12 September 2011

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Complete - PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS TO JUSTICE AND REPARATIONS) BILL, 2011 – Part 1

Complete - PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS TO JUSTICE AND REPARATIONS) BILL, 2011 – Part 1

CHAPTER I

PRELIMNARY

1. Short title, extent and commencement.- (1) This Act is called “Prevention
of Communal and Targeted Violence (Access to Justice and Reparations) Act,
2011”.

(2) It extends to the whole of India.
Provided that the Central Government may, with the consent of the State of Jammu and Kashmir, extend the Act to that State.

(3) It shall come in to force within one year from the date of the passing of this Act.


2. Punishment of offences committed beyond, but which by law may be tried within, India.- Any person liable under any Indian law including this Act, to be tried for an offence committed beyond India shall be dealt in accordance with the provisions of this Act for any act committed beyond India in the same manner as if such act had been committed within India.

3. Definitions.- In this Act, unless the context otherwise so requires:-

(a) “Armed Forces or Security Forces” means Armed Forces of the Union
or Security Forces or Police Forces, as specified in Schedule I.

(b) “association" means any combination or body of individuals, whether
or not registered or incorporated under any law for the time being in
force;

(c) “communal and targeted violence” means and includes 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 her membership of any group, which destroys
the secular fabric of the nation;

(d) “fund” means the Communal and Targeted Violence Relief and
Rehabilitation Fund established under this Act;

(e) “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;

(f) “hostile environment against a group” means an intimidating or
coercive environment that is created when a person belonging to any
group as defined under this Act, by virtue of his or her membership of
that group, is subjected to any of the following acts:
(i) boycott of the trade or businesses of such person or making it
otherwise difficult for him or her to earn a living; or,
(ii) publicly humiliate such person through exclusion from public
services, including education, health and transportation or any
act of indignity; or,
(iii) deprive or threaten to deprive such person of his or her
fundamental rights; or,
(iv) force such person to leave his or her home or place of ordinary
residence or livelihood without his or her express consent; or,
(v) any other act, whether or not it amounts to an offence under this
Act, that has the purpose or effect of creating an intimidating,
hostile or offensive environment.

(g) “prescribed” means prescribed by rules or regulation, as the case may
be, made under this Act;

(h) “public servant” means a public servant as defined under section 21 of
the Indian Penal Code, 1860 as well as any other person deemed to be a
public servant under any other law including this Act for the time being
in force and includes any person acting in his or her official capacity
under the Central Government or the State Government;

(i) “State” shall carry the same meaning as in Article 1 of the Constitution
of India read with Schedule I thereunder;

(j) “victim” means any person belonging to a group as defined under this
Act, who has suffered physical, mental, psychological or monetary harm
or harm to his or her property as a result of the commission of any
offence under this Act, and includes his or her relatives, legal guardian
and legal heirs, wherever appropriate;

(k) “witness” means person who is acquainted with the facts and
circumstances, or is in possession of any information or has knowledge,
necessary for the purpose of investigation, inquiry or trial of any crime
involving an offence under this Act, and who is or may be required to
give information or make a statement or produce any document during
investigation, inquiry or trial of such case and includes a victim of such
offence;

(l) All words and expressions used but not defined in the Act and defined
in the Indian Penal Code 1860, the Indian Evidence Act 1872 or in the
Code of Criminal Procedure 1973, as the case may be, shall be deemed to

have the meanings assigned to them in the said enactments.
(m) In the event this Act is extended to the State of Jammu and Kashmir, any
reference in this Act to a law, which is not in force in the State of Jammu
and Kashmir, shall, in relation to the State, be construed as a reference
to a corresponding law, if any, in force in that State.

4. Knowledge.- A person is said to knowingly direct any act against a person
belonging to a group by virtue of such person’s membership of that group
where:
(a) he or she means to engage in the conduct against a person he or
she knows belongs to that group; or,
(b) with the knowledge that the person belongs to a group, he or she
means to cause injury or harm to such person because of the
membership of such person to that group.

CHAPTER II
OFFENCES
5. Offences of communal and targeted violence.- Offences under section 7
to 12 (both inclusive) shall be offences of communal and targeted violence.

6. Applicability of SC/ST Atrocities Act.- (1) In relation to offences against
Scheduled Castes and Scheduled Tribes, this Act shall apply in addition and
not in derogation of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 except to the extent mentioned in sub-section (2)
and (3).

(2) The provision of rule 6 and 7 framed under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Rules, 1995 in relation to
investigation of offences under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 shall apply to all investigation under
that Act to the exclusion of section 62 and section 85 of this Act.

(3) The provisions of Chapter VII of this Act shall apply to members of the
Scheduled Castes and Scheduled Tribes against whom offences are
committed under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 to the extent relevant.
Provided that any amounts paid under the said Act shall be set off
against any amounts paid under this Act.

7. Sexual assault.– A person is said to commit sexual assault if he or she
commits any of the following acts against a person belonging to a group by
virtue of that person’s membership of a group:
(a) against a woman,
(i) rape;
(ii) gang rape;
(iii) mass rape.
(b) against any person, without their consent or against their will,
(i) the introduction by a man of his penis or any other body part or
an object into vagina, mouth or anus, to any extent;
(ii) causing harm or hurt to reproductive organs or genital organs;
(iii) exposing one’s sexual organs in front of any person;
(iv) sexual contact of any sort, including the performance of sexual
acts for any length of time;
(v) removing the persons clothes, partially or fully, or compelling
that person to undress himself or herself, partially or fully, in
public view or otherwise, or parading that person in undressed
state in public view or otherwise;
(vi) any other act or conduct that subjects that person to sexual
indignity.
Explanation 1– For the purposes of this section, mass rape means the
rape of more than one woman belonging to any group.
Explanation 2– For the purposes of this section, consent shall mean –
(a) The unequivocal voluntary agreement where the person has by
words, gestures, or any form of non-verbal communication,
communicated willingness to participate in the act referred to in
this section;
(b) “Unequivocal voluntary agreement” means willingness given for
specific and be limited to the express act consented to under this
Section.
Explanation 3 – For the purposes of this section, consent shall not be
caused by duress, threat, terror, fear, coercion, undue influence,
misrepresentation or mistake of fact.

8. Hate propaganda.–
Notwithstanding anything contained in any other law
for the time being in force, whoever publishes, communicates or
disseminates by words, either spoken or written, or by signs or by visible
representation or otherwise acts inciting hatred causing clear and present
danger of violence against a group or persons belonging to that group, in
general or specifically, or disseminates or broadcasts any information, or
publishes or displays any advertisement or notice, that could reasonably be
construed to demonstrate an intention to promote or incite hatred or
expose or is likely to expose the group or persons belonging to that group to
such hatred, is said to be guilty of hate propaganda.

9. Organized Communal and Targeted Violence.- (1) Whoever, being an
individual, singly or jointly with others or being a part of an association or
on behalf of an association or acting under the influence of an association,
engages in continuing unlawful activity of a widespread or systematic
nature knowingly directed against a group or part thereof, by virtue of their
membership of that group, by use of violence or threat of violence or
intimidation or coercion or other unlawful means, is said to commit the
offence of organized communal and targeted violence.
Explanation - for the purposes of this section, ‘continuous unlawful
activity of a widespread or systematic nature knowingly directed against a
group or part thereof’ means the course of conduct involving the multiple or
mass commission of acts referred to in this section, whether spontaneously
or planned, whether over a short or prolonged period or in one place or a
number of places simultaneously or otherwise, against any group or part
thereof.

(2) Where it is shown that continuing unlawful activity of a widespread or
systematic nature has occurred, it could be reasonably presumed that the
public servant charged with the duty to prevent communal and targeted
violence has failed to act to prevent the widespread or systematic unlawful
activity.

10. Aiding financially, materially or in kind for commission of offence
under this Act.- Whoever knowingly expends or supplies any money or any
material or aids in kind thereof, in furtherance or in support of an act which
is an offence under this Act is said to be guilty of aiding financially in the
commission of an offence under this Act.

11. Offence under the Indian Penal Code, 1860.- The offences under the
Indian Penal Code, 1860 provided in:
(a) Schedule II, Part A of this Act; or
(b) Schedule II, Part B of this Act, when committed against any person
belonging to a group by virtue of his or her membership to that
group,
shall be deemed to be offences of communal and targeted violence under
this Act and shall be dealt with accordingly.



12. Torture.– Whoever, being a public servant, or under the control or direction
of or with the acquiescence of a public servant, intentionally inflicts pain or
suffering, whether mental or physical, on a person belonging to a group by
virtue of his or her membership of a group, including causing grievous hurt
or danger to life, limb or health or sexual assault, for the purposes of
obtaining from him or her or a third person information or a confession or
punishing him or her for an act he or she or a third person committed or is
suspected of having committed, or intimidating or coercing him or her or a
third person, is said to inflict torture.
Provided that nothing contained in this section shall apply to any
pain, hurt or danger as aforementioned caused or inflicted in accordance
with law.

13. Dereliction of duty.- When any person who is or was a public servant not
removable from his or her office save by or with the sanction of the Central
Government or State Government, as the case may be, authorized to act
under any provision of this Act:
(a) exercises the authority vested in him or her colourably or in a
manner otherwise than provided under law for the time being in
force, which causes or is likely to lead to an offence of communal and
targeted violence or by which he or she intends to screen or knowing
it to be likely that he or she will thereby screen any person from legal
punishment; or,
(b) omits to exercise lawful authority vested in him or her under law,
without reasonable cause, thereby fails to prevent the commission of
communal and targeted violence, breach of public order or
disruption in the maintenance of services and supplies essential
to a group,
shall be guilty of dereliction of duty.
Explanation - For the purpose of this section, dereliction of duty shall
also include the following:
i being charged as such public servant with the duty, who
refuses to:
a) protect or provide protection to any victim of
communal and targeted violence;
b) record any information under sub-section (1) of
section 154, Code of Criminal Procedure, 1973
relating to the commission of any scheduled offence
or any other offence under this Act; or prepares,
frames or translates any document or electronic
record incorrectly;
c) investigate or prosecute any scheduled offence or any
other offence under this Act;
ii being charged as such public servant, failing to perform his
or her duties under section 18 of this Act, to take all
reasonable steps to prevent any act of communal and
targeted violence including its build-up, incitement, outbreak
and spread, and to discharge his or her duties without delay
in a fair, impartial and non-discriminatory manner;
iii being charged as such public servant, failing to perform his
or her duties under section 65 of this Act, to conduct a
medical examination without any delay in relation to a
victim who has suffered physical injury including sexual
assault;
iv being charged as such public servant, failing to perform his
or her duties under section 68 of this Act, to take all
reasonable steps to preserve relevant documents and
records;
v being charged as such public servant, failing to perform his
or her duties under sections 69, 86 and 87 of this Act, to take all reasonable steps to protect victims, informants and witnesses;

vi furnishes false information on any issue within his or her purview and responsibility. If the information which the public servant is legally bound to give, is with respect to the commission of an offence under this Act, or is required for the purpose of preventing the commission of an offence under this Act,

vii exercises his or her legal authority corruptly or maliciously to register a false case against a person, or arrest or confine a person

viii being legally bound as such public servant, intentionally omits to apprehend or to keep in confinement any person charged with or liable to be apprehended for an offence under this Act, or intentionally suffers such person to escape or intentionally aids such person in escaping;

ix knowingly or intentionally omits to furnish assistance that he or she is legally bound to provide to any public servant for the purpose of executing any process, summons or warrant lawfully issued by a Court of Justice, or of preventing the
commission of an offence under this Act or of suppressing affray, or of apprehending a person charged with or guilty of an offence;

x where a public servant gives any information which he knows or believes to be false or suppresses any information or omits to give any information intending thereby to cause or knowing it to be likely that it will thereby cause injury or harm to any person belonging to a group;

xi being charged as such public servant, failing to take all reasonable steps to exercise duties under Chapter VII of under this Act;
shall be guilty of dereliction of duty

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