The draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 hosted by the National Advisory Council (NAC) on its website for public scrutiny, apparently rewrites some key principles of the Constitution of India, Indian Penal Code, Code of Criminal Procedure 1973 and Indian public services. It is the downside of allowing social activism to overshadow the imperatives of governance. Being without a preamble, uncharacteristic of any bill, its intent is a matter of speculation. This omission, on closer reading of the text, appears ill-intentioned rather than bona fide. The question whether current laws like IPC, CrPc and UAPA are inadequate tackle communal incidents is an issue one must ponder upon.
The proposed Bill subverts the principle of ‘Equality before Law’, recognized in the IPC and Constitution of India. It arbitrarily divides the population in Indian states into people of the ‘group’ - comprising religious & linguistic minorities, Scheduled Castes and Scheduled Tribes- and the rest. This rest or ‘majority’ in context of most Indian states implies the Hindus.
The Bill presumes that acts of communal violence could be indulged only by the ‘majority’ (Hindus) against ‘minorities’ (Muslims and Christians) and never vice versa. Whether this is consistent with Indian realities or not is something that never bothered its framers. According to the Annual Report (2010-11) of the Ministry of Home Affairs, during 2010 (till 15.12. 2010), there were 610 incidents of Hindu-Muslim conflict in the country resulting in the death of 109 persons and injuries to 1,963 persons. Majority of these incidents took place in Uttar Pradesh, Maharashtra, Karnataka, Rajasthan and Tamil Nadu. Major issues for communal incidents were carrying and slaughtering of cattle, routing religious processions through mixed localities, desecration of places of worship, distribution and playing of provocative CDs/cassettes, disputes for land/property, eve-teasing and personal enmity’ (P. 92).
During 2009, there were 750 Hindu-Muslim communal incidents resulting in the death of 123 persons and injuries to 2,380 persons. In 2008, there were 656 communal incidents, including four riots, leading to deaths of 123 persons and injuries to 2,272 persons.
It would be rather presumptuous to say that Hindus, who constitute the majority in the aforesaid states, are solely responsible for these incidents. Trafficking and slaughter of cows is recognizably a flashpoint for Hindu-Muslim troubles. It’s redundant to specify which of the two communities nurture cow, and who indulge in kine killing. Opposing cow slaughter or salvaging cow would become a communal crime if this Bill were to be enacted. This militates against the Directive Principles of State Policy (No.48) in the Constitution which recommends ‘prohibiting the slaughter, of cows and calves and other milch and draught cattle’.
The Bill could be a Damocles’ Sword hanging on the public servants even when no riot has blown up. Under its Clause 18, the public servant charged with the duty of maintenance of public order or tranquility, must not only control an erupted riot but ‘obtain information regarding the likelihood of occurrence of communal and targeted violence’. The violence need not be an explicit riot but existence of ‘hostile environment’ against a ‘group’ would be enough. The ‘hostile environment’ includes boycott of trade, exclusion from service, education and health, relocation etc.
India has a high-rate of unemployment. But if one unemployed person of the ‘group’ claims he was discriminated against in earning a livelihood, the public servant of the area can be in a soup. A ‘breach of command’ on part of a public servant is punishable with rigorous imprisonment for life!
It is an amphibian Bill which wants both to work through the system (existing law enforcing authorities and court) as well as set up an independent authority. This it does by establishing a National Authority for Communal Harmony, Justice and Reparation at central level and State Authorities at provincial level. This prima facie constitutes an infringement upon the principles of federalism, given that Law & Order is a state subject as per the Constitution of India. The National Authority, though based in Delhi, could open its office anywhere in India by sanction of Central Government. It would also take up cases and complaints directly, independent of the state authorities. The National Authority can requisition information from a) central and state governments b) ‘non-state actors’ c) issue direction to state authorities to conduct any enquiry.
The National Authority, while inquiring or investigating, will have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908. It can summon or enforce attendance of witnesses and examining them on oath, receive evidence on affidavits, examine witness or documents. Ironically the Code of Civil Procedure, 1908 which clearly defines hierarchy of courts under Section 3 (Subordination of Courts) has no provision for such a lateral entry of a virtual court. The National Authority is not merely a court but law enforcing agency as well. Under Clause 33 (4) it can authorize a Gazetted Officer to conduct a raid to discover any document and seize it. All these pious exercises of the National Authority and State Authorities will end in issuing advisories and publishing Annual Report to be hosted on the website.
The National Authority, constituted by the Central Government, itself betrays a partisan spirit. It would have a Chairman, Vice Chairman, and five other members, out of which four members including Chairman and Vice Chairman should belong to ‘group’. The underlying assumption is that only people of the ‘group’ would be just to the ‘group’. The impartiality of an Authority so constituted would naturally be a suspect.
Hate propaganda, which can earn up to three years of imprisonment and fine (Clause 115), is described in Clause 8 as to mean only against the ‘group’. The people of the ‘group’, however, are free from its snare.
It is only in Clause 90 that evenhandedness is visible. It allows for relief, reparation, restitution and compensation to riot victims whether or not they belong to the ‘group’. The framers of the Bill deserve thanks for these small mercies! These are not indeed insignificant in practice. The relief camps, envisaged by the Bill makers (vide Clauses 93 and 94), should have elaborate facilities which look like military cantonment. The victims should get a) portable drinking water b) nutritious and culturally appropriate food c) 24 hours security d) essential medical service including antenatal and postnatal care) psycho-social and trauma counseling and psychiatric services f) child care services for infants and small children g) educational facilities for children h) adequate shelter with privacy for women and girls.
The complete description of amenities at the Relief Camps would make them a more alluring proposition than normal homes. Frankly speaking, all these facilities are hardly available in crammed slums or small towns of India. It will be the duty of State Government, the Collector, to ensure the aforesaid facilities and many more. It will take an enormous bureaucracy to implement the ideas. Being part of the Act, rather than subsidiary rules or instructional manuals, they will be almost be engraved on stones.