Communal Violence Bill – a serious concern

Source – http://vikramwalawalkar.blogspot.com/2011/07/communal-violence-bill-serious-concern.html

 

Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Act, 2011

The Central Government is all set to rip apart the secular fabric of our nation. Will it be playing the old game of ‘divide and rule’ to secure its victory in upcoming elections?

Our country has evidenced communal hatred, violence and tensions for long. Cause may differ, but the result is the same – unrest in society and betrayals between communities. Can we say that existing laws are insufficient to control communal disharmony? Or, implementation is lacking? Is a new Act really needed?

Aims and objectives:

What the Act really aims at? Is there any hidden agenda to gain political mileage? Answers to such and other questions must be searched for by a secular (in its truest sense) and nationalistic mind.

Communal violence bill – strongly opposed by Jayalalitha; says it is fascism

Tamil Nadu Chief Minister Jayalalithaa slammed the draft communal violence bill as “fascist” which would keep the states under constant threat of dismissal and give sweeping powers to the Centre.

In a hard-hitting attack on the proposed bill, Jayalalithaa said that under the garb of preventing communal and targeted violence, the Prevention of Communal Violence Bill was yet another “blatant atttempt” to totally bypass the state governments.

The bill concentrates all powers in the Centre rendering the state governments absolutely powerless and totally at the mercy of the Centre, she said in a strongly-worded statement.

Communal Violence Bill an attempt to appease minorities: PK Dhumal

The BJP government in Himachal Pradesh today opposed the proposed bill against communal violence alleging it was an attempt to appease the minorities.

Speaking at the National Integration Council meeting in Delhi, Himachal Chief Minister Prem Kumar Dhumal termed "Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011", as an "interference" in the domain of states, which is against the federal structure of the country.

He said the present laws should be effectively implemented to deal with communal violence.

Dhumal also asked the Centre to extend the industrial package for Himachal upto the year 2020 and said the

Trinamool joins NDA, non-UPA states in opposing Communal Violence Bill

Leader of opposition in the Lok Sabha Sushma Swaraj said the proposed legislation was “dangerous” as it would “encourage communalism” rather than curbing it by furthering the divide between majority and minority communities..

 

News by Livemint http://www.livemint.com/2011/09/10152552/Trinamool-joins-NDA-nonUPA-s.html

New Delhi: The proposed Communal Violence Bill on Saturday ran into trouble with NDA-ruled states and Congress ally Trinamool Congress opposing it as “dangerous” legislation and arguing that it would hurt the federal structure of the country.

At a meeting of National Integration Council (NIC) where the issue was on the agenda, NDA and chief ministers of the states ruled by it -- Madhya Pradesh, Chhattisgarh, Karnataka, Himachal Pradesh, Uttarakhand, Bihar and Punjab -- expressed opposition to the draft legislation in its current form.

Leader of opposition in the Lok Sabha Sushma Swaraj, who also attended the meeting chaired by Prime Minister Manmohan Singh, said the proposed legislation was “dangerous” as it would “encourage communalism” rather than curbing it by furthering the divide between majority and minority communities.

Dinesh Trivedi, senior leader of Trinamool Congress, a key constituent of the UPA, said his party also opposes the Bill in the present form.

Opposing the Bill, chief minister of BJD-ruled Orissa Naveen Patnaik, said it has some “objectionable” provisions which “directly affect the autonomy of states”.

Uttar Pradesh Chief Minister Mayawati, whose speech was read out in absentia, said “it is not the opportune moment to comment on the Bill”.

Bihar chief minister Nitish Kumar voiced concern over certain provisions in the Prevention of Communal and Targeted Violence (Access to Justice and Regulations) Bill 2011, saying it may create “impression” among the people at large that majority community is “always responsible for communal incidents.”

In a speech read out by senior Bihar minister Vijay Kumar Chaudhary, Kumar asked the centre to hold “thorough discussion” with state governments for making certain amendments that are warranted before introducing it in Parliament.

He specifically opposed the provision for promulgation of Article 355 of the Constitution, which gives the centre a right to intervene, in a limited area during “internal disturbance”, saying it amounted to “unnecessary interference in state’s jurisdiction”.

Madhya Pradesh Chief Minister Shivraj Singh Chauhan said the Bill was intended to meet “vested interests” and may undermine the country’s federal structure.

“The Bill expresses feeling of mistrust in the state government machinery and lacks clarity in defining crimes for organised communal violence,” he said.

“I urge the union government to have faith in the state governments and strengthen them, which in turn will strengthen the nation. If state governments are weakened to serve some vested interests, the nation will become weak and it will give impetus to parochial forces,” Chauhan said.

Questioning the need for the Bill, Chhattisgarh chief minister Raman said it went against the federal spirit as it will directly interfere with the legitimate authority of states.

“The proposed Bill has many structural loopholes. The biggest problem is that this Bill is against India’s federal structure. The national authority set up with the help of this Bill will have the power to issue directions to any state authority for any investigation,” he said.

He said that the power of maintaining law and order situation stays with a particular state and changes in this system will bring unfavourable results in the long term.

Uttarakhand chief minister Ramesh Pokhriyal Nishank asked the Prime Minister and home minister P Chidambaram to give up their desire to pass the Bill in its present form, saying the legislation would be a “big blow” to national integration.

Punjab chief minister Prakash Singh Badal said the Bill that the government was trying to bring could lead to “avoidable confrontation” between the centre and states as sections of it were a “direct transgression of states’ authority”.

He also particularly expressed opposition to provision for invoking Article 355.

Bad in intent and content

Seshadri Chari

A legislation that seeks to divide rather than build upon the collective expression for peace and communal harmony should be rejected — and Sonia Gandhi's toadies on the NAC investigated for their real agenda

Can a Government turn into a scheming enterprise and foist upon the majority community of the country an enactment that charges them as inherently communally rowdy and out to wreak havoc on a major minority in their own land? If your answer is no, think again. The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 smacks of a sinister agenda to divide the society on the basis of religion and draw political mileage. The Bill also unashamedly violates the basic tenets of the Constitution of India. More importantly, the Bill, when it becomes an Act, would end up creating “more equal” citizens, rubbishing the Constitutional guarantee of “equality of justice”.

When a Bill is prepared one can assume that the endeavour is bad in content but the intent of the government preparing it cannot generally be suspected. But this is one Bill which is unreservedly bad in intent as well as content.

The Lokpal draft Bill prepared by the members of the civil society led by Gandhian and anti-corruption crusader Anna Hazare was ridiculed by one Congress worthy as an attempt to destabilise the government by some “unelected and unelectable” persons. So, how did the UPA government institutionalise a body of unelected and probably “unelectable” persons under the banner of the National Advisory Council (NAC), with the specific mandate to “provide policy and legislative inputs to Government?” There is no provision for NAC in the Constitution, and certainly not for a body with a Chairperson who wields greater power than the Prime Minister of the country. The NAC is nothing but a blatant and deplorable deviation from the Constitutional scheme of governance and legislation.

The perpetrators of this obnoxious Bill have not concealed their hatred for anything Hindu or what they conveniently would term as ‘saffron’. Needless their target is the Narendra Modi government of Gujarat followed by all other non-Congress and BJP governments.

The very first offensive definition in the Bill is of the expression ‘group’. A ‘group’, the Bill says, is a religious or linguistic minority and in a given state may include the Scheduled Castes and Scheduled Tribes. Without any deception, Clause 3(e) makes it abundantly clear that the bill seeks to protect only “religious or linguistic minorities.” The insertion of the word “linguistic” appears to be a diversion. There were not many instances of serious strife between one linguistic group and another in the past many years, except the political gimmicks in Mumbai against north Indians. But now if the Bill becomes a law, even if a presumably errant Shiv Sainik utters a word against any north Indian, the Shiv Sena supremo Bal Thackeray could end up as Azmal Kasab’s neighbor in Mumbai’s Arthur Road jail.

The next part of the sentence, “in any State in the Union of India” does not mean anything, because, for any Central law to be applicable to Jammu & Kashmir, concurrence of the state legislature is necessary. Therefore Clause I (2) is simply superfluous. If the naïve believe that it is possible to extend the law to Jammu & Kashmir to protect the Kashmiri Pundits, perish the thought. The tricky Clause 3 (m) contradicts any such possibility: “In the event this Act is extended to the State of Jammu and Kashmir” (not ‘when’, but, in the event!) “…any reference in this Act to a Law, which is not in force in the State of Jammu and Kashmir, shall, in relation to the State, be construed as a reference to a corresponding law, if any, in force in that State.”

In plain English, shorn of legalese, the Law will never be applied in Jammu & Kashmir. This is not surprising in view of the derision that an exalted member of the NAC has for the State’s minorities, the Kashmiri Pandits. She wrote in an article in Deccan Chronicle some time ago that the issue of Kashmiri Pandits has been ‘highly romanticised’ (sic).

The Bill assumes that no member of the majority community can ever be a victim. It is a unilateral declaration by the “wise men (and women)” of the NAC that Hindus in India are a bunch of serial offenders determined to deviate from thousands of years of tolerance, secularism and respect for other’s faith. The discrimination of offences is so evident in the Bill that no member of the minority community is to be punished under this Act for having committed the (same) offence against the majority community.

If the objective of the Bill is to protect the religious minorities, from whom does it seek to protect them? The definition of ‘association’ in Clause 3 (b) is scary and is enough to remind one of the midnight knock of the infamous Emergency. An “accused” need not be an enlisted member of any association ‘whether or not registered or incorporated under any law’. For, if the ‘association’ need not be legally constituted to be accused of an offence, where is the question of ‘enlisted’ membership? If you are ipso facto deemed to be a member of an ‘association’, it is enough for the act to take cognizance. No prize for guessing the target here. The entire top brass of the RSS and VHP can be sent packing to Tihar Jail on the basis of one complaint by a non-descript individual Even the street-corner Ganesh Mitra Madal in Chennai or Mumbai, which erects a huge shamiana every year, can be hauled up for “hurting the sentiments of the minority”.

Clause 15 expands the principle of vicarious liability. An offence is deemed to be committed by a senior person or office bearer of an association and he fails to exercise control over subordinates under his control or supervision. He is vicariously liable for an offence which is committed by some other person. If one is still in doubt about th intensions of the Bill in this regard one has to read the lengthy provisions of Clause 15 which speaks about ‘non state actors’ clearly intended to target Hindu organisations like the Bajrang Dal, RSS, and the VHP. Clause 16 renders orders of superiors as no defence for an alleged offence committed under this section.

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?Probably the most vicious attack on the Hindu community and the parties and groups opposed to the Congress comes almost at the far end of the lengthy Bill in Clause 129 (Non-applicability of limitation). According to the clause the statute of limitations shall not apply to offences cognisable under the Act. The implications of this clause are far-reaching. For instance, cases being investigated by the SIT and other Commissions in Gujarat may fail to convict the accused. With total disregards to the existing laws, any one of the ‘victim’ can at anytime reopen the cases against the ‘culprits’ and drag the case on till “death do us apart”. Even those who are outside the ambit of the present cases, and you know who, can be dragged under this Bill through a revision of the cases in a superior court — and to be tried under the new act.

It is important to note that ‘offences’ under the Act are non-bailable. All that the Congress has to do is to wait for the Bill to be passed and then, lo and presto, Modi is banished from politics.

NAC-drafted Bill to kill State Govts

Swapan Dasgupta

The next time a partisan Government at the Centre decides to facilitate the dismissal of an elected State Government with majority support in the Assembly, it will not have to appoint a less ham-handed version of Karnataka Governor HR Bhardwaj. The former Law Minister who was sent to Bengaluru on a mission of subversion failed because both the political culture and Supreme Court judgments have made it difficult (but not impossible) for the Centre to impose President’s Rule on flights of whimsy. Gone are the days when Governors such as Ram Lal, BD Tapase and Romesh Bhandari could subvert the Constitution’s federal principles with impunity.

No, the next time an inconvenient BS Yeddyurappa or a Narendra Modi has to be destabilised and eventually dismissed, the role of the Governor will become secondary. The principal part may well be played by an emerging body of professionals who will have the power to hold any State to ransom. Like the wedding organiser and party organiser who have made life incredibly easy for people with sufficient money to burn, a breed of riot organisers will be very much in demand in the coming years. That is if the draft of the Communal Violence Bill prepared by the Sonia Gandhi-led National Advisory Council is passed by Parliament.

India has always been indulgent to bad ideas. The Nehru-Gandhi family in particular has taken exceptional care to nurture quackery and cretinism as long as they were packaged in the garb of ‘progressive’ politics. Just as the Planning Commission was the nursery for bad economics for four decades, the NAC is fast becoming the instrument for Sonia Gandhi’s misapplication of mind. Its contribution to the derailing of India’s global competitive potential will be assessed (and, hopefully, even quantified) by economic historians in the future. However, mercifully, the NAC had so far desisted from imposing its grubby paw prints on the basic features of the Constitution — although the centralist ‘one size fits all’ philosophy was a recurring feature of all its proposals. The draft Communal Violence Bill marks a departure.

The implications of the Bill are grave. To destabilise a difficult State Government, a cynical dispensation at the Centre will merely have to engage the services of a riot organiser. The riot organiser will simply have to either orchestrate tensions in a chosen locality — not a very difficult project — and trigger a little riot against either a minority community or local Dalits and tribals. No administration, however well-meaning and committed to social harmony can prevent a determined bid to foster disharmony. Under the proposed law, that local disturbance will become the pretext for the Centre to use Article 355 to intervene in the State.

Next, the seven-member National Authority for Communal Harmony, Justice and Reparation made up, presumably, of ‘non-partisan’ grandees such as Harsh Mander and Teesta Setalvad, will get into the act. Blessed with statutory sanction, this committee of the good and virtuous will stricture the local administration and the State Government for its alleged lapses and suspected complicity in the riots and make a case for the breakdown of the Constitutional machinery. The committee’s report, in turn, will become the occasion to file FIRs against ‘difficult’ State leaders and an obliging Bhardwaj-like Governor will recommend the imposition of Article 356 on the State.

Yes, a few innocent citizens would have died or had their property destroyed in the exercise. But at least they would have died so that the supercops of secularism could rule.

The Communal Violence Bill proposed by the NAC is not merely flawed, it is positively dangerous. In a country where laws sometimes exist to be subverted, the proposed legislation will be a direct incitement to made-to-order rioting and political destabilisation. The presence of a legally-sanctioned committee of the wonderfully virtuous overseeing the State administration is calculated to undermine any elected Government and make administrators accountable to two masters. Governance would be made dysfunctional and the primary focus of every official would be to keep the Centre happy. Even an issue as localised (but no less regrettable) as the violence in Greater Noida over the quantum of compensation for land acquisition would become the pretext for the Centre to first intervene directly and subsequently dismiss the Mayawati Government.

There is a strong case for ensuring that the State Government (which has ultimately responsibility for law and order and the preservation of peace) carries out its obligations diligently and without fear or favour. The best way to ensure this is all-round vigilance. Many district-level committees made up of local notables can be constituted to be an informal watchdog body and even assist the local administration. But political power ultimately vests with an elected Government and not with do-gooders nominated by the Government because they have the right aesthetic and NGO credentials. Sonia Gandhi has chosen to exercise power without making herself accountable. Now she seems determined to foist this model of colonial paternalism on the rest of the country.

India is a federal country and the more federal it becomes the better. The attempt to regress to back-door centralism has to be resisted. The issue is not riots versus secularism; the choice is between federalism and centralism, between a Delhi Sultanate and local democracy. Parliament should choose wisely.

“Prevention of communal and targeted violence bill 2011 is laughabale and instead of dumping it burn it”

The brain storming session on Prevention of Communal and Targeted Violence held today at IPF seminar hall. A number of academicians, journalists, lawyers ,former  civil servants  and activists participated in the session. It was resolved that the bill  is an attempt to damn the basic structure of the Indian Constitution. Moreover,  it is an attack on the federal cahracter and a ploy to divert nation’s attention from the real issues the nation is facing.  Those present and spoke include : Sh R Venkatnarayanan, former Secretary , Govt of India, RNP Singh, a rtd officer from the Intelligence  Bureau, and mamaging editor of Eternal India, Rajesh Gogna, Rambahadur Rai, sr journalist and activist, Rajesh Gogna , sr Lawyer, Prof Rajvir Sharma(Pol Sc, University of Delhi) Prof Madhukar Shyam Chaturvedi(deptt of Pol Sc, Jaypur University), Satish Pednekar, (deputy Bureau Chief Jansatta), Prof Rakesh Sinha (hon, Director IPF). The Foundation received four papers dealing various dimensions of the Bill. IPF will publish a critique of the Bill and launch a massive publc discussion on the issue.

1. The Bill  dilutes and destroys the concept and sanctity of Indian citizenship- it devides indian Citizens in two categories , one, “Group” which consists of religious and linguistic minorities. No where in the constitution the term ‘minority’  is defined. The drafting committee brought Muslim . Christians and also SC/ST in the orbit of the Group. SC/ ST have been clubbed with so called minorities only to enjoy the privilege of not getting dubbed as communal. The Ministry of Minority Affairs when preparing the  Bill for the Equal Opportunity Commission(recommended by the Sachar Committee) too  tried to rope SC in the purview of the EOC. The same people who drafted the bill and sheding crocodile tears , recommemded to dereserve those Schedule caste constituenciese where substantial number of Muslims live. Two, “others” – rest of the citizens  defined as others.

• It recommends two sets of CrPc for the Gropu and Others.

• It  destroys the federal character, usurups the jurisdiction of the state.

• It is a tool to amnd the constitution in a shrewd and simple manner.

• It creates parallel authorities in the center and state

• It makes the bureaucracy and police slave of the minority leadership

• Minority veto is invented in tehBill.

• Onus of communal riots is thrown on the Hindus

• ‘Minorities’ are presented as permanenet ‘victims’ of the Hindu majority, policeforces, bureaucracy, judicairy.

• Authorities created at the center was empowered to use Artilce 355  as a children’s toy.

• It assumes “tyranny of the Hindu majoritarainsim”.

The Bill is not to be dumped but to be burnt. The civil soceity must take it seriously and defeat the larger conspiracy and the forces  behind the bill.

The Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill 2011 - A Review

Dr. M.N. Buch (Visiting Fellow, Vivekanand International Foundation)

Ever since the riots in Gujarat post Godhra the so-called civil rights groups have been gunning for Narendra Modi and the Gujarat Government. The allegation is that the riots which targeted Muslims were instigated and supported by the ruling party, BJP, with encouragement by government which ensured that the administration failed to react positively and suppress the riots. It is alleged that, for example, in Ahmedabad the Police Commissioner allowed politicians, especially two ministers, to take over the Police Control Room, who then prevented the police from taking effective action against the rioters. These groups state that the existing laws do not permit intervention by the Central Government and, therefore, it is necessary to have a new law aimed specifically at communal riots. It is in this context that the National Advisory Council has prepared the draft of a Bill bearing the title “Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill 2011”.

At this stage perhaps it is necessary to set the record right and place the post Godhra riots in perspective. Gujarat can be divided into distinct regions, starting with Kuchh and Saurashtra, North Gujarat, including Sabarkantha and Banaskantha Districts, Central and Eastern Gujarat consisting of Ahmedabad, Mehsana, Khera, Baroda, Panchmahals Districts and South Gujarat starting from Bharuch and including Valsad, Navasari and Surat Districts. Even under British rule South, Central and Eastern Gujarat had a history of communal tension. Even in the 2002 riots North Gujarat, Kuchh and Saurashtra remained peaceful, or if there was any trouble the DMs and SPs acted firmly and did not allow an ugly situation to develop. The Police Commissioner of Surat also acted with firmness and with the assistance of the district administration was able to ensure peace. The main problem arose in Ahmedabad, Mehsana, Khera, Baroda and Panchmahals Districts. Incidentally, the worst communal riots in the history of Gujarat occurred during the Congress regime when Hitendra Desai was Chief Minister. Therefore, to target Narendra Modi alone for communal violence in Gujarat flies in the face of the record.

The neighbouring state of Maharashtra has had far more number of incidents of communal riots when the BJP was not in power, but because the object of this paper is to not to make a comparison of guilt, no more than a passing reference is made to this fact. In the explanatory note on key provisions of the proposed Bill prepared on 19th May, 2011, the persons who drafted it define vulnerable groups as consisting of religious and linguistic minorities, scheduled castes and scheduled tribes and go on to state, “ Tragically it is for these very groups that the existing provisions of law fail because of a similar systemic bias in the administrative and criminal justice machinery against these most disadvantaged groups. Thus their vulnerability stands twice enhanced. These are the groups that this Bill seeks to protect”. However, underlying the draft of this Bill is the belief that the Central Government should have the powers to intervene where communal rioting occurs and where the state administration does not react effectively and positively. The constitutional scheme is that under Article 1, “India, that is, Bharat shall be a Union of States”. It is a fact that the Constitution is heavily weighted in favour of the Centre, especially because under Article 248 residuary powers of legislation vest in Parliament. Nevertheless, the Seventh Schedule of the Constitution, which gives the respective jurisdictions of Parliament and the State Legislatures, reinforces the federal structure of India and the autonomy of the States on which the Centre can encroach only at the cost of making federalism weak. Public order and police are within the exclusive legislative competence of the State Legislatures as per Entries 1 and 2 of the State List of the Seventh Schedule.

Both constitutionally and as a practical proposition it is the state administration which is required to maintain order. If the State Police finds itself unequal to the task government can call for assistance from the Central Government by way of making available Central Armed Police Forces. Under List 1 of the Seventh Schedule, Entry 1A, such forces can be deployed in any state in aid of the civil power. The requisition, however, has to come from the State Government and this cannot be altered by a specific law dealing with communal violence. Incidentally, section 130 Cr. P.C. goes further than anything contained in the proposed Bill because any Executive Magistrate may call upon the armed forces of the Union, including the military, to come to his aid in dispersing an unlawful assembly and to restore order. Under the Constitution this power cannot be made available to a federal officer unless under Article 356 of the Constitution the President has issued a proclamation taking over all or any of the functions of the State Government, including law and order. It might be worth mentioning here that the very civil society groups who are pushing this Bill are the ones which have also been the loudest in proclaiming the need for greater state autonomy and have decried the encroachment of the federal government in state affairs. The definitions given in the Bill are such that federal intervention in state affairs is built in if it can even be remotely shown that the law and order situation is targeting a group defined as a minority under the proposed section 3 (e) of the Bill.

If the objective of the Bill is to protect the minorities, then it should have a provision that the minute a so-called communal riot begins the Central Government can step in. This could even be done by invoking Article 356 of the Constitution, clause (1) (a) of which reads, “(The President may) assume to himself all or any of the functions of the Government of a State…” The State Government need not be dismissed nor the legislature dissolved. Only for the limited purpose of restoring order the Executive Magistracy and Police may temporarily come under Central control. The fact is that after the partition of India in 1947 all communal riots have ultimately been suppressed within about a week or ten days, which means that by the time the Centre can step in the riot would have ended, either because of police action by the State or by sheer exhaustion of the rioting parties. In the 80s of the last century Meerut was the prime example of communal riots in which the State Government repeatedly called upon the army for aid. Even in this situation the riots lasted till such time as the Hindus started feeling the pinch of the properties being destroyed and the Muslims the pinch of its community members being killed. At that stage the rioting stopped. If the purpose of this Bill is to allow the Centre to step in, then it does not fulfill this purpose and instead it opens the doors to dangerous interventions which are politically motivated and strike directly at the autonomy of the States.

To come to specifics, the Bill is fundamentally flawed. Section 3 (e) defines a group as a religious or linguistic minority in any State, or scheduled castes and scheduled tribes. All scheduled castes are Hindu for the very simple reason that caste is a function of the Hindu religion only because no other religion recognises the existence of castes. Therefore, to state that a member of the scheduled castes is a minority despite the fact that he may profess the Hindu religion would be a contradiction in terms. That is why there is a special Act called Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. How can this new Bill subsume that Act? On the question of definition, what about the fact that though the Muslims are a minority in the State of Kerala, there are perhaps four districts in the State where they are a majority. This means that despite the fact that within a district the Hindus may be in the minority and prone to attack by the majority community within the district, violence against the Hindus would not be deemed to be communal or targeted violence. One can refer here to the Mapilla riots in the 1920s which specifically targeted Hindus in the then district of Malabar. Would the attack on the train in Godhra really come under the definition of communal violence? Not in the eyes of this Bill.

The Code of Criminal Procedure and the Indian Police Act of 1861 clearly lay down that it is the duty of the police to maintain public order, prevent the commission of offences, disperse unlawful assemblies and use necessary force in order to restore order and tranquility. The Executive Magistracy has a decisive role in this behalf. Nonperformance of duty is also actionable. For example, under section 29 of the Indian Police Act a police officer who fails to do his duty is liable to both imprisonment and a fine. So far as the All India Service officers are concerned, the ultimate cadre controlling authority for IAS and IPS officers is the Central Government and if a member of these Services is guilty of dereliction of duty and the State Government does not take action, the Central Government can always take him on deputation to the Centre and charge-sheet him. We do not need a separate law for this purpose.

The Indian Penal Code already defines and provides for penalty for rioting, giving provocation with intent to causing a riot, promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., doing acts prejudicial to the maintenance of harmony, making any imputation or assertion prejudicial to national integration or imputing that a class of persons, however defined, is working against the integrity of the nation. The Code defines offences against person and property, including causing hurt, committing culpable homicide amounting to murder, wrongful restraint, rape, mischief by arson or otherwise and similar acts which cause hurt to a person or damage to his property. If these provisions of law are not enforced, why is it expected that a new law will lead to better enforcement? If it is a question of the quantum of punishment, then suitable amendments can be brought about in the Indian Penal Code and penalties enhanced if there is a communal riot.

There are major lacunae in the proposed Bill. In the district of Jhabua ninety-four percent of the population is tribal and incidents of attack by non-tribals on tribals are nonexistent. Supposing a tribal group attacks non-tribals? If the magistracy or the police are derelict in their duty does it mean that they will not be called to account because this riot does not fall within the definition of communal violence? Supposing one minority group attacks another? In the Panchmahals District in 2002 Muslims were targeted by the Bhils. Will they be treated as Hindus who attack Muslims or would they be part of one minority group attacking another minority group, thus taking the riot out of the ambit of communal violence? The Bill raises more questions than it answers.

The Bill proposes the setting up of the National Authority for Communal Harmony, Justice and Reparation (National Commission in short). It also provides for setting up of an equivalent State Authority. In both cases the composition of the Authority is a Chairman, Vice Chairman and five other members. At least four of these would have to belong to a group defined under section 3 (e), that is, a minority. In other words, the National Authority and State Authority would be heavily weighted against the majority community, that is, the Hindus. What the Bill virtually states is that a community which comprises about eighty-two percent of the population of India will in perpetuity be deemed to be anti secular, communally oriented, given to violence against the minorities and not to be trusted in any matter relating to the minorities. The Bill could have gone further and stated that no member of a majority community will be appointed to the Executive Magistracy or the police because by definition such a person would be a communalist at heart. The real target of this Bill is not the protection of the minorities. It is a public statement that in this country the majority cannot be trusted to be secular and, therefore, an authority which is weighted in favour of the minorities will decide on all issues relating to inter-communal relations. Have the persons who drafted this Bill completely lost their sanity? Do they expect that the majority community will sit quiet whilst it is tarred with the stigma of communalism? This is a totally unacceptable position in democratic India.

There are any numbers of issues on which one can comment. For example, the District Collector is trusted to assess damage in a natural calamity and to fix compensation. Even under the Delhi Police Act he is the person who determines the cost of employment of additional police, the charges imposed by way collective fine on the inhabitants of a disturbed area and such other matters. It is he who determines the compensation in case of injury by an unlawful assembly. Under the Communal Violence Bill the Collector is not trusted and instead the work has been given to a state and district assessment committee. Which officer serving as a Collector and District Magistrate, Superintendent of Police or Commissioner of Police would ever accept such a situation? The provisions in the Bill are an affront to every D.C., in the country and this reduces the efficacy of the District Administration.

Under Entry 3 of the Seventh Schedule of the Constitution criminal law and criminal procedure are in the Concurrent List. All that is needed is an amendment in the Code of Criminal Procedure whereby under a given set of circumstances, to be prescribed in the amendment, which would include communal violence, the Central Government would acquire the power to give suitable directions to the District Magistrate, the Superintendent of Police or the Commissioner of Police. Virtually this would place the law and order machinery in a district under central control for the period for which a notification is issued under Cr.P.C. Under the Representation of Peoples Act all officers and departments of the State Government dealing with elections come under the direct control of the Election Commission and, therefore, Central control in matters of law and order is feasible under law. If the purpose of the Prevention of Communal Violence Bill is to ensure effective action, prevent and suppress communal violence, then a simple amendment of Cr.P.C. would be adequate, especially if this is accompanied by firm action by the Central Government against All India Service officers serving as DMs and SPs if they are derelict in their duty. If the objective is to humiliate the majority community by dubbing it as the only community capable of communal violence, then the Communal Violence Bill is just fine. Actually it should be scrapped and thrown into the nearest dustbin.

The Prevention of Communal and Targeted Violence Bill, 2011 - A Draconian Document

A note prepared by the Vishwa Hindu Parishad, Delhi

The National Advisory Council presided by Sonia Gandhi has made ‘The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill,2011’ public. The purpose of this bill has been outlined in that it will help check communal violence in the country. After going through the bill, one comes to the conclusions that if the bill is passed, then not only will the results be devastating; it will also lead to a further polarisation in the already communally divided society. Even an arch-secularist like Shekhar Gupta has recognized that the bill ‘will polarise people on a communal basis just when they seem to be getting over that sad past.’ (Indian Express, 4 June 2011) The ultimate goal of this bill seems not only to strengthen the minority vote-bank but also to trample the Hindu organisations and their leaders.

We have been a witness to how this government is more concerned with protecting the corrupt rather than punishing them. It has also left no stone unturned in victimizing the ones who have dared to raise their voices against the corrupt. In the same vein, this bill seems to be a sinister design to not only protect the ones who perpetrate violence but also to suppress the Hindu organisations and their leaders. It will also lead to interference in the working of the state government and lead to an attack on the federal polity of the country. It also seems to be in variance with the basic structure of the constitution leading towards a new kind of dictatorship. It will also trample upon the spirit of the Hindu ethos and the trample the Hindu organisations that have been lending its voice to it.

The National Advisory Council (NAC) that has recommended this bill has been functioning as a parallel government. Neither is this an elected body, nor are all its members duly elected representatives of the people. The logic that the government has been using against the ‘civil society’ falls flat on its face in the case of the NAC.

The NAC is an unconstitutional super power that issues commands in the guise of advice and that too without any responsibility. The central government, steeped in servitude, is always eager to implement its orders. A look at the members of the draft committee and an analysis of their characters leaves one in no doubt about their sinister designs. This committee has nine members and four advisors. The common thread that binds them together is their opposition to the Hindu organisations, their constant opposition of the Hindu society in Gujarat and attempting to put them in the dock. This bond runs so deep that they can even go to the extent of maligning the nation in trying to wear the facade of the sole protectors of the Muslim society.

Harsh Mander is one of the biggest opponents of the Raam Janmabhoomi movement and Hindu organisations. Anu Aga, a successful businesswoman in her own right, became to be known as a social activist only because she espoused the cause of the Muslims in the post-Godhra riots. Teesta Setalvad and Farah Naqvi’s stand on Gujarat is too well-known to be recounted here. Not only have these people bought people to make false testimonies, but also garnered huge support from anti-national elements to file false cases and thereby committed the impropriety of trying to prejudice the enquiry in an unconstitutional manner. Their conspiracies today stand exposed, and they could find themselves be in the dock anytime soon. These people can go to any extent in trying to overcome their frustration.

It seems that through this bill, they are trying to push through our throats, what they could not hammer down into the polity, through the judiciary. The bill definitely looks like back-door tactics to implement their sick ideology. However, the names of the declared and undeclared advisors of these people are enough to take the lid off their real intentions. One can easily guess the kind of draft bill a committee that comprises of people like Syed Shahabuddin, the owner of ‘Muslim India’, John Dayal, who has given India a bad name in the west by speaking lies about his own country, and people like Shabnam Hashmi and Niyaz Farooqui who openly support the desecration of Hindu gods and goddesses in the name of artistic freedom..

The outspoken minister, Kapil Sibal’s remarks about the alleged involvement of the state government in the Gujarat riots while making this bill public, speak volumes about the one-point agenda of the present dispensation. It seems as if Sonia Gandhi is trying to achieve what the whole secular brigade could not achieve. In the Gujarat episode, all their efforts are coming to a naught. Those who were once making allegations are continuously ending up as the culprits. The fear of the law catching up with them is making them scared for their lives. A look at the format of the bill and it is evident that the bill has been made by one of those so-called human rights activists who seem to have ended up on the losing streak of the Gujarat episode.

When it comes to human rights, we are all aware of the double standards of the various organizations and countries like America. They are concerned with the events of Orissa and Gujarat but not with the plight of the Kashmiri Hindus in Kashmir. Or with the Christian organisations which indulge in the killings of Hindus in Tripura and Manipur.

It is a tragedy that no Indian leader could summon enough courage to warn America not to interfere in its internal affairs. India’s Muslim and Christian organisations have supported this American misadventure. This also goes to prove their unpatriotic ways.

The lack of sincerity on part of the NAC is clear when one considers that they have not dwelt into the issue of why the riots take place in the first instance. In April 2002, one of the members of the NAC, Anu Aga said, “If in the past the minority has been pampered and given concessions, it needs to be looked at afresh. If in the past, practices went against the majority, we need to have the guts to reverse them. Muslims will have to come out of the clutches of fundamentalism. Let us have public debates on these issues.” (Indian Express, April 8, 2002) In all these nine years, Aga did precious little create the debate. Perhaps she realizes that if the truth comes out, a bill will be needed to punish the perpetrators of the crime, rather than victims.

Some of the dangerous provisions of the bill are as follows:

1) The culprits of any communal violence will be sorted on the basis of majority and minority. This compartmentalisation cannot be acceptable to any civilised society, since it will lead to further polarisation. Till now, these people themselves were the votary of the saying, “A criminal has no religion.” Then why have the culprits of communal violence of the minority community been kept out of the purview of conviction? They are of the view that no member of the minority community is responsible for communal tension or violence whereas the reality is just the opposite. Not only in India, but the leaders of these communities spew venom on the religion of others in every country of the world. Even in India, many judicial verdicts and reports of various commissions have said that the hate-speeches and doings of these people are at the base of the most of the communal violence. Gujarat and Orissa, two of the refrains of the minority community that constantly keep hankering about, even here the judiciary and various commissions have found the violence perpetrated by the minorities to be the basic reason. To leave the ones who have committed the crime and target the majority who are the aggrieved is not only against the tenets of law but also goes against the acceptable norms of a civilised society. In the history of independent India, the so-called minorities have made 1,50,000 attacks on the Hindus and some 500 attacks on Hindu temples. Even now, in late 2010, the violence that have been unleashed on the Hindus of Deganga (West Bengal) leaves one wondering if it is a part of India. The recent attacks on Hindus in Bareilly and Aligarh are still fresh in our memories. Hindus in India have been attacked when a foreign cartoonist made a cartoon of the prophet in a foreign magazine in a foreign land. Can the prosecution of the aggrieved and the letting off of the perpetrator of violence be condoned and justified in any society? Another arch-secularist wrote, “While the mood of the nation is moving away from communal violence, the draft Bill’s presumption that communal trouble is created only by members of the majority community and they alone are punishable is patently discriminatory.” (Sam Rajappa, The Statesman, 6 June 2011)

2) According to Article 7, if a Muslim woman is subjected to abuse, that will constitute a crime. However if a Hindu woman is subjected to rape, then it will not be considered a crime. But don’t we all know that whenever there are riots, it is the Hindu woman who is at the receiving end?

3) The community that is going to be protected by the enactment of this draconian law has been given the name of ‘Group’ The so-called minorities belonging to this group have been grouped together with the Scheduled Castes and Scheduled Tribes. Isn’t there a mutual animosity between these communities? The bloody battle between the Shias and Sunnis is too well-known to the world. Who will take responsibility for this? The sub-castes in dalits also indulge in violent clashes, though most of the times, those with a supposed secular badge are the ones who are responsible. Will this bill lead to a cessation of these hostilities? The goodwill that is required to stop this violence, will that not become a liability because of this bill?

4) The majority Hindu community is in the dock now because of this bill. Sonia Gandhi must remember that she has praised the Hindu religion for its tolerance on many occasions. In a Congress sessions, she had herself said that secularism is living in India only because of the Hindus and India will remain secular as long as there are Hindus. Communities like the Jews, the Parsis, and the Syrian Christians, who had been persecuted in their own homelands, were provided shelter by the Hindus in India. Therefore, instead of targeting this peaceful community, the basic reason of communal tension should be explored. Soniaji should forget about vote-bank politics and think about the nation’s interests. If they demonise the tolerant Hindu society, then the polarisation between the two societies will only become stronger. N C Saxena, also a member of the NAC, said, “In case a member of a minority community indulges in violence against the ‘majority community’, it would be covered under Crimial Procedure Code and Indian Penal Code and not under the Communal Violence Bill,” (The Pioneer, June 23, 2011) These codes are available not only for the majority community, but also the minorities. In addition, these codes also deal with intra-community issues. So, what is the need of this bill? Does this not expose their extreme agenda?

5) The definition of communal violence in this bill is: “The activities that breaks the secular credentials of the country.” In India, there are different definitions of secularism. Be it the Indian Constitution or this bill secularism has not been defined anywhere. Is ‘saving Afzal Guru from the gallows’, ‘visiting Azamgarh to encourage the terrorists’, ‘insulting the police in the Batla House encounter and thereby encouraging the terrorists’, ‘raising a question mark over the sacrifices in the Mumbai bomb blasts’, ‘encouraging the training given to the terrorists in Madarsas,’ ‘encouraging the Bangladeshi infiltrators’ secularism in the eyes of Sonia Gandhi and raising a voice against them ‘breaking the secular credentials of the country? Why are they trying to victimise the patriotic Indians by giving arbitrary definitions of secularism?

6) According to sub-clause 74 of the Bill, “Any person who has been implicated in making a hate-speech will remain guilty until he is proven innocent”. This sub-clause is against the basis features of the constitution. The Indian constitution states that the accused is considered innocent until his guilt is proved. If this bill becomes a law, then to send someone behind bars, one only needs to make an allegation against him. It will become impossible for him to prove his innocence.

7) If an allegation of this kind has been made against a state government employee, then even the Chief Minister can be made responsible for it as it can be proved that he was unable to stop the employee from committing the wrong. This means that on the basis of wrong witness, it can now become very easy to entangle the Chief Minister of the opposition. The Chief Ministers, who had not yet fallen in the trap, will now become easy meat for them.

 If a member of a particular organisation in an accused, then the head of that organisation will also be held responsible, According to the law, even he will be said to be hand in glove. Now they can very easily nail any Hindu organisation and its leaders with the help of this draconian law. Not that they are not already doing so, but once this bill becomes a law, it will become that much easier for them to arbitrarily persecute the Hindu organisations and its leaders.

9) If this bill were to see the light of the day, then the central government can very easily usurp the powers of the state government. Law and order is the preserve of the state government. The central government can only offer advice or issue ‘advisories’ on this. This protects the federal structure of the country. But now, communal violence and violence targeted at any particular community, without going into the cause, will be seen as an internal disorder of the state. This means that the central government can use article 355 and impose President’s rule in the state. Now, by making small modifications, they are trying to scuttle the vehemence of opposition of the bill by the political parties. Despite this, their intention of trying to trample the state governments has not taken a back seat.

10) The Bill states that there will be a 7-member committee to oversee and make decisions. Along with the Chairperson and deputy Chairperson, there will be four members of the minority community in this 7-member body. Won’t this lead to mutual distrust? This means that any person, holding any post, only thinks about the good of his own community. The country must pause and think what this kind of narrow-mindedness can lead to.

11) This committee has been given unlimited powers. Not only can this committee issue orders to the police and the armed forces, but the testimony given to the committee will be as good as the testimony given in a court of law. This means that people like Setalvad, who are past masters of this game of creating false witnesses, can now do it more openly.

12) Article 13 tightens the screws on the government officials in such a way that they will be compelled to take sides with the minorities even when they (minorities) are the criminals.

13) If this bill were to take the shape of a law, it will become very easy for the minorities to implicate the majorities in any false case. If the minority were to even file a complaint with the police, the police will have to arrest the Hindu despite any evidence. The Hindu cannot demand any proof as now the onus of providing his innocence falls on him only, worse, he cannot even demand to know the name of the complainant. It is now left to the police officer to keep the complainant informed about the progress of the case as if he (minority) was the officer of the case and not the police.

14) According to this bill, the police will have unrestricted powers. He can search the premises of the accused Hindu whenever he wants. These provisions of the bill can make it even more sinister in design than what the British colonialists tried to do to control the activities of the Indian nationalist movement.

Only some important facts of this bill have been analysed. The kind of picture that has come out, if this bill becomes a law, then the communal scene of the country will become even more diabolical. The arbitrary decisions that are taken during an emergency situation, even they will not match the draconian clauses of this law. It will become more difficult for Hindus to lead a respectable and safe life in their own country if this bill is passed. Manmohan Singh had said that the Muslims have the first right on all the resources of the country. Now, they will have complete rights over the resources. A strong movement will have to be launched against this draconian bill to put this dictatorial bill be on hold

Protest the anti-Hindu 'Prevention of Communal and Targeted Violence Bill, 2011'

Rajeev Gupta 

Protest the anti-Hindu 'Prevention of Communal and Targeted Violence Bill, 2011'

Introduction - What is this bill and why to protest ?

Apparently 'Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011' is brought to curb the riots taking place between majority and minority communities. After the alleged post-Godhra riots in Gujarat, the so called secularists are going pillar to post to bring this enactment. So called social activists like Teesta Settlewad, Asgar Ali Engineer are the people involved in pushing this draft bill.

O Hindus, please study the draft, think, awake and please act fast and fulfill your duty towards Hindu dharma and Nation.

The draconian provisions of the new Law

1. Protection to religious or linguistic minority and Scheduled Castes and tribes - It is directed to punish the offenses done or anticipated against a group which essentially comprises of a religious or linguistic minority and Scheduled Castes and tribes (Sec 1 (e)). Nobody else is given protection. If in certain area, hindu population is minority and attack is targeted against them or where the minorities themselves start organized attacks and riots, this law wont help to Hindus. Such is the viciousness of the draft bill.

2. Curbing freedom of expression by terming it as Hate propaganda - Even publishing, communicating or disseminating of opposition may be termed as Hate Propaganda u/s 8 and is may extend to 3 years and/or fine. Again, it is targeted against the Hindu literature and and not anti-hindu literature.

Section 18 makes anything said or expressed against the minorities may be taken up as offence under this Act. The Govt. is to keep a constant vigil on this as to who is criticizing minorities, even fair criticizing may invite action by state else the public servant will be prosecutes - Sec. 18 - This provision may be misused widely even in the time of peace, for it is a continuing process.

3. Offenses to be non-bailable and cognizable - The offenses under the act are summarily non-bailable and cognizable even if they are not so under I.P.C. by virtue of (Sec. 11 and 58)

4. Government machinery will be made a slave to the minorities - Under this Bill, public servants will be under constant supervision and torture- dereliction of duty and it casts vicarious liability on them(Sec. 12 to 16). As also the victim can at any point of time gets a right to know the stage of proceedings and can complain to the National authority against the Govt. Machinery.

5. Obeying orders is not a defense - Apart from the vicarious liability, the order obeying police etc. can not say that they obeyed the orders. Even if one obeys an order of his senior, he also is a accused. In the times of riots or attacks, controlling the same will be too much difficult because of this. (Sec. 16)

6. Creation of a post - Defender for Justice and Reparations. - (Sec. 56) It appears that his sole activity will be to press for the rights of minorities.

7. Creation of National Authority for Communal Harmony, Justice and Reparation

1. It shall have separate investigation agency with a Director General of Police GP. (Sec. 29)
2. It's advisories and recommendations will be binding on the State and Central Govt. (Sec. 32 (a) and (d) read with Sec. 29)
3. It can interfere in the Court proceeding ( SEc. 32 j and k)
4. It will have the status of a Civil Court.

8. The public servants like District Magistrate or Police Superintendent made directly answerable to the National Authority. (Sec. 72,29, 69, 71, 4138,39)

9. Presumption of guilt and burden of proof on the accused (Hindus) - The accused will have to prove innocence ( Sec. 74) This changes the entire legal proceeding against the hindu accused people.

10. More than one third of public prosecutors will be from the religious or linguistic minority. ( Sec. 78)

11. Provision for funds - There will be funds diverted from the Consolidated Funds of India in addition to the fines collected under this act which will be disbursed to the alleged victims.

12. Apart from punishment the convict will have to pay to the victim - Whatever is given to the victims are in turn subrogated from the the persons allegedly responsible for the loss of property, life or liberty (Sec 110)

13. Protection of action taken in good faith - All the persons acting under this Act will have blanket 'protection of action taken in good faith'. ( Sec. 130)

14. This act is in addition to any other laws that are in force at present (Sec. 138)

BEWARE!!!!!!!!

Some draconian aftereffects of the communal violence bill:

• The government is pre-assuming that the communal violence is always done by the majority community only (i.e. Hindus).
• If a person belonging to a minority group is your tenant you cannot ask him to leave your place without his concern.

You will be jailed if you do so or if you even think of doing it.

• Generally, in a riot, both the groups (majority or minority) could be victims or culprits. Then why only the majority community would be charged without inquiring who started it.
• If you are responsible for affecting the business of any minority or make it difficult for him/her in earning livelihood willingly or unwillingly you will be charged under this law and jailed. This law violates our liberty.

Suppose you used to buy non-veg products from a shop owned or run by a minority and now you adopted vegetarianism, you will be prosecuted saying that you did so to destroy his/her business due to communal hatred.

• You can’t express your views regarding a minority community either by publishing, communicating or by signs or by visible representation.

For example, if there is a criminal belonging to a minority and if you condemn his acts or deeds, you would be tagged as communal and thrown behind bars. So, now ,the helpless Indian public could not even express their hatred (which is the only thing they can do) for the terrorists who brutally slaughter their countrymen. It violates our fundamental right called “right to freedom of  expression”.

• If any communal violence occurred in an area, the concerned state govt. will be disabled and the president’s rule will be implemented in that state. It can be used as a tool for disabling a democratically elected state government, the vested interested group who want to remove state govt..

This will give central govt. a tool to threat govt. of state which is being ruled by any other party than in the ruling central govt..

• What all offences will not be considered as a legal offence:
1. Rape or sexual abuse with a girl of majority community by a minority
2. If a majority community tenant is thrown out by a minority community land owner
3. Communal hatred against the majority community
4. If a person belonging to a majority community is murdered by a minority
• For communal harmony a committee is there called as NACH (National Authority for Communal Harmony). The rights given to NACH will lead to interference of the centre in to the state matters thus violating the federal structure of our constitution.
• NACH promotes people to give false evidences.

If a person gives false evidence and statement before the NACH and if it is found to be false, then there would be no action taken against that person.

• Under this act, the arrested person can’t be granted bail. i.e. it is pre-assumed that the accused is guilty until proved innocent.
• The property of the accused would be attached i.e. will be seized. It shows the govt. wants to punish the innocent family members of the accused by doing so.
• The victim would be provided with all the legal aid i.e. lawyers, legal expenses during the trial etc. whereas the accused would not be given such privileges.

The rights of victims and accused should be same, as till proven guilty, everyone is equal in the eyes of law.

• It is interesting to see that relief, reparation and restitution and compensation will be given to all whether or not they belong to the minority community.

But just think, when the Congress govt. already considers the majority community as the culprit, then the question of victims of majority community being given compensation is of no use.

Communal and Sectarian Violence Bill

Communal Violence Bill: A Conspiracy by NAC

Article by Manohar Seetharam

Many of the readers might be already familiar with the constitution, functioning and the orientation of the National Advisory Council (NAC). NAC is an extra-constitutional body that was constituted by an executive order in the year 2004. In this regard it is similar to the Planning Commission of India, which has acquired allmost an indispensable role for itself when it comes to economic policy. The crucial difference being that the Planning Commission is chaired by the PM, where as the NAC was peculiarly designed to suit the politics of UPA,i.e to portray Smt. Sonia Gandhi, Chairperson of NAC, as the saviour of the poor and oppressed. Despite being an outcome of national politics NAC has off late come to represent and position itself as a government within government, allowing the ruling party to position itself both with and against the government.

The focus of this post is one particular bill drafted by NAC called the “Prevention of Communal and Targeted Violence(Access to Justice and Reparations),2011”1. There is currently another version of this bill currently pending in the Parliament.2. Just one reading of the bill is sufficient for one to be concerned about the fallout of having such an act and seriously question the mindset and approach of the members of NAC.

Brief overview :

Under the new law any act of indulging in communal and targetted violence is defined as a non-bailable offense, procedures and resources for enquiry are laid out and punishment prescribed.

As every new law these days does, this law too prescribes the setting up of a new official structures and offices with vested power. A body known as National Authority For Communal Harmony, Justice And Reparation. In a token gesture to our federalism (which it later proceeds to undermine) it calls for similar bodies at the state level too. Having ensured ghoda, gaadi, kursi and a lifetime of pension for themselves and their ilk they proceed to brazenly forward their agenda, in no uncertain terms and with clinical precision. If this has caused any outrage in you, then I am certain what follows is sure to bankrupt you of it completely.

Definition of a group :

“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.

Communal and targetteed violence is defined as :

“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.

All the provisions provided in the bill are centered around and built on “ targeting a person by virtue of his of her membership of any group”. It is very clear even to a layman like me what it’s implications would be. Firstly, any targeted violence on those who are not a part of the “group” would automatically not qualify as communal violence. Hence violence reported in the recent times from places like Deganga or Meerut would fall outside the bill’s scope. Secondly, in a situation where there is violence from two or more sides targeted at each other, the provisions, powers and punishment of this bill would be deployed only against one such side.

It is not that the drafters of this biased and unjust bill do not realise this, look at what the bill has to say about the process of payment of compensation.

“All persons, whether or not they belong to a group as defined under this Act, who have suffered physical, mental, psychological or monetary harm……”

Very kind of them indeed. The saving grace is that no such devious definition of group could be spotted easily in the draft currently tabled in the Parliament. The blatant fashion in which NAC has drafted this bill and invited comments suggests that they don’t have a very high opinion about the capabilities of ordinary Indians to comprehend and challenge their authority.

Having murdered the very idea of natural justice and equality they now turn to strangle federalism. It seems to be there either on-demand or as a chip for central government to pursue this act further. Fortunately for India, the post-liberalisation era has seen the emergence of many strong and financially sound states. They have used the space provided by privatisation and delievered growth and a better life for their people. The bill makes the following provision :

“The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India 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.”

This is again an open attempt to colour the constitution. The intention being to empower the central government to indulge in arbitrary and politically motivated use of Art 356. The provision is in clear violation of the clarification and procedure laid down by the Supreme Court in the S.R.Bommai Vs Union of India case3. The judgement records the following

The expression “internal disturbance” is certainly of larger connotation than ” armed rebellion” and includes situations arising out of “armed rebellion” as well. In other words, while a Proclamation of emergency can be made for internal disturbance only if it is created by armed rebellion, neither such Proclamation can be made for internal disturbance caused by any other situation nor a Proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the Government of tile State cannot be carried on in accordance with the provisions of the Constitution

Leaving other issues like legitimisation of phone tapping and like aside the above two issues are sufficient to be really worried about this bill and it’s intended consequences. Sadly, but from a very few influential columnists this draft hasn’t received the treatement it deserves. Media apart, it is sad to see that the other stakeholders like the State government’s remain silent on such proposals. May be this bill won’t get passed, but it is important to use these opportunities to draw lines and set new thresholds which would stay etched in both institutional and individual memories. The biggest takeaway from this is that the NAC today feels much more confident and sure of itself. The many  battles they  fought with the PMO and the Cabinet has emboldened them to attempt such a thing.

With the public outrage solely focussed on the corruption cases, nobody has bothered to ask them  the right question, which is : How dare you ?

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.