– An anaylsis –
by S. K Singh
The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 contains 9 chapters and 4 schedule having 138 sections. For sheer gall, there is nothing to beat the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011. If allowed to become law in its current form, it will not only exacerbate communalism, but also destroy the foundation of our federal structure. Here are nine reasons why the Bill must be jettisoned lock, stock and barrel and a new drafting committee comprising all major political parties set up in its place to prepare an alternative.
1. It is suprising why an unelected body like the National Advisory Council (NAC), which is home to Sonia Gandhi groupies, was allowed to draft a bill that is so crucial to communial harmony. This is a Bill that requires a national consensus and getting a bunch of Congress leaning activists to masquerade as the voice of civil society is nonsense.
2. The Bill is itself communal in nature. According to a key difinition on the people who are presumably the focus of targated violence under section 3(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. This means that if a person belongs to any of the above groups as mentioned under the Bill then he can be subjected to violence. Hostile environment can only be created for these groups under section 3 (f) of this Bill.
Section 3(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.
If we study both these sections together brings out the following:
a) The ‘group’ can only be muslims, christians and SC/ST.
b) That apart them there cannot be any victims of targeted violence. It is clear that Hindus just cannot complain if they are victims of targeted violence i.e. those who died in torchinf 5-6 coach cannot be victims in terms of this bill. Question is how will they be categorized. How will they get compensations? Who will compensate them? Sadly they would be left out in the cold.
c) The ‘group’ is defined on Statewise basis. What about local groups? For example, there are districts in West Bengal where Hindus are a Minority, hence a GROUP. But in terms of definition of the bill, Hindus are a majority in West Bengal. Hence they cannot be victims!!
Read further, Section 2, providing for extra territorial juridiction.
Punishment of offences committed beyound, 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.
Examine in the hight of Article 14, then it would be very difficult to understand as to why only a particular group of Indian society is included under the act.
Christian in Egypt qualify to a ‘group’. Anti christian violence by Egyptian muslims seems to be punishable under this bill. But question is how those Egyptians can be brought to justice in India. No way.
Section 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 i) he or she means to engage in the conduct against a person he or she knows belongs to that group; or ii) with the knowledge that the person belongs to a group, he or she means to cause injury or harm to such person because of membership of such person to that group.
At the risk of sounding stupid, how do you prove this? This will require the sevices of Clairvoyant who can read the minds.
Section 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 Central Govt. or State Govt, as the case may be, authorised to act under any provision of this Act exercise the authority vested in him or her colourably or in a manner otherwise than provided under the law for the time being in force, which causes or is likely to lead to an offence of communal and targeted violance 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 ii) 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 violance, breach of public order or disruption in the maintance of services and supplies essential to a group shall be guilty of dereliction of duty. If you take away that fact that religious minorities and the SC/STs between them account for ever 40% of the total population, the Bill cleverly posits that the other 60% (which may include upper castes Hindus, other backward castes and some miscellaneous groups) are the only people capable of targeted violence. Are we saying 40% can never target 60%, given that these numbers are distributed all over the country?
Take the case of Punjab and Kerala. In Punjab, the Shikhs constitute a slim majority of the population, but with an SC/ST share of close to a third (and, therefore, excluded from the definition of people who can target violence against some group), we have the situation where the majority (Hindus and SC/ST Sikhs) is supposely being targeted by upper crust Sikhs (the majority minorities). This is hilarious.
The same in the case in Kerala, where the nominal Hindus population out of the Hindus total, Hindus are by no stretch of imagination the majority, according to this Bill. So a minority (Hindus minus SC/STs) will be targeting other minorities.
Clearly, the Bill is not meant to tackle communalism, but to divide the people further into majorities and minorities, with only the latter being privileged enough to be considered a victim of targeted violence.
3. The NAC draft is clearly driven by just one-admittedly important- case of communal violence: Gujarat in 2002. Any law that is drawn up on the basis of the one outlier incident is likely to be draconian and foolish. The Bill is clearly targeted against the Sangh Parivar (no quarrel with that, as long they weren’t the only ones targeted) when the objective should be to prevent communal violence of any kind. But where the 1992 riots in Mumbai and the 1993 blasts the result of Hindu Conspiracy? Where all the blasts that took place in India the last decade (barring the ones perpetrated by a bunch of extreme Hindu Organisations in Malegaon) the result of upper castes violence against the minorities or the reverse? Let’s also not forget that the country’s worst communal riots did not happen during BJP watch (Gujarat in the late 1960’s and the 1984 anti-sikh riots). The only case of gigantic ethinic cleasing in India happened in Kashmir, where the majority drove out the Pandits (albeit with the help from across the border).
4. The NAC draft bill, if is passed like anything in its present form, will destroy the federal character of the Indian Union. Law and order is a state subject, and so any law that seeks to take this right away and shift it to the centre is unconstitutional. If passed, the law will stoke the fire of sub-regionslism since regional chauvinists will cite the reduction of State powers as reason to advocate secessionism. It will create Kashmirs out of every Indian State that is not ruled by the Congress.
5. The bill will seek to create a National Authority of Communal Harmony, Justice and Reparation with a seven member panel that will effectively be unaccountable to anyone. It is supposed to be selected by a panel that includes the Prime Minister, the Home Minister, the Leader of Opposition in the Lok Sabha, and nominees of all the national political parties (there are seven of them – Congress, BJP, CPI, CPM, BSP, RJD and NCP). It is not clear if the congres and BJP will have additional representation (from the party side) since they already have ex-officio seats as PM, Home Minister and the leader of the opposition in the Lok Sabha. Since the selection of Reparation will be minority vote, all the congress needs is an understanding with three of the other members to pack the Authority with its own choices.
But once in office, it will be almost impossible to oust any member since they can be removed only by a presidential order, and that too on grounds of proven misbehaviour or functional incapacity and that too after a detail enquiry is held. No member can be removed for partiality or failing to do his duty. Since four of seven members have to be women and one member of the SC/ST, it is anybody’s guess who will dare take them on.
In short, we will have a Reparation that is essentially unelected, unaccountable and unmoveable.
6. The bill will facilitate central intervention against state governments that are from opposition parties, says columnist Swapan Dasgupta. Consider this situation. A few years ago, there was a few attacks on Churches in Karnataka. The Yeddyurappa government was slow in responding to the threat initially, but soon he made amendts. If an HR. Bhardwaj were the arbiter in this case, it would have been goodbye Yeddyurappa. One is not holding a brief for the Karnataka Cheif Minister, but surely the centre cannot act in an area where it is not empowered to. A clause in the Bill also says that the provisions will apply to all states barring Kashmir, where it needs the special permission of the state Govt. That’s because of Article 370. But should not elected governments be shown the same consideration on other states? The jholawalas of NAC appear to have decided that since they can’t dismiss inconvenient governments at will due to the lack of a Rajya Sabha majority, the Communal Violence Bill should come in handy.
They have neatly avoided all centre-state issues by pretending that communal violence is beyound the law.
7. The Bill seeks to bring in through the back door the doctrine of “Command responsibility”, as this blogger in “offstumped in” makes clear. This in the route through which the secular mafia tried to bring Narendra Modi to book, but if this idea is to be taken to its logical conclusion, we should accept that Manmohan Singh and Sonia Gandhi were responsible for the 2G and Common Wealth scams. One is the Prime Minister and the other his party boss and remote-control holder. But everyone in busy singing corruption scandal in Indian economic history. The doctrines of command responsibility does not sit well with the idea of decision-making errors. A wrong decision can be takes by any minister or bureaucrat several times in his carrier. There may even be political compulsions, and the Congress is fond of telling us. Unless we want to bring all decision-making to a halt, on one will take any risks. We will do everything by the book and the country will go down the drain from decision paralysis which is happening to the Manmohan Singh government in the wake of all the publicity given to the 2G Scam.
8. The Bill puts civil servants squarly in the firing line. While there is no doubt that civil servants who do not do their duty (examples are Gujarat, the anti-Sikh riots of 1984, the 2G Scam and West Bengal’s Nandigram Fiasco), there is only one neasty clause saying no public servant shall be prosecuted for actions taken in good faith. But clause 13 gives the game away by listing a whole host of crimes that civil servants may be hauled up for under the head “Dereliction of duty”. They do not even have a copout saying they were following orders, for they have to judge if the orders were lawful or not – a difficult decision to make in the fog of a crisis situation.
Now, try and apply this situation in Kashmir, where stone-pelting mobs are damaging property and do not heed the call the police. What is the right decision that a politicain or civil servant will take? If he fires and saves the property, it may be called excessive use of force. Or even communal basis. In Gujarat, keeping quiet when the mobs were burning and killings was not an answer. But in Kashmir it is fine, is it?
9. Here is a simple issue: Majority and minority are contextual. One may be monority in on context and a minority in another. Hindus may majority in India, but a minority in Kashmir or the north-east. But even with minorities, there are further minorities. The apostate, the gay, women rights activists and modernists are all minorities within minorities.
The bottomline is this. This is not a Bill drafted in good faith. When you have cherry-pricked the categories you want to nail through the Communal Violence Bill, it is any wonder you have come up with a definition that fits the Congress’ political rivals?