A draft of a proposed legislation titled 'Prevention of Communal and
Targeted Violence (Access to Justice and Reparations) Bill, 2011' has been put
in the public domain. The draft bill ostensibly appears to be a part of an endeavor
to prevent and punish communal violence in the country. Though that may be the
ostensible object of the proposed law its real object is to the contrary. It is
a bill which if it is ever enacted as a law will intrude into the domain of the
state, damages a federal polity of India and creates an imbalance in the
inter-community relationship of India.
What does the bill in effect state?
The most vital definition of the bill is of the expression 'group'. A
'group' means a religious or linguistic minority and in a given state may include
the Scheduled Castes and Scheduled Tribes. The bill creates a whole set of new
offences in Chapter II. Clause 6 clarifies that the offences under this bill
are in addition to the offences under the SC & ST (Prevention of Atrocities)
Act, 1989. Can a person be punished twice for the same offence?
Clause 7 prescribes that a person is said to commit sexual assault if
he or she commits any of the sexual act against a person belonging to a 'group'
by virtue of that person's membership of a group.
Clause 8 prescribes that 'hate propaganda' is an offence when a
person by words oral or written or a visible representation causes hate against
a 'group' or a person belonging to a 'group'.
Clause 9 creates an offence for communal and targeted violence. Any
person who singly or jointly or acting under the influence of an association
engages in unlawful activity directed against a 'group' is guilty of organized
communal and targeted violence.
Clause 10 provides for punishment of a person who expends or supplies
money in the furtherance or support of an offence against a 'group'. The
offence of torture is made out under clause 12 where a public servant inflicts
pain or a suffering, mental or physical, on a person belonging to a 'group'. Thus
a sexual assault is punishable under this bill and only if committed against a
person belonging to a minority 'group'. A member of a majority community in a
state does not fall within the purview of a 'group'. A 'hate propaganda' is an
offence against minority community and not otherwise. Organized and targeted
violence, hate propaganda, financial help to such persons who commit an
offence, torture or dereliction of duty by public servants are all offences
only if committed against a member of the minority community and not otherwise.
No member of the majority community can ever be a victim. This draft law thus
proceeds on an assumption which re-defines the offences in a highly
discriminatory manner. No members of the minority community are to be punished
under this act for having committed the offence against the majority community.
It is only a member of the majority community who is prone to commit
such offences and therefore the legislative intent of this law is that since
only majority community members commit these offences, culpability and
punishment should only be confined to them. If implemented in a manner as
provided by this bill, it opens up a huge scope for abuse. It can incentivize
members of some communities to commit such offences encouraged by the fact that
they would never be charged under the act. Terrorist groups may no longer
indulge in terrorist violence. They will be incentivized to create communal
riots due to a statutory assumption that members of a jihadi group will not be punished
under this law. The law makes only members of the majority community culpable. Why
should the law discriminate on the basis of a religion or caste?
An offence is an offence irrespective of origin of the offender. Here
is a proposed law being legislated in the 21st century where caste and religion
of an offender wipe out the culpability under this law.
Who will ensure implementation of this act?
The bill provides for a seven-member national authority for communal
harmony, justice and reparations. Of these seven members at least four of them
including the chairman and vice-chairman shall only belong to a 'group' (the
minority community). A similar body is intended to be created in the states.
Membership of this body thus shall be on religious and caste grounds. The
offenders under this law are only the members of the majority community. The
enforcement of the act will be done by a body where statutorily the members of
the majority community will be in a minority. The governments will have to make
available police and other investigative agencies to this authority. This
authority shall have a power to conduct investigations and enter buildings,
conduct raids and searches to make inquiries into complaints and to initiate
steps, record proceedings for prosecution and make its recommendations to the
governments.
It shall have powers to deal with the armed forces. It has a power to
send advisories to the central and state governments. Members of this authority
shall be appointed in the case of central government by a collegiums which shall
comprise of prime minister, the home minister, and the leader of the opposition
in the house of people and a leader of each recognized political party. A
similar provision is created in relation to the states. Thus, it is the
opposition at the Centre and the states which will have a majority say in the
composition of the authority.
What are the procedures to be followed?
The procedures to be followed for investigations under this act are
extraordinary. No statement shall be recorded under section 161 of the CrPC.
Victim statements shall be only under section 164 (before courts). The
government will have a power to intercept and block messages and telecommunications
under this law. Under clause 74 of the bill if an offence of hate propaganda is
alleged against a person, a presumption of guilt shall exist unless the
offender proves to the contrary. An allegation thus is equivalent to proof.
Public servants under this bill under clause 67 are liable to be proceeded
against without any sanction from the state. The special public prosecutor to
conduct proceedings under this act shall not act in aid of truth but 'in the
interest of the victim'. The name and identity of the victim complainant will
not be disclosed. Progress of the case will be reported by the police to the
victim complainant. The occurrence of organized communal and targeted violence
under this act shall amount to an internal disturbance in a state within the
meaning of Article 355 entitling the central government to impose President's Rule. The drafting of this bill appears to be a
handiwork of those social entrepreneurs who have learnt from the Gujarat
experience of how to fix senior leaders even when they are not liable for an
offence. Offences which are defined under the bill have been deliberately left
vague. Communal and targeted violence means violence which destroys the
'secular fabric of the nation'. There can be legitimate political differences
as to what constitutes secularism. The phrase secularism can be construed
differently by different persons. Which definition is the judge supposed to
follow? Similarly, the creation of a hostile 'environment' may leave enough
scope for a subjective decision as to what constitutes 'a hostile environment'.
The inevitable consequences of such a law would be that in the event
of any communal trouble the majority community would be assumed to be guilty.
There would be a presumption of guilt unless otherwise proved. Only a member of
the majority shall be held culpable under this law. A member of the minority
shall never commit an offence of hate propaganda or a communal violence. There
is a virtual statutory declaration of innocence under this law for him. The
statutory authority prescribed at the central and state level would
intrinsically suffer from an institutional bias because of its membership
structure based on caste and community. I have no doubt that once this law is
implemented with the intention with which it is being drafted, it will create
disharmony in the inter-community relations in India. It is a law fraught with dangerous
consequences. It is bound to be misused. Perhaps, that appears to be the real purpose
behind its drafting. It will encourage minority communalism.
The law defies the basic principles of equality and fairness. Social
entrepreneurs in the National Advisory Council can be expected to draft such a dangerous
and discriminatory law. One wonders how the political head of that body cleared
this draft. When some persons carried on a campaign against the Terrorist and
Disruptive Activities (Prevention) Act -- an anti-terrorist law, the members of
the UPA argued that even terrorists should be tried under the normal laws. A
far more draconian law is now being proposed. The states will be watching
hopelessly when the Centre goes ahead with this misadventure. Their power is
being usurped. The search for communal harmony is through fairness – not through
reverse discrimination.
Source-http://www.rediff.com/news/column/arun-jaitley-why-the-communal-violence-bill-is-flawed/20110526.htm
No comments:
Post a Comment