Author: A. Surya Prakash
Publication: Bharatkalyan97.blogspot.com
Date: October 7, 2011
URL: http://bharatkalyan97.blogspot.com/2011/10/communal-violence-bill-direct-assault.html
The United Progressive Alliance government
is readying itself to introduce a Bill to further strengthen the law against
communal and targeted violence and to ensure speedy justice and reparations
for the victims of communal violence. Though the objective is laudable - to
boost the confidence of religious and linguistic minorities in all states
and union territories - the first draft of the Bill, which has been prepared
by the National Advisory Council (NAC), fails to inspire confidence. Far from
promoting religious harmony and ensuring equity and equality among citizens
of all denominations, the controversial Bill has many features which are repugnant
to the basic structure of the Constitution and is loaded with features which
will disturb communal harmony, wreck the federal features of the Constitution,
weaken the states and turn the Union Government once again into a bully who
can overawe the states with its 'firmans'. It appears as if the Bill has been
drafted by persons who are unschooled in Indian Constitutional Law and who
are unaware of the big strides that the country has made to promote the federal
spirit and to build a liberal and open society.
The aim of this Bill - called the Prevention
of Communal and Targeted Violence (Access to Justice and Reparations) Bill
- is ostensibly to curb communal violence and hatred but it rests on the flawed
premise that in all situations the religious majority perpetrates violence
on the religious minority. Therefore, members of the majority community in
every state are seen as the culprits and members of the minority communities
are deemed to be the victims. Such are its provisions that far from promoting
communal harmony, it could weaken the commitment of the majority to secularism
and promotion of a liberal environment all over the country.
Here are some of the worrisome provisions:
The Bill describes 'Communal and Targeted Violence' in Section 3 ( c ) as
"any act or series of acts
knowingly directed against any
person by virtue of his or her membership of any group which destroys the
secular fabric of the nation". The biggest mischief is in the definition
of the word "group" that occurs in Section 3(e). It says a "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 Hindus, who today constitute the majority in most states and union territories
will not constitute a "group" under this law and therefore, will
not be able to invoke its provisions, even if they are victims of Muslim or
Christian communalism, hatred or violence. Similarly, the Sikhs in Punjab,
the Muslims in Jammu and Kashmir and Lakshadweep and Christians in Nagaland,
Mizoran and Meghalaya (where these communities are in a majority) cannot seek
relief under this law in these states.
The Bill describes a "victim" as
a member of a religious minority 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". Going by this
description, a citizen belonging to a "minority" in any part of
India, who is aggrieved with a neighbour who belongs to the "majority"
over some issue, can turn around and accuse the neighbour of causing him or
her "psychological harm". Further, if the "victim" is
not inclined to deploy this mischievous provision, the Bill allows his or
her relatives to do so.
The Bill's description of "hostile environment
against a group" concludes with this omnibus provision: "any other
act, whether or not it amounts to an offence under this Act, that has the
purpose or effect of creating an intimidating, hostile or offensive environment".
By implication this means that a "minority" citizen can point a
finger at a "majority" citizen at any time and complain that he
or she feels "intimidated" or that the environment has become "hostile"
to him or her
Further, when the Bill accords the "victim"
the right to remain Anonymous; imagine the effect of these provisions. Citizens
who happen to be members of the "majority" will be hauled up by
the police for offences allegedly committed by them, but the accused persons
will not know who the complainants are! Section 82 even provides for attachment
of property of members of the majority community pending trial . It says:
Where the charge has been framed in relation to an offence under this Act,
the Designated Judge may direct that the property of the accused person be
attached during the pendency of the trial and until conviction or acquittal,
as the case may be.
The Demographic Reality
The Hindus constitute a majority in 28 of
the 35 states and union territories in the country and will have to bear the
brunt of this Bill's mischievous provisions. But that does not mean that citizens
belonging to other denominations are free of bother. Muslims, Christians and
Sikhs could also find themselves in trouble because under our Constitution,
the state is the unit to determine the issue of majority-minority. As per
the religion data in the 2001 census, the Sikhs constitute 59.9 per cent of
the population in Punjab, whereas the Hindu population in that state is 36.9
per cent. If this law comes into force, the Sikhs (constituting the majority)
will be in a quandary if the "minority" Hindus start using this
law to accuse the majority of promoting communal hatred and anti-secular policies.
Similarly, Christians, who have an overwhelming majority in three states -
Nagaland ( 90 per cent ), Mizoram ( 87 per cent) and Meghalaya ( 70.30 per
cent ) - will find themselves in deep trouble if the Hindu minority in these
states begins to leverage this law and lodge complaints against the religious
majority. For similar reasons, the Muslims in Jammu and Kashmir and in Lakshadweep
are not going to be very happy with a law of this kind. Therefore, citizens
who happen to be Muslims, Christians or Sikhs should not be taken in by the
sweeping claim made by the promoters of this Bill because this law does not
treat all perpetrators of communal violence and hatred equally.
There is yet another anomaly in regard to
determining the majority and the minority in some states because of the demographic
reality in many states and union territories. For example, there are states
like Manipur (46 per cent Hindu) and Arunachal Pradesh (34.60 per cent Hindu)
where no religious group has a clear majority. So, who is the "culprit"
and who is the "victim" in these states? Further, if you exclude
the Scheduled Castes and Scheduled Tribes from the Hindu population, what
will be the percentage of Hindus in these states. Kerala, with 56.20 per cent,
is also a case in point. If you exclude Scheduled Castes and Scheduled Tribes
(22 per cent approx), what is the percentage of the Hindu "majority"
in that state? Also, can this "majority" be seen as the oppressor
of the Muslim "minority" (24.70 per cent) or the Christian "minority"
(19 per cent).
Apart from generating communal strife and
pitting religious minorities against the majority in every state and union
territory, the Bill incorporates some extremely dangerous provisions which
seek to re-impose the "dadagiri" of the Centre on the states and
even promote insubordination in the administration in the states. There is
also an attempt to introduce some mischievous provisions to classify crimes
on communal lines.
As stated earlier, this Bill ab initio treats
members of a religious minority as "victims" and members of a religious
majority as "culprits" in every instance of communal violence. The
other insidious aspect of the proposed law is the attempt to use communal
violence as a pretext to usurp the states' rights to maintain law and order
and to signal to bureaucrats and policemen in states that the big brother
in Delhi is watching you. It is obviously a cunning attempt to re-acquire
the unbridled powers which the Centre had exercised under Article 356 of the
Constitution before the Supreme Court's verdict in the Bommai Case.
The Bommai Judgement and After
Prior to the Bommai Case, the Union Government
imposed Article 356 with reckless abandon. The Congress Party, which was ill
at ease with the growth of regional parties, used this provision regularly
to sack duly elected governments and to impose President's Rule in the states.
For example from 1950, when the Constitution came into being, to 1994, when
the Supreme Court pronounced its judgement in the Bommai Case, Article 356
was used by the Centre on 102 occasions. On most of these occasions (77) the
Congress Party was in power at the Centre and just one Prime Minister - Indira
Gandhi - used this provision 50 times. The Supreme Court stopped such misuse
of Article 356 via the Bommai Case. The court declared that henceforth the
proclamation issued under Article 356 would be judicially reviewable and the
court would examine whether the proclamation was issued for malafide reasons.
It said the court would retain the power to reverse the actions taken by the
President if they were found to be malafide. This judgement virtually put
an end to misuse of Article 356. The Communal Violence Bill now offers scope
for mischief via a backdoor entry of Article 356 as it stood prior to the
Bommai Case in the guise of ensuring minority rights.
Initially the proponents of the Bill wanted
organised communal violence in a state to be classified as "internal
disturbance". Article 355 imposes a duty on the Union Government "to
protect every state against external aggression and internal disturbance".
Therefore, this was a clever move to snatch away the basic constitutional
right of every state to manage Law and Order and to impose central rule. However,
following public protests, the NAC has recently announced that this provision
has been deleted from the Draft Bill.
However, the threat to the independence of
state governments is not over because of certain other provisions in the Bill
like Sections 9, 13, 14 and 16 pertaining to the bureaucracy and the police
in the states and Section 15, which directly targets office-bearers of political
parties. Section 13 pertains to dereliction of duty and is so worded that
every public servant working in the district or state administration ( with
some responsibility in regard to maintenance of law and order) can be hauled
up in the event of a communal flare-up. Officials can also be accused of helping
or harbouring culprits belonging to the majority community. Section 14 deals
with public servants for breach of command responsibility meaning their failure
to control the men in their command. In other words, police officers can be
prosecuted if men under their control commit an offence or are accused of
committing an offence against a religious minority. The law proceeds on the
assumption that the officer ought to have known that persons under his command
would commit an offence.
Encouraging Insubordination in the States
But the worst provision is Section 16, which
is directly aimed at promoting insubordination in the Police and para military
forces deployed in a troubled state. It says "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
".
In other words, it encourages every policeman to question or challenge his
superior right up the line of command and to, if he so believes, disobey his
superior. Every policeman will need to worry about how the Union Government
(and not the state government) will view his actions. It is difficult to find
a more irresponsible provision in any law.
The law proposes for the establishment of
a National Authority for Communal Harmony, Justice and Reparation and similar
authorities in the states. It empowers the national authority to enter any
building and seize any documents, which means it has the authority to intrude
into state government offices and even the chambers of chief ministers. Several
other provisions also hit at the root of federalism and weaken the states.
Equally disgusting is the communal colour
that this Bill gives to every major offence. Though the Indian Penal Code
deals with all such crimes, this law draws a distinction between rape of a
"minority" woman and a "majority" woman and assault of
a "minority" person and a "majority" person. The victim
acquires an exalted status if he or she belongs to a "minority".
Nowhere in the democratic world does one get to see such communalization of
crimes.
Finally, politicians belonging to political
parties which are not part of the political dispensation at the Centre had
better watch out. Section 15, which talks of offences committed by "other
superiors" says "Whoever, being any non-state actor or superior
or office-bearer of any association
." The implication
of this is that office-bearers of political parties and associations and organisations
affiliated to political parties which are ruling a state can be hauled up
under this law. This is obviously a provision to enable the Centre to haul
up political opponents and their affiliates in the states.
The net result is that this Bill will destroy
communal harmony, weaken the federal structure and encourage authoritarian
trends at the Centre. It must be rejected lock, stock and barrel.