Thursday, 5 December 2019

A Comparative Analysis Texts Of The Prevention Of Communal Violence Bills 2011 And 2013

Updated: January 4, 2014 12:42 pm

The Prevention of Communal & Targeted Violence (PCTV) Bill 2011 as drafted by the National Advisory Council headed by Sonia Gandhi, President of the Indian National Congress Party, and the Prevention of Communal Violence Bill 2013, both are essentially and fundamentally anti-Hindu and are designed to further divide people of India on lines of religion and language. It will further widen gulf between Hindus and non-Hindus and demoralise

Indian civil servants as being conspired by enemies of India from across our borders.

In the 2011 Bill, religious minorities, linguistic minorities, Scheduled Castes and Scheduled Tribes were clubbed together in definition of Group in Section 3(e); and, sexual assaults, hate propaganda, organized communal and targeted violence and the 73 IPC offences listed in Section 11 were considered offences under the PCTV Bill only if committed against persons belonging to the group inviting harsher and faster punishments to accused Hindus. Thus, for the first time in the history of India different criminal laws for Indians of different religions and languages have been proposed by the Congress and its UPA allies. This principle has been retained in the 2013 Bill. Though the word “group” has been deleted in the 2013 text, new phrase “persons having a particular religion or language” has replaced “group” in the 2013 text everywhere it [group] had appeared in the 2011 text.

In the 2013 text also it is stated that offences of hate propaganda, organised communal violence and the 56 IPC offences [Section 9A] shall be communal offences only when committed against persons having a particular religion or language. In other words, above offences when committed against Hindus by minorities shall not come under this proposed Act. Thus two tiers of criminal laws to handle same crimes have been proposed by the Congress Party depending upon religious or linguistic identity of accused persons. It is just unconstitutional.

Victim has been identically defined in Section 3(k) of the 2011 text and at Section 3(l) of the 2013 text and excludes Hindus from being considered a victim of communal violence. So only minorities can claim to be victims of communal violence whereas the fact is that analysis of communal violence data in India show that majority of communal violences in India were initiated by minorities specially on Fridays.

Definition of Knowledge about knowing a person to be a minority is identically same in both texts of the Bill. [Section 4 in both texts] Both texts of the Bill extend to the whole of India except the J&K state where Hindus, Sikhs and Christians are in minority. [Section 1(2)]

Vide Section 2 of the 2011 and the 2013 texts Hindus living abroad [NRIs and PIOs] have been brought under this Act for prosecution in Indian courts for offences alleged by any religious or linguistic minority to have been committed abroad.

The 2011 Bill had proposed to create a new National Authority for Communal Harmony at national and provincial levels but headed, dominated and controlled by religious minorities. Hindus were reduced to be perpetually in numerical minority in such Authorities. In the 2013 Bill proposal to create a new National Authority has been dropped but its functions as laid down in the 2011 text have been conferred on the National Human Rights Commission.

The 2011 Bill [Section 38] and the 2013 Bill [section 33] both stipulate that identity of the victim or informant shall be protected at all times. So a Hindu accused shall not be informed as to who has complained against him [Hindu]. So how and when defence attorneys shall cross examine the complainant and prosecution witnesses.

Section 40 of the 2011 Bill and section 34B of the 2013 Bill provide that no statement made by a person before the National Authority or the National Human Rights commission shall subject him or be used against him in any civil or criminal proceedings. Thus this Bill encourages minorities to make all sorts of false allegations against Hindus further widening the gulf between Hindus and non-Hindus.

Under section 56 of the 2011 text and section 40 of the 2013 text all offences under this Bill shall be cognizable and non-bailable. It means if a Hindu is arrested under this Act he shall get bail only from a court after a few weeks/months.

Section 126 of the 2011 Bill provided that the prosecution for offences of communal violence and execution of sentences shall not be subject to any limitation. In other words Muslims and other minorities can reopen cases alleging communal violence for cases right from 1947 if not from days of first Islamic invasion by Bin qasim. This provision of non-applicability of limitation has been retained at section 9e2 of the 2013 Bill.

Under section 76(2) of the 2011 Bill a victim could ask the State to replace the Special Public Prosecutor and under section 83(6) could engage any advocate of his choice from the government panel at government cost. These provisions have been retained in the 2013 text at sections 54(2) and 60(6). Hindus do not enjoy such rights in criminal cases.

Under both texts a victim shall be regularly informed of current position of the case by Police and public prosecutors, victim shall have right to apply to court to summon parties for production of any documents or material witnesses or examine persons present vide sections 83 of the 2011 text and section 60 of the 2013 text. Generally Hindu victims do not have similar facilities in criminal cases.

Section 79(1) of the 2011 Bill and section 57(1) of the 2013 Bill empower a Designated Judge to take cognizance of offences without the accused Hindu being committed to him for trial.

Under sections 70, 71 and 72 of the 2011 Bill accused Hindu was presumed to be guilty of allegations till proven innocent. Such provisions on the first reading do not appear to be there in the 2013 text of the Bill. This shows that drafters of the 2011 Bill lead by Sonia Gandhi were more anti-Hindu than those who drafted the 2013 text of the Bill.

Under section 3(f) of the 2011 Bill a minority could get a Hindu sent to jail by falsely complaining that that Hindu was refusing to do business with him because he was a minority or that Hindu was not renting to minority his home, shop, godown etc. , or that Hindu had denied a job to him as he was a minority. These provisions have been retained word by word at section 3(f) in the 2013 text.

Both Bills demoralize the morale of the bureaucracy and discourage them from taking timely action. Civil servants may resort to work to rule.

Mohammad Ali Jinnah and his Muslim League always tried to detach Scheduled Castes from the Hindu samaj and tried to forge a political front of Muslims and SC Hindus against other Hindus. Mahatma Gandhi opposed such attempts of Jinnah and succeeded in frustrating it though Poona pact. But the 2011 Bill was designed to fulfill above strategy of Jinnah by those who claim political legacy of Mahatma Gandhi through sections 3(e) and 6 of the 2011 Bill by clubbing SC, ST with minorities. In the 2013 text this clubbing of SC & ST with religious minorities has been dropped.

Thus the Prevention of Communal Violence Bill 2013 is heavily tilted in favour of minorities and that the 2011 Bill as drafted by Sonia Gandhi was much more anti-Hindu than the 2013 Bill is.

By OP Gupta

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