The basic premise of the Bill is astounding in itself. Are the citizens of India, particularly the majority, to presume - and accept - that it is only Muslims and Christians who are deserving of State protection and privileges? A prima facie reading of the Bill may give the impression to a lay reader that it is a bill to stop communal atrocities but its actual objective, motive and purpose gives rise to suspicion. The format itself of this bill raises many questions and is enough to raise a question mark on the intentions and ability of those who drafted and cleared this bill. It is astonishing that responsible persons can draft a piece of intended legislation like this, after 60 years of independence from colonial rule. If this bill is passed in its present state and becomes a law, there is no doubt that it will have the most damaging effect of dividing the nation's citizenry into two mutually hostile classes. The debilitating effects will be seriously adverse on our nation, affecting communal harmony and engineering differences between the majority community and the minorities.
Main features of the Bill:
- Sec. 3 (e): This is the single most pernicious and mischievous concept in the Bill, namely "the Group". It comprises basically the religious minority (linguistic minority and SC/STs have been added as formality), but at the level of the State. Hindus even when they are in a minority at the level of a region within a State or a district or in a group of villages subject to inter-religious violence will be treated outside "the Group"! This is not very different from Zimmitude practiced during Islamic rule in the country. The Bill can be made more civilized by a single stroke, namely by dropping this concept and definition of "the Group", making the Bill applicable to any community or member of the community, involved in or affected by mass inter- religious violence.
- Sec. 3(f): "coercive environment" is a vague concept, not easy to prove. Refusing to do commerce or associate in any manner with any member of the "Group" which is a fundamental right of any individual, is an offence under this Bill.
- Sec. 3 (j): a "victim" can only be from "the Group"; victimhood is so comprehensively defined that it is easy to arraign any person not belonging to "the Group" as an accused person in a locality or district or State.
- Sec. 4 (a): "means to engage" means nothing in legal parlance.
- Sec. 6: In respect of offence against SC/ST, the accused is subject to double jeopardy, (will be held guilty twice) which is unacceptable in modern jurisprudence.
- Sec. 7: One wonders whether it is necessary to so luridly describe what sexual assault is. The term, "otherwise" in Subsection (v) may make it impossible without legal and criminal liability to do a body search of a criminal of a religious minority community even in privacy. Defining "mass rape" as rape of more than one woman is absurd
- Sec. 8: The Bill seeks to define the offence of "hate propaganda" in such a comprehensive manner that not only freedom of expression and fair comment will be thrown out of the window but virtually any one saying anything remotely criticizing a minority community or member of the community, outside the egislature can be hauled by any "complainant" just for belonging to "the Group"! This is worse than living in Nazi Germany, or under the gaze of the ubiquitous Stasi in East Germany or in Stalin's Russia. What is worse, a Muslim openly inciting violence against those not included in "the Group" will not attract punishment under this Section.
- Sec. 9 (2): This is one example out of many which unfairly and unjustly makes the public servant, such as a district magistrate or a Police officer, criminally liable by presumption and not evidence. Tortuous and vague language has been used in a few other related Sections such as sec. 12, 13, 14 to impose responsibility on public servants faced with riot situations. For instance, 'dereliction of duty' as described in the draft is too wide-ranging. This sort of legal drafting will definitely demoralize law and order agencies; it will also give a powerful handle to religious minorities to terrorize or intimidate members of the majority community.
- Sec. 20: This section is preposterous. 'Internal disturbance' is a major and rare occurrence, described and defined elsewhere. Simply because "the Group" is involved under the rubric, also of questionable validity, of’ organized communal and targeted violence' the concept of’ internal disturbance' cannot be invoked. The use of the term 'shall' shows the mind-set of those who drafted the Bill.
- Section 21: As already mentioned, providing for religious criteria for membership of the National Authority and the State Authority is an very wrong way of showing solicitude to minority religious groups which form the vote bank. It is a pernicious doctrine to hold that in respect of religious minority matters only religious minority- loaded public bodies should function.
- Sec 23: It is not specified whether the Authorities shall be headed by HC/SC judges working or retired. This will make these Authorities suspect. In Sec. 23 (1) (b) it is said that to qualify for membership in these Authorities, one should have had a "record of promotion of communal harmony". How to determine this and prove it is a moot point. Making such provisions in a law is to invite long and frequent litigation.
- Similarly Sec. 23(2) (b) is an absurd provision, impractical to implement. Sec. 30, 31, etc are so drafted as to make serious inroads into the Constitutional authority of the States and to make these Authorities control and direct State officials. This is establishing parallel administration and is bound to create a lot of confusion and further subversion of discipline in the permanent public servants. Giving statutory powers to these Authorities to "observe" judicial proceedings directly or through nominees is wholly obnoxious; it smacks of over-lordship on the country's judiciary.
- Sec 32: The entire public Services is sought to be brought under permanent scrutiny of these Authorities. While this is bad for administration and will be construed as unconstitutional interference in State functions, it will also result in complete confusion in discipline and accountability.
- Sec 39 is another absurdity. It seeks to make the Authority, comprising some individuals with vested interest in religious minorities superior to the executive wing of the entire State.
- Section 65 (4) is positively a bad precedent (post mortem to be done in the presence of representative of victim etc). These sections show that the mindset of the makers of this Bill is one of deep suspicion of all established administrative procedures.
- Sec. 69 is an example of absurd provisions that follow in the Bill-the requirement to keep the "victim" informed in writing of the progress in investigation! The details mandated in the report are impractically long. This means another agency to be reported to over and above the State functionaries. Such provisions are sure to make members of the religious minorities run the administrations as they deem fit, interfere in them and dislocate them. This is taking victim rights too far indeed.
- Mandating a judicial enquiry by this Central Bill is not only interfering in the Constitutional functions of the State government but also presumes that simultaneous investigation and enquiry by the Executive and by the Judicial Commission is always the right road to take.
- Section 74: This section mandates a pre-determined inference when a person from the minority religion is the victim. What about a victim belonging to the majority community? Is the discrimination Constitutional? It is of course against judicial prudence.
- Section 78: As already mentioned, appointment of Special Public Prosecutors is to be based on their religion, another pernicious provision in the Bill. How about a Shia Prosecutor or a Sunni Prosecutor and a Catholic Prosecutor and a born again Christian Prosecutor?! The requirement in Sec. 78(3) is absurd.
- Sec. 81: Giving blanket suo moto powers to the designated Judge to take cognizance of offences deemed to have been committed under this proposed Statute will interfere with Executive functions. Such suo moto powers must be minimal.
- Sec 86(6): Provides that irrespective of his or her wealth a Christian or Muslim who professes to be a "victim" shall be given free legal aid, engage any advocate etc.
- Sec. 87: Not only the so-called victim but also every informant and witness shall be provided protection, financial facilities and socio-economic rehabilitation! Sec. 87(4) seems to provide for secret trial as a routine-effective defence is forestalled by this sort of Nazi-like provision.
- Sec 88: Calls for video-recordings of all court proceedings to be made available not only to the accused but also to the "victim" and informants, State Authority and also Central Authority. Chapter VII: The only set of provisions in this Bill which does not differentiate between a member of the religious minority and a Hindu relate to relief, reparation and compensation. (Sec 90,98)This is small mercy indeed.
- But Sec. 92 and 93 impose enormous and almost impossible burden of detailed responsibilities on the executive functionaries down to the level of the District Collector. These provisions show the mindset of the drafters-one of unjustified and unfounded presumption that unless statutorily shackled the officials will not do anything for the victims. The history of how public officials have handled riots and their aftermath in the last 100 years does not justify such nitpicking legal provisions. What is worse, such provisions will make mischievous elements in religious minorities seek to drive the administration beyond endurance and even resort to blackmail.
A reading of the sections in Chapter VIII dealing with penalties will show how liberal the drafters of this Bill have been with "rigorous life imprisonment" not only for perpetrators (assumed always to be Hindus in this Bill) of the inter-religious rioting but on public officials for their commissions and omissions!
Sec 125 calls for punishment for crime not committed based on "inference" that but for prevention (by whom? Perhaps even by a vigilant minority religious person) the crime may have been committed!
There are certain bills which are discussed, there are others which are thrown in the dustbin and there are some bills, like the Communal and Targeted violence Bill, which need to be burnt. If it becomes law it will be a Hindu Apartheid Law.