August 26, 2004
There have been several instances since Independence of unconscionable State failures during sectarian violence against minorities and Dalits. However, in the past, despite the absence of an explicit law, there was never a serious challenge to the principle that the paramount duty of State authorities in such situations was to impartially and resolutely protect and secure its citizens, compensate and assist them to rebuild their homes and livelihoods and to ensure legal justice and accountability of derelict public officials.
All this changed as a shamed nation plummeted the low watershed of the Gujarat carnage of 2002. There is a clear need for a comprehensive law that makes it not just morally but legally untenable for any government in the future to abdicate its duties to its citizens in times of sectarian discord. It is welcome that such a law is promised in the CMP of the UPA Government.
It is not as if the existing law of the land is silent about the duties of the State in times of communal clashes. The Criminal Procedure Code does contain provisions that extensively empower civil and police officers to use force, and even take the assistance of the armed forces, to control ‘public disorders’. The amended Indian Penal Code includes the instigation of hatred against communities as a grave crime, apart from offences like rape, arson, dacoity and murder. However, there is no comprehensive law in India’s statute books that encodes in unambiguous detail the powers and duties of State authorities to prevent and control communal violence, to protect victims and to organise, as the inalienable rights of the survivors, relief, compensation and rehabilitation.
In the first place, the law should provide for stringent punishment of all kinds of communal mobilisation, such as hate speeches, pamphlets, writings, and the mischievous distribution of pseudo-religious and cultural symbols like trishuls to incite violence and hatred. Also punishable should be promoting communal ideologies through textbooks or other transactions between teachers and students, or through the mass media.
In the event of an actual outbreak of communal violence, the law already empowers local police and civil authorities adequately to mobilise and deploy the legitimate force of the State, including the armed forces. However, we have repeatedly witnessed that officers abjectly await political directions before they exercise their powers, and their wanton delays exact a reprehensible toll on innocent lives.
What the law requires, therefore, is that it should be the statutorily binding paramount duty of public authorities to do all they can to control communal violence in the shortest possible time, and to protect citizen lives and properties. Their failure to do this must be severely punished as their personal liability under the law.
In the immediate aftermath of communal violence, State authorities must be required by law to establish relief camps for all survivors. The facilities in these camps must meet the minimum UN standards for internally displaced persons. The state government must be bound to continue these relief camps, and pay a monthly survival pension, for as long as the survivors do not feel confident about returning to their original homes, or alternative settlements that they choose. However, the government should do all it can to create conditions in which the survivors can voluntarily and expeditiously return to their normal lives.
There should be an independent standing commission to periodically fix rates of compensation for loss of life, limb, sexual assault and destruction of shelters and livelihoods, and in all disasters, both human and natural. These rates should be binding as a floor or minimum standard on all governments, so as to not permit openly discriminatory policies such as those applied by the Gujarat government to the survivors of the 2001 earthquake and 2002 carnage, respectively. The core principle of rehabilitation should be that the state government must ensure that survivors are restored at least to the situation they were in before the riots, and preferably that they are better off.
In most communal riots since Independence, the guilty are rarely punished. The consistent collapse of the criminal justice system to punish the guilty, and the deliberate and comprehensive subversion of justice systems by the Gujarat state government, underlines the urgency to establish extraordinary systems for recording complaints, investigation, prosecutions and trial, for all crimes committed in communal riots.
The machinery for each of these must be autonomous and uncompromisingly protected from political influences, including fast-track special courts, and should also incorporate provisions for the protection of witnesses. The burden of proof must be shifted to those accused of communal violence to prove their innocence. Minimum punishment must be prescribed for crimes in riots and the scale of punishment must be significantly higher than for the same crimes committed in normal times.
As a deterrent, it is proposed that a special punitive tax be imposed on all owners of property in places rocked by communal violence, and the money raised be used for rehabilitation of the survivors. There must be special cells run exclusively by women to assist and counsel the women survivors of violence, and to record and investigate their complaints. Trials must be conducted in-camera, protecting the confidentiality of the victims of sexual violence in riots.
In these highly polarised times, this proposed law is an imperative, not because it will end the politics of hatred, but because in moments when the country and its people are imperiled by the politics of hatred, it will lay down legal standards for responsible State action.
The writer is a former civil servant and social activist
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