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Wednesday, 2 May 2012


With such utterly ridiculous clauses just imagine the kind of case scenarios that could emerge: Scenario1: Two bicycles collide on a street. It is just an accident, which might lead to a small quarrel. If one of the cyclists happens to be a member of the Minority community he can invoke this Act by virtue of his being from the ‘non-dominant group’. He is not just another individual; he is always from a ‘non-dominant group’. We must remember that many communal clashes in our country begin with such frivolous incidents only.

Scenario 2: A person approaches some house for rent. The house owner refuses to give his house on rent for whatever reason. This is a very common thing in our country. House owners have various considerations including vegetarianism etc. But in this particular case if the person asking for rent happens to be a person from the Minority community the house owner can refuse his offer only at his own peril. It can be interpreted as ‘public humiliation’ as defined in Art 3 (f) (ii); or ‘depriving of fundamental right’ as in Art 3 (f) (iii); or even Art 3 (f) (iv) or (v). Scenario 3: If a teacher, as part of his lecture, makes some comments on, say, the 9/11 terrorist attack on the US, any student in the class belonging to a ‘non-dominant group’ may interpret it as causing ‘psychological harm’. Or if a Ramdev Baba or some other Swami says that India should have a Uniform Civil Code as per the Directive Principles of our Constitution, he might be dubbed as indulging in creating ‘hostile environment’ as any member of the ‘non-dominant group’ may stand up and say that he was hurt ‘mentally and psychologically’ by the comments of the Swami.

Eminent columnist and thinker Swapan Dasgupta has very rightly pointed out the absurdity ofthese definitions in one of his articles. He wrote in his column titled ‘NAC’s Bill would land Dikshit in jail”: “Amid the annual madness over college admissions, Delhi is witnessing a sideshow in St Stephen's College, which its Principal has described as a "national treasure". It seems that Sandeep Dikshit, a Delhi MP and son of Chief Minister Sheila Dikshit, was dropped as the alumni representative on the college's governing body. The college authorities say that Dikshit hadn't attended a single meeting since 2009 and Dikshit has retorted that St Stephen's has lost the plot and functions like a "communal institution." In reply, Principal Valson Thampu has charged Dikshit of failing to distinguish between communalism and "minority rights." Despite the headline-grabbing potential of anything to do with St Stephen's, this controversy is somewhat stale, and unless someone says something rash, is certain to peter out in the coming week. However, my reason for invoking this minor skirmish is different. If the Communal Violence Bill (CVB) as drafted by the National Advisory Council is passed by Parliament, it is entirely possible that the Congress MP for East Delhi could well be confronted with a non-bailable warrant on the charge of creating a "hostile" and "offensive environment" against a minority institution [clause 3 (f) (5)]. A member of a minority group could walk up to any Police Station and submit that Dikshit's expression of disgust with St Stephen's had contributed to his "mental" and "psychological" harm [clause 3 (j)]. He would claim that Dishit's outburst "could reasonably be construed to demonstrate an intention to promote or incite hatred" against the Christian minority [clause 8]. Since the proposed legislation stipulates that "Every Police Officer shall take action, to the best of his or her ability, to prevent the commission of all offences under this Act" [clause 18 (2)], the relevant thana will have to register a case under the new legislation.

Nor can the politician in Dikshit brush off the case as yet another occupational irritant whose handling is left to a lawyer and forgotten. The CVB is explicit that "unless otherwise specified, all offences under this Act shall be cognizable and non-bailable" [clause 58].”

Having thus established a victim, a crime and an alibi the draft Bill goes on to fix the perpetrators. ‘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 crime according to Art 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 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 neighbor – in any crime using this Bill.

Read the relevant Art 4 (a):

4. Knowledge.- A person is said to knowingly direct any act against a person belonging to a group by virtue of such person’s membership of that group where:

(a) he or she means to engage in the conduct against a person he or she knows belongs to that group;

Art 7 of the draft Bill defines ‘sexual assault’. It is by far the most widely covered definition that is very much needed to protect women from becoming targets of sexual violence as part of communal violence. But again the problem is that this definition is applicable to the women belonging to Minority group and women of the Majority community can’t benefit from it.

Secondly, it also states that in a case of communal violence sex by consent also can be construed as a crime.

The relevant sentence is here:

Provided that where sexual assault under sub-section (a) or (b) is committed as part of or in the course of organised communal and targeted violence, it shall not be necessary to prove that the said act was committed against the victim without their consent or against their will.

Ideally such a protection should be available in all cases of violence against women in all situations. But one cannot forget cases like Jhabua Nuns Rape Case and Kandhamal NunRape Case where the nuns had used false cases of sexual assault to implicate and harass people of the Majority community. Under this present draft too such a possibility becomes much more convenient to make false allegations of sexual assault.

Art 13 & 14 are about the 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 Art 13 defines what constitutes ‘dereliction of duty’ Art 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. Art 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 organization is found to be the perpetrator of the so-called communal and targeted violence the higher ups in the organization, even if they are not directly involved in any action, will be held vicariously responsible.

Relevant article reads thus:

(1) Whoever, being any non-state actor or superior or office-bearer of any association as defined under clause (b) of section 3 of this Act and other than those mentioned under section 14, in command, control or supervision of any association or assuming command vested in him or her or otherwise, fails to exercise control over subordinates under his or her command, control, supervision and as a result of such failure offences under this Act are committed by subordinates under his or her command, control or supervision, shall be guilty of offences committed by such subordinates under his or her command…

Thus even the perpetrators and the accused have also been defined by these articles. They include actual perpetrators who will always be from the dominant – read Majority – group; government officials in the said jurisdiction for dereliction of duty; police, paramilitary and the armed forces personnel; and leaders of the organisations whose members are accused to be the perpetrators. That means 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 thenormal 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.

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