The Human Rights Law Network (HRLN) is a collective of lawyers and social activists, dedicated to the use of legal system to advance human rights.

HRLN collaborates with social movements, human rights organisations, and grass-roots development groups to enforce the rights of, amongst others, children, HIV positive and affected people, people with disabilities, prisoners, refugees, women etc.  The primary focus of HRLN’s HIV/AIDS Initiative is to provide free legal aid to people living with HIV/AIDS and facing discrimination.  It also works to increase awareness amongst all groups of civil society, including the judiciary, journalists, activists and lawyers.

As part of this ongoing programme of work, HRLN has published a two-volume book on HIV/AIDS & The Law, as a first-of-its-kind comprehensive handbook for lawyers and activists, edited by Laya Medhini, Dipika Jain and Colin Gonsalves.

PLHAs in India face stigma and discrimination in many forms, exacerbated by the fact that many come from vulnerable and marginalised groups of society such as commercial sex workers, men who have sex with men and injectable drug users.  Too many instances are reported of PLHAs being discriminated against e.g. refused treatment at hospitals and children affected by HIV/AIDS being ostracised from their schools.

HRLN identified a need for lawyers and activists to have a reliable, comprehensive source of legal material on which to draw and recognises it as essential, therefore, that this book make it to as many corners of the country as possible.

The book contains 14 chapters on issues such as gender vulnerability, employment discrimination, commercial sex workers, medical discrimination and access to treatment.  Each chapter contains explanatory text and case summaries on the topic, which can be used by lawyers and non-lawyers alike, together with full law reports of Indian and international cases referred to in the chapters, for use by lawyers.

Gender violence, the insertion of objects in the genitals, social and economic boycotts, forcible evictions, residential segregation, deprivation of access to food and medicines, enforced disappearances and interference with police work need to be clearly defined in the new communalism statute

The Preamble of The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 makes it clear that the enactment is being done with a view to empower the government to take measures. The focus is not on how civil society is empowered to initiate and control prosecutions when communal crimes occur. Given that it is the government that is the principal wrongdoer, the thrust of the legislation is misplaced.

The core sections of the bill, from chapter ii to chapter vi, relating to the prevention of communal violence, the investigation of communal crimes and the establishment of special courts will only come into effect if the state government issues a notification. All opposition governments could ignore this statute completely. A state government may issue a notification bringing the statute into force and yet render it sterile by not issuing notifications declaring certain areas to be communally disturbed areas.

The Act can be invoked only in extreme circumstances where there is criminal violence resulting in death or destruction of property and there is danger to the unity or internal security of India. There are many serious communal crimes, which may not result in death such as rape. Similarly, social and economic boycotts, forced segregation and discrimination will not fall within the ambit of the statute because they do not result in death or the destruction of property.

Even in such extreme circumstances, the Act only prescribes that the government may act by issuing a notification. On the face of it, the duty to act is not mandatory. Apart from the ipc crimes, communal crimes are nowhere defined. Gender violence, including the insertion of objects in the genitals, social and economic boycotts, forcible evictions, restraint on access to public spaces, residential segregation, deprivation of access to food and medicines, enforced disappearances, interference with the right to education, using religious weapons and ceremonies to intimidate, interference with police work, advocating the destruction of religious structure, need to be specifically set out in the statute.

A special section on communal crimes against women and children is solely needed covering sexual violence, penetrative assault, sexual slavery, enforced prostitution, forced pregnancies, enforced sterilisation and other forms of sexual violence. The rules of evidence need to be modified so that the victim is not victimised during the trial.

Chapter iii relates to the prevention of communal violence and appears to empower the district magistrate to prevent the breach of peace by, inter alia, curbing processions, externing persons, regulating the use of loudspeakers, seizing arms, detaining persons and conducting searches. This is a cosmetic section because the police have the powers to do all these things under the Criminal Procedure Code and various other criminal statutes in force today. 

Section 17 is the seemingly progressive section enabling the prosecution of police officers acting malafide. But the entire section is negated by the requirement that no cognisance be taken unless the state government sanctions the prosecution. It is well known that hundreds of cases throughout the country are languishing because the state governments have refused to grant sanction for the prosecution of public servants. In any case, sections 217 to 223 of ipc cover offences by public servants such as the shielding of criminals, preparing false records, making false report in courts, initiating false prosecutions and allowing criminals to escape. 

Recognising the role of the police in communal riots, it is critical that the immunity granted under sections 195, 196 and 197 of the Criminal Procedure Code be omitted in any statute on communal crimes. No junior officer should be allowed to take the defence that he was ordered by his superior to commit the crime. Nor should any commanding officer be allowed to take the defence that he was unaware of the crimes that were committed on his beat. 


The witness protection under Section 32 has been drafted without application of mind as to the Law Commission’s recommendations. Modern day witness protection method, which shields the witness from the accused, compensates her for the trauma of the trial and helps create a new life of hope is totally missing. Genuine witness protection includes a substantial financial obligation of the state to take care of the witness and her family in secrecy, often for the rest of their lives.

Chapter vii deals with relief and rehabilitation in a ceremonial manner. It calls for the setting up of national, state and district level ‘Communal Disturbance Relief and Rehabilitation Councils’ — but nowhere in the statute does the right of the victim to relief, compensation and rehabilitation emerge as a right according to an acceptable international standard. When the State does not protect the lives and properties of the minorities during communal carnages, should the victim not have a right to compensation and alternative livelihoods at the cost of the state?


Section xi deals with the special powers of the central government to act in circumstances where the state government does not take appropriate measures. But here too, Section 3(b) permits the Centre to deploy armed forces only on the request of the state government. This is a ridiculously retrogressive provision given the fact that even today the Centre is under no obligation to wait for consent when the situation goes out of control, as it did during the Sikh riots in 1984, the Bombay pogrom in 1992 and the Gujarat genocide in 2002.


Chapter xii, which grants immunity to the police and army, is particularly insensitive. Various commissions of enquiry, including the Justice Ranganath Mishra Commission (Delhi riots), the Justice Raghuvir Dayal Commission (Ahmednagar riots), the Justice Jagmohan Reddy Commission (Ahmedabad riots), the Justice DP Madan Commission (Bhiwandi riots), the Justice Joseph Vithyathil Commission (Tellicheri riots), the Justice J. Narain, SK Ghosh and SQ Rizvi Commission (Jamshedpur riots), the Justice RCP Sinha and SS Hasan Commission (Bhagalpur riots), and the Justice Srikrishna Commission (Bombay riots), have found the police and civil authorities passive or partisan and conniving with communal elements. And yet, the upa government backed by the Left is dilly-dallying. Why?


The writer is Executive Director,
Human Rights Law Network

This article is available at:

URL : http://www.tehelka.com/story_main16.asp?filename=Cr021806all_that.asp

The decision of Justice Arijit Pasayat in the Best Bakery case (overturning acquittals by the trial courts in Gujarat) is probably one of the finest examples of how a court can reassert the secular fabric of Indian democracy and stand up to militant communal elements when they seek to undermine democratic processes.

In March 2002, the Best Bakery at Vadodara was burnt by an unruly mob killing 14 persons. Zaheera was the eyewitness. After she resiled from her statement in the trial court Zaheera appeared before the nhrc and complained that she was threatened by powerful politicians. The case arose when Zaheera Sheikh, one of the victims of the Gujarat carnage, resiled from her statements made in court earlier on her being threatened when she was in the witness box. The trial court without considering the circumstances leading to the witness turning hostile, acquitted the accused. The high court upheld the acquittal. The nhrc moved the Supreme Court questioning the acquittals.

In criminal cases, the fate of the proceedings cannot always be left in the hands of the parties because crimes are public wrongs and they violate the public rights and duties of society in general. A fair trial therefore is a three-way situation where the victim, the accused and the community are vitally concerned. The role of a judge is to actively get all relevant materials on record to determine the truth and administer justice fairly. 

The role of the trial court judge becomes even more important when unruly crowds attempt to obstruct judicial hearings putting the safety of the victim and her witnesses in peril. So too, when the police or prosecutor acts in a manner favourable to the accused.

Should the process of choosing arbiters of justice not include intrusive enquiry into their attitudes?

The Supreme Court held: “In a country like ours with heterogeneous religions and multiracial and multilingual society which necessitates protection against discrimination on the ground of caste or religion, taking lives of persons belonging not to one or the other religion... may tend to encourage fissiparous elements to undermine the unity and security of the nation... strikes at the very root of an orderly society, which the founding fathers of our Constitution dreamt of.”

“When the ghastly killings take place in the land of Mahatma Gandhi, it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.”

Looking through the records of the case, the Supreme Court found the public prosecutor acting as if he were the defence counsel, the (trial) court a silent spectator indifferent to the “sacrilege being committed to justice” and the investigation showing no interest to determine the truth.

“The modern-day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected.”

Dealing with the approach of the high court and the acquittal, the Supreme Court said: “The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind...Irresponsible allegations, suggestions and challenges may be made by parties. Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy.” 

Justice Pasayat’s order should also not give rise to complacency. The rise of the militant Hindutva rightwing has caused considerable confusion in the ranks of the judiciary. Judges ultimately come from the society from which they are chosen. Should the process of choosing judges not include an intrusive enquiry into their attitudes relating to secularism and the minority community? After all, we have had a former President Giani Zail Singh remark, while he was Union home minister, that he was an admirer of Hitler.

Therefore when policemen, public prosecutors and judges are appointed to uphold the high values of the justice system, should we not during the selection process subject them to a scathing public scrutiny where their attitudes toward the poor, women, dalits and minorities are X-rayed?

I shudder to think what would be the fate of the judiciary had Justice Pasayat not taken action. What would be the opinion of the judiciary in the minds of Muslims and other minorities who have suffered massacres again and again? 

Perhaps a time will come when the decision of the Constitutional Bench of the Supreme Court in SR Bommai’s case — “the State has no religion” — will remain only a pious wish with communalism infiltrating and corrupting all the organs of the state.