Submission By Christian Council On The Proposed
Communal violence Prevention Bill 2005/10
Observations of the Christian Community on Proposed Communal violence
Prevention Bill 2005/10 -- submitted by Christian Council to the
national Advisory Council in consultations on 24th June 2010
A. The Christian community, approximately 2.4 per cent of the Indian
population, is yet to emerge from the trauma of the violence against
it in Kandhamal District of Orissa in 2007 and 2008, which saw mass
murder, unprecedented arson, gang rapes and coercive change of
religion, among other crimes, and the continuing acts of violence
against its members, individual pastors, priests, nuns, institutions,
prayer meetings and tract distribution, across the country but more
viciously in Karnataka, Orissa, Maharashtra, Andhra Pradesh, Gujarat,
Rajasthan, Punjab, Uttarakhand, and occasionally even in the National
Capital Region of Delhi. This experience is marked by our
understanding of the protection given to the aggressors, issues of
command responsibility and impunity, and a callous attitude towards
Christianity which is seen even in official circles as an alien
religion, and its faithful as so much lesser citizens in the exercise
of their Constitutional rights. This experience, as much as our
empathy with the experiences of our brothers and sisters in the Dalit
community, the Tribal people and members of the Sikh and Muslim
faiths, guides our understating of communal violence, and our response
to the Communal Violence Control and Prevention Bill through its
various incarnations from when it was first moved in Parliament in
2005 till the last Cabinet note of December 2009.
The Catholic Bishops Conference of India gave a detailed note to the
Government some time ago. On behalf of the All India Christian
Council, its office bearers also conveyed to Government our feelings.
Other denominations and groups have also communicated with the
government. The Christian community consists of several ecclesiastical
groups and denominations, apart from ranging across all linguistic and
ethnic groups in the country as is proper for its 2,000 year old
history of existence in this great country.
It may be mentioned that we entirely support the major recommendations
made by the Muslim community groups and by concerned Civil society. We
strongly feel any Law to be relevant must empower the people,
specially the survivor-victims. It must in no way further empower the
State and the political apparatus to harass religious minorities.
This note therefore covers not just the experience of the Catholic and
Episcopal groups in all their diversity as already enunciated by them,
but also the experiences and needs if the membership of the All India
Christian Council from the Evangelical and Pentecost churches,
Independent Church groups and pastors, and above all, the common
Christians, specially Tribal and Dalits, who may worship in their
house, or go to a Church, and who are untied in their faith in the
Salvation assured by Jesus Christ.
B. Needless to say, the proposed CV Bill is ignorant of the diversity
of the minority communities, and specifically of the following issues
of the Christian Community.
1. Dalit Christians: 60 per cent of all Christians in India trace
their origins from the Dalit communities, now called the Scheduled
Castes. They live with their fellow Indians in Dalit colonies, semi
urban hovels, and village Cheris. They are subject to all atrocities
faced by the others. In addition, they are targeted for being
Christians, taunted, vilified and subject to sustained hate campaigns.
And yet they do not get the hope or the security provided by anti-
atrocity laws, or other provisions of the IPC.
2. TRIBALS: A large number of tribals are Christinas in the States of
Rajasdthan, Madhya Pradesh, Gujarat, Maharashtra, Andhra, Chhatisgarh,
Orissa and Jharkhand, apart from the Tribals of the North-Eastern
region. The tribals of the so-called Chhotanagpur region particularly
suffer from administrative and communal action, and find little or no
recourse in the law. The experience in Kandhamal has brought this to
the fore.
3. PLACES OF WORSHIP: While large cathedrals are landmarks in cities,
the churches in small towns and villages may be just a kutcha hut or a
log cabin. Often, both in Catholic and Protestant traditions, prayers
are held within the house together with family members and neighbours.
Sometimes, prayers are also held in the open on Sundays and other
special days. Increasingly house churches have been targeted and often
the police has been a party to the violence.
4. VIOLENCE AGAINST WOMEN: Nuns of the Catholic, Orthodox and of some
Episcopal churches, as well as wives of Evangelical and Independent
pastors have been particularly targeted in Madhya Pradesh, up to and
including gang grape and sexual coercion, with the police entirely
inactive, if not complicit. The Nuns can be identified at a distance
and are therefore vulnerable all the more.
5. DIFFUSED POPULATION: Apart from certain districts, the Christian
population is widely dispersed, and ingle families or a small cluster
becomes very vulnerable.
6. PATTERN OF VIOLENCE: Though populations are dispersed in the major
states – barring Kerala, Meghalaya, Nagaland and Goa, -- the violence
is consistent. And yet authorities, especially the police dismiss it
as “sporadic” unrelated and unconnected violence. The overall Pattern
of Violence is never taken into account while taking preventive or
curative measures.
7. HATE CAMPAIGNS: For the last forty years, there has been a
consistent and sustained hate campaign against Christians, often
officially supported. Where huge temples exist in government building
and even in police stations, it is perhaps difficult to expect a
secular approach from subordinate officials and policemen. The hate
campaign in media is supported by partisanship in the district
administration, further aggravating the communal harmony in those
regions. These include refusal to distribute religious tracts and
refusal of permission to sell or distribute Bibles, permission for
holding Healing Ministries and Prayer meetings on public or private
grounds and fields, and mis-reporting in the mass media painting the
Christians in a negative light.
The following is an internal commentary by the All India Christian
Council and its expert associates, which takes into account the above
and assesses the new Bill with its suggestions.
C. OUR OBSERVATIONS ON THE CV BILL
The government has proposed a law to prevent control and deal with the
aftermath of communal violence, which would include caste-based or
religiously-motivated violence. Communal violence is recognised as a
problem which runs deeper than simply undermining law and order. The
UN Special Rapporteur on freedom of religion or belief echoed the NCM
in emphasising that communal violence is most likely to occur in a
situation in which the following elements are present:
• Long-standing antagonism along religious lines;
• A specific occurrence triggering an emotional response among members
of religious communities;
• A sense among perpetrators and the religious community to which they
belong that communal violence is justifiable;
• A sense among perpetrators that the reaction of police to communal
violence would be absent, partisan or ineffective.
The Communal Violence (Prevention, Control and Rehabilitation of
Victims) Bill, 2009, was first introduced on 26 November 2005, and has
undergone a series of revisions, which include the adoption of a
number of recommendations issued by the NCM. It is expected to be
introduced in the Lok Sabha in 2010, having received Cabinet approval
in December 2009.
PROVISIONS:
The purpose of the Bill is outlined in the Statement of Objects and
Reasons:
“Communal violence threatens the secular fabric, unity, integrity and
internal security of a nation. With a view to empowering the State
Governments and the Central Government to take effective measures to
provide for the prevention and control of communal violence and to
rehabilitate the victims of such violence, for speedy investigation
and trial of offences including imposition of enhanced punishments,
than those provided in the Indian Penal Code, on persons involved in
communal violence and for matters connected therewith, it has been
decided to enact a law by Parliament.”
The current version of the Bill sets out a series of measures to these
ends, and includes the following provisions:
• Article 3(1) groups a number of offences under the Indian Penal Code
(IPC) and other laws in a schedule. If one or more of these offences
are committed “in such manner and on such a scale which involves the
use of criminal force or violence against any group, caste or
community, resulting in grievous hurt, loss of life, or extensive
damage or destruction of property” and where “such use of criminal
force or violence is committed with a view to create disharmony or
feelings of enmity, hatred or ill-will between different groups,
castes or communities”, resulting in an imminent “threat to the
secular fabric, integrity, unity or internal security of India”, a
state government is required to notify this as a “communally disturbed
area”.
• Article 4 specifies that a state government may request the central
government to deploy armed forces in these circumstances.
• Article 5 provides for preventative measures to be taken by a
district magistrate prior to any outbreak of communal violence.
• Articles 6-10 provide for preventative measures to be taken by the
“competent authority” after an area has been designated as communally
disturbed.
• Articles 11-16 proscribe and stipulate punishments for certain acts
associated with communal violence, including possessing weapons or
threatening witnesses;
• Article 17 stipulates punishments for public servants or competent
authorities who act in a mala fide manner or wilfully fail to exercise
lawful authority, and thereby fail to prevent communal violence.
• Article 19 provides that punishments stipulated for scheduled
offences must be doubled if the offences are committed on a scale and
in a manner which constitute communal violence.
• Article 21 provides for the declaration of police stations within
the scheduled area, and for the provision of women police officers to
investigate scheduled offences committed against women or children.
• Article 22 provides for the review of cases where the investigating
officer does not file a charge sheet within three months of a First
Information Report (FIR) being registered.
• Article 23 provides for the constitution of “Special Investigation
Teams” if the state government believes the investigation of offences
was not carried out in a fair and impartial manner.
• Articles 24-37 provide for the establishment and procedure of
“Special Courts” for the trial of scheduled offences, and for the
appointment of public prosecutors. Article 32 provides for concealing
the identities of witnesses testifying before a special court.
• Articles 38-41 provide for the creation and functions of a “State
Communal Disturbance Relief and Rehabilitation Council” by the
relevant state government, including several ex officio members and
several members nominated by the state government, including
representatives of all major religious communities. Article 40
stipulates the functions of the council in planning relief efforts,
including advising the state government on compensation and the
establishment of relief camps, taking a range of remedial measures for
the welfare of victims and the reparation of damage, recommending
measures for activating a “district communal harmony committee” and
reporting to the government on shortcomings in remedial measures.
Article 41 stipulates the preparation of a plan “for promotion of
communal harmony and prevention of communal violence” to be
recommended for adoption by the council to the state government.
• Articles 42-44 provide for the creation and functions of a district
equivalent of the state committee, to act as the implementing body for
relief and rehabilitation measures.
• Articles 45-48 provide for the creation and functions of a national
equivalent of the state committee, with responsibilities including
advising relevant state governments on relief, rehabilitation and
compensation and making recommendations to the central government.
• Articles 49-52 provide for state governments to establish schemes
for the compensation of victims of communal violence.
• Articles 53-54 provide for the payment of compensation for damages
by offenders.
• Articles 55-56 set out special powers of the central government to
deal with communal violence. These include directing the relevant
state government to take appropriate measures, and declaring a
“communally disturbed area” if the state fails to do so when
necessary, and deploying armed forces under the authority of the
central government.
• Article 58 provides that there should be no discrimination in the
provision of relief or compensation “on the ground of sex, caste,
community, descent or religion”.
D. OUR CRITIQUE:
The principle of a CV Bill has been welcomed by religious minorities
in India, and it has the potential to add positively to India’s
excellent body of legislation protecting against acts of
discrimination or prejudicial violence. However, there exist
legitimate concerns about the effectiveness of the 2005 and the 2009
drafts of the Bill, which have been voiced by civil society and
religious minority organisations, by the NCM and by the UN Special
Rapporteur on freedom of religion or belief in the report of her 2008
visit to India. The Special Rapporteur recommended specifically that
the legislation “should take into account the concerns of religious
minorities” (paragraph 67).
The most serious, substantive and prominent concerns about the Bill in
its current form include the following:
1. The Bill does not define “communal violence” adequately, and
therefore cannot protect against it effectively. Firstly, it
construes communal violence as disharmony between two different
communities, or mass rioting by one community against another, but it
does not recognise the process by which communal tension or hatred is
incited, and it does not recognise the phenomenon of state complicity
in the incitement or execution of communal violence. Secondly, the
premise of the “communally disturbed area” does not do justice to the
reality of communal violence as experienced by some religious
minorities, especially Christians: certain states see frequent, well-
targeted, single incidents of religiously-motivated violence, which
are often orchestrated by extremist organisations, and this pattern of
violence would not be addressed under the provisions of the Bill.
Thirdly, the Bill inadequately covers the possible range of offences
which might constitute “communal violence” (including specific forms
of sexual violence), and the implications of this context for
evidentiary standards in the investigative process.
2. The Bill does not provide for sufficient safeguards against the
poor or discriminatory exercise of power by those responsible for
protecting the rights of victims, which is a recurrent problem in
cases of communal violence. The Special Rapporteur noted that civil
society organisations have “voiced their concern that the sweeping
powers given by the Bill to state governments could be misused to
intimidate members of the minority community” (paragraph 40). Article
17 provides for the prosecution of public servants for the dereliction
of duty, but this requires the prior sanction of the state government,
and if the state government is complicit in (or not unfavourable
towards) the communal violence, it becomes extremely unlikely that
discriminatory behaviour or the dereliction of duty by public servants
will be prosecuted. Article 22 of the Bill provides for the review of
every case in which the investigating officer does not file a charge
sheet within three months of an FIR being registered, but this may be
circumvented by the common tactic whereby police officers fail to
register FIRs according to proper procedure. Article 57, the so-
called “good faith” clause, provides immunity for officials; however,
the standard of mens rea, or command responsibility, should be
enshrined in the Bill, so that superior authorities are held
accountable for the unlawful activities of their subordinates. The
NCM made a number of relevant additional recommendations to increase
accountability: That the reports of any commissions of inquiry should
be made public as a matter of course; that the National Human Rights
Commission should be mandated to monitor the performance of special
courts; and that those found guilty of involvement in communal
violence should be debarred permanently from government jobs and from
contesting any office.
3. The Bill should provide additional measures to protect witnesses or
victims from intimidation. Article 15 criminalises acts which
threaten witnesses, and Article 32 provides that the identity of
witnesses may be concealed. However, the Bill should draw upon the
guidelines of the Supreme Court and recommendations of the Law
Commission. It would be strengthened considerably by providing for
the police protection of witnesses at risk of threat or intimidation.
Incentivising witnesses by providing travel and maintenance expenses
(as recommended in Article 21(2)(ii) of The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act), would further
protect against witnesses preferring to stay silent rather than
risking intimidation as a consequence of giving evidence. In
addition, the rights of persons displaced into camps as a result of
communal violence, as outlined in Article 40(b), should be in line
with the UN Guiding Principles on Internal Displacement, including
the provision of education to displaced children (principle 23) and
ensuring that camps continue until the establishment of suitable
conditions and the means for the displaced persons to return
voluntarily, in safety and with dignity, to their homes, or to
resettle voluntarily (principle 28).
4. The Bill should set out a uniform, binding scheme for the provision
of compensation to victims of communal violence, to address the
inconsistencies shown in previous cases. It should establish the
rights of victims or their dependents to financial compensation, and
should also provide compensation to rebuild places of worship damaged
or destroyed as a result of communal violence. This was among the
recommendations of the NCM not included among the amendments in the
2009 version of the Bill.
E. Aftermath of 2008 anti-Christian violence in Orissa
In August to October 2008, Orissa witnessed the worst spate of
communal violence ever faced by the Christian community in post-
independence India, including brutal murders and rapes, widespread
destruction of churches and property, and forcible conversions to
Hinduism. The attacks, centred in Kandhamal district, were catalysed
by the assassination on 23 August 2008 of Lakshmananda Saraswati,
local head of the radical Hindu nationalist group VHP, by assailants
believed to have been Maoists. On 24 August, when his remains were
paraded around the district, mobs began setting up roadblocks,
shouting Hindu nationalist and violent anti-Christian slogans, openly
blaming Christians for the murder and calling for revenge as they
attacked Christian targets. Although rural poverty and underlying
issues of ethnic tensions over entitlements in Kandhamal played a role
in the violence, these were not the primary causes but provided a
context for the radicalisation of one community and the incitement of
violence. The Orissa chief minister publicly acknowledged the role of
extremist Hindu nationalist organisations in the violence in the
legislative assembly for the first time in November 2009.
The violence which started in August 2008 continued for over eight
weeks. At least 50,000 were displaced and 70 were killed; among the
victims were Hindus opposing the rioters. Widespread anti-Christian
attacks had also taken place in Kandhamal in December 2007, impunity
for which laid the foundations for the second more serious wave of
violence in 2008. The state government failed to implement detailed
recommendations made by India’s NCM in early 2008.
F. SOCIAL CONTEXT:
Rural poverty is endemic in southern Orissa, the area in which the
violence was centred, and the rural poverty ratio actually increased
in this area during the period 1983-2000. There exist deep
underlying issues of entitlement in Kandhamal, which created a context
for the instigation of the 2008 violence: one such issue is the
classification of Scheduled Caste and Scheduled Tribe communities,
which was formalised in 1950. Both communities trace their ancestry
to the indigenous inhabitants of the land, and constitute a single
ethnic, linguistic and cultural group. However, Kandhamal is
designated as a ‘Scheduled Area’ under the provision of the fifth
schedule of the constitution, and as such, certain entitlements are
reserved for the Scheduled Tribes, including freehold (patta)
ownership of land. This is a potential cause of tension between
Scheduled Castes and Scheduled Tribes. Moreover, Christians of
Scheduled Caste background or ancestry are not eligible to the same
entitlements as Scheduled Castes (see section 4.3 above). It is in
the interest of those Scheduled Castes who profess Christianity to be
reclassified as Scheduled Tribes, as this would reverse their double
disenfranchisement, so tensions among Scheduled Castes and Scheduled
Tribes can therefore take on a religious colouring in the right
circumstances.
Although these factors of ethnicity and entitlement provided a context
for the violence, it is important to emphasise that Christians in the
area have been drawn from both Scheduled Caste and Scheduled Tribe
communities. During the violence, Christians from both communities
were attacked.
The extremist Hindu nationalist presence in Kandhamal has played upon
existing sensitivities, and co-opted them onto a religious nationalist
template. Extremist Hindu nationalists have been operational in the
area for around 40 years, and they originate from a non-indigenous,
caste Hindu, trader community. Their agenda has been the preservation
of Hindu purity, including the prevention of cow slaughter and of
religious conversions. Christians, as the largest religious minority
in the area, constitute a threatening ‘other’, and provide a ready
scapegoat.
The local prominence of Naxalites, or Maoist insurgents, creates an
additional layer of complication. Naxalites were almost certainly
responsible for the assassination of Swami Lakshmananda Saraswati,
which precipitated the mass violence against Christians. There are
numerous theories about the Naxalites’ motivation for the murder, one
of which is that it was an act of retribution against his activities,
and that it was calculated to gain support from disenfranchised people
in the area, including Christians. The palpable absence of state
machinery from the area, means that the scene has been set for
something of a ‘turf war’ between Hindu extremists and Naxalites.
G. ISSUES ARISING FROM CHRISTIAN EXPERIENCE OF KANDHAMAL FAST TRACK
COURTS:
We had welcomed the Fast track courts and had high hopes from the two
Additional Sessions Judges and the Public prosecutors. We feel
betrayed after the lapse of one year. Out of 12 deaths by murder,
where judgement is pronounced, there was only one conviction; and
accused in 11 deaths are acquitted. Justice, reconciliation and peace
remain an unfulfilled objective. There are legitimate fears of
impunity on a large scale. Local lawyers suggest that the majority of
crimes have not been registered properly by the police, and the
majority of cases which reach the courts have resulted in acquittals.
There is also widespread evidence of endemic bias and dereliction of
duty in the investigation and prosecution of offences. As of now,
lawyers in Kandhamal said that of 3,223 complaints submitted to the
police; only 831 had been registered as First Information Reports
(FIRs). The judicial system in place has been partially successful,
but the realities of trying cases in a rural situation amidst
widespread fear, combined with poverty and illiteracy, create special
needs which the current system is failing to address adequately. Many
witnesses or victims are reluctant to testify in court for fear of
retribution and lack of confidence in the efficacy of the system, and
they have been intimidated and threatened, sometimes by mobs outside
courtrooms;
We suggest that the new CV bill take care of the following issues:
1. The Fast Track courts should be set up outside the affected area,
preferably in a neighbouring district, and in special cases, in an
adjoining state to remove any inference with the course of justice.
2. The Judges appointed should be subjected to review for their
performances by superior courts to weed out bigotry and vested
interest, if any
3. Special public prosecutors be appointed at government expense out a
panel whetted by civil society and survivors-victims
4. Survivor-victims are allowed to arrange their own lawyers to assist
the Special PPs.
5. Survivor Victims be allowed to file additional FIRs other than
those filed by police suo motu
6. Survivor-Victims’ lawyers be allowed to cross examine defence
witness and intervene properly in the judicial court process.
7. Witnesses security and transport be taken care of by government in
a foolproof witness protection programme
8. In case of gender violence cases, in camera proceedings be arranged
9. Adequate security be provided in court premises and environments
10. Legal observers / amicus curie be allowed to monitor the course of
the trial
11. Special Investigation Teams be set up in case police
investigations are found to be inadequate.
John Dayal
Secretary General
