslim carnage of 2002 in Gujarat brought forth the centrality of sexual violence on women in the agenda of the Hindutva campaign.

The Gujarat carnage of 2002 was characterised by three important features: (1) widespread anti-Muslim violence with the support of state machinery (2) brutalisation of Muslim women and (3) the ever widening and deepening polarization between Hindus and Muslims. Report after report established that the violence in Gujarat was a systematic effort to terrorise the minority community by the majority community and the unprecedented spread and intensity of violence was the result of methodical organization and attention to detail. The extent to which the representatives of the state participated in the attacks was apparent, even as the process for asking for justice for the victims and survivors started. It became clear that the existing legal frameworks were highly inadequate to deal with situations like Gujarat. Out of the strategies that emerged from collective discussions among women’s groups was raising the issue at the international level in order to force accountability of local instruments of democracy and justice. As a result various women’s groups from all over India in conjunction with several others came together to initiate and mobilize an international women’s human rights community as an ‘International Initiative for Justice (IIJ): Redressing Violence against Women committed by State and non-State Actors in Gujarat”.

Since then many activist groups and individuals have been thinking of a law on communal violence that takes care of the above mentioned concerns. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005 recently introduced in Parliament can be viewed as a response to prevent the recurrence of the kind of genocidal violence unleashed in Gujarat in 2002 and provide protection and justice to victims and survivors of communal violence. Drafted on the background of the Gujarat carnage and debates over having a law on mass crimes, the Bill was expected to address both the issues of communal violence and sexual crimes during such carnages. But it fails on both the counts. The present critique draws on critiques of the Bill by ANHAD, and Vrinda Grover’s draft paper entitled, “Communal Violence Bill – Invisibilising Sexual Violence”1

Broad Scheme of the Bill

The draft Bill provides for notification by the Central and State government of certain areas as “communally disturbed areas”. The provisions of this Bill will then be enforced in those areas. Wide ranging powers have been proposed for the competent authorities to take steps for prevention and control of acts leading to communal violence and enhanced punishments for communal violence. Investigations and trials will be done by special courts. The Bill also provides for relief and rehabilitation measures.

Communal violence has been defined as an act of omission or commission which constitutes a “scheduled offence” that means an offence listed in the Schedule annexed to the Bill. This schedule enumerates the provisions under the Indian Penal Code, Arms Act and others relevant laws that will be deemed to be scheduled offences under the Bill. Thus the Bill does not create any new offence. According to section 3(1) of the Bill a State or Central government can declare an area communally disturbed if it is of the opinion that one or more of scheduled offences are being committed in an area by a person or group of persons in such a manner and on such a scale which involves the use of criminal force or violence against any group, caste or community resulting in death or destruction of property, or to create communal disharmony or danger to secular fabric, integrity or internal security of India.

According to the statement of Objects and Reasons of the Bill, “communal violence threatens the social fabric, unity, integrity and internal security of the country and this enactment is being brought to further empower the government to take effective measures”. A reading of the objectives of the Bill reveals that the Bill focuses on three things: to empower the State and Central Governments to take effective measures to provide for the prevention and control of communal violence, to rehabilitate the victims of such violence and for speedy investigation and trial of offences including imposition of enhanced punishments.

Such a statement of the aims of the Bill is premised on the assumption that until now communal violence could not be controlled because the relevant governments did not have enough powers. Our experience of communal riots, more specifically of the Gujarat genocide, where the governments and administration were found to be complicit in the violence, shows that the thrust of the Bill is misplaced. The broad scheme of the Bill provides for notification of certain areas as “communally disturbed areas”. The considerations upon which the government is to make such notification are highly problematic. (Chapter II, Sections 3&4) The Bill further provides for sweeping powers to competent authorities to prevent and control communal disturbance. (See Chapters III and V of the Bill, The provisions under this can be read analogous to the provisions found in the AFSPA, 1958 and the POTA). Thus they have the potential to suppress legitimate political activity.

At the outset it needs to be understood that the demand for such a law emerged from the experiences especially of the last twenty years where it seemed that a culture of impunity was settling down in the system and giving a free hand to perpetrators of such crimes. The Gujarat situation was extraordinary in many senses as not only did the State government fail to control violence, (it was actually actively shielding the perpetrators) but the Central government too was protecting the state government of its omissions and commissions in the violence and mayhem that was visited on the Muslims of Gujarat with the active connivance of police, bureaucracy and the political leadership. Any law on communal violence needed to look at these areas of concerns.

The Issue of State Accountability

The main objective of the Bill should have been to look at the issue of mass crimes in such situations and fix accountability of state functionaries, to whom people look for protection and support in such situations. This required fresh thinking about what kind of law and mechanisms are required to deal with such situations by adopting a totally new approach to such genocides and mass crimes. The approach seems to be for having an extraordinary law and extraordinary powers, whereas it should have focused on dealing sensitively in an extraordinary situation by providing extraordinary protection to the probable and actual victims. The Bill gives an opening to the issue of accountability of public servants under section 17(1) Chapter III by holding accountable the person in charge of an area where communal violence occurs. But the official if proved guilty can be punished only for a year and/or fine, whatever may be the gravity of crime committed. The section also stipulates that no official can be prosecuted without the prior sanction of the State Government. In addition section 57(10) Chapter XII providing for the Powers, Duties and Immunities of the officers may also come as a shield for the government servants. This section gives protection to government officers for anything done in good faith or intended to be done under this Act. The Bill also does not take account of the notion of command responsibility, according to which in situations of mass crimes it is not just police constables or junior officer in the disturbed area but the entire chain of command – the district/city chief of police and administration, the home and chief secretary, the ministers and chief minister – that should be held accountable.

The Bill is tilted in favour of giving sweeping powers of investigation and heavily relies on the role of the State as protector, despite evidence against it. At the same time it is also silent on the issue guaranteeing independence of the police and other administrative officers from the executive and the ruling political leadership. It does not deal effectively with the issue of build up of communal violence and hatred. We know that situations like the communal carnage of Gujarat 2002 were not spontaneous acts but were the result of meticulous planning and organization. Whereas the Bill views communal violence as a law and order problem it fails to see it as an organized crime.

Sexual Violence Marginalised in the Bill

It was the nature of sexual violence in the Gujarat carnage, and the lack of attention it received, that prompted women’s groups to launch the International Initiative for Justice in Gujarat (2002). The main objectives of the IIJ were: articulating the visible and invisible effects of the sexual violence against women and children as an integral part of the continuing violence on Muslims in Gujarat; exploring existing mechanisms to impart justice and reparation from the State and society; analysing such sexual assault and violence against women in the context of other situations of conflict, war, genocide and instances of state complicity and assessing the established legal frameworks and precedents on sexual violence in situations of conflict and recommend ways to make such laws more effective.

For women’s groups, the most disturbing aspect of the current Bill is the manner in which it ignores the use of sexual violence as an engine for the mobilization of hatred and destruction. In fact, the definition of ‘communal’ does not include the category of gender against which violence is unleashed. The Bill talks of sexual assaults and abuse on women only in the Chapter VII on Institutional Arrangements for Relief and Rehabilitation that talks of giving reparation after assessing ‘impact of sexual assault or abuse on women.’ How this impact will be assessed is nowhere clear in the Bill. At another place it talks of providing more women police officers (Section 21) to record statements of women and children for any scheduled offence committed in any communally disturbed area. This seems to be just a cosmetic provision.

The Bill continues to view sexual offences against women under section 354 and 375/376 of the Indian Penal Code (IPC), thereby placing a number of crimes against women during such riots outside the purview of this law. Section 3(1) Chapter I says that an area can be declared as communally disturbed if there is criminal violence against any group resulting in death or destruction of property. Clearly the drafters have chosen to shut their eyes to the fact of how sexual violence against women has become an integral part of the agenda of communal hatred. They appear to have invisibilised sexual violence as a communal crime, despite the documentation of form, brutality and scale of sexual violence in Gujarat by women and human rights groups.2 The Bill continues to carry forward all the problematics of the existing provisions of the IPC with regard to rape cases relating to definition of rape, consent, evidentiary requirements and problems related to investigation and prosecution and treating sexual crimes within the paradigm of shame and stigma.

The Bill fails to take into account the current debates on sexual assault in India and in International Criminal Law. The definition of rape in the IPC is extremely limited and is focused more on protecting the patriarchal morality rather than the integrity of women. Women’s groups in India have been campaigning to widen this definition and the Law Commission in its 172nd report has recommended that section 375 IPC that defines rape be substituted with a new provision titled sexual assault which would include penetration by objects and other body parts as well as anal and oral penetration. The proposed Bill is also not in step with the international jurisprudence that treats rape and sexual violence as issues of sexual autonomy and dignity. The Bill specially needed to recognize that sexual crimes committed during communal carnage are in many ways different from those committed during ‘peace times’. Without recognizing the special nature of the crime of sexual violence with reference to the context in which it occurs, there cannot be any hope of getting justice for the victims and survivors of such crimes. There are therefore no provisions in the Bill that ensure that survivors speak out and break their silence on the violence that they have experienced. So the Bill not only continues to keep silent on the occurrence of such violence but makes it impossible for women to take recourse to any redressal mechanisms, thereby making them invisible and unaccountable.

Witness Protection

The provision under Section 32 relating to witness protection is an act of tokenism. The Bill provides that the identity and address of the witness to be kept secret, the name of the witness may not be mentioned in the judicial record and the proceedings be held in a protected place may seem to be sufficient but actually are highly inadequate and much behind the modern day witness protection provisions. Again, the drafters have not applied their mind to the recommendations of the Law Commission of India, nor have they looked into the progressive changes in procedural law in India especially in the cases of sexual crimes, where the Supreme Court has specifically asked to adopt special procedures for recording the testimony of victims/witnesses of sexual crimes. In the absence of such enabling provisions, there is no possibility of breaking the silence on sexual violence.

Clearly, the Bill is structurally problematic. It fails to strengthen the victims of mass crimes unleashed on them during any communal mayhem. It does not envisage any mechanisms to control the activity of communal organizations. It is important to build into the Act mechanisms that make it impossible to gain political benefit by spreading communal hatred and violence. On the other hand the Bill seeks to grant greater authority to the State and its functionaries who have repeatedly betrayed people in such situations.

In Conclusion

The Bill fails to recognize that in situations of communal violence, sexual violence is used as a tool for intimidation, degradation, humiliation, punishment, control or destruction of a person and/or community. There is a suggestion that rape in communal situations be treated as custodial rape within the meaning of Section 376(2) IPC. The present Bill fails to include any provisions that ensure that the victim/witness is treated with fairness, respect, dignity and sensitivity and is free from intimidation, harassment or abuse throughout the criminal justice system. Most importantly the drafters of the Bill have not addressed the issue of mass crimes in such situations and how the present legal and criminal system is inept to handle these situations when it comes to fix the responsibility and punishing those involved in these crimes. It is no coincidence that only one case of rape during Gujarat genocide, that of Bilkis Yakub Rasool is being pursued in the court despite hundreds of such cases having occurred during that period, that too because Bilkis is being supported by a number of activists in her struggle.

ENDNOTES

1Vrinda Grover, Draft Paper, NYU, January, 2006 (work in progress)

2How has the Gujarat Massacre affected Minority women, the Survivors Speak, Fact finding by a women’s Panel April, 2002 and Threatened Existence: A Feminist Analysis of the genocide in Gujarat, Report by the International Initiative for Justice, December 2003. Also see Carnage in Gujarat: Women are targeted as Never Before in Saheli Newsletter, May-Aug 2002.