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!
AMAN
LEKHI
SENIOR
ADVOCATE, SUPREME COURT OF INDIA
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