Citizens Consultation For A Law Against Mass Crimes, New Delhi, August 21-23, 2004
The Statement of Objects and Reasons
The Common Minimum Progamme of the Government promises the enactment of a "Comprehensive law on communal violence". As at present we have no less than 15 different laws applicable in a riot situation; yet they were all found wanting in situations like Gujarat carnage, 2002, mainly because the concerned state authorities lacked the political will to effectively enforce them.
However to draft a comprehensive law on communal violence may take its own time, as that in turn depends on the complex process of building a civil society that is secular, humane and sensitive to human rights; yet it cannot be gainsaid that with a view to prevent any such recurrence of what happened in Gujarat and elsewhere, earlier, [including Delhi 1984 or Bombay 1992-1993], it is necessary to enact a law enabling the Union Government to effectively enforce its Constitutional obligations through enforceable legislative measures.
What happened in Gujarat and in similar carnage elsewhere, earlier, were not merely a matter of law and order; each of these were all organised crimes against targeted groups, the State Governments either actively conniving with the majority group, or remaining as by-standers, resulting in a total collapse of the rule of law and the justice system altogether. In Gujarat, after more than two years, a process of making the State Government, the politicians and the police accountable has emerged entirely as a result of the tenacity of civil and human rights groups, NGOs, the National Human Right Commission, and most significantly, the Supreme Court of India. This, however, cannot be the permanent feature of India in all such situations. The State and the Union Government cannot be allowed to abdicate their function.
India has signed, accepted and ratified the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. It is under an obligation to enact the necessary legislation to give effect to the provisions of the Convention. The Convention, apart from defining the crime, makes all persons committing genocide, punishable, whether they are "Constitutionally responsible rulers, public officials or private individuals". The Union Government has a fundamental duty under Article 51(c) of the Indian Constitution to foster respect for international humanitarian law and treaty obligations. Under Article 253, the Parliament has the power to make any law for implementing International Conventions, and decisions made at an international conference, association or other body. Besides, the Union has the Constitutional duty under Article 355 to protect every state which must necessarily include all people within the state, against internal disturbance and to ensure governance in every state in accordance with the Constitution.
Keeping the above obligations and provisions in mind, and at the same time, without requiring to resort to a Proclamation as contemplated under Article 356, this law is being enacted to enable the Union Government to inquire into, investigate, prosecute and punish all those, irrespective of their office or status, who are responsible for the Commission of the crime of Genocide and Crimes against Humanity, and to prevent the commission of all such crimes, and for the aforesaid purpose to declare any area as disturbed so as to effectively deal with such situations. The law also provides for all reliefs by way of compensation, restitution and rehabilitation.
1) This Act may be called The Prevention and Punishment of Genocide and Crimes Against Humanity Act, 2004.
Extent and Commencement
2). It extends to the whole of India, excluding the territory of Jammu and Kashmir
3) It shall come into force forthwith
4. In this Act unless the context otherwise requires-
(i) The ‘Code’ means the Code of Criminal Procedure, 1973
(ii) ‘Group’ means any group or collectivity of people identifiable as distinct and separate, by reason of political ideology, or on the basis of differences in region, race, religion, culture, caste, sex, language or place of birth or any of them;
(iii) ‘Genocide’, for the purposes of this Statute means any of the following acts committed with intent to destroy, in whole or in part, any group:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group;
(f) Effecting long-lasting social and economic boycott of the group
(iv) ‘ Crimes against humanity’, means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(c) Forcible evictions and enforced migration
(d) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, debasing, forcibly insertions of objects into the private parts or any other form of sexual violence of comparable gravity;
(g) Persecution of a group as defined under this Act
(h) Enforced disappearance of persons;
(i) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
(v) For the purpose sections (iii) and (iv)
(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in sections (iii) and (iv) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c) "Forced evictions and enforced migration means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted in accordance with national and international law;
(d) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused;
(e) "Forced pregnancy" means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
(f) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to national and international law by reason of the identity of the group or collectivity;
(g) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
(h) Social and economic boycott means the sustained and systematic attempt to socially disenfranchise and economically cripple a specific group, caste or community
5. There shall be a National Authority for the Prevention of Genocide and Crimes Against Humanity, hereinafter referred to as the Authority, constituted within a month from the date this Act comes into force.
6. The Authority will consist of
(i) the Prime Minister of India,
(ii) the Leader of the Opposition,
(iii) the Chairperson of the National Human Rights Commission and
(iv) Two retired/ serving Officers of the rank of Director General of Police who shall be appointed by the foregoing three members
7. The tenure of the members of the Authority will be five years or until such time, the new incumbents take charge;
No member is entitled to be a member of the Authority, if he or she has ceased to hold the office which entitled him or her to be the member of the Authority.
Functions and Powers
8. (a) The Authority, on receipt of any information received from official or unofficial sources including intelligence reports, or from any other source whatsoever, is satisfied that a situation has arisen in any State or part of any State wherein the Crimes as defined under this Act have occurred and the State Government has failed to control or contain the same, the Authority shall forthwith declare the said area as internally disturbed and as such falling under the control of the Authority.
(b) On such a declaration being made, the Authority will have full jurisdiction to assume full control over the area so declared, in the matter of prevention and prosecution of the crimes under this Act.
(c) For the said purpose the Authority shall have full powers:
(i) to engage the services of the Central Bureau of Investigation,
(ii) to avail of the services of any enforcing agencies including the Armed Forces and Para-Military Forces.
(iii) to invoke such provisions as are available under the Criminal Procedure Code, or the Police Act, for the purpose of controlling and containing the disturbances within the area.
(iv) to arrest and detain persons indulging in violence and inciting people by hate-speeches or otherwise to commit act of violence against any group, or to destroy properties belonging to any group.
(v) to take all steps that are necessary to restore peace and harmony and order within the said area.
(d) On the Authority assuming jurisdiction as mentioned above, the
local/district administration including the police personnel, shall aid and assist the Authority, as may be directed, and in no case shall act against/ or contrary to directions given by the Authority.
9. On the Authority assuming jurisdiction, all the investigations conducted by the local police and the crimes registered by them, shall stand transferred to such agency/agencies as may be specified by the Authority. All further investigation shall be done under the supervision of the Authority or as may be directed by the Authority.
10. The Authority shall also organise relief camps for the victims of violence and the State Government and the local administration shall cooperate with the Authority, as may be called upon by the Authority.
11. For the purpose of providing for speedy trial of offences under this Act, the Concerned State Government, shall, on the request of the Authority, and with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify as many district and Session Judges as may be required, to function as Special Courts, to try the offences this Act.
12. For every Special Court, the Authority, in consultation with the State High Court, appoint a Special Public Prosecutor/s for the purpose of conducting cases in that Court. All such appointments shall be duly notified in the Official Gazette, by the State.
13. Notwithstanding anything contained in any law, the Special Court shall have the jurisdiction
(a) to grant compensation to the victims of the crimes under this Act
(b) to sanction any scheme/s as may be framed by the Authority, for restitution and rehabilitation of the victims of the crime, and
(c) to enforce the aforesaid reliefs
14. (a) There shall be a right of Appeal in the matter of Criminal trials, to the High
Court, as provided under the Criminal Procedure Code
(b) However, there shall be no appeal in the matter of reliefs under section 13,
in as much as those reliefs are to be granted on the basis of the schemes as
may be framed by the Authority.
Offences, Penal Provisions and Punishment
15. Genocide Any person or persons who is or are found guilty of having committed the crime of genocide as defined under this Act shall be punished with a minimum punishment of imprisonment of 10 years and a maximum of life imprisonment and a fine;
16. Crimes Against Humanity. Any person or persons who is or are found guilty of having committed the offences of crimes against humanity as defined under this Act shall be punished with a minimum punishment of imprisonment of 10 years and a maximum of life imprisonment and a fine;
(a) Conspires, plans, organises to commit the crimes under this Act;
(b) Aids, abets or otherwise instigates, assists in the commission or the attempted commission, of the aforesaid crimes;
(c) Orders, solicits or induces or facilitates the commission of the aforesaid crimes which in fact occurs or is/are attempted;
Shall, on being found guilty, be liable for a sentence of not less than 10 years imprisonment and a fine
Responsibility of State Actors
18. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, or as a member of a Government or Parliament, or as an elected representative or a government official shall in no case exempt such a person from criminal responsibility under this Statute, nor shall such capacity, constitute a ground for reduction of sentence.
(ii)) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
(iii) No person shall be entitled to claim any sovereign immunity and privilege for offences committed under this Act;
Responsibility of commanders and other superiors
19. In addition to other grounds of criminal responsibility under this Act for crimes within the jurisdiction of the Court:
(i) A public servant including IAS/IPS officials and civil or public servants effectively following a line of command from state actors (Government or High Officers of the State or Central government) shall be criminally responsible for crimes committed by forces or officers under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control the crimes get committed with impunity; where
(a) That IAS/IPS official and civil or public servants or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(b) That IAS/IPS official and civil or public servants or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(ii) With respect to superior and subordinate relationships not described in paragraph 1, a superior shall be criminally responsible for crimes under this Act, committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(b) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Superior orders and prescription of law
20. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The order was not manifestly unlawful.
For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
21. (a) Whoever knowingly holds property derived or obtained from the commission of genocide, or crimes against humanity, or conspiracy or abetment to these crimes as laid out in section 15, 16 and 17 of the Act shall be punished with imprisonment for a term not less than 10 years and shall also be liable for fine
(b) In addition, the proceeds, properties and assets derived directly or indirectly from the commission of genocide, crimes against humanity, or conspiracy or abetment to these crimes be forfeited.
22. The Authority shall frame suitable Witnesses Protection schemes and schemes to Prevent the Intimidation of Witnesses.
23. Frame guide lines for granting compensation
24. Frame schemes for rehabilitation and restitution
25. Frame schemes to prevent recurrence of such crimes.
26. On peace being restored and Schemes for payment of Compensation and Reliefs for Restitution and Rehabilitation being worked out the Authority shall make a declaration revoking its declaration made under section 8(a).
However the prosecutions of all the cases pending in the Special Court shall continue to be pursued by the same agency as may have been authorised by the Authority.
27. The Union Government, by notification in the Official Gazette, my make rules for carrying out the purposes of this Act.
August 21-23, 2004
Members of the Citizens Consultation:
Justice PB Sawant
Justice Hosbet Suresh
Dr Siraj Hussain
Padma Rosha (IPS) retd