Date: Thu, 17 Jan 2008 18:49:35 +0530
From: icc India <iccindiacampaign@gmail.com>
Subject: Fwd: issues related to CV Bill
In-reply-to: <9086a3cf0712191559yc827c10yd236797f63b88c44@mail.gmail.com>
To: harshmander <harshmander@vsnl.net>
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References: <9086a3cf0712191559yc827c10yd236797f63b88c44@mail.gmail.com>

Dear Harsh,

resending the mail sent on 20 Dec. Dont understand how you didnt
receive it / see it.

Please use this email id of mine as this is my work one.
saumyauma@gmail is my personal email id that I do not use for work.

warm regards,

saumya

---------- Forwarded message ----------
From: icc India <iccindiacampaign@gmail.com>
Date: Dec 20, 2007 5:29 AM
Subject: issues related to CV Bill
To: harshmander <harshmander@vsnl.net>, Vrinda Grover <vrindagrover@gmail.com>


Dear Vrinda & Harsh,

I still dont have the latest draft of the Bill (modified recently by
Harsh and others) from either of you.  Going by the earlier one, I am
flagging some of the issues that come to my mind on which
brainstorming and consensus-building are required. Many of these may
already be answered by Harsh's draft, but we might perhaps want to
make sure that there is a broad consensus on the same. Am sure I have
missed out on some issues as I have been working on this from 2.30 -
5.30 a.m., am a bit sleepy now, so please fill in ...

PREAMBLE

What are the objectives of this Bill?
What principles / assumptions are we basing the Bill on? (the govt
draft assumes that communal violence happens because states are too
weak to deal with such situations)
How upfront do we want to be with our principles / assumptions so as
to make the draft acceptable to the govt?

CRIMES
Definition of communal violence - should we have widespread or
systematic or targetted attacks as an umbrella condition to
distinguish between crimes committed in contexts of and CV and those
committed outside it? i.e . should we define CV by scale and / or
method of the violence?
Should the definition of CV be restricted to attacks targetted against
groups based on their religious identity (in conformity with the
layperson's understanding of the term "communal" ) or include other
situations such as attacks based on caste, nationality, political
thought / opinion, culture, language...
List of offences - do we include new crimes beyond the purview of
crimes under existing law? If so, which ones? (e.g. Torture, enforced
disappearances, persecution, social and economic boycott, offences
against children... Gender-based and sexual offences - wider
definition of rape / sexual assault, sexual slavery, forced
pregnancies, forcibly committing miscarriage, forced nudity etc.) How
do we define these new crimes?
What crimes related to administration of justice do we want to spell
out? (e.g. threatening witnesses, refusal to lodge FIRs, drafting of
vague or omnibus FIRs by the police etc.)
Do we need to re-look at the list of offences in the existing draft
from the point of view that all dimensions of a communal violence
situation cannot be answered through a criminal legislation?
What should be the trigger to make this law applicable to a particular
situation of CV? (govt draft had suggested declaring an area to be
communally disturbed, which was not acceptable to many of us)
Do we include 'genocide' and 'crimes against humanity' in list of
offences or do we use their elements and build it into the umbrella
definition that sets out the context of crimes committed in situations
of CV?

PREVENTIVE MEASURES
Do we need to reproduce powers to Magistrate given under CrPC or
merely refer to the same?
Are there other preventive measures not stated in the existing law
that we want to add to the Bill? If so, we need to identify persons /
authorities who would be vested with the responsibilities for the same
How do we make sure that provisions related to inciting hatred and
such other provisions that already exist in law are revitalized and
used effectively for prevention of and prosecutions related to CV?
INVESTIGATION
Do we assign the responsibility of investigation to the police, even
though reports of Commissions of Inquiry have, time and again,
reiterated the partisan role of the police in situations of CV? What
provisions do we build in to ensure accountability and transparency?
Or do we set up a new independent body for investigation which is
separate and distinct from the law and order machinery? If yes, who
constitutes this body? Where will this body get its powers /
authorities / funding / logistical and other facilities for carrying
out investigation? Who will this body be accountable to?
Is referral to CBI a viable option at all?

MAKING LEADERS ACCOUNTABLE

How do we integrate the concept of command / superior responsibility
without making it obvious that we are integrating the same? For
example, could we include it into the definition of crimes?
Are there lessons to be culled out from the definition of and
jurisprudence related to  the crimes of conspiracy & abetment?
How do we circumvent provisions relating to immunity for public officials?
How do we circumvent the 'good faith' clause?
How do we circumvent the requirement for government sanction for
prosecution of public officials?
How do we make sure that there are no sweeping, arbitrary, unfettered
powers given to state officials in situations of communal violence,
either under this or other laws?

RULES OF PROCEDURE & EVIDENCE

Is there a necessity to introduce new rules of procedure and evidence,
keeping in mind the fact that the existing CrPC and Evidence Act have
not been drafted in the context of mass crimes?
If yes, what are the issues on which we depart from established law / rules?
For example, how do we circumvent victims / survivors having to go to
police stations to lodge FIRs with the clear possibility of
intimidation / refusal to lodge FIR / lodging FIRs in a manner
intended to exonerate the accused by the police?
What roles, rules for the prosecution?
Do we endorse the proposal of special courts and speedy trials?
What evidentiary standards do we put in place, keeping in mind that
victims / survivors of CV may not have / may have only delayed access
to government hospitals for medical examination?
How do we make sure that we balance fair trial guarantees with the
need to make procedural and evidentiary law more in tune with the
realities faced by victims / survivors in situations of CV?

PUNISHMENTS & PENALTIES

What punishments do we propose for persons convicted of crimes related to CV?
Other than exclusion of death penalty, are there other principles that
we want to incorporate into the provisions dealing with punishments?
What penalties do we prescribe for officials who fail to do their
duties / violate provisions of this law?
Do we want to impose a fine as part of the penalties? If yes, can we
devise a system by which the fine can be used for reparations to
victims / survivors?

MEASURES RELATING TO RELIEF, REPARATIONS

What provisions for relief? Who is responsible? How to ensure their
accountability?  How to ensure that the relief is given to victims /
survivors in a timely manner?
How do we broaden the concept of compensation to reparations, keeping
in mind the govt resistance to / difficulty in understanding the same?
What components of reparations do we include? compensation /
restitution / rehabilitation / guarantee of non-repetition / apology?
Each of the components will have to be spelt out clearly. For e.g.
restitution could mean rebuilding of houses / religious building /
shops and other properties that were destroyed during CV, restoring
jobs lost by people in the context of  CV ... Rehabilitation could
include counselling, medical treatment etc.
Who are responsible for providing the reparations? Should the courts
be overburdened with this responsibility? Do we envisage another
independent body?
Where will the funds come from?
What mechanisms do we put in place to make sure that reparations are
made in an effective and timely manner, without red tapism?

VICTIM / WITNESS PROTECTION

What measures for victim / witness protection do we add to the Bill,
based on Supreme Court directives, Law Commission recommendations,
existing practices in India, international standards including the ICC
statute, keeping in mind the feasibility in the Indian context?
Should such protective measures be applicable from only at the time of
trial or prior to and subsequent to the trial? what are the starting
and ending points for such protection?
Who are the authorities responsible for extending protection at each phase?
What coordination would be required among various agencies?
What provisions to make the authorities accountable?
LEGAL AID

What provisions do we envisage in relation to legal aid for victims
AND accused (the govt draft only talks about legal aid to accused who
are state officials), keeping in mind the present shortcomings with
the legal aid system?

OVERALL INTEGRATION OF GENDER / VICTIMS' RIGHTS PERSPECTIVE
How do we incorporate a perspective related to gender and rights of
victims / survivors into the Bill as a whole, apart from specific
provisions related to sexual / gender-based crimes and victim /
witness protection measures? For example, could some of this go into
the Preamble? Or could there be a residuary clause saying that nothing
in this law can be interpreted in a manner prejudicial to rights of
women / children / religious minorities / victims / survivors of CV?
just thinking aloud...
Although there are reports stating the impact of communal violence on
children, particularly in the context of Gujarat carnage, I dont think
any of our drafts has dealt comprehensively with crimes committed
against children, children as witnesses in court in situations of CV,
reparations to children etc. Is there a need to examine this aspect?
OTHER CONCERNS

What role do we envisage for NHRC / SHRC / National & state
commissions for minorities, children & women?
How do we make use of the services of some retired judges, IAS
officers etc. who are committed to human rights issues?
What roles do we envisage for us as civil society groups /
representatives, human rights activists & lawyers, social workers?
Should we make linkages between this proposed law and other existing
laws including IPC, CrPC, Evidence Act, SC ST Act, Right to
Information Act, Protection of Human Rights Act etc? If so, how?

Warm regards,

Saumya


On 12/20/07, icc India <iccindiacampaign@gmail.com> wrote:
>
> Dear Vrinda & Harsh,
>
> Here is a list of people that Vrinda and I had identified in Oct to make the CV Bill amendments a wider and much more inclusive process. Have modified and added a few more names to it now.
>
>
>
> PUCL Adv. Suresh
> ALF, Bangalore
> Adv. Balagopal, Hyderabad
> K.G.Kannabiran
> Sujato Bhadro, APDR, Calcutta
> Sharmila, PUCL Mumbai
> Sebastian, PUCL Mumbai
> Mihir Desai, Mumbai
> Sandhya Gokhale, Mumbai
> Sudha Bhardwaj
> Geeta Ramaseshan, Chennai
> Adv. Nagasaila, Chennai
> Babloo, Manipur
> Sanjay Borbora
> NPMHR
> Nupur Sinha, Ahmedabad
> Gagan Sethi
> Sophia Khan
> Martin Macwan
> Albertina, Goa
> Ram Punyani, Mumbai
> Prof.B.B. Pamdey
> Ujjwal Kumar Singh
> Ruchira Goswami (NUJS faculty)
> Rukmini Sen (NUJS faculty)
> Asha Bajpai (TISS faculty)
> Upendra Baxi
> Pratiksha Baxi
> Irfan Engineer, Mumbai
> This is apart from Madhu Mehra, Uma Chakravarti, Farah Naqvi, Usha Ramanathan, Shabnam, Harsh, Vrinda, me and a few others who have already been engaged with the Bill for some time now.
>
> Saumya
>
>
>
> On 12/19/07, Saumya Uma <saumyauma@gmail.com > wrote:
> > ---------- Forwarded message ----------
> > From: harshmander@vsnl.net <harshmander@vsnl.net>
> > Date: Dec 19, 2007 1:06 PM
> > Subject: Re: draft bill most urgent pl
> > To: Vrinda Grover <vrindagrover@gmail.com >, Saumya Uma < saumyauma@gmail.com>
> >
> >
> >
> > dear vrinda and saumya,
> > this is good. are we saying we will postpone 24 dec? if so, pl let us
> > not for too long. can we then pl make it 28 or latest 29 dec?
> > thanks and regards,
> > harsh
> >
> > ----- Original Message -----
> > From: Vrinda Grover
> > To: harshmander@vsnl.net ; uma Chakravarti ; Farah Naqvi ; Usha
> > Ramanathan ; gaganssethi@gmail.com ; shabnam hashmi ;
> > saumyauma@gmail.com ; farah310@gmail.com
> > Sent: Wednesday, December 19, 2007 12:17 PM
> > Subject: Re: draft bill most urgent pl
> >
> > Dear all
> > Well the group is steadily reviving. Uma had called and is on board,
> > she has been in communication with Farah. Saumya and I too had a
> > telecon re modalities of moving ahead.
> > Some suggestions are as follows-
> > Outline thematic areas of the CV law
> > List of people who should be requested/ cajoled / coerced to pitch in
> > allocate themes and issues
> > Set date for everyone to complete work
> > exchange drafts for discussion.
> > reformulate etc....
> > this draft must then be sent out for wider comments and consultation.
> >
> > Saumaya will be sending in the list of persons and themes and subjects
> > that require research, and drafting.
> > I suggest that the following people be contacted to submit drafts on
> > specific parts of the Bill. We can formulate the issue/ concern/roblem
> > and ask them to respond (and hopefully they will)
> > Balagopal - AP
> > Suresh - Chennai
> > Geeta Ramaseshan - Chennai
> > Pratiksha Baxi
> > Madhu Mehra.
> > Sanjay Borbora and others from the North Eastern region
> > ALF - bangalore
> > I am sure there are many others who must be added to this list.
> > Due to X'mas 24th would not be an appropriate date.
> > We need to schedule the first meeting for another date.
> > Warmly
> > Vrinda
> >
> >
> >
> >
> >
> > On 14/12/2007, harshmander@vsnl.net < harshmander@vsnl.net> wrote:
> > > then let us go for 24. is that ok for you as well, vrinda?
> > > harsh
> > >
> > > ----- Original Message -----
> > > From: "Saumya Uma" < saumyauma@gmail.com>
> > > To: <harshmander@vsnl.net >
> > > Sent: Thursday, December 13, 2007 11:00 PM
> > > Subject: Re: draft bill most urgent pl
> > >
> > >
> > > > 24 would be preferable for me.
> > > >
> > > > warm regards,
> > > >
> > > > saumya
> > > >
> > > >
> > > > On 12/13/07, harshmander@vsnl.net < harshmander@vsnl.net> wrote:
> > > >> let us go for 21 or 24?
> > > >> welcome at our office in sarvodaya, unless you prefre else where.
> > > >> who are the others? in those you mailed to, shabnam agrees with the
> > > >> drfat.
> > > >> dont know who else will come.
> > > >> am happy to do all the work necessary when we sit, and after.
> > > >> thanks and warm regards,
> > > >> harsh
> > > >>
> > > >> ----- Original Message -----
> > > >> From: "Saumya Uma" < saumyauma@gmail.com >
> > > >> To: <harshmander@vsnl.net>
> > > >> Cc: < vrindagrover@vsnl.net>
> > > >> Sent: Thursday, December 13, 2007 10:11 PM
> > > >> Subject: Re: draft bill most urgent pl
> > > >>
> > > >>
> > > >> > Dear Harsh,
> > > >> >
> > > >> > I would be free anytime after 18 Dec and before 26 Dec, with the
> > > >> > exception of 22 and 25 Dec.  Based on your and Vrinda's free dates, 23
> > > >> > or 24 dec should suit all of us. But where are the others??????????
> > > >> > How do we distribute the sub-topics? We have to find ways of
> > > >> > efficiently using the one day to arrive at a consensus on all pending
> > > >> > issues, given the urgency of the situation.
> > > >> >
> > > >> > warm regards,
> > > >> >
> > > >> > saumya
> > > >> >
> > > >> >
> > > >> > On 12/13/07, harshmander@vsnl.net <harshmander@vsnl.net> wrote:
> > > >> >> dear saumya and vrinda,
> > > >> >> really delighted to get this. thanks.
> > > >> >> yes, let us meet. vrinda says post 21 dec.
> > > >> >> 21 to 24 dec, anytime would suit me. what about you saumya?
> > > >> >> thanks and warm regards,
> > > >> >> harsh
> > > >> >>
> > > >> >> ----- Original Message -----
> > > >> >> From: "Saumya Uma" < saumyauma@gmail.com>
> > > >> >> To: "Vrinda Grover" < vrindagrover@gmail.com>
> > > >> >> Cc: <harshmander@vsnl.net>
> > > >> >> Sent: Thursday, December 13, 2007 5:25 PM
> > > >> >> Subject: Re: draft bill most urgent pl
> > > >> >>
> > > >> >>
> > > >> >> > Dear Vrinda,
> > > >> >> >
> > > >> >> > Pls send me CV Bill related mails to my official email id. This is
> > > >> >> > my
> > > >> >> > personal one.
> > > >> >> >
> > > >> >> > I would suggest we meet for half a day or one day in Delhi,
> > > >> >> > brainstorm
> > > >> >> > and arrive at an agreement on the draft. Before we meet, we should
> > > >> >> > each take up one aspect of the Bill, give more thought to
> > > >> >> > provisions,
> > > >> >> > draft exact provisions (if some draft doesnt already exist) and
> > > >> >> > bring
> > > >> >> > to the meeting and put it out to others. I dont see the process of
> > > >> >> > consensus-building happening on an urgent basis through email.  I
> > > >> >> > think Harsh's draft is the most recent one we have on the issue, so
> > > >> >> > we
> > > >> >> > could take that as the basis.
> > > >> >> >
> > > >> >> > Am ccing this to harsh as well for his responses. Harsh, please
> > > >> >> > reply
> > > >> >> > to me at
> > > >> >> >
> > > >> >> > warm regards,
> > > >> >> >
> > > >> >> > saumya
> > > >> >> >
> > > >> >> >
> > > >> >> > On 12/11/07, Vrinda Grover <vrindagrover@gmail.com> wrote:
> > > >> >> >> Dear all
> > > >> >> >> After the last urgent email on the CV Bill that I had sent out in
> > > >> >> >> response
> > > >> >> >> to Harsh's request, i only recd 1reply from Saumya from New York. I
> > > >> >> >> had
> > > >> >> >> sent
> > > >> >> >> the non negotiables and some other docs to Harsh which he has
> > > >> >> >> forwarded.
> > > >> >> >> I
> > > >> >> >> am again forwarding Harsh's email to you all. We need to
> > > >> >> >> collectively
> > > >> >> >> do
> > > >> >> >> something on this.
> > > >> >> >> Please respond urgently.
> > > >> >> >> Best
> > > >> >> >> Vrinda
> > > >> >> >>
> > > >> >> >> ---------- Forwarded message ----------
> > > >> >> >> From: harshmander@vsnl.net < harshmander@vsnl.net>
> > > >> >> >> Date: 10 Dec 2007 20:52
> > > >> >> >> Subject: draft bill most urgent pl
> > > >> >> >> To: Vrinda Grover < vrindagrover@gmail.com>, uramanathan@ielrc.com
> > > >> >> >>
> > > >> >> >>
> > > >> >> >>
> > > >> >> >> dear vrinda and usha,
> > > >> >> >> pullock chatterji rang me again on his own from the pmo. i
> > > >> >> >> explained
> > > >> >> >> to
> > > >> >> >> him
> > > >> >> >> where we were, trying to get a more consensual draft. he said the
> > > >> >> >> notes
> > > >> >> >> we
> > > >> >> >> had sent him such as the critiques they are aware of.
> > > >> >> >> he assured me that the process would be exactly as with rti and
> > > >> >> >> nrega.
> > > >> >> >> they
> > > >> >> >> would send our draft, and ask the home ministry to respond to it if
> > > >> >> >> it
> > > >> >> >> had
> > > >> >> >> any disagreements. and the drafting would continue in dialogue with
> > > >> >> >> us.
> > > >> >> >> they are very impatient, and i guess that woth the left's continued
> > > >> >> >> stand
> > > >> >> >> off, they want to do this before an election is suddenly announced.
> > > >> >> >> i
> > > >> >> >> would
> > > >> >> >> feel very badly indeed if we miss this opportunity. so i urge
> > > >> >> >> friends
> > > >> >> >> to
> > > >> >> >> pl
> > > >> >> >> send me a draft that is agreed at this stage. since the dialogue
> > > >> >> >> will
> > > >> >> >> continue from the pmo, we would be able to get changes put in even
> > > >> >> >> as
> > > >> >> >> we
> > > >> >> >> continue.
> > > >> >> >> thanks and warm regards,
> > > >> >> >> harsh
> > > >> >> >>
> > > >> >> >> Harsh Mander
> > > >> >> >> Aman Biradari
> > > >> >> >> B 102, Sarvodaya Enclave,
> > > >> >> >> New Delhi 110017
> > > >> >> >>
> > > >> >> >> We may not be able to do great things. But we can all do small
> > > >> >> >> things
> > > >> >> >> with
> > > >> >> >> great love.
> > > >> >> >>
> > > >> >> >> Mother Teresa
> > > >> >> >>
> > > >> >> >> --
> > > >> >> >> Vrinda Grover
> > > >> >> >> Advocate
> > > >> >> >> N 14A Saket
> > > >> >> >> New Delhi 110017
> > > >> >> >> India
> > > >> >> >> Tel: 91 1...
> > > >> >> >
> > > >> >> >
> > > >> >> > --
> > > >> >> > Saumya Uma
> > > >> >> >
> > > >> >>
> > > >> >>
> > > >> >>
> > > >> >
> > > >> >
> > > >> > --
> > > >> > Saumya Uma
> > > >>
> > > >>
> > > >>
> > > >
> > > >
> > > > --
> > > > Saumya Uma
> > > >
> > >
> > >
> > >
> >
> >
> >
> > --
> > Vrinda Grover
> > Advocate
> > N 14A Saket
> > New Delhi 110017
> > India
> > Tel: 91 11 29563088
> >
> > --
> > Saumya Uma
> >
>
>
>
> --
> ICC-India campaign
> Project of Women's Research & Action Group,
> 601, Chandra Nivas Apartments
> Old Police Lane
> Opposite Andheri (E) Bus Depot
> Andheri (E), Mumbai
> Phone: +91-22-26848702/112



-- 
ICC-India campaign
Project of Women's Research & Action Group,
601, Chandra Nivas Apartments
Old Police Lane
Opposite Andheri (E) Bus Depot
Andheri (E), Mumbai
Phone: +91-22-26848702/112

-- 
ICC-India campaign
Project of Women's Research & Action Group,
601, Chandra Nivas Apartments
Old Police Lane
Opposite Andheri (E) Bus Depot
Andheri (E), Mumbai
Phone: +91-22-26848702/112