LLM Group 5 Criminal Law and Criminal Administration Collective Violence and Criminal Justice System 2023 Question Paper with Solutions

The incidence in recent years

The large episodes. The reference points for the last three decades are the Bombay violence of December 1992 and January 1993 following the demolition of the Babri Masjid; Gujarat in 2002 following the burning of a coach of the Sabarmati Express at Godhra; Kandhamal in Odisha in 2008, which was directed at Christians and is the largest recent episode not involving the two principal communities; Muzaffarnagar and Shamli in western Uttar Pradesh in 2013, where more than sixty people died and tens of thousands were displaced into relief camps; and north east Delhi in February 2020.

The pattern between the large episodes. Union Home Ministry figures reported to Parliament have for years placed the number of communal incidents in the range of several hundred a year, with fatalities in the low hundreds. The important point about this data is what it conceals: an "incident" covers everything from a scuffle at a procession to a multi-day riot, so the count is a poor measure of severity, and there is no statutory definition of a communal incident at all, which means the classification is made by the local police.

Three changes in the character of the violence deserve to be named.

The machinery: the Union level

The Ministry of Home Affairs maintains a communal harmony division, issues advisories to States before festivals, monitors incidents, and controls the deployment of the central armed police forces. Its most cited instrument is the set of guidelines on communal harmony issued to State Governments, which require, among other things, that district authorities identify sensitive areas, hold peace committee meetings, and take prompt preventive action, and which state that officers will be held accountable for failure. Their legal status is that of executive instructions, so they bind the officer administratively but create no right in a victim.

The National Integration Council, first constituted in 1961, is an advisory body chaired by the Prime Minister with Chief Ministers, party leaders and eminent persons as members. It meets rarely and has no executive power, and its principal contribution has been the reports of its working groups.

The National Commission for Minorities, a statutory body under the National Commission for Minorities Act, 1992, has the powers of a civil court under section 9 for the purpose of inquiring into complaints of deprivation of rights, and can look into specific complaints and make recommendations. It cannot compel prosecution.

What the courts have added to the machinery

Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501 is the most detailed judicial contribution.

Faced with a series of lynchings, the Supreme Court laid down preventive, remedial and punitive measures: a nodal officer of at least Superintendent rank in every district assisted by an officer of Deputy Superintendent rank, with a special task force to gather intelligence on persons likely to commit such offences; identification of districts and villages where such incidents have occurred in the preceding five years; regular meetings of the nodal officer with local intelligence units; patrolling of vulnerable areas; removal of inflammatory material from the internet; registration of an FIR without delay; a compensation scheme under what was then section 357A of the Code; designated fast track courts; and, importantly, a direction that failure by a police officer or a district official to comply be treated as an act of deliberate negligence for which departmental action must follow.

There is no communal violence statute. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 was introduced in the Rajya Sabha, referred to the Standing Committee on Home Affairs which reported in December 2006, and was never taken up. Its successor, the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, would have created an offence of dereliction of duty by public servants and a statutory entitlement to relief; it lapsed amid objections that it presumed the culpability of the majority community and encroached on State policing. The practical consequence is that a district magistrate who does nothing commits no offence.

Commissions of inquiry produce findings and nothing else. Under the Commissions of Inquiry Act, 1952 a commission is a fact-finding body whose report binds nobody, as Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 holds; the government need only lay it before the legislature with a memorandum of action taken under section 3(4); and statements made before a commission are not admissible against the maker under section 6. That is why the Srikrishna Commission could name 31 police officers in 1998 with almost no prosecutions following.

The government machinery is extensive on paper, from the Home Ministry's advisories and the National Human Rights Commission's powers under sections 12, 14 and 18 of the 1993 Act down to the district magistrate's powers under sections 148, 163 and 168 to 172 of the Bharatiya Nagarik Suraksha Sanhita and the peace committee in the mohalla, and it is supplemented by a judicial framework in Tehseen Poonawalla, Mohd. Haroon and Kodungallur Film Society which fixes responsibility on named officers. What is missing is legal rather than administrative: no statute makes official inaction an offence, no commission's findings can convict anyone, and the police reforms that would insulate the district officer from the political executive were ordered in 2006 and have not been delivered.