Prevention Of Communal And Targeted Violence Bill Disadvantage Majority
“A very attractive Bill is going to be presented before the Parliament,” said Union Minority Affairs Minister Salman Khurshid at the annual meet of representatives from State Minority Commissions in New Delhi. The reason is obvious—since assembly elections in Uttar Pradesh, the largest populated state of the country, are approaching, Congress is burning mid-night oil to show how much it is concerned about the interests of the minorities. The new buzzword is Communal Violence Bill which has been drafted by National Advisory Council (NAC) headed by Congress and UPA Chairperson Sonia Gandhi. In fact, since the aftermath of the Gujarat communal violence in 2002, there has been a clamour from a class of intellectuals, academics and social activists for a separate law to deal with communal violence. However, it is a completely different question how NAC is being empowered for drafting of Bills for the Union government. The provisions of the said Bill are so dangerous that it will not only create many constitutional, judicial and administrative problems but also divide the society on the basis of religion, language and caste. The Bill named Prevention of Communal and Targeted Violence (PCTV) Bill, when presented in the Parliament, will create a huge uproar in the Parliament. Senior BJP leader and leader of the opposition in Rajya Sabha Arun Jaitley says: “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.”
Is NAC A Right Agency for Drafting the Bill?
This Bill has triggered a nationwide debate. Many provisions, especially the definition of the victim group, is being widely criticised by the political parties, analysts and thinkers of the society. First of all, the character of the drafting committee is also in question. It is noteworthy that NAC was created to accommodate the chairperson of the Congress party in the government and it has been givzen the task a) to monitor the progress of common minimum programme; and b) to provide inputs for the formation of policy by government and to provide support to the government in its legislative business. However, providing support does not mean to perform the legislative business. But the UPA, which is so reluctant to include the members of the Anna team in the drafting committee of Lokpal Bill, arguing that it will be unconstitutional to include people from outside the Parliament, has readily agreed to give the responsibility of drafting of Bills on such delicate issues as food security, communal violence etc to NAC, which is fully constituted with the NGO persons. Eminent Constitutional expert Subhash Kashyap says: “NAC is a terribly extra-constitutional body. There is no justification of a body above the Prime Minister. UPA wants to keep Prime Minister outside the Lokpal, but he is made subservient to the chairperson of the NAC and UPA. NAC has no constitutional status and it erodes the institution of the Prime Minister.” Similarly, BJP spokesperson Nirmala Sitaraman strongly objected to the role of NAC saying: “NAC is not a constitutional body for drafting of a Bill. Drafting a Bill is a job of the ministry and participation of the civil society comes at later stage.”
It is not a hidden fact that NAC was constituted to befit Sonia Gandhi in the government and to provide her the powers which she had relinquished or was compelled to relinquish by not becoming Prime Minister. Nirmala Sitaraman says: “NAC was created to accommodate the Congress president in the government only. We have no problem with that but the job of drafting a Bill cannot be assigned to NAC. We have opposed it several times.” However, Congress spokesperson Manish Tiwari defends the activities of NAC saying: “The members of the NAC are the respectable persons of their fields which were selected carefully by the government. They are working properly and according to the powers provided to them.” But it is clear that apart from being selected by the government there is no difference between the members of team Anna and NAC.
“THE BILL WILL ACCENTUATE THE COMMUNAL DIVIDE”—Ajit Doval, Former Director, IB
According to this Bill only minority groups can be the victim of communal and targeted violence. How justified is this assumption?
As we all know, anybody can be a victim of targeted communal violence but according to the proposed law only the minorities will be treated as ‘victims’ and entitled to protection and relief. The proposed Bill specifically lays down that only the minorities constitute the ‘groups’ that qualify to be treated as victims. Queerly, by defining “group” in clause 3 as ‘a religious and linguistics minority’ the majority is legally excluded from purview of the proposed law for protection or grant of any relief. It assumes that always and everywhere the majority communities, i.e. the Hindus, are aggressors. All provisions in the Bill that follow relating to protections, remedies, safeguards, compensations etc. are applicable only to the members of so-called “group”. Definition of ‘victim’ in clause- 3 Para (J) of the Bill as a person belonging to a minority community who suffers physical, mental, psychological or monetary harm, negates the principle of equality before law and ignores the findings of most judicial commissions that Hindus had invariably been the initial victims of targeted violence. It precludes them from any relief no matter the severity of their sufferings. For example, a repeat of Godhra in which 59 Hindu pilgrims were burnt alive or burning of Hindu shops in Lucknow and other places in 2006 as a sequel to some cartoons published in a Danish paper will not invoke provisions of this law or entitle the victims for any legal safeguards, relief or compensation.
This Bill advocates building a setup named Authority for Communal Harmony, Justice and Reparation at national and state levels, which would have the powers parallel to the investigating agencies, judiciary and the state governments too. Do you think this will not create a constitutional problem?
The sweeping powers given to Authority for Communal Harmony, Justice and Reparation militate against the spirit of the Indian Constitution and fundamentals of criminal jurisprudence. It infringes the autonomy of the state governments as enshrined in the Constitution of India. Moreover, in effect, the draconian powers would only be used against the majority community. It would create two sets of criminal procedures one for the minorities and other for the majority, which is the worst manifestation of divisive politics. It will create communal disaffection and mutual suspicions amongst the communities that will engender greater sense of insecurity among the minorities adversely impacting on emotional integration of the country.
At the one hand government is not agreeing for a Jan Lokpal whose recommendations would be binding on the government, but this Bill dictates that the recommendations of National Authority will be binding. Does it prove the dual standards of the government?
It definitely proves the dual standards of the government. The motivation appears to be to generate a sense of insecurity among the minorities, who for centuries have lived with peace and harmony with rest of the civil society, and capitalise it for achieving electoral gains.
Do you think some provisions of this Bill like publishing, communicating or disseminating of opposition may be termed as Hate propaganda (Sec 8) are against the freedom of expression of the people?
The scope of the section has been stretched to such unjustifiable limits that it not only curtails the freedom of expression of the people but empowers the government to selectively victimise even innocent people of majority community.
According to this Bill public servants will be under constant supervision and it casts vicarious liability on them (sections 12 to 16). It also puts high pressure on them. Doesn’t it affect the proper functioning of the existing system?
Clauses 12 to 16 as also clause 95 will mount pressure on police and other public servants and make them highly vulnerable to the mechanisation of criminal and mischievous elements in minority community who can make false and motivated accusations against the police etc. It will also make extensively difficult to take action against terrorist groups and their over-ground supporters as motivated and spurious charges can be levelled against police under the pretext of communal victimisation.
Interviewed by Ravi Shankar
Motive of the Bill
If we look at the provisions of the PCTV Bill it will be clear that this Bill is drafted only keeping in mind the 2002 riots of Gujarat. If we see the names of the members of the drafting and advisory committee, it will become even clearer. Harsh Mander, Teesta Setalvad, John Dayal, Anu Agha, Mirai Chatterjee, Syed Shahabuddin etc, all are so-called human right activists working in Gujarat. BJP spokesperson Nirmala Sitaraman says: “If you look at the members of the drafting committee of the Communal Violence Bill, almost all the members are from the NGOs which are working in Gujarat or who claim that they work in Gujarat. Communal violence happens in this country at so many places also. I recall Bhivandi, Moradabad, Sikh riots in Delhi etc, but no people are taken from these areas. Why?” So in this backdrop the issue is more serious. There is no representation in the drafting and advisory committee from the other side, that is the majority group, which is also a major victim of communal violence since Independence, i.e. 1947.
Another provision, which advocates setup of an authority at national and state levels, is also very dangerous. This authority has been entrusted with powers of the investigating agency, civil court, and state government. This authority could initiate special investigation, recommend punishments which would be binding on the government and it could interfere in the business of the state government too. All the investigating agencies including police would be accountable to this proposed authority. Aren’t these provisions akin to the Jan Lokpal Bill suggested by members of the civil society which was rejected by government saying that this would damage our parliamentary democracy? Doesn’t it show the double standard of the government?
However, many thinkers are of the view that creating any system for fast investigation and judgement of cases is not a bad idea. The former first woman IPS officer Kiran Bedi says: “If hearing and evidences are up to the law then it is not a problem. It is then only an effort to expedite the system, but if it works on pre-assumptions that some groups will be victims and some are not then this wouldn’t be a right thing.” But it is quite clear from the draft Bill that not only pre-assumptions are there but the proposed authority is equipped with super powers which can interfere in the business of the state governments too. This again proves that this Bill is aimed at Gujarat as Congress is still not able to damage Gujarat CM Narendra Modi, despite all the allegations to malign him and his government.
This can also increase the terror activities in the country which are mainly committed by the members of the jihadi groups that hail from minority communities, thus posing a threat to the internal security of the country. Arun Jaitley says: “Terrorist groups may no longer indulge in terrorist violence. They will be incentivised 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?”
“THE BILL IS FOCUSED AT INSPIRING CONFIDENCE IN MINORITIES”
By —Abhishek Manu Singhvi, Congress Spokesperson
Firstly, nothing has been finalised. Opinions are being sought from diverse sections. The BJP is trying to further its communal agenda. It is trying to do so by pre-emptive strike and debunking a draft bill under discussion. The country knows which political party has communal agenda from its birth, continues to be bound by umbilical chord of the RSS (Rashtriya Swayamsevak Sangh) and carries the shame of Gujarat, Karnataka and Babri with ease, sometimes with pride. It is going to be naturally worried, that’s why the pre-emptive strike.
There is no provision in the Bill which interfere in state affairs. Only one of the 60 clauses in the draft Bill gives central government power of intervention in case of communal disturbance and this provision too was hedged in by three cumulative conditions such as waiting for state government to take action. What is the harm in (the central government) having residual power. Secularism is part of basic structure of this country. Communal violence prevention bill was a special act focused at inspiring confidence in minorities, whether linguistic or religious, in every state. If minority community indulges in violence, the IPC (Indian Penal Code) applies very strongly.
The Draconian Provisions of the PCTV Bill
- Protection to religious or linguistic minority and Scheduled Castes and tribes: According to drafted PCTV Bill it is directed to punish the offences done or anticipated against a group which essentially comprises of a religious or linguistic minority and Scheduled Castes and Tribes (Sec 1e). This Bill does not state what will happen if in any case the minorities themselves start to organise attacks and riots. This assumption is also a breach of the Article 14 of the Indian Constitution which gives right of equality to each and every citizen of India. Former Secretary General of Indian Parliament and Constitution expert Subhash Kashyap says: “This definition is against the right of equality i.e. Article 14. It is discriminating and will wedge a divide in the society.” If this draft becomes an Act, the victims of a large number of the bomb blasts and attacks like the Godhara train burning, Mumbai riots 1993 etc wouldn’t be granted as the victims of communal and targeted violence and they wouldn’t be able to get the justice. Kiran Bedi says: “Any pre-assumption that victim could be only Hindu or Muslim or Sikh will be faulty. It cannot be generalised and should be based on proper investigations. We should act within the framework of our law. You cannot start assuming anyone as culprit in the beginning of the case.”
- Curbing freedom of expression by describing it as hate propaganda: Even publishing, communicating or disseminating of opposition may be termed as hate propaganda (Sec 8) and it may extend to three years imprisonment and/or fine. Section 18 dictates that the administration is to keep a constant vigil on this as to who is criticising minorities, even fair criticising may invite action by state else the public servant will be prosecuted. This provision may be misused widely even in the time of peace.
- Offences to be non-bailable and cognizable: The offences under the act are summarily non-bailable and cognizable even if they are not so under IPC by virtue of Sections 11 and 58.
- Government machinery will be made a slave to the minorities – Under this Bill, public servants will be under constant supervision and it casts vicarious liability on them (Sec 12 to 16 dereliction of duty). As also the victim can at any point of time get a right to know the stage of proceedings and can complain to the national authority against the government machinery.
- Obeying orders is not a defence: Apart from the vicarious liability, the order obeying police etc. cannot say that they obeyed the orders. Even if one obeys an order of his senior, he also is an accused. In the times of riots or attacks, if each officer starts to take his own decision according to this Bill, then controlling the same will be too much difficult because of this. (Sec 16)
- Creation of a post, Defender for Justice and Reparations: It appears that his sole activity will be to act for the rights of minorities (Sec 56).
- Creation of National Authority for Communal Harmony, Justice and Reparations: It shall have separate investigation agency with a Director General of Police (Sec 29). Its advisories and recommendations will be binding on the State and Central government (Sec 32 (a) and (d) read with Sec 29). It can interfere in the Court proceeding ( Sec 32 j and k). It will have the status of a Civil Court (Sec 33/2).
- The public servants like District Magistrate or Police Superintendent are made directly answerable to the National Authority: (Sec 72, 29, 69, 71, 41, 38, 39)
- Presumption of guilt and burden of proof on the accused: The accused will have to prove innocence (Sec 74). This is against the basic principles of the judiciary system.
- More than one third of public prosecutors will be from the religious or linguistic minority: (Sec 78).
- Provision for funds: There will be funds diverted from the Consolidated Funds of India in addition to the fines collected under this act which will be disbursed to the alleged victims.
- Apart from punishment the convict will have to pay to the victim: Whatever is given to the victims are in turn subrogated from the persons allegedly responsible for the loss of property, life or liberty (Sec 110).
- Protection of action taken in good faith: All the persons acting under this Act will have blanket ‘protection of action taken in good faith’ (Sec 130).
- This act is in addition to any other laws that are in force at present: (Sec 138).
After so many objections raised from the different sections of the society the draft Bill was diluted by dropping the provision that allowed the central government to interfere in the affairs of the States by invoking Article 355 in case of violation against minorities. But it still contains the assumption that the victim group would be only minority communities. Union Minority Affairs Minister Salman Khurshid said proudly: “The Communal Violence Bill has undergone many changes, and there are last few steps before it is ready to be placed before the Cabinet. Great deal of inputs has been provided.”
However, no Congress leader is ready to have a detailed discussion on this Bill. Political analysts believe that the Congress wants to polarise the voters on communal line so that it can win the Muslim vote bank once again. A senior Congress leader has accepted that this Bill is meant for boosting confidence of the minority communities only. Subhash Kashyap says: “The whole thing is motivated by party politics and vote bank consideration. Most blatantly the whole effort is to befool and exploit the minority communities because the government has done very little to uplift their conditions. So it wants to divert their attention. The ruling party seems to have vested interest in keeping the minorities backward, illiterate and poor so as to keep them as its vote bank.” Many analysts are of the view that Congress only wants to create controversy and hullabaloo in the Parliament so that, whether the Bill could be passed or not, it could show its concerns for the minority communities.
Thus this whole exercise seems to be only a political exercise rather than an effort for solving a most delicate problem of the country. It will neither strengthen our social fabric nor promote social harmony and peace; instead it will create an atmosphere of insecurity between both the minority and majority communities. Arun Jaitley rightly says: “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 and will defy the basic principles of equality and fairness.
By Ravi Shankar