Right to legal representation of their choice

After the mass opposition by all spectrums of society over the Communal Violence Bill 2005, UPA government has re-introduced the bill with 59 amendments. Unfortunately it hardly makes any structural changes. It has been highly criticized on certain grounds.  The bill treats communal violence as a law and order problem but fails to recognise its threat to the socio-economic basis of the society.

The definition of communal violence given under the bill is not comprehensive and includes any scheduled offence under Section 19. Instead of the word communal, ‘sectarian’ must be employed. The ‘Schedule’ only list outs a number of IPC Sections and few Sections of other Acts. The schedule is erroneous in its very nature. The Sections 6(3) and 8(2) of the Explosives Act, 1884 listed in the schedule do not exist at present. Section 6 of the Places of Worship (Special Provision) Act, 1991 and Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 does not define any offence. They only prescribe punishments for contravening the provisions of Section 3(2) and Sections 3 to 6(3) of their respective Acts.

Although the punishment for offences related to communal violence has been enhanced, offences are restricted to penal statutes only. It doesn’t include provisions related to sexual violence, social and economic boycott, segregation, discrimination and communal writing in textbooks. Moreover the fines enumerated in most of these acts are considerably low and even twice the amount may not serve the purpose. It must define these offences and punishments vividly.

Under the bill, the State can declare certain areas as communally disturbed areas. However Section 55 empowers the Central Government to give directions to the States to take immediate measures to curb communal violence. If such directions are not followed the Central Government may declare any area within the State as a ‘communally disturbed area’ by a notification. It may also deploy Armed forces on a request from State Government. But the bill is quiet on what would be done if the State Government does not request the Central Government to deploy the Armed forces or opposes such deployment in the State. No immediate relief is provided in these situations. There would be considerable lapse of time in the issuing of directions by the Central Government to the State which would affect damage control adversely.

Review committees and Special Investigation teams may be constituted by the states. The State governments have wide discretionary powers in these matters. The accountability of such committees has also not been laid down. It does contain provisions related to witness protection by providing punishment for threatening a witness and by concealing their identity.

The bill also states that Women police officers must be provided by state to record any information relating to the commission of a scheduled offence committed against women or children. However it is silent on sexual offences which form a major portion of communal offences. It also contains no provisions related to compulsory inclusion of at least two women members in the state, national and district council.

The Special courts may be established or abolished by the states in any communally disturbed area. The states have wide jurisdiction in this regard. It may prove detrimental to national interest as happened in Gujarat riots and Bhagalpur Case. To avoid such situations these courts must be monitored by National Human Rights Commission (NHRC). Their decision must be time bound and the public prosecutor to be appointed must not belong to the state in which communal violence has taken place.

It does provide compensation to the victims on basis of the nature of the offence, the motive, the economic status of the offender and the claimant but there is no uniform scale of compensation for death, injury, rape and destruction of individual and religious properties during communal riots. The state holds no responsibility or liability in cases of destruction of religious properties. There is no provision granting ex-gratia payments to the victims. The right of reparation must be clearly stated and must not be left on the discretion of state governments. Information must be provided at every stage of proceedings. Right to legal representation of their choice, counselling, rehabilitation etc must be included.

The District Magistrate and competent authority may take preventive measures. They can order to deposit, search, detain and seize of arms & ammunition in communally disturbed areas. They may even prohibit certain acts or even control the conduct of persons in such areas. Punishments may be imposed for loitering near prohibited areas. A person may also be punished for being in possession of arms without license, assisting offenders, giving financial aid for the commission of certain offence or even for threatening witnesses. Even public servants can be punished if they act in a mala fide manner. But the political leaders, administration and police officials neither have any mandatory nor are they accountable for their reckless actions.

The Public Officials must be debarred from their jobs if the offence is proved. If the Special Court observes that the D.M. and S.P. could have prevented such situation by taking an advance action, they should be held responsible. If media is found irresponsible or misreporting a fine must be imposed on the news agency. Public recognition must be given to people who help in the relief measures. The law must protect and not harm the interests of the public.