The United Progressive Alliance (UPA) government’s proposed Prevention of Communal and Targeted Violence (Access to Justice and Repatriation) Bill, 2011, is being discussed by political parties, drawing criticism from both sides of the spectrum.
At a recent meeting of the National Integration Council, the Bharatiya Janata Party (BJP) criticised the Bill as anti-majority community. It is “too tilted” in favour of minorities, according to the principal opposition party.
The Trinamool Congress, Janata Dal (United) and the AIADMK are opposing it on the grounds that the Bill is “anti-federal”.
| HOTLY DISCUSSED |
| The moot points of the Bill |
| * The definition of the expression 'group' in the Bill only takes into account religious and linguistic minority. It remains vague in a riot situation where a minority community attacks a majority |
| * The Bill asks for a constitution of a National Authority for Communal Harmony, Justice and Reparation' (NACHJR), which will have the powers to collect information from the central or state government, and could issue directions to the state authorities on how to conduct any inquiry |
| * Any direction issued by the NACHJR to any State Authority shall be binding on the State Authority. The State Authority will be an agency similar to NACHJR at the state-level |
| * The BJP and allies of the UPA have voiced their concern that the NACHJR infringes on the rights of the state, guaranteed by the Constitution |
| * The Bill fixes accountability on a public servant for ‘dereliction of duty’, but isn’t as unequivocal on the political leadership |
| Where BJP stands |
| * The BJP says the Bill is against the majority community and is too tilted in favour of the minorities. The opposition stems from how the Bill defines the expression ‘group’, defined as “a religious or linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes” |
| * The BJP says Bill infringes on the rights of the States, as it takes ‘law and order’, which is a State subject, out of the hands of the State machinery in an event of communal violence |
The BJP’s primary reservation to the Bill is that it addresses violence caused only by the majority against the minority and not the other way round. It is opposed to the Bill defining the expression ‘group’—as “a religious or linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes”.
This definition is used at all the other places to define violence. For example, Clause 7 of the Bill, under the subhead ‘Sexual assault’, says “a person is said to commit sexual assault if he or she commits any of the following acts against a person belonging to a group by virtue of that person’s membership of a group”.
The BJP’s Arun Jaitley is not amused. “Thus, a sexual assault is punishable under this bill and only if committed against a person belonging to a minority ‘group’. A member of a majority community in a state does not fall within the purview of a ‘group’,” he said. Similarly, the definition of ‘hate propaganda’ under Clause 8, ‘organised communal and targeted violence’ under Clause 9, ‘Torture’ by a public servant under clause 12, etc, address violence against a ‘group’, the Leader of the Opposition in the Rajya Sabha said in an article written in June.
National Advisory Council (NAC) member Harsh Mander, who is the architect of the Bill, has defended the proposal. “The Hindus are a minority in seven states. They are also linguistic minorities in a large number of states,” he notes. “Therefore, it is incorrect to say this law is protecting only the minorities. I agree there have been instances where the majority community has been attacked by the minorities, but there are existing laws to handle this.”
However, Mander says there is an “institutional bias” against the minorities which needs to be corrected. “The whole criminal justice system has been against the minorities in cases of communal violence. It is to correct this institutional bias that we need a special law. There have been riots against the Hindus, but have you ever heard that the Provincial Armed Constabulary (of UP) has fired against them?”
The Bill has been criticised by both the BJP and allies of the UPA, who allege the Bill infringes upon the rights of the states, as it takes ‘law and order’, which is a state subject, out of the hands of the state machinery in an event of communal violence. The Bill asks for the constitution of a ‘National Authority for Communal Harmony, Justice and Reparation’.
The 11-member body, which will be constituted by the central government, will have powers to collect any information from the central or state government; appoint any person to observe, gather facts and information; and could issue directions to the state authorities on how to conduct any inquiry. Also, “any direction issued by the National Authority to any state authority shall be binding on the state authority”.
Mander says the criticism of the Bill is not correct as the National Authority will have no extraordinary powers. “There is a misconception being created that the Bill challenges the federal nature of the Constitution,” says Mander. “Most of the powers that we have given the National Authority already exist with the National Human Rights Commission.”
The Bill also drew criticism for the vague definition of the expression “communal and targeted violence”. It defines it as “any act or series of act… against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation.” Jaitley wrote, “There can be legitimate political differences as to what constitutes secularism. The phrase secularism can be construed differently by different persons. Which definition is the judge supposed to follow?” The NAC had to finally delete this provision.
Says Farah Naqvi, another NAC member: “The scope of the word ‘secular fabric’ was so huge that we decided to remove it. We have had so many riots, but never has the situation reached a stage where it has threatened the secularism of the country.”
The Bill, for the first time, fixes accountability on a public servant for ‘dereliction of duty’. Any public servant shall be guilty of dereliction of duty if he exercises his duty in a manner which is likely to lead to an offence of communal or targeted violence; and if he “without any reasonable cause, fails to prevent the commission of communal and targeted violence.” However, the Bill remains silent on fixing political responsibly in an event of communal violence.
