Communal Violence Bill
By Ram Madhav
For Jinnah all this placation and mollification appeared mischievous. “Independent India will be Hindu India”, he declared indignantly and insisted that once the British had left the Muslims would become second-class citizens under the Hindu majority. That is why he insisted that the British should grant his demand for a separate Pakistan for Muslims before they leave the shores of India. When Gandhiji gave a call to the British to ‘Quit India’, Jinnah countered with his call ‘Divide and Quit’.
The country thought that the perversion of the ‘Majority-Minority’ debate had ended when the country was divided. But it has been proved wrong time and again. The present draft of Prevention of Communal and Targeted Violence Bill – 2011, prepared by the Sonia Gandhi-led NAC and likely to be placed before the Parliament in the next session, is a standing proof that Jinnahism – the belief that the minority is perpetually oppressed in India by the majority – is still alive and kicking.
Communal harmony is paramount in any country that has multiple religions and communities. We must strive hard to train and educate people in harmonious cohabitation. Where it is necessary we may introduce some laws and regulations also. But all that should promote harmony. The present draft Bill, unfortunately, will only promote disharmony. Rather than promoting harmony it will further widen the gulf between the communities. Nobody will trust the other anymore. Friends will become foes; neighbours will turn into enemies; colleagues will behave like strangers. This Bill will take away the basic requirement in any human relationship i.e. the mutual trust. Individuals from majority community will be under perpetual threat of application of the provisions of this Bill against them by the individual members of the minority community – be it neighbours, friends or colleagues.
India has a long history of communal strife between various communities. The basic premise of the draft Bill that the majority community – read Hindus – are the perpetrators of communal violence in India and the minority – read Muslims and Christians – are the victims is essentially wrong.
One of the major reasons for communal strife in our country is unabashed minority politics of sections of political establishment. This communal politics with an eye on vote-banks have not benefitted anybody; certainly not the minority community. They only helped politicians climb up the rungs using the minorities as vote-banks. The communities remained poor and backward, illiterate and unemployed and as a result easy prey to divisive and terrorist forces. In addition this vote-bank politics has widened the gulf between the communities.
One of the major reasons for communal strife in our country is unabashed minority politics of sections of political establishment. This communal politics with an eye on vote-banks has not benefitted anybody; certainly not the minority community. They only helped politicians climb up the rungs using the minorities as vote-banks. The communities remained poor and backward, illiterate and unemployed and as a result easy prey to divisive and terrorist forces.
In this scenario what we needed is to tackle the communal violence in the country were laws that are non-discriminatory and universal; politics that is responsible and neutral; and Governments that were responsive and universally accountable. Sadly what we get is just the opposite; laws that are overtly discriminatory; politics that smack of blatant partisanship; and Governments that are driven by hate and utter disregard for the sentiments and interests of the majority community.
The proposed new Prevention of Communal and Targeted Violence (Justice & Reparations) Bill – 2011 is just a bundle of all that is evil; an epitome of all that we should be negating. The draft was prepared by a group of people from the Sonia Gandhi-led National Advisory Council. They included Harsh Mander, Farah Naqui, Teesta Setlawad, Asgar Ali Engineer, John Dayal, Ram Punyani, Shabnam Hashmi and Syed Shahabuddin. What else can we expect from this group but a thoroughly communalist and anti-Hindu Bill?
There is an ‘Explanatory Note’ on the draft prepared by the drafting committee outlining the rationale behind bringing such a law. This explanatory note speaks volumes about the mindset of the committee. The most fundamental problem with this draft Bill is the premise on which it is based. Let me quote the very first paragraph of the explanatory note:
“Evidence from State records and several of Commissions of Enquiry has confirmed institutional bias and prejudicial functioning of the State administration, law enforcement and criminal justice machinery when a non- dominant group in the unit of a State, based either on language or religion, or a member of a Scheduled Caste or Scheduled Tribe, is attacked because of their identity in the unit of that State. This prevents such non-dominant groups from getting full and fair protection of the laws of the land or equal access to justice.”
The basic premise is that: a) there is a non-dominant group in every State in the form of religious and linguistic minority which is always a victim of violence; b) the dominant majority in the State is always the perpetrator of violence; and c) the State administration is, as a rule, biased against the non-dominant group.
This premise in itself is flawed. It is fallacious to conclude that in all cases of communal and targeted violence dominant religious and linguistic group at the State level is always the perpetrator and the other the victims. Similarly the conclusion that the State machinery is invariably and always biased against the non-dominant groups is gross misstatement of the sincerity and commitment of millions of people who form State administration in the country.
In the National Integration Council meeting held in September 2011 the chief ministers of various states had raised serious objections over the proposed legislation expressing their concern over the violation of the federal principle. These chief ministers are from various political parties and diverse ideological backgrounds.
This flawed premise is the real danger with this Bill. It leads to a number of anomalies and contradictions. For example a particular religious group can be a ‘non-dominant’ one at the State level but dominant in several districts. But the Bill is applied only on the basis of State level data. Similarly in a situation of violence between the SC & ST communities and religious minorities like the Muslims and Christians, as is often the case, which Act will apply? It is the SC & ST Atrocities Act or the present Communal Violence Act? The Bill is vague and only says the Communal and Targeted Violence Bill will apply “over and above” the SC & ST Atrocities Act, whatever it may mean. What if there is violence between two minority groups? The draft Bill has no answers.
One can safely conclude that the scriptwriters of this Bill are themselves blind with biases. All these premises are essentially wrong. In India communal violence happens mostly because of politico-communal reasons. In many instances it is the so-called minority group that triggers the trouble. We need laws that can prevent such violence irrespective of whoever perpetrates it. To argue that since the administration is always biased in favour of the dominant group we need acts that are biased in favour of the non-dominant group is imprudent and puerile. In fact it is time the nation demands a White Paper on all the instances of communal violence in India at least since the Independence. That will help dispel the myth that the Government and its pseudo-secular cohorts assiduously propagate that the minority community is the victim and majority the perpetrator of the violence.
‘Victim’ can only be belonging to a ‘group’ as defined under this Act. And the group as defined under this Act is the minority – the ‘non-dominant group’. That means this Act will consider only the minority as the victims. And he or she will become a ‘victim’ if he or she ‘has suffered physical, mental, psychological or monetary harm…’ Now, physical harm is measurable; mental harm is difficult to gauge, but how on earth can anyone define ‘psychological harm’? The Bill doesn’t define it. Then how can the so-called ‘psychological harm’ be one of the reasons for victimhood?
‘Knowledge is dangerous’ is a parody to the maxim ‘ignorance is bliss’. But the saying is literally true for the majority community in the context of this draft Bill. In any given incident the knowledge that the person with whom you are engaging is from the non-dominant (read minority) group compounds your guilt according to Article 4 of the draft Bill. That means the majority community has to be doubly careful with known people from the minority community since any conflict with them will immediately be construed as a wanton attack on the entire minority community. The flip side is that a person from the minority community can more easily fix a known person – a friend or a neighbour – in any crime using this Bill.
Article 13 & 14 are about dereliction of duty by the public servants. Both the Articles want to make the government officials and the personnel of the security forces accountable for communal violence. While Article 13 defines what constitutes ‘dereliction of duty’ Article 14 wants to punish the officers of the security agencies including the personnel of the Army in case of their failure to quell violence or prevent it. The language and idiom of the Articles suggests that the drafting committee is convinced that as a general case they tend to behave in a biased manner.
Then comes another draconian Article. Article 15 is about holding higher ups in the hierarchy of the organisations responsible vicariously for the acts of individual members. According to this Article “breach of command responsibility” of the superiors is also an offence. What it means is that if a member of an organisation is found to be the perpetrator of the so-called communal and targeted violence the higher ups in the organisation, even if they are not involved in any action, will be held vicariously responsible.
Thus if an incident under this Act is reported then the accused wouldn’t include just those who committed violence, but also those government officials and security personnel who are posted in the region as well. This is because the draft committee believes that a communal incident may happen not in spite of every precaution by the officials, as is the normal understanding but BECAUSE of the active connivance of them with the perpetrators. Reason, the learned drafting committee members explain, is that they all belong to the majority community only.
Earlier, only the Sangh Parivar used to be accused of communalism. But this draft Bill accuses the entire administration, law and order machinery and the judiciary to be communal minded as a rule.
This whole section of the draft Bill brings us to the crucial question. If the people of the majority community are ‘rioters’, if their superiors in the hierarchy are de facto perpetrators, if the officials in the State Government are their collaborators and even the Police and Army are hand in glove with the perpetrators who is there to protect and save the minority groups? Chapter IV of the draft Bill has the answer for this question.
Article 20 states that the Central Government shall constitute a National Authority for Communal Harmony, Justice and Reparations. This will be a 7-member body out of which 4 members should be from the ‘group’ meaning the minority as per this Act. Thus it will be a committee of seven wise men, majority of whom will be from the minority community.
This ‘Of the Minority and For the Minority’ authority has such sweeping powers that would have bred envy in dictators like Saddam Hussain.
To put it simply the ‘Seven Wise Men’ have powers to investigate, summon, interrogate, raid, seize and recommend punitive action. They are the Super Government. Even the State and Central Governments SHALL act on their advisories within a stipulated period.
Recall the debates on Acts like TADA and POTA. There were no special authorities constituted with wise men to implement those Acts. They were given to the respective governments to use in controlling terrorism in the country. Unlike in the present Act there was no such distinction in those Acts on religious grounds. In fact TADA and POTA were used against all communities. Yet the very same pseudo-intellectuals ran a relentless campaign against these Acts accusing them of being anti-minority. Today they want the very same powers to an extra-Constitutional authority of seven people to prosecute the majority community. It shows the diabolical nature of the whole exercise.
Under this draft Bill dictum of natural justice that one is ‘innocent until proved guilty’ has been turned upside down. Under the provisions of this draft Bill every accused is deemed to be guilty ‘until proved otherwise’. And the onus of proving otherwise rests on the accused, not the accuser.
Article 57 and 58 are designed in such a way that no SHO can work independently if a complaint comes under this Act from a member of the minority group. He is duty bound under Article 57 not only to register the complaint fully but also to supply a copy in true translation in the language that the victim is familiar with. Article 58 confers powers on the victim to approach the officer of the rank of SP in case he is not satisfied with the SHO. And the SP is then duty bound to depute an officer of DSP rank to investigate the complaint bypassing the SHO. Thus this Bill doesn’t encourage neutrality and impartiality in the system; in stead it forces the Police and Administration to become biased. Can any Police system function independently if such clauses are imposed?
Article 70, 71 and 72 deal with the question of evidence. In fact all the three articles conclude that there is no need for any material evidence to be produced by the complainant. Upon receiving a complaint it is “presumed” that the crime is committed “unless the contrary is proved”. Thus mere presumption can be used as evidence under this Bill. That means a person from the minority group may accuse one from the majority community of committing a crime against him by virtue of his being a member of a ‘Group’ without producing any material evidence. The onus of proving to the contrary rests on the accused.
The Bill clearly discriminates between the majority and minority groups. Our Constitution doesn’t permit such blatant discrimination in making laws. In fact while the question of making laws on communal grounds was settled long ago during the debates in the Constituent Assembly itself the courts in the country too have affirmed the legal position in such matters very clearly.
In a landmark judgment in 1960 in a case between the Government of Rajasthan and one Thakur Pratap Singh the Supreme Court had categorically stated that no Government could make laws that exclude certain groups based on religious and communal identity. This case arose for consideration the constitutional validity of one paragraph of a notification issued by the State of Rajasthan under Section 15 of the Police Act, 1861 (V of 1861), under which “the Harijan” and “Muslim” inhabitants of the villages, in which an additional police force was stationed, were exempted from the obligation to bear any portion of the cost of that force. Challenging this exemption a case had been filed which finally reached the Supreme Court in 1960.
While disposing off the matter the learned Judges of the Supreme Court had opined that the Government order exempting any community or religious group is flawed. Defending the HC Judges the SC Bench said:
“Now this is a very strange argument that only persons of a certain community or caste were law-abiding citizens, while the members of other communities were not. Disturbing elements may be found among members of any community or religion just as much as there maybe saner elements among members of that community or religion. The view here expressed by the learned Judges is, in our opinion, correct. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification. The appeal fails and is dismissed.”
This judgment of the Supreme Court clearly makes it ultra vires to make punitive laws in favour of or against any particular religious group. Thus this draft Bill is against the law and hence not qualified to be placed before the Parliament.
We cherish our hard earned democracy. We have interlinked yet independent institutions like the Legislature, Executive and Judiciary to run this system. We have representatives elected through a process of popular mandate and officialdom selected through a stringent examination of skill and merit. This institution of democratic governance is sought to be hijacked and bypassed by some elite through such Bills. These elites have no mandate of the people, hence they are not accountable to people like the elected representatives. Yet they want all the powers accrued to them to rule the country by proxy. They lack any locus standi in the eyes of the people. Yet they seek to use their proximity to the powers-that-be to enjoy benefits that they don’t deserve. With a pliable Government in office these elites in glass houses use such Bills to build careers and earn their daily bread and butter. In the process they undermine our democratic institutions. In fact they destroy the faith of the people in institutionalised governance thus paving way for anarchy and rise of nihilist forces like the Maoists.
We have to decide whether the country should be run by representatives and officials who are elected or selected through a constitutionally sanctioned process or ‘Seven Wise Men’ who drop down from nowhere to control the entire governance.
Our Constitution envisages a ‘Federal’ system of governance for the country. In the federal system State Governments enjoy certain exclusive powers. That includes law and order responsibilities also. Maintenance of law and order is a State subject. There has been a sinister and sustained effort by the present Government to undermine this federal obligation decreed by the Constitution.
In the National Integration Council meeting held in September 2011 the chief ministers of various states had raised serious objections over the proposed legislation expressing their concern over the violation of the federal principle. These chief ministers are from various political parties and diverse ideological backgrounds. Jayalalithaa had written to all the chief ministers in the country and all the Members of Parliament asking them to oppose this Bill. Ms. Mamata Bannerjee, Ku. Mayawati, Shri Nitish Kumar, Shri Naveen Patnaik and many others took strong exception to this Bill.
Any cursory reading of the Bill makes it clear that it is a blatant transgression of the federal powers. A National Authority, a State Authority, Designated Judges, an Assessment Authority, Human Rights Defenders, powers to investigate, raid, seize, summon … it is just a parallel super-government. Using Article 13 it can order the arrest of Collectors, District Magistrates, Government Secretaries or any officials. In the name of Dereliction of Duty it can act against the police officials. Using Article 14 it can even recommend action against a Brigadier or a Colonel.
This Bill doesn’t deserve to be placed before the Parliament. It should be withdrawn by the NAC forthwith.
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