21 April 2012
Equality, the right to life, freedom to live with dignity and the right to justice are rights guaranteed to all citizens. Experience in the decades past, however, reveals that these rights are often diminished, even denied, to victims and survivors of communal and targeted violence.
The 1983 Nellie massacre, the anti-Sikh carnage of 1984, the Hashimpura communal and custodial killings by the Provincial Armed Constabulary (PAC) in 1987, the 2002 pogrom in Gujarat, and the attacks on Christians in Orissa in 2007 and 2008, and many other instances of recorded violence, all bring to the fore the recurring themes of state complicity and impunity. These indicate severe inadequacies in the recognition of crime, and in the law, to ensure that people are protected and that justice is done. The low rate of convictions even where the scale of targeted violence is high is mute testimony. The fact is that trials in the 1984 anti-Sikh violence, the 1987 Hashimpura massacre and the 2002 Gujarat carnage, for instance, are all at various trial and pre-trial stages, with the victims and survivors unprotected by the state and with justice still a long and uncertain distance away. They reveal a pattern of planned or targeted violence; abdication by the state machinery of the responsibility to protect; occurrence of gender based crimes with specific targeting of women’s bodies followed by absolute impunity for the horrific crimes committed in these violent assaults; and the survivors, debilitated and shattered by the violence, left to live on the margins of fear and destitution.
Highlighting the stark truth of the brutal contours of this communal and targeted violence, the affected communities, civil society groups and activists initiated a campaign for a new legislative instrument. The campaign raised concerns about the immense gaps in the domestic legal framework, which encouraged and perpetuated impunity for communal and targeted violence, and sought a new legal instrument to counter it.
The 2004 Common Minimum Programme of UPA1, held out the promise of a ‘comprehensive legislation’ that would strengthen the hands of the citizens to secure justice (commonly referred to as the CV Bill). What emerged in 2005 was the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005, introduced in the Rajya Sabha on December 5, 2005, which unfortunately betrayed that promise. The Bill was sent to the Parliamentary Standing Committee on Home Affairs which, in its report tabled in Parliament in December 2006, did little to redeem the Bill. In early 2009, the UPA government introduced 59 amendments into the Communal Violence Bill 2005, which made no change at all to the architecture of the Bill and which Bill remained deeply flawed and entirely unacceptable. In May 2010, following extensive discussions and two national consultations the outlines of a CV Bill was drafted by civil society activists and submitted to the Law Minister.
In July 2010, the National Advisory Council (NAC) constituted a Working Group on the Communal Violence Bill. The Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, prepared by the NAC, came under serious attack from almost all political parties as well as a large section of the civil society, including allies of the UPA; nor has it found favour with the Congress party . The idea of ‘disturbed areas’, which paves the way for the accumulation of extraordinary powers in the hands of state authorities, was encased in the proposed Bill and was withdrawn following upon trenchant criticism of this provision from civil society activists and legal experts.
While some of the criticism is along predictable lines, from those opposed to secular ideals and equality of citizens, other serious concerns were raised by the civil society. The national authority (NA) has raises challenges about federalism. The notion of the group could result in discrimination. Provisions relating to reparative justice have been adjudged as being paternalistic, stultifying the rights of the survivors. For reasons such as these, the NAC Bill has been rejected by a large section of the civil society as well as put in a cold storage by the state.
Recognizing the urgent and dire need for a law against communal and targeted violence, once again civil society activists called for a National Consultation on April 21, 2012. We, the undersigned, secular and civil liberty activists, women’s rights activists, legal experts, academicians, organizations, while rejecting the NAC draft bill, demand from the Government to draft a new legislation, the primary focus of which should be to secure accountability of public servants and to hold them responsible for communal and targeted violence, as well as make provision for providing reparative justice to the victims and survivors of such violence.
The key features of such a law must include:
Objective – A law to protect all persons from communal and targeted crime; making persons in positions of public authority accountable; and providing just, fair and equitable reparation to all affected persons.
1. The executive and administrative authorities and law-enforcing agencies or other public authorities exercising state power to be made accountable and criminally liable for acts of omission or commission in relation to their duties.
2. The excuse of an official that he acted or failed to act on account of orders from a superior authority shall not be available as a defence to public servants in situations of communal and targeted crime.
3. Elements of command responsibility and superior responsibility to be introduced; Principle of constructive responsibility, culpable inaction and dereliction of Duty, to be incorporated, by which persons in authority are brought to book for acts of omission and commission in the lead upto, during and following communal crimes;
4. The defense of superior orders not to be available to public servants in situations of communal and targeted crimes;
5. To prevent the abuse of Doctrine of Immunity that shields Public servants through the requirement of prior sanction should be made time-bound and be subject to judicial review.
6. The inordinate impact of communal and targeted violence on women and children must be recognised in the making of the law. Crimes of Sexual Violence, Torture and Enforced Disappearances should be introduced in IPC and special laws such as Prevention of Torture Bill, at the earliest.
7. The procedure relating to investigation, evidence gathering, and trial to be formulated taking note of situations of communal and targeted violence, while safeguarding the rights of the accused.
8. Robust witness and victim protection provisions;
9. The responsibility of the state to recognise the phenomenon of internal displacement in the context of communal and targeted violence, and to recognise and respect the rights of internally displacement persons;
10. Principles of Just, fair and uniform compensation and reparation and compensation applicable to all victims and survivors .
Reparations include: Victim protection and rescue, Relief camps , protection of property, compensation, restitution, IDP recognition, Right of return, Guarantee of non repetition of communal and targeted violence .
ENDORSED BY NATIONAL CONSULTATION ON CV BILL :
ANURADHA CHENOY, PROFESSOR, JNU
bhavna sharma, anhad
DR KM SHRIMALI, HISTORIAN
DR MOHAMMAD ARIF, Centre for Harmony and Peace, Varanasi, UP.
father charles irudayan, secretary, justice commission, cbci
father jose vattakushy, cbci-wif
GAGAN SETHI, CSJ, gujarat
GAURANG RAVAL, SOCIAL ACTIVIST, sauhard, GUJARAT
ghazala, aali, lucknow, up
harshita yalamarty, saheli/ jnu
imran khan, anhad
justice rajinder sachar
john dayal, all india christian council
KAMAL CHENOY, PROFESSOR, JNU
KAVITA SRIVASTAVA, PUCL, rajasthan
kedar mishra, poet, writer, bhubaneshwar, orissa
MANISHA SETHI, JAMIA TEACHER’S SOLIDARITY ASSOCIATION
maulana mujadidi, jamae-tul-hidaya, jaipur, rajasthan
mohan kumawat, anhad media
mohd azam, social activist, hyderabad, andhra pradesh
mohd hilal, foundation for civil liberty
mushtaq ahmad, advocate, nuh, mewat, haryana
naish hasan, bmma, up
nandita das, actor, mumbai
NAVKIRAN SINGH, LAWYERS FOR HUMAN RIGHTS INTERNATIONAL, chandigarh
niaz a farooqui, jamat-e-ulema-i-hind, national
Niti Saxena, Lawyer and Human rights activist, lucknow
noorjahan diwan, bmma, gujarat
prassana s, delhi university
PROF KN PANIKKAR, HISTORIAN, KERALA
PROF ROOPREKHA VERMA, SAAJHI DUNIYA, up
pushkar raj, pucl
rajeev yadav, pucl, up
rajendra , pucl, karnataka
Ram Kumar, Dalit Rights Activist.
ramjan choudhary, president, mewat vikas sabha,nuh, haryana
rupesh, KOSHISH, patna, bihar
Saleem Kidwai, Historian and Activist
sania hashmi, anhad media
seema misra, social activist, delhi
SHABNAM HASHMI, SOCIAL ACTIVIST, ANHAD
sudhir pattnaik, bhubaneshwar, orissa
suneeta dhar, jagori
Tariq Islam, RTI Activist, Reader at Aligarh Muslim University.
Tariq Shafiq, Human Rights Activist.
tehmina arora, advocate
USHA RAMANATHAN, law researcher, delhi
vani subramanian, saheli
VASANTHI RAMAN, visiting fellow, centre for women’s development studies, new delhi
vineet tiwari, sandarbh, indore, madhya pradesh
VRINDA GROVER, ADVOCATE
WAQAR QAZI, SOCIAL ACTIVIST, GUJARAT
zakia soman, bhartiya muslim mahila andolan
Anhad, 23, Canning Lane, New Delhi-110001