Sectarian violence

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Introduction

Sectarian violence — violent clashes, intimidation or discrimination directed at persons because of their religion, sect, caste or community affiliation — is a recurrent and legally complex phenomenon in India. Beyond the immediate criminality (homicide, arson, rioting), sectarian violence engages constitutional guarantees (equality, liberty, freedom of religion), public order law, police accountability, evidence-intensive prosecution, preventive remedies and state liability for failures of protection. For practitioners handling either enforcement or defence, mastery of the statutory architecture, investigative mechanics, reliefs available from courts and on-the-ground evidential practice is indispensable.

Core Legal Framework

Constitutional provisions
– Article 14 (equality before law) and Article 15 (non‑discrimination) — front-line constitutional guarantees when violence targets a religious/caste group.
– Articles 25–28 (freedom of religion) — protect religious practice; also the site of tensions in sectarian contexts.
– Article 21 (life and personal liberty) — state’s positive obligation to protect lives during communal unrest.

Criminal law (principal provisions of the Indian Penal Code, 1860)
– Section 141–151 IPC — Unlawful assembly and rioting (esp. sections 141, 146, 147, 148, 149). Section 149 imputes liability for acts done in prosecution of the common object of an unlawful assembly.
– Section 153A IPC — “Whoever … promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground … enmity or hatred between different groups … and thereby commits any act prejudicial to maintenance of harmony” (criminalizes promotion of enmity).
– Section 153B IPC — Imputations, assertions prejudicial to national integration.
– Section 295A IPC — Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
– Section 505 IPC — Statements conducing to public mischief, including statements inciting violence.
– Sections 302/307 IPC — Murder / attempt to murder (where death or attempted death occurs).
– Section 120B IPC — Criminal conspiracy (useful where a common plan is alleged).
– Section 201 IPC — Causing disappearance of evidence / giving false information to screen offenders.
– Section 34 IPC — Acts done by several persons in furtherance of common intention.

Criminal Procedure and police powers
– Section 154 CrPC — FIR; the starting point of criminal investigation.
– Section 156(3) CrPC — Magistrate’s power to direct police investigation.
– Section 144 CrPC — Magistrate’s power to issue prohibitory orders in urgent cases of nuisance or apprehended danger to public tranquility.
– Sections 107–110 CrPC — Security for keeping the peace / good behaviour.
– Sections 129–130 CrPC — Dispersal of unlawful assembly and use of force.
– Section 151 CrPC — Preventive arrest of a person breaking or attempting to break the peace.

Other statutory and administrative instruments
– Information Technology Act, 2000 — takedown/trace and preservation provisions (s.69, s.79 intermediaries) for incitatory social-media content.
– State police acts and standing orders – operational rules for policing assemblies and curfew.
– Commission of Inquiry Act, 1952 — judicial or non‑judicial enquiries recommended or ordered post‑violence.
– Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — applicable if violence targets SC/ST persons under offences identified in the Act.
– Compensation jurisprudence and human-rights mechanisms — NHRC / State HRC for systemic failure.

Practical Application and Nuances

How sectarian violence unfolds legally — immediate to long-term steps

  1. Immediate first steps (victim-side)
  2. FIR and MLC: File a detailed FIR under appropriate sections (rioting — 147/148/149; specific offences such as 302, 307; 153A / 295A where incitement or insult is involved; 120B/34 if conspiracy/common intention is alleged). Obtain medico‑legal certificate and photographs of injuries and property damage immediately.
  3. Preservation: Apply ex parte for preservation of CCTV and call data records (CDRs) — courts routinely direct preservation orders against service providers (IT Act/CrPC route).
  4. Evidence collection: Identify independent witnesses, record their statements (under Section 161 CrPC through police, and at earliest pursuant to anticipatory statements before Magistrate where possible), collect electronic evidence, take inventories of damaged property, preserve clothing.

  5. Immediate court reliefs: approach Magistrate for restraining orders under Section 144 CrPC, or for police protection, shelter, and urgent interim relief; civil remedies (injunctions, custody of children) where relevant.

  6. Investigation nuances

  7. Multi‑offence framing: Pleadning and prosecution must reflect the mosaic of offences — rioting (collective liability), specific violent acts (individual culpability), incitement via speech/social media (153A, 505), and conspiracy/abetment if leadership directed violence (120B, 34, 107/116 CrPC’s preventive proceedings may also be relevant).
  8. Proving common intention/conspiracy: Evidence of planning (meetings, coordinated movements, messages), role of leaders (speeches, distribution of weapons), mobilization of groups, and contemporaneous conduct are key. Section 149 may fix liability for every member of an unlawful assembly if an act falls within the common object — proving membership in the assembly and the common object is critical.
  9. Role of social media: Courts accept screenshots, forwarding chains, timestamps, and platform metadata — but chain of custody and authentication matter. Use preservation orders early and invoke intermediary liabilities / disclosure provisions under the IT Act coupled with court orders.
  10. Identification: Eye‑witness testimony in mob situations is notoriously unreliable. Corroborate with CCTV, call records, weapon disposal traces, forensic evidence (ballistics, blood stains) and expert analysis of digital evidence.

  11. State culpability: If lapses by police or administration are alleged, petition for independent investigation (SIT/CBI), and rely on mandamus under Article 226/32 for protection and investigation. Delays and evidence tampering are grounds for seeking special investigation.

  12. Prosecution strategy and trial issues

  13. Cluster charges to reflect both collective and individual acts: charge-sheet should articulate the specific role of each accused, and not merely attach blanket Section 149 labels without facts.
  14. Witness protection: Seek court directions for anonymity, in‑court barriers, video‑link testimony, relocation, and police protection under guidelines from Zahira Habibullah (see Landmark Judgments).
  15. Forensic and electronic evidence: secure expert opinions and ensure admissibility by preserving metadata and obtaining certificate under Section 65B Evidence Act (for electronic records).

  16. Bail considerations: In serious offences arising from sectarian violence, courts balance statutory bail principles with threat to public order and risk of tampering. Advocate robust surety proposals, monitoring conditions, or, for the prosecution, oppose bail based on tampering risk and likelihood of repeat offences.

  17. Civil and administrative remedies

  18. Compensation and rehabilitation: Victims can seek compensation in civil courts or through writ petitions (Article 32/226) alleging state failure; seek interim shelter and relief.
  19. Commissions and inquiries: Where systemic failure is alleged, invoke Commission of Inquiry processes and administrative remedies; consider NHRC/State HRC complaints.
  20. Preventive public law measures: PILs challenging executive inaction, seeking police reforms, or enforceable SOPs for riot control.

Concrete examples (typical arguments and evidence)
– To establish that a speaker incited sectarian violence: adduce the speech/video (authenticated under Section 65B), show temporal link between speech and outbreak of violence, cross‑reference phone records showing coordination, and produce contemporaneous police/official reports that note crowd mood.
– To show conspiracy/organisation (120B/34): rely on WhatsApp groups, meeting minutes, transfer of funds for logistics, purchase records of weapons, and testimonies of co‑conspirators or recovered documents.
– To pin leadership liability through Section 149: show that accused were members of the unlawful assembly with a common object (e.g., assembly gathered with weapons and slogans), and that the particular act (e.g., arson) fell within that common object.
– To allege police dereliction: collect first information of senior officers’ movements, duty rosters, call logs, and orders issued; cite non‑compliance with Prakash Singh police reforms (where applicable) to demonstrate systemic failures.

Landmark Judgments

  • S.R. Bommai v. Union of India, (1994) 3 SCC 1 — reiterated secularism as part of the basic structure; the judgment underscored that state action (or inaction) in maintaining public order during communal tensions can engage constitutional review, and that central/state instruments (like dismissal of state governments) must be exercised without arbitrary bias. Bommai is central to challenges where state response to communal unrest is contested.

  • Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158 — arising from the Gujarat 2002 disturbances, the Supreme Court laid down wide-ranging directions for witness protection, specially in cases of communal violence, recognising the vulnerability of witnesses and the need for procedural safeguards to ensure fair trials.

  • Prakash Singh v. Union of India, (2006) 8 SCC 1 — the Court issued directions for police reforms to make policing more accountable and responsive. These directives have direct application to improving prevention and handling of communal unrest; practitioners often invoke deficiencies against the state by reference to this judgment.

  • D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 — prescribing arrest and detention safeguards (identification, rights to inform, medical examination, arrest memos). These safeguards are routinely pressed in cases arising out of communal clashes to prevent custodial excesses and protect rights.

Strategic Considerations for Practitioners

For victim-side counsel
– Move fast: the battle for evidence is won in the first 48–72 hours. Immediate preservation applications (CCTV/CDRs), medical records, and FIR drafting set the case’s trajectory.
– Multi-disciplinary evidence plan: combine witness statements, forensic evidence, digital evidence and administrative records to link individual actors to violence.
– Seek protective measures: witness protection (Zahira), interim police protection, and care for vulnerable groups (women, children).
– Consider public interest and human rights routes: NHRC/State HRC complaints, PILs for wider accountability and relief, and claims for compensation under Article 21 writs.
– Avoid communal rhetoric in filings: plead facts clinically; emotional or communal language can prejudice proceedings or be used by defence.

For defence counsel
– Challenge identification and chain of custody: emphasize unreliable eye‑witness evidence in chaotic mob situations; scrutinize authentication of electronic records and Section 65B certificates.
– Distinguish individual conduct from collective liability: resist blanket 149 imputations where the prosecution’s evidence does not show common object or member‑ship of the assembly.
– Bargain on bail strategy: where the client faces charges with political sensitivity, early, well-drafted bail applications with undertakings, reporting conditions and sureties have higher success.
– Watch for prosecutorial overreach: object to added offences without materials; move for particularized framing of charges under Section 227/229 CrPC.

Common pitfalls to avoid
– For prosecution: filing a charge-sheet without particularizing individual acts — generic group allegations are vulnerable to being struck down.
– For both sides: neglecting preservation of metadata and chain of custody for electronic evidence; failing to take contemporaneous statements; delay in filing FIRs and MLCs that undermines credibility.
– For victim lawyers: failing to secure institutional remedies (Commission inquiries, NHRC) where systemic failures are evident; treating criminal and civil remedies as mutually exclusive (they are complementary).
– For defence lawyers: relying solely on procedural objections without affirmative evidence to counter forensic/digital evidence.

Checklist for first 72 hours (practical, tactical)
– File/ensure FIR registered with correct offences.
– Obtain medico-legal certificate and photographs; secure property inventories.
– Apply for preservation of CCTV and CDRs and serve notices on intermediaries.
– Identify and record contact details of independent witnesses and protect them.
– Seek immediate judicial orders for police protection and preservation of evidence.
– In cases of mass displacement, file pleadings for relief/rehabilitation and interim compensation.

Conclusion

Sectarian violence sits at the intersection of criminal law, constitutional duties of the state and modern evidentiary challenges presented by digital platforms. For practitioners the keys are speed, evidence preservation, an integrated legal strategy (criminal prosecution, public law remedies, human‑rights routes and civil relief), and deft use of procedural safeguards (witness protection, Section 144/CrPC orders, preservation notices). Landmark rulings — notably S.R. Bommai, Zahira Habibullah and Prakash Singh — provide doctrinal and practical tools to litigate state accountability and secure fair prosecutions. Success in these matters hinges less on rhetoric and more on the disciplined assembly and authentication of a multi‑modal evidentiary narrative linking perpetrators, planners and protectors (or the lack thereof).