========================================================
Conclusion
THE PURPOSE of this study was to examine the various central laws
(preventive as well as punitive), constitutional provisions, rules, guidelines etc.
and some other issues relating to communal violence. The study shows that the
problem of communal violence in India has a long history and deep rooted
causes. It is the result of mutual distrust and ill-will between the communities.
It was thought that partition of the country would solve the problem of
communal violence but it was only a false hope and even after the transfer of
power it increased rapidly after independence. After partition, communal riots
became an example of systematic, organized, pre-planned and politically
motivated crime. The study reveals that the decade of 1980s witnessed the most
aggressive form of communalism after the partition of the country.
political/religious leaders; and police-political leaders nexus, are also the causes
of communal violence. The study reveals that religious/communal
organizations play a considerable role in raising emotional sensitivity amongst
people. The so-called communal violence is also the result of various other
factors which have no connection with any religion.
The study shows that there are various legal provisions relating to
communal violence as contained in general and special laws on the subject and
also constitutional provisions for the protection of minority communities. The
Indian Penal Code, (IPC) 1860; The Code of Criminal Procedure, (Cr.PC)
1973; The Police Act, 1861; The Arms Act, 1959; The Explosives Act, 1884;
The Explosive Substances Act, 1908; The Explosives Rules, 1983; The
National Security Act, (NSA) 1980; The Unlawful Activities (Prevention) Act,
1967; The Prevention of Damage to Public Property Act, 1984; The Places of
Worship (Special Provisions) Act, 1991; The Press Council Act, 1978; The
Prevention of Seditious Meetings Act, 1911; The Protection of Civil Rights
Act, 1955; The Religious Institutions (Prevention of Misuse) Act, 1988; The
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989;
etc., provide for effective control of violent communal activities of the people.
The IPC and the Cr.PC contain various provisions for the maintenance of
peace and public order and tranquillity in the society and more than 33 percent
of the operational provisions of the IPC relate to offence against property. The
Cr.PC has a number of sections to prevent and suppress communal situation or
communal violence and also contains drastic provisions for the dispersal of
unlawful assemblies by force.
292
Conclusion and Suggestions================================================
The study reveals that there are various legal provisions (preventive as
well as punitive) to deal effectively with the threat of communal violence, but
the administration fails to act promptly and effectively. Despite the presence of
various provisions for keeping peace and public tranquillity in the Cr.PC, the
provisions of the NSA Act, 1980, the Law of Preventive Detention of anti-
social elements and the provisions of the Unlawful Activities (Prevention) Act,
1967, but enforcement personnel lack the will to implement these provisions to
prevent the occurrence of communal violence.
The study reveals that each inquiry commissions has drawn the same
conclusions that the police failed to act with impartiality in every case; they
rarely acted on its own and almost always looked to their political bosses for
direction; the miscreants exploited every delay in action by indulging in looting
and arson. The Gujarat killings itself was a result of communalization of the
civil society by the communal forces.
293
Conclusion and Suggestions================================================
The study reveals that in India one’s communal feeling can easily be
instigated and provoked. The victims are normally innocent and susceptible
people who happen to belong to a particular religion or caste. In spite of
condemnation of communal riots by all sections of society, it continues to take
place and violates a number of human rights. The acts of communal violence
not only take away innocent lives, but also divide our society, create distrust
among people and leave scars that can take decades to heal. Thus, communal
violence is worse than an act of war against the nation.
Earlier conflicts were not only between Hindus and Muslims, but also
between different castes, sects, local community, etc. Later the modern concept
of Hindu-Muslim conflicts was moulded in the period of the Colonial rulers, a
product of its ‘divide and rule’ policy among the country’s middle classes and
elite. Generally, the ruling classes are responsible for encouraging caste and
communal identities thus aggravating communal violence. Thus, the communal
violence is the result of distrust and animosity between the two communities.
Communalism and communal violence is interrelated but not one and the
same thing. Communalism is an ideology and those who propagate it with
sustained efforts are the generators and the carriers of the communal germs.
Thus, it is equally vital to counter communal ideology. Communal violence is
different from any other violence because it has its origin in deep seated
passions and jealousies. Its outcome can be harmful not only to a particular
locality but may also seriously affect many other areas.
294
Conclusion and Suggestions================================================
and irresponsible press reports also incite communal violence along with
mixture of religion with politics. The socio-economic, religious and political
causes only aggravate the disease of communal violence.
False rumours often spark the flames of communal violence. They are
spread rapidly through distortion and grow at each performance. Yet, there is
no effective criminal law to deal with rumours during communal violence. The
National Human Rights Commission (NHRC) in its final order on Gujarat riots
(May 31, 2002), noted the need to take firm action on provocative statements,
which have the potential to incite communal tension and violence and burden
of proof being shifted to such persons to explain or contradict their statements.
The role of police and administration has not been cordial during
communal violence. Rather, police personnel have been generally
communalized and biased against minorities. They fail to bring to book the
known preachers of communal hatred and violence. They do not employ all the
administrative resources available to them for curbing communal violence.
Communalism of the police was supplemented by the communalized political
culture of the society.
No riot can continue beyond a few hours without the active connivance
of local police and Magistracy and active support of the State Government.
Various inquiry reports show that the entire bureaucracy (barring few
exceptions) exhibited callous and culpable indifferences during communal
violence. Constitutional provisions and law enforcement norms stood
suspended in many communal riots. No preventive measures were taken
against the rioters.
298
Conclusion and Suggestions================================================
(March, 1981) as pointed out by the NHRC. The government is also not serious
to take up the most vital issue of communal violence, as is obvious from the
fact that the directions of the Supreme Court (SC) (September 22, 2006) to
reorganize the police system as drafted by the Sorabjee Committee, is not being
implemented.1
Over the years, police has been steadily politicized and communalized
although the NPC recommended in its Sixth Report (March, 1981) that the
powers of the government over the police be limited to ensure that police
performance was in accordance with the law. The police force has been
adopting blatantly communal postures rather than seen as an impartial
instrument for maintenance of law and order.
Apart from the PAC, the ordinary police force also displayed marked
biased attitude in favour of majority while dealing with communal violence.
The riots of Gujarat (2002), Mumbai (1992-93), Bhagalpur (1989), Delhi
(1984), etc., have been well documented and the fact remains that guilty
policemen were not punished.
The NHRC enquires into cases of abuse and misuse of authorities as well
as violation of human rights by the police. Almost 70 percent of the complaints
received by the commission pertain to violation of human rights by the police.
Similarly, the State Human Rights Commissions (SHRC), are also flooded with
complaints against the police.
1
The Times of India, November 3, 2008. See also Human Rights Today 10 (4) at 34.
300
Conclusion and Suggestions================================================
After every communal violence, the innocent persons who lose their near
and dear battle endlessly with fading hope for justice. It is shocking for our
criminal justice system including the apathy of the investigating and
prosecuting agencies that culprits almost go scot-free. Only a few culprits in the
major communal violence of recent years have been convicted and punished. If
the perpetrators of communal violence go scot-free and unpunished then the
democracy itself will be in peril.
It has been noted that communal violence occurred at the same place
after some period. It is due to the fact that those involved in the previous
communal violence were not convicted by the court and allowed to remain on
bail while the cases against them remained pending in courts for several years
and ultimately forgotten.
There is need for careful introspection within the State Government and
the short comings in its performance need to be analysed, inter-alia, in the light
of the statutory provisions, circulars and guidelines and a detailed report based
on that analysis should be made available by the State Government to the
Ministry of Home Affairs (MHA), inquiry commissions, and to the NHRC for
their consideration. There should be no hesitation while accusing communal
violence. The killing of innocents cannot be justified in any case.
long history of the world reveals that the great civilizations fell more often
from the internal decay than the external attack. The communal violence will
not end unless factors responsible for it are not eliminated. Communal violence
has a multiplier result of inviting further violence.
Amendments should be made in the Police Act and Service Rules so that
punishment for gross violation of duties and corrupt practices committed
during communal violence is speedy and certain.
Disturbed Areas (Special Courts) Act, 1976 may be useful in the inquiry
and prosecution of offences committed during communal violence.
Enforce code of ideal conduct for both police and press in the right
earnest.
3
Prakash Singh v. Union of India, 2006 (8) SCC 1 (In this case the SC issued various directions for
police reform for immediate compliance by the Central Government and/or State Governments. The long
overdue directions aim at insulating police from any pressure whatsoever, particularly political pressure,
separation of investigation from the law and order, etc.).
307
Conclusion and Suggestions================================================
Make some special provisions in the law and procedure to ensure that the
course of justice runs smoothly while deciding the cases of communal
violence.
NHRC, SHRC and State Minority Commission should take up the cases
of communal violence seriously and expeditiously.
Police should always be reminded of the duties that they owe to the
people.
Redefine the role, duties, powers and responsibilities of the police with
special reference to prevention and control of crime and maintenance of
public order.
This fact deserves consideration that the IPC and the Cr.PC including the
Evidence Act, 1872 have been framed keeping in mind normal situations of
crime and not the major communal violence. Therefore, it is required to draft a
separate set of laws and procedures for trial of cases arising out of major
communal violence, where the role of the law enforcement machinery
particularly police is itself suspicious; or where ordinary Law of Evidence or
Law of Limitation cannot be applied. Some international principles also need to
be incorporated into the Indian Penal system which may be applicable in
situations of major communal violence.
Delay in lodging a First Information Report (FIR) should not impact the
case in any manner.
In case, it is found by the Courts that the print or electronic media have
played a negative role or are responsible for misreporting, a fine should
be imposed on the concerned newspaper, channel, etc.
Instead of the word communal, the word sectarian should be used in the
Bill.
The Bill should provide that report of every inquiry commission will be
available in the public domain.
There must also be special measures prescribed for widows and orphans.
313
Conclusion and Suggestions================================================
The National Authority and State Authorities should have the power to
appoint Special Judge and Special Public Prosecutor like the State
Government.
Preventive Measures
Communal violence is quelled only after its occurrence and attempts are
rarely made to prevent its occurrence. The best solution of communal violence
lies in the pre-emptive and preventive measures before time. No person can
deny that communal tension should be reduced and communal violence brought
to an end. For this, following preventive measures may also be taken into
consideration:
314
Conclusion and Suggestions================================================
Identify the areas where frequent communal violence occur and find out
the root cause of the same. The disturbed spots must be known to the
forces.
Police must keep a close eye over the religious functions, ceremonies,
etc.
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