P- 2 Complete - PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS TO JUSTICE AND REPARATIONS) BILL, 2011 –

Part - 2 Complete - PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS TO JUSTICE AND REPARATIONS) BILL, 2011 –

14. Offences by public servants for breach of command responsibility.- (1)
Whoever, being a public servant in command, control or supervision of the
Armed Forces or Security Forces as defined under clause (a) of section 3 of
this Act or assuming command whether lawfully or otherwise, fails to
exercise control over persons under his or her command, control, or
supervision and as a result of such failure offences under this Act are
committed, by persons under his or her command, control or supervision, or
as a result of such failure the said persons fail to discharge their duties
under this Act or any other law for the time being in force, shall be guilty of
the offence of breach of command responsibility, where:-


(a) such public servant either knew or ought to have known having
regard to the circumstances at the time that the persons under his or
her command, control or supervision would commit or be likely to
commit such offences; and,
(b) such public servant failed to take necessary and reasonable measures
within his or her power to prevent or repress the commission of said
offences or failed to submit the matter to the competent authorities for
investigation and prosecution.

(2) Where it is shown that continuous widespread or systematic unlawful
activity has occurred, it can be reasonably presumed that the superior in
command of the public servant whose duty it was to prevent the
commission of communal and targeted violence, failed to exercise
supervision over the said public servant and shall be guilty of the offence
of breach of command responsibility

15. Offences by other superiors for breach of command responsibility.- (1)
Whoever, being any non-state actor or superior or office-bearer of any
association as defined under clause (b) of section 3 of this Act and other
than those mentioned under section 14, in command, control or supervision
of any association or assuming command vested in him or her or otherwise,
fails to exercise control over subordinates under his or her command,
control, supervision and as a result of such failure offences under this Act
are committed by subordinates under his or her command, control or
supervision, shall be guilty of offences committed by such subordinates
under his or her command, where:

(i) such non-state actor or superior or office-bearer of any association
either knew, or consciously disregarded information which clearly
indicated that his or her subordinates were committing or about to
commit such offences;

(ii) the offences concerned activities that were within the effective
responsibility and control of such non-state actor or superior or
office-bearer of any association; and

(iii) such non-state actor or superior or office-bearer of any association
failed to take all necessary and reasonable measures within his or
her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and
prosecution.

16. Superior orders and prescription of law.- Where an offence has been
committed under this Act, the fact that it was committed by a person
pursuant to an order of a superior, shall not relieve that person of criminal
responsibility unless:

(a) The person was under a legal obligation to obey orders of the
superior in question; and

(b) The order was not manifestly unlawful.

17. Abetment of an offence.- A person abets an offence, who –
First – Instigates any person to do that offence; or
Secondly – Engages with one or more other person or persons in any
conspiracy for the doing of that offence, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
offence; or
Thirdly – Intentionally aids, by any act or illegal omission, the doing of
that offence.
Explanation I – A person who, by willful misrepresentation, or by
willful concealment of a material fact, which he or she is bound to disclose,
voluntarily causes or procures, or attempt to cause or procure a thing to be
done, is said to instigate the doing of that offence.

Explanation II – Whoever, either prior to or at the time of
commission of an act, does anything in order to facilitate the commission of
that act, and thereby facilitates the commission thereof, is said to aid the
doing of that act.

CHAPTER III

PREVENTION OF COMMUNAL AND TARGETED VIOLENCE

18. Duty to prevent communal and targeted violence.- (1) Every public
servant charged with the duty of maintenance of public order and
tranquility including duties under sections 129 to 144A of the Code of
Criminal Procedure, 1973, shall take all reasonable steps to prevent any act
of communal and targeted violence including its build-up, incitement,
outbreak and spread; and to that end -
(i) make all possible efforts to identify patterns of violence in the State or any part thereof, that indicate occurrence of communal and targeted violence, including the creation or existence of hostile environment against a group;

(ii) obtain information regarding the likelihood of occurrence of communal or targeted violence; and,


(iii) act in furtherance of the duty to prevent communal and targeted violence in accordance with the powers vested in them;

(2) Every police officer shall take action, to the best of his or her ability, to
prevent the commission of all offences under this Act.

(3) Every public servant exercising powers under this Act in discharge of his
or her duties shall act without any delay in a fair, impartial and non-discriminatory manner.

19. Duty to exercise authority against unlawful assemblies.- A public
servant being charged with any duty under Sections 129 to 144A of the Code
of Criminal Procedure, 1973 shall exercise his or her duty in a fair, impartial
and non-discriminatory manner.

20. Power of Central Government in relation to Organised Communal and
Targeted Violence.- The occurrence of organised communal and targeted
violence shall constitute “internal disturbance” within the meaning of Article
355 of the Constitution of India and the Central Government may take such
steps in accordance with the duties mentioned thereunder, as the nature
and circumstances of the case so requires.

CHAPTER IV

NATIONAL AUTHORITY FOR COMMUNAL HARMONY, JUSTICE AND REPARATION

21. Constitution of National Authority for Communal Harmony, Justice and
Reparation.- (1) The Central Government shall constitute a body known as
the National Authority for Communal Harmony, Justice and Reparation to
exercise the powers and perform the functions assigned to it under this Act.

(2) The National Authority shall be a body corporate with the name
aforesaid having perpetual succession and a common seal with the power,
subject to the provisions of this Act to acquire, hold and dispose of property
and to contract, and may, by the aforesaid name, sue or be sued.

(3) The National Authority shall consist of a Chairperson, a Vice-Chair-person and five other Members.
Provided that, at all times, not less than four Members, including the
Chairperson and Vice-Chairperson, shall belong to a group as defined under
this Act.
Provided further that, at all times, there shall be -

1. one Member belonging to Scheduled Castes or Scheduled Tribes;

2. four women, whether Chairperson, Vice-Chairperson or Member;
Provided further that, at all times, not more than two Members,
including the Chairperson and Vice-Chairperson, shall be retired public
servants.

(4) There shall be a Secretary-General, who shall be an officer of the rank of
the Secretary to the Government of India, appointed in consultation with the
Chairperson, Vice-Chairperson and Members of the National Authority, who
shall be the Chief Executive Officer of the National Authority and shall
exercise such powers and discharge such functions of the National Authority
as it may delegate to him or her.

(5) The headquarters of the National Authority shall be at Delhi and the
Authority may, with the previous approval of the Central Government,
establish offices at other places in India.

22. Appointment of Chairperson, Vice-Chairperson and other Members.-
(1) The Chairperson, Vice-Chairperson and Members shall be appointed by
the President by warrant under his or her hand and seal:

Provided that every appointment under this sub-section shall be
made after obtaining the recommendations of a Selection Committee
consisting of:
(i) The Prime Minister - Chairperson

(ii) Leader of the Opposition in the House of the People - Member

(iii) Minister in-charge of the Ministry of Home Affairs in the
Government of India - Member

(iv) Leader of each recognized national Political Party in the House of
People - Members

Provided further that where the Selection Committee, at any given
time, has even number of members, the Chairperson of the National
Authority shall be the additional member of the Selection Committee.

Explanation - For the purposes of this sub-section, “the Leader of the
Opposition in the House of the People” shall, when no such Leader has been
so recognised, include the Leader of the single largest group in opposition of
the Government in the House of the People.


(2) The process of selection shall be initiated by the office of the Prime
Minister of India within three months of the coming into force of this Act in
the first instance and three months prior to the completion of tenure of the
existing Chairperson, Vice-Chairperson or Member and shall be concluded
within two months.

(3) The decisions of the Selection Committee shall be by a simple majority.

23. Qualifications.- (1) The Chairperson, Vice-Chairperson and Members of the
National Authority shall have the following qualifications and shall be
chosen from amongst persons:
(a) having expertise in relation to law or criminal justice or human rights;
(b) having a record of promoting communal harmony;
(c) being of high moral character, impartiality and integrity; and,
(d) who have not been members of any political party for a period of one
year prior to their selection.

(2) No person shall be eligible to be appointed as a Chairperson, Vice-Chairperson or Member of the National Authority if:
(a) an inquiry into an offence under any law for the time being in force is
pending against him or her or he has been convicted for such offence;
(b) he or she has, in any manner, exhibited bias against any group, by acts
or in writing or otherwise; or
(c) if subject to any disciplinary control, whether a public servant or
otherwise, a disciplinary proceeding is pending against him or her, or
he or she has been found guilty in any such proceeding.

(3) The Chairperson, Vice-Chairperson and Members of the National
Authority shall not contest elections for a period of two years after
completion of their term either under the Government of India or under the
Government of any State except to the office of President or Vice President
of the Union of India.

24. Term of office of Members.- (1) The Members of the National Authority
shall serve on a full-time basis for a six year term.
Provided that at the first selection, two members shall be appointed
for a term of two years, two members for a term of four years, and the
remainder appointed for a term of six years.

(2) A person appointed as Chairperson or Vice-Chairperson shall hold office
for a term of two years from the date on which he or she enters upon his or
her office.

(3) A person appointed as Chairperson or Vice-Chairperson shall not be
eligible for re-appointment in the same capacity.

(4) Except at the first instance, members with two years service in the
National Authority alone will be qualified to be Chairperson or Vice
Chairperson.

25. Resignation and removal of Chairperson, Vice-Chairperson and
Members.- (1) The Chairperson, Vice-Chairperson or any Member may, by
notice in writing under his or her hand addressed to the President of India,
resign from his or her office.

(2) Subject to the provisions of sub-section (2) of section 23, the
Chairperson, the Vice-Chairperson or any Member of the National Authority
shall only be removed from his or her office by order of the President on the
grounds of proven misbehavior or functional incapacity after the Supreme
Court in a reference made to it by the President, has on inquiry, held, in
accordance with the procedure prescribed in that behalf that the person
ought on any such ground be removed.

(3) Notwithstanding anything sub-section (2), the President may by order
remove from office the Chairperson, Vice-Chairperson or any other Member
if the Chairperson, Vice-Chairperson or any other Member, as the case may be -
(a) engages during his or her term of office in any paid employment
outside the duties of his or her office; or
(b) is unfit to continue in office by reasons of infirmity of mind or body;
or
(c) is convicted and sentenced to imprisonment for an offence which in
the opinion of the President involves moral turpitude

(3) The decisions of the Selection Committee shall be by a simple majority.

26. Vacancies in the Authority.- (1) No act or proceedings of the National
Authority shall be questioned or shall be invalidated merely on the ground
of existence of any vacancy or defect in the constitution of the National
Authority.

(2) In the event of the occurrence of any vacancy in the office of the National
Authority caused by any reason, a selection shall be held in accordance with
section 22 to fill the vacancy within two months of the vacancy arising.

(3) A member so appointed to fill a vacancy shall serve for the remainder of
the predecessor’s term and, if that period is two years or less, shall be
eligible for re-selection for a full term.

27. Terms and conditions of service of Chairperson, Vice-Chairperson and
Members.- The salaries and allowances payable to, and other terms and
conditions of services of the Chairperson, Vice-Chairperson and Members
shall be such as may be prescribed.
Provided that neither the salary and allowances nor the other terms
and conditions of service of the Chairperson, Vice-Chairperson or any
Member shall be varied to his or her disadvantage during his or her tenure.

28. Procedure to be regulated by the National Authority.- (1) Subject to the
provisions of this Act and the rules made thereunder, the National Authority
shall have the power to lay down its own procedure.

(2) All orders and decisions of the National Authority shall be authenticated
by the Secretary-General or any other officer of the National Authority duly
authorized by the Chairperson in this behalf.

29. Officers and other staff of the National Authority.- (1) The Central
Government shall make available to the National Authority such police and
investigative staff under an officer not below the rank of a Director General
of Police and such other officers and staff as the National Authority may
deem necessary for the efficient performance of its functions.

(2) Subject to such rules as may be made by the Central Government in this
behalf, the National Authority may appoint such other administrative,
technical staff as it may consider necessary.

(3) The salaries, allowances and conditions of service of the officers and
other staff appointed under sub-section (2) shall be such as may be
prescribed.

(4) The National Authority shall perform its functions on its own or through
the State Authorities appointed under this Act, or through any persons
appointed by it or through such other procedures and mechanisms it may
adopt.

30. Objectives of the National Authority.- The National Authority shall
perform the functions and powers assigned to it in the manner provided in
this Act to fulfill the following objectives:-
(a) preventing any act or acts of communal and targeted violence
including its build-up, incitement or outbreak thereof;
(b) controlling the spread of organised communal and targeted violence;
(c) monitoring due investigation, prosecution and trial of offences under
this Act in a fair and impartial manner; and,
(d) monitoring due relief, reparation and restitution in accordance with
provisions of this Act in a fair and impartial manner.

31. Functions of the National Authority.- The National Authority shall
perform all or any of the following functions, namely:-
(a) inquire or investigate, suo motu or upon any information or otherwise, received in relation to the:
(b) (i) occurrence or likely occurrence of offences of communal and
(c) targeted violence in the manner prescribed by rules under this
(d) Act;
(e) (ii) negligence in the prevention of communal and targeted violence
(f) by public servants.
(g) (b) receive and collect information on:
(h) (i) any acts that indicate a build up by State or non-state actors of
(i) offences under this Act;
(j) (ii) any form of communication, propaganda, mobilisation or the
(k) activities of persons, which may promote enmity or hatred against
(l) groups.
(m) (c) entertain appeals against decisions of the State Assessment Committee
(n) in relation to non-inclusion of names of persons under section 98.
(o) (d) issue advisories and make recommendations, in relation to clause (a)
(p) above and section 32, to State and non-state actors;
(q) (e) frame, in consultation with the Central Government, schemes for relief,
(r) reparation and restitution of all persons entitled under section 90
(s) including those registered under section 98;
(t) (f) frame, in consultation with the Central Government, guidelines in
(u) relation to the prevention and control of communal and targeted
(v) violence;
(w) (g) receive regular reports at least once every quarter on incidents,
(x) outbreaks and patterns of communal and targeted violence from all
(y) State Authorities constituted under this Act;
(z) (h) visit, under intimation to the State Government, any relief camp under
(aa) the control of the State Government, where persons registered under
(bb) section 98 are lodged to review the living conditions of such persons;
(cc) (i) visit, under intimation to the Central Government or the State
(dd) Government, any jails or any other institution under the control of the
(ee) Central Government or the State Government, as the case may be,
(ff) where persons are detained or lodged for the purposes of inquiry or
(gg) investigation into any offence under this Act;
(hh) (j) observe proceedings in court in relation to any offence punishable
(ii) under this Act either through Members of the State Authority or by
(jj) appointing independent observers;
(kk) (k) intervene in any proceeding, involving any allegation of communal and
(ll) targeted violence pending before a court, with approval of such court;
(mm) (l) such other functions that it may consider necessary for the
(nn) preservation of communal harmony and prevention and control of
(oo) communal and targeted violence.
(pp) Provided that where any State Authority has commenced an
(qq) inquiry under powers vested under this Act, the National Authority shall
(rr) not inquire into the same.
(ss) Provided further that the National Authority shall inquire into complaints of organised communal and targeted violence and no State
(tt) Authority shall have the power to inquire into such complaints.

Reality views by sm –
Monday, September 12, 2011

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