(Article by Nipun Saxena)
Violence serves as a universal common denominator for any conduct that is abhorrent, and in aberration to the tenets of human rights values which serve as the foundation stone for peace and semblance in the society. Violence is however a means to attain an objective when viewed from a larger perspective. The objectives may vary from political, ethnic, religious, economic, social, etc. which are a subject matter of another debate. The moot question is centered on the ramifications arising out of such violence. Communal Violence to that extent is deemed to be one of those instruments which are tantamount to being repressive, nefarious, and egregious and is bereaved of any reverence for the pain and suffering endured by thousands of individuals, households, villages and communities. It is therefore pertinent to address the very conduct itself which goes in flagrant violation of the very spirit of our Constitution which the state seeks to preserve and uphold.
The repercussions of a violence of such magnitude are colossal. Furthermore, for a person who has been a victim of such despicable circumstances has no recourse before the law, as the criminal justice system in India had enough measures to tackle with individuals being the perpetrators, but had limited legal remedies when the same action was committed by a very large group of individuals. The result however remained the same: the cost of an individual’s life is above any caste, creed, religious or linguistic majority/ minority. Therefore any action of the state should revolve on the creation of an all-encompassing law which seeks to ensure that the fundamental right to life and liberty of every citizen is upheld irrespective of his or her religious or social predilection.
The enactment of the recent Bill to address the growing concern of en masse violence therefore assumes considerable significance. However the recent Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 which has been approved by the National Advisory Council (N.A.C.) regrettably broadens this hiatus rather than addressing the problem. The very definition clauses run on the basic premise that violence can only be deemed to be communal if such a violence is committed by a religious or linguistic majority on minority and not vice versa. There are many other provisions mentioned in the bill which have further consolidated this presumption and which, if implemented, would result into the dispensing of justice, which is essentially preferential in character. These provisions have been elucidated below:
Definition of Communal Violence, “Victim” and “Group”:
Communal or targeted violence has been defined under Section 3 (c) as any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation. This means and includes that the intention of the legislature is to prevent any act which is against the tenets of secular value in India. However, the very next definition runs in contravention of the principles of secularity which the state endorses. Section 3 (e) defines a “group” which 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.
By including only a religious or linguistic minority, the legislature has proscribed a citizen from claiming his equitable share of right if he belongs to a religious or linguistic majority. Of particular significance is Sub Clause 3 (j) which defines a victim who is defined as a member of the minority group only. A pertinent instance could be that in India where Hindu population is dominant whereas Muslim population is a minority, if a communal riot breaks out, then only the members of the minority group can claim their right. So if there were 200 Hindu families which had to suffer the consequences as against 100 Muslim families, then under this law they have no recourse whatsoever.
Furthermore, this provision runs on a very flawed assumption which states that “violence” can only be perpetrated by a group of people who belong to a linguistic or religious majority and not vice versa. The objective of any criminal justice system in the world is to uphold the rights of the society and to create a deterrence which is not to be vilified on account of one’s socio, political or religious association. The nature of punishment should be equal for every individual irrespective of what religious order he professes or to which region he belongs to. This provision has mutilated the very canon of criminal law. Why should the nature of punishment vary on account of one’s religious or linguistic predilection? Violence is violence irrespective of whether it is been committed by a Hindu, Muslim, Parsee, Christian, Jew, etc. The imposition of punishment should therefore be the same and should not vary according to these frivolous demarcations.
What constitutes “Hostile Environment”:
Section 3(f) further talks of what qualifies as hostile environment against a group. It means and includes any intimidating or coercive action by a majority against a minority group by virtue of his or her association with that group and lays down five circumstances wherein the said act can be deemed to be shrouded in the garb of being hostile. However, sub clause (5) creates a very arbitrary standard of relying as to what conduct would result into the creation of this hostile environment. The clause lays down that it would include any other act, whether or not it amounts to an offence under this Act that has the purpose or effect of creating an intimidating, hostile or offensive environment. This clearly brings in a state of ambiguity as to which acts would precisely fall under the ambit of this Act. Therefore it may also include a speech, a work of art like a picture, music or video clippings which may have the capability of creating an intimidating, hostile or offensive environment. Therefore in the light of the given provision, if Sheila Dixit’s comment against the Stephens College was to be adjudicated on, her statement could have been classified as being an offence under this Act.
The problem does not end here. Another important point worth considering is who shall have the discretion to decide as to which Act qualifies as being intimidating or hostile. These questions need further deliberations.
Scope and Ambit of “Hate Propaganda”:
The definition of the term “Hate Propaganda” is classified as a separate offence which has been made punishable under section 8 of the Act. However, the scope and ambit of the definition is so broad that it can cover almost any conduct which has the capacity to incite people. It includes any act, or words, whether spoken, written or any mode of visible representation which shall be construed to be capable of inciting violence. This provision is bereaved of pragmatism as every individual has been bestowed with the freedom of speech and expression and has a right to raise his voice in case of its violation. The legislators have not specified as to what acts would actually constitute the term “Hate Propaganda”. This would result into arbitrariness as a certain conduct shall be deemed to be an offence in one state whereas the same conduct might not qualify as an offence in another state.
Organized Communal Violence to be Construed as Emergency:
The most draconian of all provisions is the power which has been bestowed on the Central Government to construe any act of Organized Communal Violence to constitute “Internal Disturbance” within the meaning of Article 355 of the Constitution of India. The prerogative of determining whether an act qualifies as being tantamount to Internal Disturbance solely vests with the Central Government under Section 20 of this Act. Historically speaking, India has witnessed the period of Emergency in 1975 wherein gross human rights violations were perpetrated by the functionaries of the State itself. The very nature of Emergency provisions bestows indomitable powers on the State and this can be used for political advantages as was done in Punjab and later in India. One can only speculate on the powers which the Government shall enjoy once this provision comes into force as it can suo motto decide on whether a given situation in a particular state requires the imposition of Emergency or not. If this is further seen in consonance with the definition of the words victim and group, then this provision shall open flood gates to political maneuvers at the Centre. This would further impose a serious threat to the very nature of federal character of the country as this provision gives all the power in the hands of the Central Government and the State Government is nothing but a mute spectator to the Emergency powers of the Central Government which extends to restricting even the Fundamental Rights of every individual in the interest of the State.
Constitution of “National Authority for Communal Harmony, Justice and Reparation”:
The Central Government has been endowed with the power of constituting a National Authority for Communal Harmony, Justice and Reparation within the meaning of Chapter IV, Section 21 of the Act which shall be constituted of a Chairperson, a Vice Chairperson and five other members. The quorum has been set at minimum four members including the Chairperson and the Vice Chairperson. The condition of the appointment of Members is another factor which is worth consideration.
Provided further that, at all times, there shall be -
1. One Member belonging to Scheduled Castes or Scheduled Tribes;
2. Four women, whether Chairperson, Vice-Chairperson or Member;
However, the powers that have been conferred to the National Authority are extensive. These may include intervening in any matter relating to communal violence in the court of law under Section 31 (k), transfer, posting and replacement of any public officers whether administrators or police officials from their jurisdictions of power and control that affects areas where not only the outbreaks of communal violence but also a mere anticipation of the same shall be included under this Act. Furthermore, by virtue of Section 26 and Section 49 (in case of State Authorities) no act or decision of the National or State Authorities can be questioned merely on account of vacancy of the members and / or defect in the constitution of the Authority. The Central Government has given an autocratic status to the respective authorities. The National Authority has been conferred with the status of being a Civil Court while carrying out its duties and has the power to summon any person for the purposes of recording evidence. However, no provision has been made in order to provide for a judicial scrutiny against any order passed by the National Authority. This is further depictive of the amount of power which has been granted to the authority and goes against the system of checks and balances.
Nature of Offences, Pressumption and Evidence:
The nature of offences committed shall be non – bailable and cognizable as per the wordings of Section 58 of the Bill. This means that a person accused of an offence shall not have the right to seek bail from the court of competent jurisdiction and can be apprehended by the police officer without a warrant.
The collection of evidence relating to an offence under this Act shall include video graphing and or photographing of the scene of crime and the same shall form a part of the report of the case under section 173 of the Code of Criminal Procedure, 1973 as per the tenets of Section 66. However inclusion of video graphing and photographing may jeopardize the determination of guilt of the accused as they can potentially be manipulated.
The biggest lacuna which exists in the Act is the presumption of guilt on the accused unless it can be rebutted by the accused. Section 74 however makes two fold presumptions which are against the very ethos of Criminal Justice System i.e. A person is deemed to be innocent unless proven guilty of an offence.
The first presumption is that the accused shall be guilty of an offence that he has been charged with, unless that can be proven otherwise. The second presumption is further discriminative as it states that Whenever an offence of organized communal and targeted violence is committed and it is shown that a hostile environment against a group exists or the offence of hate propaganda under section 8 was committed against a group, it shall be presumed, unless the contrary is proved, that the said offence was knowingly directed against persons belonging to the group by virtue of their membership of the group.
The consequences may have a very negative influence on the entire state of affairs. For instance, a speech that was made in a politically sensitive area may be qualified as hate propaganda to be knowingly directed against the people of the minority group and shall attract a punishment of three years as per section 115 of the Act. The very presumption is devoid of rationality as the definition of the term Hate Propaganda is so wide that any act could be construed as being culpable in nature.
Miscellaneous:
The extent and scope of power vested with the National Authority does not merely extend to the state law enforcement agencies such as police officers but also brings the entire Armed Forces within the ambit of the term “public official.” This Bill therefore blurs the line between civilian matters and armed forces matters and brings it within the ambit of the National Authority. With no judicial intervention, these powers can be extended to any extent. Furthermore, Schedule I appended to the Bill brings within itself all the forces including the Army, Navy, Air force, Paramilitary forces such as the Border Security Force, Indo Tibetan Border Police Force, Special Allied Forces, Central Reserve Police Force, Central Industrial Security Force, Coast Guards, Home Guards, Railway Protection Force, Territorial Army and even the National Security Guards.
Conclusion:
The Bill in its present form has been reduced to a mere mockery which is against the core principles of criminal law; it is also pulverized to the extent by incorporating the preferential definition of what constitutes group and victim. The autonomous nature of the National Authority is also a cause of serious concern. If a law has to prevail, then it should be universal in its approach and its enforcement should be coupled with the system of checks and balances. The present bill regrettably promises none of these and is rather looked upon as a political faux pas.
So what is the intention of the legislature ? To promote and uphold the constitutional virtues or to denigrate them on grounds of religion and linguistic demarcation? The question is left for us, THE PEOPLE to answer.
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