Communal Violence

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Introduction
Communal violence — violence between or targeted at groups identified by religion, ethnicity, language or similar communal markers — is not merely a law-and-order phrase. It implicates criminal law, constitutional federalism (public order and police being state subjects), human rights, evidence law, criminal procedure and disaster management. For practitioners, communal violence cases are complex: multi‑charged dossiers, mass‑witnesses, political overtones, evidence scattered across electronic and physical media, and the urgent need for both preventive and remedial measures. This article sets out the primary legal framework, the day‑to‑day mechanics of investigation and trial, controlling judicial precedents, and hard‑nosed tactical advice for litigators who handle these matters.

Core Legal Framework
Primary statutes and provisions most frequently engaged in communal violence matters:

  • Indian Penal Code, 1860
  • Section 141 — Unlawful assembly (definition): an assembly of five or more persons is an “unlawful assembly” if the common object is, inter alia, to overawe by criminal force or to commit a crime.
  • Section 146 — Rioting (definition): whenever force or violence is used by an unlawful assembly in prosecution of the common object, it is rioting.
  • Section 147 — Punishment for rioting.
  • Section 148 — Rioting, armed with deadly weapon.
  • Section 149 — Every member of an unlawful assembly guilty of any offence committed in prosecution of common object.
  • Section 153A — Promoting enmity between different groups on grounds of religion, race, etc.
  • Section 295/295A/298 — Injuring or outraging religious feelings and related offences.
  • Section 307/302/324/325 etc. — Attempt to murder, murder, causing hurt with dangerous weapon, grievous hurt that arise out of communal clashes.
  • Section 120B — Criminal conspiracy (used when violence is planned).

  • Section 34 — Acts done by several persons in furtherance of common intention (frequently invoked with 149, and requires different mens rea analysis).

  • Code of Criminal Procedure, 1973 (CrPC)

  • Section 154 — Information in cognizable cases (FIR) — entry point for criminal investigation.
  • Section 156(3) — Power of Magistrate to direct police to investigate.
  • Section 144 — Prohibitory orders to prevent assemblies (preventive relief).
  • Sections 107–110 — Security for keeping the peace and good behaviour (preventive bind‑overs).
  • Section 174 — Duties of police in inquiry into suspicious death (important where deaths occur during riots).
  • Sections 436–439 — Bail provisions (practical differences between Sessions/High Court/Supreme Court and grant of bail in non‑bailable offences).

  • Section 482 — Inherent powers of High Court (used for critical supervisory relief, quashing of FIRs, or directing investigations/trial transfers).

  • Indian Evidence Act, 1872

  • Section 27 — Discovery of fact from information obtained from accused (useful where accused leads police to weapons).

  • Section 65B — Admissibility and authentication of electronic records (critical for CCTV, WhatsApp, social media evidence).

  • Other relevant instruments and institutions

  • Protection of Human Rights Act, 1993 — NHRC inquiries, recommendations.
  • Prevention of Damage to Public Property Act, state public order laws, and various state riot‑management rules.
  • Constitutional provisions: Articles 14, 15 (discrimination), 21 (life and liberty), Article 355 (center’s duty to protect states).

Practical Application and Nuances
How lawyers, magistrates and police use these provisions on the ground — practical and evidentiary points.

  1. Framing the event: rioting vs. isolated offences
  2. Common tactical starter is categorization: is the episode “rioting” (Sections 141, 146, 147) or a sequence of isolated assaults and criminal acts? To establish rioting, prosecution must show (a) an assembly of five or more persons, (b) a common object falling within Section 141, and (c) use of force/violence in prosecution of that common object. Where these elements are shown, Section 149 will make each member guilty of offences committed in prosecution of the common object.

  3. Practical tip: prosecution should build documentary and testimonial proof of the assembly (photographs, videos, witness testimony pointing to the common object, seizing of flags/placards/megaphones) and link particular acts to the assembly (weapons recovered from the crowd; movement traced by video).

  4. Distinguishing Section 34 (common intention) and Section 149 (unlawful assembly)

  5. Section 34 requires a prior meeting of minds (common intention) among those who actually committed the act; Section 149 imputes collective guilt to members of an unlawful assembly for acts committed in prosecution of the common object. In practice, prosecutors plead both (with different factual matrices): 149 is suitable where a large crowd acts together; 34 is sued where a smaller conspiratorial core acted.

  6. For defendants, raising the distinction is a common defence: deny membership of the unlawful assembly, deny that the accused’s presence was voluntary, or show no common object.

  7. Incitement and speech offences

  8. Charges under Section 153A, 295A and Section 505 IPC are frequent where hate‑speech or deliberate provocation precedes violence. Conviction requires proof of intent (or knowledge) to promote enmity or the tendency of speech to do so — the causal link between speech and subsequent violence strengthens the prosecution case.

  9. Evidence: speeches (audio/video), social media posts, pamphlets, records of public meetings, and witness testimony. For admissibility of electronic evidence, strictly comply with Section 65B — preserve originals, maintain chain of custody, obtain certificates.

  10. Investigation: forensic mapping of a riot

  11. Immediate steps the investigator must take (and which lawyers should insist on):
  12. Prompt FIR (Section 154) and avoidance of delay/alleged ‘political’ tampering.
  13. Preservation of CCTV footage, mobile phone data (CDRs), seizure memos for weapons, clothes, burnt material.
  14. Forensics: ballistic reports, autopsy reports, injury documentation and location mapping of incidents.
  15. Use of call detail records, geo‑tagging, and modern digital evidence; collect 65B certificates contemporaneously.

  16. Identification parades (conducted fairly) and ensuring statements under Section 161/162 CrPC are properly recorded; be aware statements to police are not substantive evidence but can be used for contradiction.

  17. Victim protection and witness management

  18. High‑risk witness intimidation is common. Witness protection is critical: change of venue for witnesses, anonymity orders, protective custody, and in‑court measures (screening, video testimony) — request these early via magistrate or court.

  19. Where the state is the accused or implicated, consider seeking an independent probe (CBI/SIT) or transfer of trial; courts have exercised powers to direct central investigation where local processes undermine confidence (see Landmark Judgments).

  20. Bail and remand practice

  21. Bail applications in communal violence are frequently denied because courts weigh the severity of offences, risk of re‑offending, witness intimidation, and flight risk.

  22. For defence counsel, prepare persuasive materials: medical records, alibi evidence, employment bonds, role‑specificity (no prima facie link to violence), and undertake to coordinate for monitoring where appropriate.

  23. Preventive remedies

  24. Use of Section 144 CrPC and bind‑over proceedings (Sections 107–110) to prevent gatherings when tensions rise.

  25. Seek interlocutory orders for policing, curfew imposition or neutral deployment of forces where credible threats are present.

  26. Compensation, restitution and rehabilitation

  27. Criminal courts can order compensation under Section 357 CrPC or refer victims to state compensation schemes; litigators should collate loss documentation and press for interim relief and quick rehabilitation measures.

Landmark Judgments
– Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158 (the “Best Bakery” matter)
– Principle: Supreme Court emphasized witness protection, independence of investigation when the state fails to prosecute impartially, and the necessity of ensuring a free and fair trial in communal violence cases. The Court monitored and intervened to safeguard witnesses and the integrity of the prosecution.
– Practical consequence: Courts will not hesitate to direct an independent probe, transfer trial or implement protective measures where local processes are compromised.

  • Prakash Singh & Ors. v. Union of India, (2006) 8 SCC 1
  • Principle: While primarily a police‑reform decision, it underscores institutional accountability, the need for professional, impartial policing and the responsibilities of state machinery to prevent and address communal violence.

  • Practical consequence: Judicial expectation of professional policing and adherence to norms; lawyers can seek compliance directions and point to systemic failures when arguing for remedial steps.

  • D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

  • Principle: Mandates safeguards during arrest and detention (e.g., identification of arresting officers, recorded time of arrest, medical examination, access to family/legal counsel).
  • Practical consequence: In communal violence arrests, strict adherence to Basu directives reduces risk of custodial abuses and strengthens the prosecution’s credibility; defence counsel should ensure Basu protocols are enforced to protect client rights.

Strategic Considerations for Practitioners
Practical, actionable advice for prosecution and defence counsel.

For prosecutors and victim counsel:
– Build a narrative: communal violence cases hinge on connecting disparate incidents into a coherent story of organized violence. Map chronology, identify leaders, chart movement of crowds, and connect provocative acts/speeches to violent outcomes.
– Prioritise digital evidence: Secure CCTV, social media, WhatsApp forwards, and obtain Section 65B certificates. Preserve metadata and ensure forensic imaging of devices.
– Use cluster‑analysis: map locations of incidents, weapon recoveries, and fatalities to demonstrate common object and orchestration rather than random episodes.
– Witness management is non‑ negotiable: early protection orders, relocation, and stern measures against tampering. Use video‑conferencing for vulnerable witnesses if necessary.
– Seek supervisory orders where local investigation is compromised: High Courts and Supreme Court have wide supervisory jurisdiction to direct independent probes.

For defence counsel:
– Attack membership and identity: Disprove presence in the unlawful assembly; show entrapment, mistaken identity, or coerced statements. Employ alibi witnesses and video evidence favourable to the accused.
– Challenge the common object: Show absence of any prior agreement to commit the criminal acts; demonstrate that the accused’s conduct does not fall within the common object.
– Scrutinise police procedure: Use D.K. Basu and CrPC safeguards to challenge arrests that are procedurally defective. Expose delayed FIRs, inconsistent seizure memos, or missing chain of custody for electronic evidence (65B compliance).
– Use fragmentation in prosecution case: Communal cases often contain multiple, inconsistent witness statements. Effective cross‑examination can create reasonable doubt about identification and intent.
– Bail strategy: Prepare a comprehensive bail brief—documentary proof of character, employment, community standing, and specific rebuttal to allegations of witness tampering.

Common pitfalls to avoid
– For prosecution: reliance on hearsay without proper 65B certificates for electronic records; failure to protect witnesses early; lax seizure memos and chain of custody that render physical evidence inadmissible.
– For defence: conceding membership of a crowd without contextualizing presence; failure to obtain contemporaneous medical/legal records; under‑playing the importance of digital forensics (which prosecution will weaponize).

Conclusion
Communal violence cases sit at the intersection of criminal law, public order and human rights. Successful handling demands early, meticulous evidence preservation; an evidence‑driven narrative that links assembly, intention and action; vigorous witness protection; and tactical use of preventive remedies under CrPC. Judges will look for impartial policing, procedural compliance, and credible investigative traillines; practitioners who align their strategy with these expectations — and who respect the technical prerequisites for electronic and forensic proof — markedly improve their chances of success. In short: act fast, preserve rigorously, manage witnesses securely, and craft a fact‑based legal theory that ties the mosaic of violence into a prosecutable (or defensible) whole.