SUBJECT: CRITICAL PROVISIONS IN THE PROPOSED LAW ON COMMUNAL VIOLENCE – Communal Violence (Prevention, Control & Rehabilitation of Victims) Bill, 2009
DATE: NOVEMBER 17, 2009
1. CV BILL MUST CREATE NEW CRIMES/ OFFENCES, DEFINITIONS AND NEW RULES OF PROCEDURE AND EVIDENCE
The Indian Penal Code, 1860 is inadequate to combat communal violence, failing repeatedly in the past to protect and redress victims of mass crimes or enforce accountability of perpetrators, including the state agencies complicit through acts of commission and omission in mass crimes. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2009 must take into account the long history of impunity for communal violence, and CREATE NEW CRIMES/OFFENCES to fill the legal vacuum on which the demand for a new law is based. It cannot again rely upon the Indian Penal Code to cover the range of crimes that are committed during periods of communal violence.
Communal violence is a targeted crime and a mass crime, perpetrated on a community of persons. It involves the systematic targeting of a community by reason of their religious/ethnic identity, with the explicit or implicit support and sanction of the state and its functionaries. As such these crimes do not find themselves reflected in the IPC and other extant penal laws. Because of their nature as `targeted mass crimes’, they need to be recognized as such, through the creation of NEW SUBSTANTIVE SECTIONS/DEFINITIONS (drawing upon the concepts of crimes against humanity and genocide, both of which are defined in Annexure A to this memorandum)
There is also a need to formulate new rules of procedure of investigation, criminal prosecution and evidence, taking into consideration the context of communal violence, and the new crimes/offences defined by this Bill.
2. COMMAND RESPONSIBILITY
When persons in positions of official power (civil or military) have it in their command to prevent the eruption of communal violence, or to stop its continuance, the responsibility for the eruption, or continuance, of violence can be traced to such public authorities with power. This extends in particular to people in political leadership of the executive, to the civil magistracy, administrative officers or bureaucrats and the police. The penal law, as is stands, does not provide for prosecuting or punishing such public authorities/public servants. In contrast it provides legal immunity to these public servants. This is despite increasing evidence that the violence is planned, or that situations are used to generate or perpetuate targeted violence, by a mastermind(s) in positions of public authority. The principle of `Command responsibility’ has to be incorporated into the law if the architects of violence are to be drawn into a legal scheme of punishment and deterrence. Command Responsibility should pin criminal liability to the person, civilian or military, under whose command the crimes occurred.
The law should explicitly recognize and punish communal crimes that result not just from active participation or abetment of state authorities, but also crimes of omission, or what may be described as ‘culpable inaction’.
3. ACCOUNTABILITY OF PUBLIC OFFICIALS
The earlier Bill – Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 – fails to enforce state accountability for acts of omission and commission by the state agencies and functionaries. It does not make inroads into 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. Such a condition serves to ensure that State agencies will continue to enjoy immunity even after the passing of the Bill, thus nullifying the Bill’s own stated commitment to the principle of State accountability. The presumption that the public officials acted in good faith in the light of their proven complicity repeatedly in situations of communal violence is incomprehensible and will only serve to shield the guilty.
4. SPECIFICALLY ACKNOWLEDGE AND PROVIDE FOR GENDER-BASED VIOLENCE:
a. Include new crimes within the Bill rather than work within the framework of the penal provision on rape. Given the type of violence against women that has been documented in recent times in India, of sexual crimes such as public and mass acts of sexual violence including cutting off breasts and uterus, forced nudity, stripping and parading women naked, forcible pregnancy, exhibiting sexual organs in the presence of women and mutilation of women’s genital organs, we submit that incorporating rape alone as a crime would be grossly inadequate and would not capture the various kinds of violence inflicted on women in communal situations.
- We therefore recommend inclusion of a new crime – Sexual Violence
- And within the category of Sexual Violence, to redefine the crime of Rape
(Please find suggested definitions in Annexure A to this memorandum)
b. In relation to the crime of RAPE, a new definition rather than the existing IPC definition to be used in the Bill. This is because the present definition of ‘rape’ as stated in S. 375 of the Indian Penal Code has been inadequate to respond to crimes against women committed in recent incidents of communal violence. We reject the said definition, as it is grossly inadequate even to respond to sexual violence in ‘normal, peacetime’. Women’s organizations, National Commission for Women and the Law Commission of India have been debating revisions in the IPC definition of rape. A Draft Sexual Assault Bill that provides for an expanded definition of Rape is under consideration and debate.
(Please find suggested definitions in Annexure A to this memorandum)
c. 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 FIR), 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 a safe and non hostile environment for the survivors of the violence. Hence, appropriate evidentiary and procedural standards are imperative and should include the following:
- All investigation should be conducted in a gender-sensitive manner
- Delays in reporting should be condoned in view of the extraordinary circumstances and no adverse inference should be drawn of this delay
- Medical evidence should not be insisted upon as a corroborative evidence
- Uncorroborated victim’s testimony could form the basis for conviction provided it inspires the confidence of the court
- Delay in lodging an FIR should not impact the case in any manner
- Consent to sexual act as a defense to the perpetrator should be specifically excluded
- Admission of evidence of prior or subsequent sexual conduct of a victim of sexual violence should be explicitly prohibited
- Sexual violence in a communal situation should be equated to custodial rape as mob exercises complete control and is in a position of authority.
- 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
- Victim / witness protection regime for survivors of sexual violence.
- Special efforts to be made to conduct the trial in a gender sensitive environment to ensure that the consequent trauma is diminished
5. CO-RELATION BETWEEN CRIMES AND DISTURBED AREA IS FALSE, DANGEROUS AND UNTENNABLE AND MUST NOT FIND PLACE IN A LAW ON COMMUNAL VIOLENCE
It must be emphasized that crimes that are crimes by definition in law do not have to bide a declaration of an area as a `disturbed area’ by a government. The declaration (or notification) as a disturbed area may have some significance in the nature of executive powers that may be assumed – and this is still a subject that needs deeper deliberation – or for establishing the relationship between the Centre and the States in relation to such `disturbances’. But they cannot determine when an act amounts to an offence. Stated otherwise, while the `scale’ of the violence may be relevant for deciding whether it falls within a special law on communal and targeted violence, that scale cannot be linked to the temporality of an executive declaration. This is especially so since the declaration may follow upon aggravated acts of targeted violence.
Any proposed law on Communal violence must use the concept of reparations (rather than relief), which includes rescue, relief (including establishing relief camps for as long as affected people feel insecure), compensation, restitution, rehabilitation including assistance of soft loans and land allocations to rebuild livelihoods and shelters to levels not less than before the violence and inconformity with the wishes of the affected persons, and the reconstruction of places of worship destroyed in the violence. Reparations to be an inviolable, legally enforceable right of the victim-survivor, and according to objective norms and scales that are binding on all governments. Provide for a national framework/policy of entitlements (specifically compensation) for victim-survivors of communal violence (rather than leave it to discretion at the state level)
7. INTERNAL DISPLACEMENT
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, including the UN guidelines on Internal Displacements. These Guidelines must be domesticated through adoption of a policy to this effect (namely, a National Policy on Internal Displacement due to violence/unrest, as distinct from a National Policy on Internal Displacement due to “development” and “land acquisition”), and some nodal agency be constituted, so that all internally displaced persons have a justiciable framework of entitlements to protect them.
8. WITNESS PROTECTION & LEGAL AID
Substantive provisions for victim / witness protection that focuses on safety, physical and psychological well-being, privacy and dignity. Incorporate comprehensive provisions on protection of victims and witnesses, in consonance with recent Supreme Court judgments and directives and Law Commission report. Such provisions should focus on safety, physical and psychological well-being, dignity and privacy of victims and witnesses, particularly in cases of sexual or gender violence. The provisions should include medical assistance, counseling and psychological support, protection of the identity of victims and witnesses, ensuring a congenial atmosphere in the open court for the woman to give her testimony (while providing her with the option of an in camera trial), and stringent punishment for persons who intimidate/ coerce a woman to give a false testimony. Legal aid to victims and accused.