Communalisation of secular polity?

By Meenakashi Lekhi?

Divide and rule has long been a part of India’s political history. Capital “C” in the Congress party stands for communalism and corruption, another leaf in the same chapter is The Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. The Bill in its spirit and purpose is communal rather than being secular. It is nothing but a political gimmick for creating vote banks and dividing India on the grounds of religion and language. The drafters of this Bill have worked contrary to this principle, made no effort to hide their malicious intent and hatred towards Hindus. When India got freedom the principles on which Constitution was drafted was to free India not only from the British but also from the malice of caste and communal identities.

The National Advisory Council, the makers of this malevolent Bill has no constitutional mandate behind it. It was this very Government who created a huge hue and cry over the Lokpal Bill as being an attempt to destabalise the Government by unelected persons, on the flip side this very Government is willing to pass this Bill drafted by the National Advisory Council. The body which is extra legal and has usurped the job of the “Law Commission of India”.

Targeting Hindus

The Bill makes it very clear that a member of majority community can never be a victim. Further there cannot be intera-community riots i.e. Shia-Sunni or Protestants-Catholics. The National Advisory Council has presumed that the Hindus in India are vehement, fierce and communal in nature. The discrimination of offences is so evident in Bill that no members of minority can ever commit or has never committed an offence in terms of the act for example “Godhra” never happened. Under clause 74 of the Bill if an offence of hate propaganda is alleged against a person, a presumption of guilt shall exist unless the offender proves to the contrary. A mere allegation thus is equivalent to proof. The Bill makes people of minority community so devilish so as to set the criminal machinery into force even on a false complaint by a person of a minority group. By such usage the amity and mutual respect between the communities will be eroded which will disperse disharmony between the communities. The unfinished communal agenda as set by the propagators of Pakistan shall be achieved by this Bill.

Possible misuse

Under the act an accused need not be an enlisted member of an association it is enough that he is an ipso facto member of an association. Using this, the leaders of these organisations can be charged of offences on one complaint by a non-descript individual of a minority community. The act in its application is ambiguous; the clauses can be used in one way or the other to target these organisations.

In terms of the proposed Bill a Hindu cannot even raise a legal protest in any form. He or she shall be charged if raised an alarm since the terms association and groups defined under clause 3(f) (i), 3(f) (v) of the Act are vague and ambiguous. These clauses will be prone to misuse and even day to day dealings will become an offence if this Bill becomes an Act. Most trading and livelihood activities are carried on between the communities are based on interdependence of communities. These activities are strictly commercial in nature. By virtue of this Bill either these transactions will be stalled or the disputes will get the colour of “Communal Violence”. Do the members of minority community which seek to put an end to all those financial and commercial transactions with the majority community? Pakistan was created by a few elites similarly this Bill is brought out without taking the confidence of citizens of India.

Flawed procedures

The Bill in its current form is not aimed at tackling the problem of communal violence but is a political strategy for the Centre to interfere with State Governments from the opposite parties. The Bill also looks away from limitation period the victim at any time can reopen the case against the culprit. This provision is clearly a step made to attack the democratically elected State Governments. All that Congress has to do is wait for this Bill to be passed and then Shri Modi because of this Act will be again put under the shadow of false accusations.

Clause 15 expands the principle of vicarious liability. An offence is ?deemed to be committed by a senior person or office bearer of an association and he fails to exercise control subordinates under his control or supervision. Clause 16 also renders orders of superior as no defence for an alleged offence committed under this Section. The principle of vicarious liability under the law is either under the Law of Torts or Civil Law. These principles are unknown to the criminal law jurisprudence, yet they have been invoked to dishorn the law.
The Bill provides for procedures that are unheard in law till the time this Bill was drafted. No statement shall be recorded under Section 161 of the CrP.C.
Victim shall only give a statement before court under Section 164 CrP.C. The Bill actually provides that the special public prosecutor to conduct proceedings under the Act shall be in the aid of the victim and not in the interest of justice. The progress of the case shall be reported to the victim even without a specific demand made to him. The name and identity of the victim also will not be disclosed.

During riots even security forces fighting to bring peace in those hours of violence are not safe under this Act. No police officer may even want to raise a baton if there is an element of minority in the uprising. The makers of this Bill and the Government has clearly not put any thought in preventing or curtailing riots but have in fact created vote banks , facilitated riots and targeted majority groups by this Bill.

The present Bill is against democracy, secularism and is an anti-thesis of communal harmony. It instead of bridging the gap between communities widens it solely for the purpose of the Government’s own benefit. India has been ruled for more than 50 years by the Congress party. During this period it has failed to fulfill the constitutional mandate of bringing Uniform Civil Code but has chosen to make a separate Criminal Code, in the name of law.
(The writer is a senior Supreme Court advocate).