PUCL, August 2005

PUCL Gujarat Conference

Communal Violence Suppression bill analyzed

26th June was the 30th anniversary of the Emergency .The PUCL of Gujarat met on 26-6-05 in Gandhi peace Research Centre, Gujarat Vidyapeeth. A conference was held to discuss the Communal violence (Suppression ) Act 2005.

The conference was presided over by Sri D.N Pathak the President of PUCL Gujarat State. The inaugural address was delivered by Sri Gautam Thaker, the Secretary of Gujarat chapter of PUCL. The delegates discused the act and suggested many valuable points. A sub committee was formed with Prof. D.N. Pathak (PUCL), Shri Girishbhai Patel (Advocate), Shri Indukumar Jani (Editor ; Nayamarg), Dr. Ilaben Pathak (AWAG, )Dr. Shakil Ahmed (Jamate Islami Hind), Shri Dilip Chandulal (Movement of Secular Democracy), Shri Dwarikanath Rath (MSD), Shri Gautam Thaker (PUCL) to suggest the amendments to the act. The draft was prepared by Sri Girish bhai Patel. After a proper scrutiny of the draft it is sent to the M.Ps,

3rd August 2005
Letter to members of parliament

Commual Violence (Suppression) Act, 2005 -- Problems and answers

We welcome the concern of the U.P.A. Government for the increasing communal violence on such a scale which threatens the secular fabric, unity and integrity of the Nation and its commitment to suppress it and to generate faith and confidence in minority communities suffering from the atmosphere of fear, intimidation, insecurity and violence at the hands of the politically organized majoritarian communal forces.

It is with these aims and objectives that the U.P.A. Government has decided to enact the Communal Violence (Suppression) Act, 2005. This Bill is on the legislative agenda of the current Parliamentary session to commence from 25th July, 2005.

We, the concerned citizens from Gujarat and committed to and working for the basic values, principles and practices of the democratic secular constitution, have seriously deliberated upon the draft Bill, its underlying principles, approaches and provisions and we have come to a conclusion that the Bill in its basic form, in spite of its laudable objectives requires serious nation-wide debate, discussion and dialogue before it takes final shape. We hope, expect and desire that the Bill may be submitted to the Select Committee to involve different sections of the society in the decision making process.

Our principal points of concern, anxiety and apprehensions can be summed up as under:

1. The Preamble of the Act clearly declares the aims and objectives of the law, namely, secularism as a basic feature of the Constitution, the duty of the Union under Act. 355 to protect the State against external aggression and internal disturbance, the tendency of communal violence to create internal disturbance, destroy the secular fabric and threaten the unity and integrity of the Nation and need to generate faith and confidence in minority communities. The basic questions are: whether the proposed Act in its various provisions reflects and realizes these aims and objectives; whether the basic features of the Constitution, namely, democratic values, human rights and federalism have been adequately respected and protected; whether the law is more draconian and would it be more dangerous that the evil itself; whether the law has clearly understood the real character of the current communal violence at all, and can effectively deal with it; whether the law will prove to be counter-productive and may threaten the minority communities themselves, whether the law is sufficiently comprehensive to cover all aspects and dimensions of communal violence; whether the law is capable of being enforced in its letter and spirit, considering the character and quality of the police, politicians and legal profession; would it be more desirable to have separate laws for dealing with different aspects; whether the existing laws can be strengthened, improved and invoked to deal with communal violence etc.
   
2. At present there are various laws relating to communal violence as defined in the Act, e.g. certain provisions of Indian Penal Code, Code of Criminal Procedure, Police Acts, Arms Act, other minor Criminal Acts, Atrocities Act about dalits and adivasis etc. We must thoroughly examine why these different laws have not proved to be effective, and have really failed. Because of inherent gaps and lacunas which can be taken care of ? Because of failure of enforcement from absence of political will or compulsions or failure of obligation from the civil society? If the latter are the real causes, there is no guarantee that the new law will also be enforced. More particularly the failure of the Atrocities Act similar to the proposed law in relation to caste conflicts is very significant with may lesson to learn.
   
3. The Act brackets together religious, racial, linguistic, regional and caste conflicts or violence. These are qualitatively different and call for different approaches. One law will not work. For example, the Atrocities Act makes detailed and comprehensive provisions for suppressing and preventing violence against SCs and STs. Why new law to cover this ?
   
4. The much more dangerous problem which the Nation faces to day is the communal violence against religious minorities of communities. It has to be separately dealt with.
   
5. Even these communal conflicts between Hindus and Muslims and even Christians are, of late, to be classified into two distinct categories - (1) ordinary cases of communal riots, localized and confined to certain groups and not highly politicized (2) State sponsored, supported or aided communal violence supported by political or powerful social groups, with a distinct ideological and political programme, as the communal holocaust in Gujarat in February 2002. One law alone will not able to deal with both, and as the communal violence after 80s and 90s is of the second class, clearly organized, political, majoritatian and State sponsored, the proposed law giving extensive powers to the Government will not be an answer to it. The Gujarat riots of 2002 were not simply a case of communal violence against Muslims, but a clear case of genocide of Muslims perpetrated by politically supported organizations and aided and supported by the Government of Gujarat with indifference or connivance of the Union Government. How will the proposed law deal with such violence ?
   
6. Though the proposed Act aims at protecting the minorities and creating faith and confidence in minority communities, the provisions do not seem to secure a guarantee as Sections 3 and 4 can cover all cases of violence against any religious or other groups. It would definitely cover violence by the minority groups also. In the present days, Muslims are sought to be equated with terrorists, any assertion or protest or resistance or programme by them would be treated as communal hatred and violence. The result would be that like TADA and POTA, the new law has the dangerous potentiality and even certainty of being invoked and used against Muslims. Can you prevent it ?
   
7. The Act gives power to the State Government and the Central Government to deal with the communal violence - declaring areas as communally disturbed areas with all consequential measures. What about the communalized State Government like Modi's Government in Gujarat ? What can Central Government do? Can it nullify the Notification by State Government under Sec.3 except making its own declaration? And the worst will be the situation when both the State Government and Central Government are controlled by the same or similar political parties or alliances as the case of Modi Government in Gujarat and Vajpayee Government in the Centre ? In such a situation, the minorities will have to suffer at both the ends - Criminal violence in society and law's abuse by the Government.
   
8. The Act confers drastic powers upon the appreciate Government and the Central Government to deploy armed forces and to take draconian repressive measures like shoot at sight, use of police force, arrest, detention and deportation, combing of houses, religious places and areas, seizure of all goods or materials or weapons etc. All those provisions do find place in various penal laws in force and the experience is that they have been grossly abused against minorities in communal disturbances even when the minorities are the victims of violence as in Gujarat.
   
9. The stringent bail provisions modified by the Act are reproduction of the TADA and POTA provisions and will be abused for indefinite detention of the members of the minority communities.
   
10. Most of the provisions are similar to Armed Forces Act in force in Assam against which people's movement is going on.
    
11. There is nothing much objectionable about special courts, with a few riders. One is that the criminal justice is under the Central and the State Government - its investigating police and its public or police prosecutors. How to ensure their neutrality, impartiality and objectivity ? The second rider is the quality of the ordinary criminal courts manned by the Judges coming from the common social strata and background. Can you be sure of undiluted commitment to enforce the law without bias or prejudice and without fear and favour ? Where is the guarantee that Gujarat scenario will not repeat again ?
    
12. The provisions of compensation by the Courts to the victims are welcome, but with the same limitations and apprehensions as stated above.
    
13. Chapter V "Relief and Rehabilitation" is very good and most welcome. But more attention is required to be focused on how to make the Communal Disturbances Relief and Rehabilitation Council function effectively, timely and meaningfully? The Constitution of the Council by the State Government raises many doubts in a situation like Gujarat. The Central Government (provided it is above party or communal considerations) should have greater participation and role in the composition and function of the Council, along with special fund to be created or allocated by it. Many independent persons of recognized eminence are required to be involved in it. A Central independent monitoring machinery is necessary to be included. Complete transparency and continuous supply of information to the public are essential requirements of successful R & R.
    
14. What is surprisingly conspicuously absent is the preventive and pre-emptive measures. The best solutions of communal violence is the pre-emptive and preventive measure before time. Very good provisions are to be found in the Atrocities Act. Independent intelligence agencies, designation of a Communally sensitive areas, diffusing steps in case of any rumor mongering of mis-information of small incident, Checking and controlling hate-speeches and propaganda like oral of written, preventive arrests for short period, information cells with open eyes and ears, providing correct and timely information, joint peace committees, enlistment of voluntary orgaisations, and eminent personalities in the locality, higher participatory machinery to supervise, guide, direct and monitor the working of the system are necessary to prevent continued violence and diffuse such Situation. Of course, honesty, integrity bona fide and commitment are required but cannot be guaranteed. But we have to strive. These Measures are the most important part of any strategy of action to suppress communal violence and are required to be separately provided for.
    
15. Separate and special courts of high caliber should be established to deal with and prosecute the hate-speeches offences and provocative offences with all deliberate speed and without any discrimination. Timely prosecution, injunction provisions, speedy trials and clear punishments can nip in the bud the trouble.
    
16. The need for designation of communally sensitive areas and appointment of special civilian and police officials with fixed responsibility and personal liabilities for the breakdown of communal harmony will go a long way in preventing and suppressing communal violence. The Supreme Count has recognized the principal of personal liability of individual officers, in addition to the state liability, for acts of misfeasance and non-feasance.
    
17. The Act seriously disturbs the constitutional balance of powers, functions and duties between the Centre and the State in favour of greater of greater centralization, which might make it judicially vulnerable. Instead the Cooperative and collaborative arrangement can be worked out, if all sincerely and in good faith try.
    
18. The Act suffers from a very serious and basic flaw, namely, it
    treats communal violence as more of less purely law and order problem. In fact, it is essentially a political and social problem which calls for a different policy, programme, strategy and action, including police measures. A high level commission for communal violence consisting of national eminent persons from different walks of life including eminent Judges, Academicians, statesmen and activists can be established with investigative, interrogatory, preventive, initiating supervisory and monitoring powers, along with such Sate level Commissions.

We believe that in the final analysis it is a question of crises of Character and ideology. But we Cannot remain a silent spectator. Communal cancer is destroying the Constitution and nation It is gathering dangerous of fascist ideology and genocidal programme. It is also a very sensitive and delicate issue. It calls for liberal, secular, democratic and rational approach from all sections of people.

We have to stand firm by the principals that the State Government, executive/administrative, police and army, Courts and tribunals, public institutions and educational centers must be solely by the Preamble, Fundamental Rights, Directive Principals and Fundamental Duties both in letter and spirit and should not hesitate to expose resist and challenge any forces, groups, parties or ideology with are antithetical and repugnant to our Constitution, democracy, secularism and pluralist culture, But while fighting, we may not succumb to the same evils and vices as are afflicting the authoritarian and fascist forces. We must abide by the Constitution.

The above represents our immediate reaction which may please be taken into consideration

We hope to be able to send you our suggestion and recommendation on the issue later on, so as to have long term policy and imaginative strategy, to Control Communal Violence.

- Prof. D.N. Pathak (PUCL) - Shri Girishbhai Patel (Advocate) - Shri Indukumar Jani (Editor ; Nayamarg) - Dr. Ilaben Pathak (AWAG) - Dr. Shakil Ahmed (Jamate Islami Hind) - Shri Dilip Chandulal (Movement of Secular Democracy) - Shri Dwarikanath Rath (MSD) - Shri Gautam Thaker (PUCL)

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