Communal Violence Bill

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A draft of a proposed legislation titled
" Prevention of Communal and Targeted
Violence ( Access to Justice and
Reparations ) Bill, 2011 " has been put in
public domain . The draft Bill ostensibly
appears to be a part of an endeavour to
prevent and punish communal violence in
the country. Though that may be the
ostensible object of the proposed law its
real object is to the contrary . It is a Bill
which if it is ever enacted as a law will
intrude into the domain of the State ,
damage a federal polity of India and
create an imbalance in the inter-
community relationship of India . What
does the Bill in effect state The most vital
definition of the bill is of the expression
' group' . A ' group' means a religious or
linguistic minority and in a given State
may include the Scheduled Castes and
Scheduled Tribes .
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 .
Can a person be punished twice for the
same offence? 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 a ' 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. 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. This draft
Bill however proceeds on a presumption
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. Identical
offences committed by minority groups
against the majority are not deemed to
be offences at all . Thus 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' . A
' hate propaganda ' is an offence against
minority community and not otherwise.
Organised 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 are to be punished
under this Act for having committed the
offence against the majority community.
It is only a member of the majority
community who is prone to commit such
offences and therefore the legislative
intent of this law is that since only
majority community members commit
these offences , culpability and punishment
should only be confined to them . If
implemented in a manner as provided by
this Bill , it opens up a huge scope for
abuse . It can incentivize members of
some communities to commit such
offences encouraged by the fact that they
would never be charged under the Act .
Terrorist groups may no longer indulge in
terrorist violence. They will be incentivized
to create communal riots due to a
statutory assumption that members of a
Jihadi group will not be punished under
this law .
The law makes only members of the
majority community culpable . Why should
the law discriminate on the basis of a
religion or caste? An offence is an offence
irrespective of origin of the offender. Here
is a proposed law being legislated in the
21 st Century where caste and religion of
an offender wipe out the culpability under
this law . Who will ensure implementation
of this Act The bill provides for a 7 -
member national authority for communal
harmony , justice and reparations . Of these
7 members at least four of them including
the Chairman and Vice Chairman shall
only belong to a ' group ' i .e . 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 collegium which
shall comprise of Prime Minister, the
Home Minister, and the Leader of
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. What are the procedures to
be followed The procedures to be
followed for investigations under this Act
are extraordinary. No statement shall be
recorded under section 161 of the CrPC .
Victim statements shall be only under
section 164 i . e . 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 drafting of this Bill appears to be a
handiwork of those social entrepreneurs
who have learnt from the Gujarat
experience of how to fix senior leaders
even when they are not liable for an
offence. Offences which are defined under
the Bill have been deliberately left vague .
Communal and targeted violence means a
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' . 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 .
I have no doubt that once this law is
implemented with the intention with which
it is being drafted , it will create
disharmony in the inter- community
relations in India. It is a law fraught with
dangerous consequences . It is bound to
be misused . Perhaps, that appears to be
the real purpose behind its drafting . It will
encourage minority communalism . The
law defies the basic principles of equality
and fairness . Social entrepreneurs in the
National Advisory Council can be
expected to draft such a dangerous and
discriminatory law . One wonders how the
political head of that body cleared this
draft . When some persons carried on a
campaign against TADA - an anti -
terrorist law , the members of the UPA
argued that even terrorists should be tried
under the normal laws . A far more
draconian law is now being proposed . The
States will be watching hopelessly when
the Centre goes ahead with this
misadventure. Their power is being
usurped . The search for communal
harmony is through fairness - not through
reverse discrimination.


Draft Communal Violence Bill

 

[bronxbull]

yeh agar pass hoga toh koi na koi bada congresswala ka sar girega zaroor.

 

[Fireurimagination]

LOL and they call BJP communal..morons