By Rajani V. Aithal
Communal violence Bill is one of the long pending bills which have not been yet presented and approved in the Parliament.The Bill was drafted originally in the year 2005 after the 2004 elections when United Progressive Alliance came into power in view of the Gujarat carnage in 2002. After coming into power the UPA government in its manifesto stated that a Bill would be brought up in the Parliament to see that another incident like Gujarat carnage would be prevented.
Brief overview of the present Bill
The title of the Bill is ““Prevention of Communal and Targeted Violence (Access to Justice and Reparations), 2011” whereby any act of indulging in communal and targeted violence is defined as a non-bailable offence, procedures and resources for enquiry are laid out and punishment prescribed. This law not only prescribes the setting up of new structures and offices vested with power and to implement this a body known as “National Authority for Communal Harmony, Justice and Reparation” has been set up.
The first thing the present Bill defines the concept of “Group” which according to this law means-
Definition of a group: “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. .
Definition of Communal Targeted Violence: Further it also defines the communal targeted violence as “communal and targeted violence” means and includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation.
Various Clauses in the draft Bill
Clause-6 – The bill creates a whole set of new offences in Chapter II. Clause 6 clarifies that the offences under this bill are in addition to the offences under the SC & ST (Prevention of Atrocities) Act, 1989.
Clause 7 prescribes that a person is said to commit sexual assault if he or she commits any of the sexual act against a person belonging to a ‘group’ by virtue of that person’s membership of a group.
Clause 8 prescribes that ‘hate propaganda’ is an offence when a person by words oral or written or a visible representation causes hate against a ‘group’ or a person belonging to a ‘group’.
Clause 9 creates an offence for communal and targeted violence. Any person who singly or jointly or acting under the influence of an association engages in unlawful activity directed against a ‘group’ is guilty of organized communal and targeted violence.
Clause 10 provides for punishment of a person who expends or supplies money in the furtherance or support of an offence against a ‘group’.
The offence of torture is made out under clause 12 where a public servant inflicts pain or a suffering, mental or physical, on a person belonging to a ‘group’.
Clause 13 punishes a public servant for dereliction of duty in relation to offences mentioned in this bill.
Clause 14 punishes public servants who control the armed forces or security forces and fails to exercise control over people in his command in order to discharge their duty effectively.
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 over subordinates under his control or supervision. He is vicariously liable for an offence which is committed by some other person.
Clause 16 renders orders of superiors as no defence for an alleged offence committed under this section.
Law and order within the domain of the State Governments.
The bill makes the following provision:
“The occurrence of organized communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and the Central Government may take such steps in accordance with the duties mentioned thereunder, as the nature and circumstances of the case so requires.” From the above one can say that any communal trouble during which offences are committed is a law and order problem. Dealing with the law and order is squarely within the domain of the state governments. In the division of powers between the Centre and the states, the central government has no direct authority to deal with the law and order issues; nor is it directly empowered to deal with them nor it can legislate on the subject. The central government’s jurisdiction restricts itself to issue advisories, directions and eventually forming an opinion under Article 356 that the governance of the state can be carried on in accordance with the Constitution or not.
If the proposed bill becomes a law, then effectively it is the central government which would have usurped the jurisdiction of the states and legislated on a subject squarely within the domain of the states. India has been gradually moving towards a more amicable inter-community relationship. Even when minor communal or caste disturbances occur, there is a national mood of revulsion against them. The governments, media, the courts among other institutions rise to perform their duty. The perpetrators of communal trouble should certainly be punished.
Implementation of this Act
The bill provides for a seven-member national authority for communal harmony, justice and reparations. Of these seven members at least four of them including the chairman and vice-chairman shall only belong to a ‘group’ (the minority community). A similar body is intended to be created in the states. Membership of this body thus shall be on religious and caste grounds. The offenders under this law are only the members of the majority community.
The enforcement of the act will be done by a body where statutorily the members of the majority community will be in a minority. The governments will have to make available police and other investigative agencies to this authority. This authority shall have a power to conduct investigations and enter buildings, conduct raids and searches to make inquiries into complaints and to initiate steps, record proceedings for prosecution and make its recommendations to the governments.
It shall have powers to deal with the armed forces. It has a power to send advisories to the central and state governments. Members of this authority shall be appointed in the case of central government by a collegiums which shall comprise of Prime Minister, the Home Minister, and the Leader of the opposition in the house of people and a leader of each recognized political party. A similar provision is created in relation to the states. Thus, it is the opposition at the Centre and the states which will have a majority say in the composition of the authority.
Procedures
The procedures to be followed for investigations under this act are extraordinary. No statement shall be recorded under section 161 of the Criminal Procedure Code. Victim statements shall be only under section 164 (before courts). The government will have a power to intercept and block messages and telecommunications under this law. 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. An allegation thus is equivalent to proof. Public servants under this bill under clause 67 are liable to be proceeded against without any sanction from the state.
The special public prosecutor to conduct proceedings under this act shall not act in aid of truth but ‘in the interest of the victim’. The name and identity of the victim complainant will not be disclosed. Progress of the case will be reported by the police to the victim complainant. The occurrence of organized communal and targeted violence under this act shall amount to an internal disturbance in a state within the meaning of Article 355 entitling the central government to impose President’s Rule.
The inevitable consequences of such a law would be that in the event of any communal trouble the majority community would be assumed to be guilty. There would be a presumption of guilt unless otherwise proved. Only a member of the majority shall be held culpable under this law.
A member of the minority shall never commit an offence of hate propaganda or a communal violence. There is a virtual statutory declaration of innocence under this law for him.
The statutory authority prescribed at the central and state level would intrinsically suffer from an institutional bias because of its membership structure based on caste and community.
More powers to the police
The present Bill gives more powers to the police as a result of which there is a danger of excessive use of the power by the police. In fact police has always been the part of the problem, rather than part of the solution. Had police been fair and impartial, no communal riot can last for more than 24 hours. Those governments which have intended to control communal violence do nothing but ask the police to control violence within 24 hours else office in charge would be suspended. And communal violence stops before 24 hours. According to Dr.Asghar Ali Engineer “all those who have investigated communal riots know what role police plays in communal riots from remaining spectators to actively. Regarding the role of police if one looks at in Gujarat and Kandhamal, for the role of police, communal violence would have been controlled in no time”. In all major riots police have played openly partisan role. In some cases they have even led rioting mobs.
And if you empower police more in such circumstances, as the present Bill seeks to do, one can very well imagine what havoc it is going to cause. It is victims who need to be empowered, not the police.
Declaration of Disturbed Area
Also, another provision of the present draft Bill is to declare an area as disturbed area, if communal riots are not controlled. This is even worse than giving the police more power. It means giving an absolute power to the police. If an area is declared disturbed area police will have powers to shoot anyone at its will. In Kashmir and in North Eastern states people have demanded repeal of disturbed areas act. The victims, instead of getting relief, would feel totally helpless. Any law which gives police more powers without making it accountable cannot be acceptable to those who care for human rights of victims.
Process of Payment of Compensation
Regarding the process of payment of compensation the Bill states that “All persons, whether or not they belong to a group as defined under this Act, who have suffered physical, mental, psychological or monetary harm……”
Loopholes in the draft Bill-
From the above two definitions one thing becomes clear that all the provisions provided in the Bill revolve around “targeting a person by virtue of his of her membership of any group”. Firstly, any targeted violence on those who are not a part of the “group” would automatically not qualify as communal violence. Hence violence reported in the recent times from places like Deganga or Meerut would fall outside the bill’s scope. Secondly, in a situation where there is violence from two or more sides targeted at each other, the provisions, powers and punishment of this bill would be deployed only against one such side.
Regarding the clause where communal and targeted violence shall constitute “internal disturbance within the ambit of Article 355 is an open attempt to empower the central government to indulge in arbitrary and politically motivated use of Art 356.
The serious drawback about this draft Bill is that it presumes that communal trouble is created only by members of the majority community and never by a member of the minority community. Thus, offences committed by members of the majority community against members of the minority community are punishable and similar offences committed by minority groups against the majority are not deemed to be offences at all.
Likewise a sexual assault is punishable under this bill and only if committed against a person belonging to a minority ‘group’. A member of a majority community in a state does not fall within the purview of a ‘group’. Similarly a ‘hate propaganda’ is an offence against minority community and not otherwise. Organized and targeted violence, hate propaganda, financial help to such persons who commit an offence, torture or dereliction of duty by public servants are all offences only if committed against a member of the minority community and not otherwise.
No member of the majority community can ever be a victim. This draft law thus proceeds on an assumption which re-defines the offences in a highly discriminatory manner. No member of the minority community is to be punished under this act for having committed the offence against the majority community.
An offence is an offence irrespective of origin of the offender. Offences which are defined under the bill have been deliberately left vague. Communal and targeted violence means violence which destroys the ‘secular fabric of the nation’. There can be legitimate political differences as to what constitutes secularism. The phrase secularism can be construed differently by different persons. Which definition is the judge supposed to follow? Similarly, the creation of a hostile ‘environment’ may leave enough scope for a subjective decision as to what constitutes ‘a hostile environment’.
No accountability
There is not a single clause to make administration, police or politicians accountable for their failure to control communal violence. Human rights activists have always maintained that present laws, if enforced sincerely, can very well take care of any situation. After all the Left Front Government in West Bengal and the Rashtriya Janata Dal in Bihar successfully prevented and controlled communal riots for more than three decades in West Bengal and one and half decade in case of Bihar.
Excessive use of powers given to Police
Secondly, if an area is declared disturbed area police will have powers to shoot anyone at its will. In Kashmir and in North Eastern states people have demanded repeal of disturbed areas act. The victims, instead of getting relief, would feel totally helpless. Any law which gives police more powers without making it accountable cannot be acceptable to those who care for human rights of victims.
If only state governments enforces section 153-A of Indian Criminal Code in right earnest and arrests all those who make hate speeches and vitiate communal amity, there will be no communal disturbances.
Also, there is not much in the present Bill for investigations and successful trial of cases and launching of First Information Reports. Sometimes the police are extremely reluctant to register even an FIR and even if it does it refuses to enter the names if the accused. The investigation is so shoddy that courts often dismiss the cases against the accused.
Regarding the process of compensation and how much to be paid no standard and objective methods has been laid down for working out reparations and relief measures. It all depends upon the whims and fancies of chief minister today.
In most of the cases the police close them down saying not much evidence is available. In the case of Gujarat the police closed down hundreds of cases which could be reopened only under the Supreme Court orders. Despite all this the present Bill supposedly drafted to help the victims, make no provisions for all this.
Views of the opposition
Even the opposition is not happy with this draft Bill. The main opposition party Bhartiya Janata Party said that they would oppose the Bill seeking to punish citizens based on their birth. With such a kind of Bill the issue could evolve into a new political battle between the Congress and the BJP and religion being the main issue. They have a main objection to the clause which states that the offences are created by the majority community alone. Moreover, the Bill empowers any anonymous complainant to file a police case against a member of the majority community for inciting communal hatred” and the police will have to register it as a non-bailable offence. Also, the definition of ‘Hate Propaganda’ is designed to give the government draconian powers and curb freedom of speech which the opposition says is unfair and unjust.
Thus it is therefore necessary that drastic changes should be made in the present Bill before it is discussed in the Parliament and if the government is unwilling to introduce necessary changes, the bill should be studied carefully and necessary changes should be brought in them.
Source : Indiacause
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