Congress back with Communal Violence Bill
By Sandhya Jain on April 27, 2013
The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, shelved nearly two years after an unexpected multi-party resistance in Parliament, seems likely to resurface as part of Congress president Sonia Gandhi's desperate bid to sew up minority support in the event of an unexpected election.
Should the Bill be passed, its major consequences, whether intentional or otherwise, will be a dangerous intensification of communal identities and mutual communal suspicions, besides a discriminatory application of separate laws for separate communities, which militates against the Constitutional prohibition of discrimination on grounds of religion. Indeed, it surpasses the communal electorates of the British Raj and virtually creates a separate criminal law by which designated minority groups can prosecute and target a chosen majority in a State or the nation at large.
Further, the Bill clashes with the doctrine of Basic Features of the Constitution as laid down by the Supreme Court in the Kesavananda Bharati Case, 1973. If enacted, it is liable to be struck down as ultra vires of the Constitution as it drastically amends the Constitutional provision of Right to Equality before the law as granted under Article 14.
The Bill is the offspring of a partisan State hell-bent on sowing disharmony and shattering the largely peaceful coexistence among communities. As per its provisions, in the event of a communal situation in which there is death and/or injury on both sides (or three sides if we count the police as a separate party present on the spot), the individual victims will not receive succour on the basis of a uniform law in which each incident within the larger riot is investigated and prosecuted separately.
For instance, if five streets of a colony are involved in rioting, the rioters and the victims will be different on each street. Justice involves identifying the culprits and dealing with them as per the extent of their crimes. Yet, under the proposed Bill, separate laws will apply to separate community victims when the cases come to trial, though all crimes are committed as part of the same riot!
If this is not enough of a mockery of the law as we have so far known it, there is no mention of what is to be done if policemen (paramilitary, Army men) doing their duty are deliberately targetted by mobs, or fall in the line of duty. One has only to recall the public manhandling of outnumbered policemen in Mumbai in August 2012, when the Raza Academy and several Sunni Muslim groups took out a march to protest against attacks on their co-religionists in Myanmar.
The Academy later issued a public apology and blamed anti-social elements for infiltrating its rally. But the moot point is whether, had an untoward incident occurred, justice to Government servants on duty will also be meted out on the basis of religious affiliation. This is a serious issue that cannot be neglected by our law makers; it has the potential to split the nation apart.
The Bill rests on the faulty and divisive premise that India's religious and linguistic minorities and Scheduled Castes and Scheduled Tribes, who together constitute a formidable 40 per cent of the population, are a focus of targetted violence at the hands of the remaining 60 per cent which has been clubbed together as the majority community despite its diversity.
Some apologists of the Bill realised that this is a staggering allegation, and offered the sop that the miniscule Hindu community in Jammu & Kashmir could benefit from its provisions. Perhaps they did not realise that the Bill does not apply to Jammu & Kashmir unless the State Assembly passes an enabling legislation. They also added that Hindus are a religious minority in Punjab, Mizoram, Manipur, Meghalaya, Nagaland, and Andaman-Nicobar, and a linguistic minority in many States – meaning States where the majority Hindu community has a regional mother tongue! Can anything be more perverse?
The Bill defines victims to mean, "3(k) 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".
Without seeking to raise communal temperatures, it is surely pertinent that one of the most serious law and order threats the nation has been facing for many years is from Jihad, the invocation of a particular religion and its alleged goals and grievances by terrorist groups affiliated to one faith. The victims were mainly from the so-called majority community, though there have also been incidents in which victims belonged to multiple communities.
Under this Bill, will the minority victims of acts of terror by aggressors affiliated to the same minority group get privileged or equal or lesser justice as opposed to the victims of the majority community? The larger questions are: Should there be any difference and where are we headed as a nation if this is the way we are being provoked to think by this Bill?
There is no reason why the Scheduled Castes and Schedules Tribes have been clubbed with religious minorities under this Bill except to dilute its communal taint. The statute already contains the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
The Bill provides for a separate Authority, which is likely to overlap with the functions of the National Human Rights Commission, National Commission for Minorities, and National Commission for Women. Perhaps these bodies could be merged into a single entity dealing with social crimes.
The Bill lays special emphasis upon crimes of sexual assault linked to a person's membership of a particular religion or group. In the Gujarat 2002 riot cases transferred to Mumbai, several female victims told the court that they had not been raped during the riots and had no idea this was written in English in the affidavits they were asked to sign by a famous NGO. Yet the Bill makes no provision for punishing and penalising practitioners of such motivated, calculated, and false communal slander.