Ritesh Anand Trivedi
Short title, extent and commencement.- (1) This Act is called “Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Act, 2011”. (2) It extends to the whole of India. Provided that the Central Government may, with the consent of the State of Jammu and Kashmir, extend the Act to that State. (3) It shall come in to force within one year from the date of the passing of this Act. |
Definitions.- In this Act, unless the context otherwise so requires:-
(a) “Armed Forces or Security Forces” means Armed Forces of the Union or Security Forces or Police Forces, as specified in Schedule I.
(b) “association" means any combination or body of individuals, whether or not registered or incorporated under any law for the time being in force;
(c) “communal and targeted violence” means and includes 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;
(d) “fund” means the Communal and Targeted Violence Relief and Rehabilitation Fund established under this Act;
(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;
(f) “hostile environment against a group” means an intimidating or coercive environment that is created when a person belonging to any group as defined under this Act, by virtue of his or her membership of
that group, is subjected to any of the following acts:
(i) boycott of the trade or businesses of such person or making it otherwise difficult for him or her to earn a living; or,
(ii) publicly humiliate such person through exclusion from public services, including education, health and transportation or any act of indignity; or,
(iii) deprive or threaten to deprive such person of his or her fundamental rights; or,
(iv) force such person to leave his or her home or place of ordinary residence or livelihood without his or her express consent; or,
(v) 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.
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 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?
This draft bill however proceeds on a presumption that communal trouble is created only by members of the majority community and never by a member of the minority community. Thus, offences committed by members of the majority community against members of the minority community are punishable. Identical offences committed by minority groups against the majority are not deemed to be offences at all.
Sexual assault.– A person is said to commit sexual assault if he or she commits any of the following acts against a person belonging to a group by virtue of that person’s membership of a group:
(a) against a woman,
(i) rape;
(ii) gang rape;
(iii) mass rape.
(b) against any person, without their consent or against their will,
(i) the introduction by a man of his penis or any other body part or
an object into vagina, mouth or anus, to any extent;
(ii) causing harm or hurt to reproductive organs or genital organs;
(iii) exposing one’s sexual organs in front of any person;
(iv) sexual contact of any sort, including the performance of sexual acts for any length of time;
(v) removing the persons clothes, partially or fully, or compelling that person to undress himself or herself, partially or fully, in public view or otherwise, or parading that person in undressed state in public view or otherwise;
(vi) any other act or conduct that subjects that person to sexual indignity.
Explanation 1– For the purposes of this section, mass rape means the rape of more than one woman belonging to any group.
Explanation 2– For the purposes of this section, consent shall mean –
(a) The unequivocal voluntary agreement where the person has by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the act referred to in this section;
(b) “Unequivocal voluntary agreement .
(b) “Unequivocal voluntary agreement” means willingness given for specific and be limited to the express act consented to under this Section.
Explanation 3 – For the purposes of this section, consent shall not be caused by duress, threat, terror, fear, coercion, undue influence, misrepresentation or mistake of fact.
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’.Thus this bill has no concern with majority on being raped by a ‘group’ . So what if a majority girl being raped by a group this law simply reflects it will not be a rape as it’s a preassumed fact by NAC majority people are always responsible for riots.
