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Debate on Prevention of Communal Violence Bill – comments by SC Adv. PI Jose

June 24, 2011 by  
Filed under India, Persecution

Communal Violence in India
Communal Violence in India

Draft Prevention of Communal & Targeted Violence (Access to Justice and Reparations) Bill, 2011

 Amendments based on feedback received after placing the Draft Bill in the public domain on May 25, 2011

Endorsed by the National Advisory Council on June 22, 2011, for legal vetting and drafting by ASG Indira Jaising

S.No Section Title/Content of Relevant Section of Draft Bill Endorsed for Incorporation into Draft Bill Endorsed for Consideration by ASG
 1.    Statement of Objectives & Reasons STATEMENT OF OBJECTIVES/PREAMBLE TO BE ADDED TO DRAFT BILL  
 2.  S. 3 (c) “Communal and targeted violence” means and includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation  Amend by deleting – ‘which destroys the secular fabric of the nation’ as it sets too high a thresh hold  
 3.  S. 7 Sexual Assault
  • Add a situation where a person belonging to a group is forced to commit sexual assault on a person of the same group by a non-group member

 

  • Define ‘consent’ /dispense with the requirement of the victim having to prove that she / he did not consent to sexual assault as it is in coercive circumstances

 

 
 4.   New Sexual Assault Some specific procedures and evidentiary standards for sexual assault perpetrated in contexts of communal & targeted violence to be introduced  
 5.  S. 8 Hate Propaganda
  • Word ‘present’ to be removed, as acts of violence may take place well after the initiation of hate propaganda
  • Add a proviso to that – nothing will be deemed to be hate propaganda which seeks to promote values of equality and defend principles enshrined in and fundamental rights guaranteed by the Constitution
  • Insert phrase, “or by electronic or other means of mass communication” in line 4
 
 6.   S. 12 Torture
  • Make the present definition in tune with Rajya Sabha Select Committee recommendations on the Prevention of Torture Bill
  • Redraft the proviso – ‘Provided that nothing contained in this section shall apply to any pain, hurt or danger as aforementioned caused or inflicted in accordance with law.’

 

 Addition of ‘cruel, inhuman and degrading treatment’
 7.   New Include new offence Including ‘enforced disappearance’ as an offence under this Act Include Enforced Disappearance as an offence under this Act
 8.   S.14 Offences by Public Servants Review phrase “can be reasonably presumed” in light of the Evidence Act Review phrase ‘can be reasonably presumed’ in light of the Evidence Act
 9.   S.15 Offences by other superiors for breach of command responsibility Redraft to clarify the definition of ‘non-state actor’   
10.  S. 20 Power of Central Government in relation to Organised Communal and Targeted Violence.- The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and the Central Government may take such steps in accordance with the duties mentioned there under, as the nature and circumstances of the case so requires. Delete Section 20  
11.    S. 21 (4) Appointment of Secretary-General of the National Authority Amend to make Consultation with Chairperson sufficient for appointment of Sec. Gen as agreement among members may be difficult  
12.    S. 21 (3) Composition of the National Authority Amend to add that of the 4 women members, 1 to be from minority community  
13.    S. 22 Appointment of Chairperson, Vice-Chairperson and other Members of National Authority
  • Substitute present selection committee by a committee composed of: Prime Minister, Minister for Home Affairs, Leader of the Opposition in the Lok Sabha, Leader of the Opposition in the Rajya Sabha, Chairperson of the NHRC

 

  • ASG to also amend S.45 (Appointment of State Authority) to make it a smaller but equally bi-partisan committee

 

 
14.    S. 23 Qualification of the Chairperson, Vice-Chairperson and Members of the National Authority Amend to broaden qualification of members of the National Authority  
15.    S. 25 & S. 48 Resignation and removal of Chairperson, Vice-chairperson and members Amend to add and define ‘corruption’ as a condition of removal  
16.    S. 30 Objectives of the National Authority Delete Section 30, as Section 31 is adequate  
17.    S.31 Functions of NA Amend to include function to supervise and monitor State Authorities.   
18.    S. 32 Monitoring and review by National Authority of performance of duties. Delete S. 32 (ii)  
19.    S. 38 Procedure with respect to armed forced Amend to include ‘security forces’ also  
20.    S. 43 Annual Report of the National Authority(3) The Annual Report shall be placed on the website of the National Authority not later than seven days prior to the monsoon session of the Parliament in which it is to be tabled.   ASG to confirm that this is in consonance with Parliamentary privileges
21.    S. 56 Defender for Justice and Reparations   Clarification on process of appointment of HRDJR
22.    S. 56 (3) Defender for Justice and Reparation Amend mistake – delete “be”. Add ‘Section’ 90  
23.    S.56 New provision Add Sec. 56 (4) to include that the HRDJR may bring to the notice of the State Authority any acts which amount to an offence under this act, and work towards building communal harmony  
24.    S.58 Offences to be cognizable and non-bailable Amend to ensure that all offences under Indian Penal Code, 1860, deemed offences under this Act as per Section 11, shall have the same status as under the Indian Penal Code i.e. e they shall be cognizable, non-bailable, or non-compoundable, except where the same offence under the IPC is non-cognizable, bailable, or compoundable.  
25.    S. 59 Translated true copy of information to be given within seven days Amend to bring in tune with Section 154 (2) of CrPC  
26.    S.61 (1) It shall be the duty of a police officer not below the rank of Deputy Superintendent of Police to visit every relief camp within seven days of its establishment to conduct an inquiry and record statements into the circumstances and cause of each individual being displaced and put in a relief camp.
  • Amend – “within 7 days” to “within 3 days”

 

  • Further amend with provision whereby police officer records statements with respect to cognizable offences, dispatches statements to be recorded as FIRs to be investigated by police station of competent jurisdiction
 
27.    S. 62 Investigation by Senior Police Officers   ASG to ensure standardized nomenclature and designationfor ‘Senior Inspector of Police’ which is applicable in all States
28.    S.64 (1) Recording of Statements or evidence during investigation Amend to make it optional & voluntary for victim or informant to record statement under Section 161 or Section 164  
29.    S. 64 (4) Recording of Statement or evidence during investigation Delete Section 64 (4)  
30.    S. 65 (2) Medical examination of victim Amend to avoid deviation from CrPC  
31.    S. 67 Power of government to order interception of messages Delete  
32.    S. 72 Judicial inquiry into occurrence of organised communal and targeted violence Amend to clarify who would order the judicial enquiry – state govt., State Authority, National Authority, or High Court  
33.    S. 77 Prosecution for Offences by the State and Public Servants In S.77 (2) Add provision for appeal or judicial review  
34.    S. 78 Appointment of Special Public Prosecutor(3) The State Government shall give prior notice of the proposed appointment and invite from the general public comments on, or any objection to, the proposed appointment before appointing the Special Public Prosecutor. Delete S. 78 (3)  
35.    S. 80 Cases triable by Designated Judges   ASG to consider amendment removing creation of special/designated courts and instead allow the law to operate in all Courts to create wider understanding and experience of the provisions of this law, oradd a proviso to ensure no delay i.e. trial to proceed in a regular criminal court in case of any delay in appointment of designated judge
36.    S. 82 Attachment of property Amend to refer only to attachment of such property as directly linked to offence  
37.    S. 85 Modified Application of the Code of Criminal Procedure Delete S. 85 (1) (a) and (b) – revert to relevant provisions under CrPC (S. 167)  
38.    S. 86 Rights of Victims during trial under this Act Amend to add a provision that subject to the rules made there under, the State government shall have special duties to include provision for traveling  expenses including  expenses incurred on food, to  witnesses including  complainant,  during investigation  and  trial  of  offences under this  Act; and the provision for maintenance expenses to the witnesses including  the victim/s of  communal  violence, during investigation and trial of offences under this Act.  
39.    S. 86 (6) Provision of free legal aid   ASG to consider provision whereby right to choose a lawyer by the victim is not restricted to the Legal Aid panel.
40.    S. 88 Record of Court Proceedings (video-recording) Amend to carve out exception in Section 88 to protect witnesses, balanced with rights of accused.  
41.    S. 90 Right to relief, reparation, restitution and compensation Amend & redraft to ensure that rights for all ‘affected persons’ regardless of denomination, impacted by related incident/s of violence, not restricted to offences under this act, are adequately guaranteed, and it is further not restricted to cases of death  
42.    S. 96 (c) Functions of the State Assessment Committee   ASG to consider amendment that Chief Secretary may attend largely to appeals, and divisional commissioner may conduct surveys and undertake assessments of offences
43.    S. 103 Principles for Assessment of Compensation Delete Section 103 (4)  
44.    S. 108 Appeal from assessment Amend to provide to appeal to High Court since District Assessment Committee is Chaired by District Judge and State Assessment committee (Sec.95) also includes a District judge  
45.    S. 99 Reparation and Rehabilitation Amend Section 99 (2) (a) to ensure that option to resettle and rehabilitate the affected persons in a new location shall be resorted to only in accordance with wishes and consent of the affected persons.  
46.    New Duty to Recognized and resettle internally displaced persons Add a provision ensuring that the Central Government in relation to the Union territories or the State Government as the case may be shall recognize persons who are unable to return, as internally displaced persons, and shall take all steps to resettle such internally displaced persons in a new location in case they are unable to return to their original place of habitation.a)      such resettlement shall declared by such persons to be entirely voluntaryb)      such resettlement shall ensure that the IDPs in their resettled locations, are restored to levels of housing, habitat, means of livelihood, and economic standards, including all social and civic facilities that are at par or better than those they enjoyed before the communal and targeted violence.c)      The concerned public authorities shall ensure the full exercise of the rights of internally displaced persons to participate in the planning and management of their resettlement  
47.    New Punishment on Subsequent Conviction Add a provision for enhanced punishment on subsequent conviction  
48.    C. VIII Penalties Amend to ensure that all offences under the Indian Penal Code, 1860, deemed offences under this Act as per Section 11, shall attract the same penalties as provided under the Indian Penal Code  
49.    New Compensation   ASG to consider provision – paying lump sum compensation for deaths often does not benefit women or orphaned children. Instead it makes them more vulnerable to immediate exploitation by adult male relatives. Therefore provision may be considered for a monthly pension over a longer period of time
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