Why the Prevention of Communal and Targeted Violence Bill is a Bad Idea

(Article By Gargi)

It seems to be open season on formulating legislation… Everyone and his idiot cousin has gotten onto the bandwagon. And, underlying this desire to legislate to solve India’s problems lies a deeply fascist thought -” I know better than you. I care more than you and therefore I have the right to take over your life and the way you live it – and rule it with an iron hand”. … a deeply dangerous thought. Be it Anna Hazare and his bunch of Jan Lok Pal supporters or the NAC and its Prevention of Communal and Targeted Violence Bill – the assumption of I know better than you, and if you oppose me you are pro corruption and pro communal violence – is a dangerous trend in a political space that is already polarised.

Both corruption and communal violence are the bane of Indian society .. but, having unimplementable laws that create monolithic institutions with a concentration of power is not the solution. The solution is far simpler ..implement the laws that exist.

With both the bills I am going to assume “good intention” – i have no reason to believe that those behind the Jan Lok Pal Bill or the PCTV bill have any malicious intent. I am also going to assume that they genuinely care about the problem at hand – corruption and communal violence. My views on the Jan Lok Pal bill is fairly well known to anyone following this blog or my twitter stream (i think i went bonkers at that time and flooded mine & other people’s timelines with my opposition to the bill). Friends asked me – why are you supporting corruption. And, the answer was simple – I wasn’t. I just didnt want one unaccountable system replaced with another even more draconian unaccountable body.

Last week when the Prevention of Communal & Targeted Violence Bill came out and I posted on twitter that it was flawed – very flawed  and that the BJP should turn up in Parliament to properly debate both this and the JLP — rather than posturing in TV studios. A friend called me up and asked me when I changed sides and moved from being Secular to being Communal. I was zapped. And hurt.  I haven’t been brought up to be communal. I detest communal thought, behaviour and attitudes. I have always spoken out agaisnt them – and yet, my opposition to the proposed bill was getting me labelled as Communal.

So if I am not communal, and I hate riots, why do I oppose the bill. The answer is simple- because I have read it. What am I against? well,

• It is anti the Republic of India.
• It is against the basic principles of non discrimination
• It violates the rights of the States
• It violates the rights of individuals.
• It over rides the basis of the criminal justice system and says “guilty by association” and ‘guilty until proved innocent’.

And that is just for a start.

See these definitions:

• e) “group” means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India;

What happens if the Tamils and the Biharis in Maharashtra riot against each other ? is it a communal riot or is it a friendly skirmish ?

What happens if a SC ‘group’ that is Buddhist riots against a ST group that is Christian ? obviously another friendly skirmish. What happens if a Maharashtrian Hindu family in Dharavi ( predominantly settled by Tamilians of all religions) is attacked – is the Maharashtrian Hindu family a majority or a minority ? Are the people who died in the train compartment in Godhra – marjority or minority or simply victims… what a discriminatory clause !!

• j) “victim” means any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate;

so if there is a riot in Mumbai between a majority community – either linguistic or religious – and a minority community – either linguistic or religious -and I – a minority – cannot get to work for 5 days – have i suffered monetary harm ?

• 4 - Knowledge.- A person is said to knowingly direct any act against a person belonging to a group by virtue of such person’s membership of that group where:(a) he or she means to engage in the conduct against a person he or she knows belongs to that group; or,(b) with the knowledge that the person belongs to a group, he or she means to cause injury or harm to such person because of the membership of such person to that group.

At the risk of sounding stupid, how do you prove this ?

• 8 - Hate propaganda.– Notwithstanding anything contained in any other law for the time being in force, whoever publishes, communicates or disseminates by words, either spoken or written, or by signs or by visible representation or otherwise acts inciting hatred causing clear and present danger of violence against a group or persons belonging to that group, in general or specifically, or disseminates or broadcasts any information, or publishes or displays any advertisement or notice, that could reasonably be construed to demonstrate an intention to promote or incite hatred or expose or is likely to expose the group or persons belonging to that group to such hatred, is said to be guilty of hate propaganda.

ok – if we write vehemently against the Khap Panchayats – and let us say that the people rise up against the Khap Panchayat, and maybe beat them up – is it hate propaganda ?

• 10. Aiding financially, materially or in kind for commission of offence under this Act.- Whoever knowingly expends or supplies any money or any material or aids in kind thereof, in furtherance or in support of an act which is an offence under this Act is said to be guilty of aiding financially in the commission of an offence under this Act.

again, at the risk of sounding stupid, how do you prove this ?

• 13. Dereliction of duty.- When any person who is or was a public servant not removable from his or her office save by or with the sanction of the Central Government or State Government, as the case may be, authorized to act under any provision of this Act:(a) exercises the authority vested in him or her colourably or in a manner otherwise than provided under law for the time being in force, which causes or is likely to lead to an offence of communal and targeted violence or by which he or she intends to screen or knowing it to be likely that he or she will thereby screen any person from legal punishment; or, (b) omits to exercise lawful authority vested in him or her under law, without reasonable cause, thereby fails to prevent the commission of communal and targeted violence, breach of public order or disruption in the maintenance of services and supplies essential to a group,shall be guilty of dereliction of duty.

Wow – how do you prove colourable …

• 20. Power of Central Government in relation to Organised Communal and Targeted Violence.- The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of and the Central Government may take such steps in accordance with the duties mentioned thereunder, as the nature and circumstances of the case so requires.

The referernce cited here is Article 355 – which says

Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution

Article 355 of the Constitution is followed by Article 356 – which calls for President’s Rule.

Chapter 4 calls for the setting up of a National Authority for Communal Harmony, Justice & Reparation – I don’t have too much of issue with the idea of the body, except that communal harmony cannot be brought about by a National Authority – it is brought about by equitable policy and ensuring that diverse groups – and India is a country of unimaginable diversity – have equal access & opportunity. What i do have an issue with is the following:

• 31. Functions of the National Authority.- The National Authority shall perform all or any of the following functions, namely:-(a) inquire or investigate, suo motu or upon any information or otherwise received in relation to the:(i) occurrence or likely occurrence of offences of communal and targeted violence in the manner prescribed by rules under this Act;(ii) negligence in the prevention of communal and targeted violence by public servants.(b) receive and collect information on:(i) any acts that indicate a build up by State or non-state actors of offences under this Act;(ii) any form of communication, propaganda, mobilisation or the activities of persons, which may promote enmity or hatred against groups.(c) entertain appeals against decisions of the State Assessment Committee in relation to non-inclusion of names of persons under section 98.(d) issue advisories and make recommendations, in relation to clause (a) above and section 32, to State and non-state actors;(e) frame, in consultation with the Central Government, schemes for relief, reparation and restitution of all persons entitled under section 90 including those registered under section 98;(f) frame, in consultation with the Central Government, guidelines in relation to the prevention and control of communal and targeted violence;(g) receive regular reports at least once every quarter on incidents, outbreaks and patterns of communal and targeted violence from all State Authorities constituted under this Act;(h) visit, under intimation to the State Government, any relief camp under the control of the State Government, where persons registered under section 98 are lodged to review the living conditions of such persons;(i) visit, under intimation to the Central Government or the State Government, any jails or any other institution under the control of the Central Government or the State Government, as the case may be, where persons are detained or lodged for the purposes of inquiry or investigation into any offence under this Act;(j) observe proceedings in court in relation to any offence punishable under this Act either through Members of the State Authority or by appointing independent observers;(k) intervene in any proceeding, involving any allegation of communal and targeted violence pending before a court, with approval of such court;(l) such other functions that it may consider necessary for the preservation of communal harmony and prevention and control of communal and targeted violence.

Wonderful – and why do we have the Parliament, Cabinet, Judiciary, State Governments, Police, Bureaucracy  .. shall we disband all of them and hand over power to the National Authority ?

And, if you think that this is bad – check out the powers of the National Authority :

• 33. Powers of the National Authority.- (1) The National Authority in the fulfillment of its objectives and in furtherance of its functions shall have the following powers, namely:-(a) requisitioning information from the:(i) Central government, any State government or concerned Union Territory or any of their officers or departments; or(ii) non-state actors;(b) appointing any person to observe, gather facts and information, inquire on its behalf;(c) issue directions to State Authorities in relation to the conduct of any inquiry.Provided that any direction issued by the National Authority to any State Authority shall be binding on the State Authority.

I can see a whole bunch of States standing up and screaming, violation of Federal Compact …

• 41. Statutory Information.- (1) It shall be the duty of any District Magistrate or Police Commissioner having knowledge or information of patterns and incidents of outbreaks of communal and targeted violence or anticipating any of these, to report to the National Authority in writing without any delay.(2). All reports received by the Ministry of Home Affairs, the Home Departments of all State Governments, and District Magistrates relating to communal and targeted violence, build-up and possibilities thereof and advisories related therein shall be sent to the National Authority without any delay.

lovely – combined this with the dereliction of duty clause, every time someone sneezes – you are going to have a despatch sent to the National Authority saying ‘riot’.

Chapter 5 deals with State Authorities that report to the National Authority.

Chapter 6 deals with Investigation, Prosecution and Trial – and the setting up of Special Public Prosecutors and to appoint designated judges

chapter 7 deals with Relief, Reparation and Restitution

I can’t imagine anyone in their right mind supporting this Bill – it is draconian, goes against the principles of Federalism and deeply flawed. Between this and the Jan Lok Pal Bill – with all their good intentions  - they are going to destroy the Republic of India….

A riot is about hate,  murder, arson, rape, and violence – while you may not be able to legislate hate, the rest are under its purview – apply the laws that exist.  Don’t create new super agencies with a concentration of power.