SEP 18, 2011
The National Advisory Council’s Prevention of Communal and Targeted Violence (Access to Justice and Repatriation) Bill, 2011, has been hotly discussed and drew criticism from both sides of the political spectrum at the recently concluded National Integration Council meet.
The Bharatiya Janata Party (BJP) has criticised the Bill for being skewed in favour of the minorities and being unfair to the majority community. Others, including the Trinamool Congress, Janata Dal (United) and the AIADMK, term it as ‘anti-federal’.
BJP’s main opposition is that the Bill addresses violence caused by a majority community against minority and not vice versa. The opposition stems from the way the Bill defines the expression ‘group’: A religious or linguistic minority in any state in the Union of India, or Scheduled Castes and Scheduled Tribes. This definition is used at all places to define violence. Clause 7, under the subhead ‘sexual assault’, says “a person is said to commit sexual assault if he/she commits any of the following acts against a person belonging to a group, by virtue of that person’s membership of a group.”
A SKEWED BILL?
WHAT THE BILL SAYS
- The definition of ‘group’ takes into account only religious and linguistic minority. It remains vague on riot situations where a majority community is attacks by a minority
- Asks for constituting a National Authority for Communal Harmony, Justice and Reparation, which will have powers to collect information from the Centre or state and could direct state authorities on how to conduct an inquiry
- Any direction issued by NACHJR to a state authority shall be binding
- Fixes accountability on a public servant for ‘dereliction of duty’, but isn’t as unequivocal on the political leadership.
- The Bill is against the majority community. Party opposed to the way the Bill defines the expression ‘group’: A religious or linguistic minority in any state in the Union of India, or Scheduled Castes and Scheduled Tribes
- The Bill infringes on the rights of states, as it takes ‘law and order’, a state subject, away from its machinery in event of communal violence
In an article written in June, Arun Jaitley, leader of Opposition in Rajya Sabha said, “Under the Bill, sexual assault is punishable only if committed against a person belonging to a minority ‘group’. A member belonging to the majority community in a state does not fall within the purview of a ‘group’.” Similarly, the definition of ‘hate propaganda’ under clause 8, ‘organised communal and targeted violence’ under clause 9 and ‘Torture’ by a public servant under clause 12 address violence against a ‘group’.
National Advisory Council (NAC) member Harsh Mander, architect of the Bill, defended the proposal. “The Hindus are a minority in seven states. They are also linguistic minorities in a large number of states. Therefore, it is incorrect to say the law is protecting only the minorities. I agree there have been instances where the majority community has been attacked by the minorities, but there are existing laws to handle this.”
However, he said there was an “institutional bias” against the minorities which needed to be corrected. “In cases of communal violence, the entire criminal justice system has been against the minorities. It is to correct this institutional bias that we need a special law. There have been riots against the Hindus, but have you ever heard of a provincial armed constabulary firing against them?,” he asked.
The Bill has been criticised both by the BJP and UPA allies, who allege it infringes on the rights of the states, as it takes ‘law and order’, a state subject, away from the state machinery in event of communal violence. The Bill asks for constituting a National Authority for Communal Harmony, Justice and Reparation. The 11-member body, which will be constituted by the Centre, will have the power to collect any information from the central or state government; appoint any person to observe, gather facts and information; and issue directions to the state authorities on how to conduct an inquiry. Also, ‘any direction issued by the body to a state authority shall be binding on the former.”
Mander says the criticism is unfounded as the national authority will have no extraordinary power. “A misconception is being created that the Bill challenges the federal nature of the Constitution. Most powers given to the body already exist with the National Human Rights Commission,” he said.
The Bill also drew criticism for the vague definition of ‘communal and targeted violence’. It is defined as “any act or series of acts…against any person, by virtue of his or her membership of any group, which destroys the secular fabric of the nation.”
Jaitley wrote: “There can be legitimate political differences on what constitutes secularism. The phrase can be construed differently by different people. Which definition is the judge supposed to follow?” NAC had to finally delete this provision.
“The scope of the word ‘secular fabric’ was so huge that we decided to remove it. We have had so many riots, but never has the situation reached a stage where it has threatened the secularism of the country,” said Farah Naqvi, member, NAC.
Also, for the first time, the Bill fixes accountability on a public servant for ‘dereliction of duty’. According to the Bill’s provisions, a public servant shall be guilty of dereliction of duty if he exercised his duty in a manner likely to lead to communal or targeted violence; and if he “without any reasonable cause, failed to prevent the commission of communal and targeted violence.” However, the Bill remains silent on fixing political responsibly in an event of communal violence.