The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 is a gory, ghastly and grizzly piece of an illiberal legislation which mocks constitutionalism and justice. It banishes Hindus from the system, deprives them the benefit of law and puts them out altogether of its protection. This infliction of outlawry on Hindus is called “respect to equality before law and equal protection of laws” and upholding of “secular democracy”. Sanctioning social stratification the Bill divides the country into ethnic enclaves. Creating a dystopian society the Bill contemplates a repressive regime for Hindus where they will not be citizens but ciphers, be referred to by numbers not names and be forced to be as uniform as possible. The message is clear: get ready to be purged under a reign of terror.
Under the Bill Hindus (a “religious majority” in most states of India) cannot ever suffer from “communal and targeted violence” as the Bill defines the expression only to include acts against a religious minority under Section 3 (c), can be freely subjected to “hostile environment” as threats, boycotts and humiliation are actionable under Section 3 (f) only if committed against religious minorities, have no remedy even as an “internally displaced person” as Section 3 (g) confines the provision only to members of a religious minority who are forced to leave their home or residence and cannot ever be a “victim” of physical, mental, psychological or monetary harm as only a person belonging to a religious minority can be deemed to be victimized under Section 3 (k) of the Bill! The Bill, incidentally, does not apply to Jammu and Kashmir where the Hindus are a religious minority and from where they have been “displaced” – euphemism for ethnic cleansing.
Hindus will be denied protection even from hate speech as under Section 8 of the Bill speech can degenerate into “Hate Propaganda” only when its object is the religious minority which, alone, is considered deserving of being protected against “Sexual Assault” under Section 7 of the Bill; a Hindu cannot even complain of rape, affront or sexual indignity where an offence of communal violence is committed.
“Organized Communal and Targeted Violence” has been defined under Section 9 to exclude associations of religious minorities undertaking communal and targeted violence against Hindus; such associations of religious minorities, so the Bill presumes, cannot ever commit the offence of organized communal and targeted violence against Hindus.
Incidentally “organized communal and targeted violence”, “hate propaganda” and “sexual assault” have been legally defined by the Bill for the first time and made punishable under Chapter VIII there being no other statute defining or dealing with these offences. These offences, therefore, are wrongs which only a religious minority can seek redressal against with no similar remedy available to the religious majority. Law, thus, is separate and unequal for the Hindus and the Hindus find themselves in a situation even worse than American blacks under segregation!
In fact the Bill has provision about “presumption as to offences” under Section 72 and “organized communal and targeted violence” punishable under Section 113 with rigorous imprisonment for life (which punishment is reserved only for the religious majority) can also be presumed under Section 72(2) of the Bill; an accused (who can only be a member of the religious majority) can thus be condemned for life on a mere presumption.
Even compensation, restitution and rehabilitation under Chapter VII of the Bill (comprising of Sections 87 to 110) is confined only to the religious minority and the “duty”, under Section 89, of the Government to protect “life, liberty and property” is owed by it only to a member of the religious and linguistic minority. Life, therefore, has meaning, liberty has substance and property has value only if it belongs to the religious minority; they are otherwise bereft of worth should the claimant be a Hindu.
“Personhood” itself is recognized only in members of a religious minority as Section 95 of the Bill stipulates that they alone are the “persons” who can be injured by organized communal and targeted violence to be entitled to be registered as being so injured. The criteria, as are generally understood, for being recognized as a “person” are that he (1) is alive, (2) is aware, (3) feels positive and negative sensations, (4) has emotions, (5) has a sense of self, (6) controls its own behaviour, (7) recognises other persons and treats them appropriately, and (8) has a variety of sophisticated cognitive abilities. The Bill, thus, denies these attributes exist in the members of the majority community. The outrage in the name of such an obnoxiously malignant Bill could not have been dared had the dignity of personhood been conceded to a Hindu.
The “guarantee” to ensure “access to justice” under Section 110 of the Bill is, thus, limited by the Bill only to a member of religious and linguistic minority; this access is denied to the members of the majority community. And in assessing compensation under Sections 99 to 101 of the Bill provision is made for “moral injury” only in the context of religious minorities as if principles of morality can be invoked only if the aggrieved is a member of the religious minority.
The Bill promotes a negative stereotype about Hindus. Although the expression is not used (and is coupled with “linguistic” minority the occasions of which minority being involved being few and far-between) the intent behind the Bill is yet obvious. Allport dealt with such behavior while coining the term “antilocution” – verbal remarks against a community which are not directly addressed at the target and create an environment where discrimination is acceptable. This is the first stage in the scales of prejudice the verbal remarks aggravating first to avoidance of the community, then discrimination and physical attack against it and eventually leading to its extermination. The Bill, thus, creates an environment of hostility towards Hindus and promotes the demeaning of them under the garb of “secular democracy” preliminary to their subsequent avoidance, attack upon them and their eventual extermination. Rendered alien in their own country, Hindus will thus be made hostage to a system devised to devour them.
The Bill serves as a polarizing propaganda dividing the population between “us and them” denying the very humanity of the excluded group (read Hindus) and combines this separation with hatred towards the latter while simultaneously denying that any wrong is being committed giving discrimination itself the cloak of law. And it does this in the name of “equal protection of laws” and “upholding secular democracy” as if debasing, degrading and disparaging Hindus is the only way of upholding secular democracy and ensuring equal protection. The Bill, therefore, is manifestly arbitrary, is contrary to the principle of constitutionalism, its restrictive definitions and artificial classification revealing it as illogical, unfair and unjust piece of legislation.
This separation of persons on the basis of religion has no objective or reasonable justification as victim of a wrong cannot denied redress merely because of his religious orientation and, similarly, a criminal act will not become less so because the religious belief of its perpetrator. Under the Bill a Hindu in most states of India even if injured abused or intimidated or forced to leave his residence because of his being a Hindu cannot ever be recognized as a victim nor be permitted to allege any physical, mental, psychological or monetary harm nor also be statutorily entitled to compensation, restitution or rehabilitation and the Government is under no obligation to guarantee him protection, prevent recurrence of violence or ensure for him access to justice. A Hindu, the Bill presumes, cannot ever be “vulnerable” to communal violence nor be subject to “an unfair or unjust investigation” into the same.
Incidentally a member of a religious minority can complain under Section 67 to the National Authority about “biased” nature of investigation and further investigation or re-investigation can then be ordered under Section 68. “Public Order” is in the exclusive domain of the State. Provisions like the ones contained in the Bill make an intrusion into a forbidden territory encroaching even upon the reserve of States violating the distribution of authority under the federal structure in an unrestrained enthusiasm for pandering to religious minorities.
The National Authority, in fact, cannot merely call for any information not only from the Central Government but even the State Government under Section 30 and recommend “initiation of proceedings for prosecution or such other action” under Section 34 and can further demand “action taken” within one month or “such further time as the National Authority may allow” there-under. This is apart from the duty not only of the Central Government but “the State Government and public servant at all levels” to take appropriate action “on all advisories and recommendations” issued by the National Authority and re-investigate where a victim is aggrieved “about any procedure of investigation including lack of impartiality and fairness.” The Authority therefore will police even the State Government. In fact Section 69 of the Bill obligates the State Government (which has no discretion but is under a duty to so do under the Bill) to “order an inquiry” into “discharge of public functions by public servants” concerning organized communal and targeted violence, the Bill thus interfering even with state public services.
The method of investigation itself is sought to be controlled through Sections 62 to 66 of the Bill which even specifies the rank of the police officer, in Section 60, who has to conduct investigation. These provisions cannot be saved by Entry 2 of List III because they are ex-facie discriminatory changing criminal procedure according to the religion of the complainant. Similarly while Special Public Prosecutors are contemplated under Section 76 of the Bill even these prosecutors can be changed merely on “information received from a victim or informant”, the State Government is being denied any choice or discretion in the matter being bound to comply under the Bill to the wishes of the victim.
The utter asymmetry of the entire mechanism is apparent from Section 83 of the Bill which states that a member of religious minority “should be treated with fairness, respect and dignity” – a right even otherwise implicit in the judicial process of India thus suggesting in a sinister fashion that express mention as a statutory right under the Bill is necessary as “fairness” is generally denied to religious minorities and the mandate of law is followed more in breach where the minorities are concerned. This is re-enforced by section 84 which makes elaborate provision for protection of “victims, informants and witnesses” all of whom can only be religious minorities.
It is thus assumed by the Bill that the system prevalent in India is biased in favour of the Hindus and special protection is necessary only for religious minorities. The utter absurdity of this position becomes apparent in the provisions dealing with the Authority for Communal Harmony Justice and Reparation created by the Bill (Chapter IV for Central Authority and Chapter V for States) to exercise the power and perform the functions assigned under the Bill; this Authority is composed of a mere seven individuals which number, so the Bill contemplates, would be able to control an entire polity of bigoted Hindus running into several crores - most of whom (so the Bill will make us believe) are volitionally disposed towards criminality and are intent upon communalizing law - and not only effectively prosecute and punish all of them unaffected by the prevalent and immanent institutional bias in their favour but have access to and use their resources (generated through taxation) to compensate the persecuted religious minorities and provide them relief and rehabilitation. If the system is so crooked and the religious majority so unprincipled, perfidious and unscrupulous to require an extraordinary piece of legislation like this Bill how can it be presumed that a body of just seven people with its secretarial staff (composed again suborned and tainted Hindus) will be able to effectively function and “implement” its provisions for the benefit of the religious minority?
This Authority, moreover, has seven members under Sections 20 and 42 of the Bill. The majority of its seven members have to belong to the religious or linguistic minority under Section 20(3) and 42(3). Its Chairperson and Vice-Chairperson must also belong to the said minority the Bill presuming that a member of the religious majority (read Hindus) cannot be trusted with such responsibility. The religious orientation of members of religious majority is deemed by the Bill to disincline them from being right or fair and render them incapable of ensuring communal harmony. This approach is akin to racial profiling and entails denial of dignity to the religious majority, stigmatizing the community as a whole and without any individualized suspicion against any of its members excluding him from consideration altogether.
Bigotry and intolerance stands codified in the Bill. This sectarian and dogmatic Authority can, paradoxically, undertake any function “it may consider necessary for prevention of communal and targeted violence” and towards that end “monitor and review performance of duties by public servants” in Sections 30 and 52 of the Bill.
The Authority, therefore, has been given absolute power to hold any official to account on standards which it will subjectively decide and claim the right to interfere on perceived harm to a religious minority and likely impact of any action. This committee or junta of political elite is allowed by the Bill to monopolize power and penetrate the deepest reaches of the political system and impose the authoritarian regime of a chauvinistic ideology on members of the Hindu community.
The very basis of the Bill is therefore flawed. Thus under the Bill a public servant who inflicts cruel, inhuman or degrading treatment on a person belonging to the majority community is not guilty of “torture” as Section 12 limits it to a person “inflicting pain and suffering” on a person belonging to a religious minority alone, nor can he be ever guilty of “dereliction of duty” under Section 13 as omission or abuse of authority is actionable only if it impacts a person belonging to a religious minority. Incidentally, under the sections aforementioned, a religious minority can allege torture for any kind of “pain or suffering” (which expression is not defined in the Bill) and can hold any public servant to account even for an act “likely to lead” to communal and targeted violence. Innocent acts can thus be criminalized on the mere feeling of a victim!
And as if this was not enough a mutation is made by the Bill in concepts and this miscegenation is shameless presented as law. Thus “Command Responsibility” has been introduced under Sections 14 and 15 of the Bill for the exclusive benefit of a religious minority. It is significant to note that this is a doctrine of hierarchical accountability in cases of war crimes and crimes against humanity during armed conflict. It was applied in World War II prosecutions in Nuremberg and Tokyo and again by the International Criminal Tribunals for Former Yugoslavia and Rawanda. International Criminal Law extends the doctrine to armed groups operating under sophisticated command structures aside from military forces in conflicts where militarized forces are either attacking the army of a recognized state or fighting with each other. In its applying “Command Responsibility” to communal and targeted violence the Bill is truly unique extending the doctrine to a situation to which it has never been applied.
The Bill is like the notorious “Jim Crow Laws” which sanctioned racial segregation in the United States of America between 1876 and 1965. These laws systematized advantages to white Americans and subjected the black Americans to inferior treatment. The laws institutionalized racism and sanctioned discrimination in policing and criminal justice. And the laws were justified as being necessary for the protection of the blacks themselves as allowing them in places where the whites frequent would mean "constantly subjecting them to adverse feeling and opinion", which might lead to "a morbid race consciousness". The Bill puts the Hindus in the same position of disability as Jim Crow Laws put the blacks denying them the same rights and subjecting them to greater disabilities and paradoxically suggesting, much in the same manner as the white supremacists that the Bill is necessary for them as otherwise they will be lead to “a morbid sense of Hindu consciousness”. The only difference is that the Bill is the first instance of such a discriminatory law being drafted to the detriment not of any helpless minority but of the majority community.
Leading criminal law philosophers have argued that conduct should only be criminalized when it is fair to do so. In particular, such theorists assert that objective reasons are needed to demonstrate that it is fair to criminalize conduct in any given case. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties. Far from transforming behavior into crime on any objective considerations the Bill allows prejudice to criminalize an act.
Judenhass or Jew Hatred is a well documented phenomenon. Helen Fein defines it as "a persisting latent structure of hostile beliefs towards Jews as a collective manifested in individuals as attitudes, and in culture as myth, ideology, folklore and imagery, and in actions – social or legal discrimination, political mobilization against the Jews, and collective or state violence – which results in and/or is designed to distance, displace, or destroy Jews as Jews." Helen Fein could well have been talking of Ant-Hinduism! His definition of anti-semitism can well apply to negative perception and religious intolerance to Hindus. Anti-Hindu bigotry, of which this Bill is an example, is no less vicious though yet not as well documented. The Bill is enacted in the tradition of Indophobes who berated Hindus as blasphemers and denigrated them as demonic. It would do Christian missionaries like Francis Xavier and Muslim clerics like Ziauddin Barrani proud. While the Jews got their Israel the Bill is symbolic of Hindus losing their Bharat!
SENIOR ADVOCATE, SUPREME COURT OF INDIA