Laws Relating to Communal Violence: a Study
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LAWS RELATING TO COMMUNAL VIOLENCE: A STUDY ABSTRACT • F TH ESiS'--~. SUBMITTED' FORATHE',AWARD- OF,THE~DEGREE OF I i&ctuz ti B - ~ti. -7 I -- / __j ` • . f M'0.H D,.AAM I R, (HAN UNDER THE SUPERVISION OF DR. 1AVAID TALIB 15 Associate Professor DEPARTMENT OF LAW ALIGARH MUSLIM -UNIVERSITY ALIGARH (INDIA) 2012 II Abstract COMMUNAL CONFLICTS between the followers of different religions are not new in history. There have been wars of religion in the past in several parts of the world. But over a period of time this tendency has changed and the conflict has shifted from religion to other forms. It has been said that wars are born in the minds of people. Communal violence like wars is also born in the minds of people. Today, India's one of the foremost and upsetting problems is occurrence of communal violence, which is thd-most visible sign of communal rivalry and hostility and has become an integral- eatiira o.f our country. The communal violence is the result of ill-will, distrust and hafr d between the two communities. The most serious hurdle to national integration is the happening of communal violence—not so much because of the loss of life, limb or property but because of the loss of confidence and trust; because of the anxiety and uncertainty, etc. It occurs very frequently and has become a major challenge before the Indian political and legal systems. It is felt that the communal violence prior to partition was attributed to the `divide and rule' policy of the British rulers. After independence, the problem of communal violence has increased and the number of communal riots, persons injured and killed has also increased tremendously. India has lost more lives in violence in recent years than any other country as statistics reveal. Today, thousands of our citizens are living in fear. They fear for their lives, the safety of their family, homes, business and property. There is no doubt that communal violence has become our nation's most serious internal problem. The picture even after 65 years of our independence is dreadful. Despite the adoption of secular principles in the Constitution of India, the communal violence continues to trouble both our society and polity. India faced number of communal violence in post-Independent India, being almost every year. But hardly any government could stop it. Every time political parties blame others but could not give any solution to stop the communal violence. Every time only innocent people are burnt in the fire of communal violence not the politician. Communal violence means violence against a group or an individual targeted on the basis of a communal identity. It is outbreak between two communities, irrespective of who starts it. It is not only erupted amongst Hindus and Muslims but also among other sects and communities. In the context of communal violence, it is the Hindu-Muslim conflict, which is more concerning and demands greater and more urgent attention. In various forms of disputes between Hindus and Muslims, communal violence stands out to be the most alarming one. Besides many national and international factors, local factors also play an important role in aggravating the communal situation. It has been seen that communal forces are hostile to diversity and they try to emphasize homogeneity. Thus, passions are whipped up by sensitive issues like `Shah Bane' controversy, `Uniform Civil Code' (UCC), the 'Babri Masjid-Ramjanmbhoomi' controversy and `Article 370' of the Constitution of India. In all major communal massacres the people of one particular community have been invariably the worst sufferers; and they get no justice. Only few who were involved in those massacres have been brought to book till today. In 2002, Gujarat killings shocked the whole country. The police remain quite communalized and Governments at Central as well as in State have hardly done much to de- communalize the force. The Gujarat killings and Bombay (now renamed Mumbai) riots (1992-93) have proved this. The strife in Orissa (2008), Gujarat (2002), Mumbai (1992-93), Bhagalpur (1989), Meerut (1987) and Delhi (1984) have been reported `perhaps the worst since 1947'. Various reports of inquiry commissions including, Justice B.N. Srikrishna Commission on Mumbai riots (1992-93) have found the police and civil authorities passive and conniving with communal elements. The Commission in its Report (1998) highlighted several politicians and 31 police officials who were responsible Abstract====___________________________________________________ for communal violence. It is the matter of great shame that still many lives are being lost in communal violence year after year in spite of various inquiry commissions on this issue and their clear findings. It is frequently observed that culprits of such violence go scot-free even in the face of crushing evidence. The Concerned Citizens Tribunal (CCT), Gujarat-2002 has clearly held that the crimes committed during Gujarat violence were `Crimes against Humanity and Genocide'. Yet, nothing substantial is being done to ensure the punishment of those who are guilty of these crimes. The Government has failed to enact a comprehensive Law on Genocide in compliance with article V of the `International Convention on the Prevention and Punishment of the Crime of Genocide, 1948', which India signed in 1948 and ratified in 1958. Amnesty International (Al) in its Report (January 27, 2005) also described in detail how the Government of Gujarat had failed to fulfill its obligations under national and international law to exercise due diligence to protect its citizens from violence, killings, sexual attacks and destruction. The Report concluded that some of these acts constituted `crimes against humanity' under international law. The virus of communalism and communal violence is manifest in more or less all aspects of our life, which is unsafe to the democracy, national unity and integrity of India. At present, Christians who were never targeted before have also come under attacks and are being killed ruthlessly. It is unfortunate that despite the Indian State being secular; religion has come to acquire a prime place in Indian politics. Statement of Problem There are various legal provisions relating to communal violence as contained in general and special laws on the subject, various constitutional provisions, rules and guidelines, etc., which provide for effective control of violent communal activities of the people. The existing provisions of law (preventive as well as punitive), constitutional provisions and other provisions of law are to some extent adequate to 0 Abstract======— ___ _______= _____________________________________ curb the problem of communal violence but the law enforcement machinery lacks the will or freedom to act firrrily and impartially. In consequences, the criminals escape punishment and justice is delayed inordinately. The existing legal provisions are continuously being violated and neglected by the culprits of communal violence because of poor implementation by law enforcement authorities. Laws can hardly dish up any useful purpose unless justice is dispensed with speedily, both at the level of executive and judiciary. Gujarat killings had shaken the whole country very badly and there were voices that the existing laws were not sufficient and there should be a separate law to prevent recurrence of such killings resulting in the death of thousands of innocent people. It was in this context that the draft of Communal Violence Bill was prepared by a Working Group of the Sonia Gandhi-led National Advisory Council (NAC), bearing title the "Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011." The draft Bill has been sent for the adoption by the Parliament. The Bill was originally introduced by the United Progressive Alliance (UPA-1) Government in 2005 titled as the "Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005" but the Bill did not find favour with any party. The proposed law will be a Central enactment and is brought to curb the communal and targeted violence taking place between communities. The Bill defines `communal and targeted violence' as "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 membership of any group." The word "group" means a `religious' or `linguistic' minority, in any state in the Union of India, or `Scheduled Castes' and `Scheduled Tribes' within the meaning of clauses 24 and 25 of article 366 of the Constitution of India. The new Bill recognizes identity-based or targeted crimes and organised mass violence as special offences, while placing accountability of public officials at the heart of the law, and with varying penalties for dereliction of duty. The Bill provides 4bstract===_______ = ______=________---__----__—_—_ for the creation of a National Authority and the State Authorities to ensure accountability of public officials as well as to ensure justice and reparations once in the wake of violence. The proposed Bill is an attempt to address the imbalance and despair caused by over six decades of discriminatory justice delivery. It is felt that such law must come into effect as early as possible so that future recurrence of communal violence may be stopped. The present laws are sufficient to take care of any communal situation but problem is that these laws are not honestly implemented. Often, the guardians of law themselves violate the law, i.e., the police. In some States, the Government is determined to prevent communal violence and no communal riot can occur there, if it does, it can be checked within time. But in other States, the Governments have no will to control communal violence. The need, therefore, is to implement the laws effectively and punish the culprits. Prosecuting the culprits of communal violence and creating a deterrent effect is vital.