Towards a riot-free India
B S Arun and Gayathri Nivas
The proposed Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, marketed by UPA-2 as a deterrent against habitual perpetuators of communal violence, has been shot down by state governments owing allegiance to NDA and political parties outside UPA, in its present form. The bill, prepared by the National Advisory Council (NAC), is seen by critics as infringing on federal structure of governance and discriminatory in the sense that it views minorities as the perpetual victims and majority community as the habitual aggressor.
The draft bill revolves mainly around the word “group”, which implies a religious or linguistic minority, in any State, or Scheduled Castes/Scheduled Tribes. “Victim” is any person belonging to a group who has suffered physical, mental, psychological or monetary harm or harm to his or her property.
“Communal and targeted violence” is any act or series of acts, spontaneous or planned, resulting in injury or harm to a 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.
“Hostile environment against a group”, according to the bill, means an intimidating or coercive environment that is created against a person belonging to any group. The bill shall operate in addition to the SC/ST (Prevention of Atrocities) Act.
Brutal forms of sexual assault (beyond the limited IPC definition of rape) and torture have been included in the bill. Additionally, it defines hate propaganda. It provides for punishment of a public servant – in other words the police – who intentionally inflicts pain or suffering on a person belonging to a group.
Public servants who act or omit to exercise authority vested in them under law and fail to protect or prevent offences or act with malafide and prejudice shall be guilty of dereliction of duty with penal consequences.
Another controversial provision which has left the state governments crying hoarse is the power given to the Central Government in relation to `organised communal and targeted violence.’ The occurrence of such violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and 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 the Constitution.
The bill provides for setting up of a National authority for communal harmony, justice and reparation (NAJCHR) consisting of a chairperson, a vice-chairperson and five other members. It is mandatory that at all times, not less than four members, including the chairperson and vice-chairperson, shall belong to a `group.’ Corresponding State authorities shall also operate.
The authority has been given sweeping powers, including requisitioning information from the Central or any state government, non-state actors etc. It will be deemed to be a civil court, have powers of investigation and utilise the services of any agency or official from any state.
Its objectives include preventing any act or acts of communal and targeted violence, including its build-up, incitement or outbreak, controlling the spread of organised communal and targeted violence, monitoring due investigation, prosecution and trial of offences, monitoring due relief, reparation and restitution.
One of the provisions include establishment of Communal and Targeted Violence Relief and Rehabilitation Fund and disbursement of compensation. In case of death, the compensation shall not be less than Rs 15 lakh and for rape not less than Rs 5 lakh.
Upholding federal principle, advisories and recommendations of NAJCHR are not binding on state governments. All powers and duties of investigation, prosecution, and trial remain with the state governments.
Communal flare-ups of the last decade “abundantly proves that communalism is a political and not a religious phenomenon and that communal graph goes up and down depending on political dynamics of a region. It gives us hope that bewildering diversity of Indian society cannot sustain communal violence on long term basis. If communal violence erupts it is more because of weakness of secular forces than the strength of communal forces”.
Dr Asghar Ali Engineer,
Centre for Study of Society and Secularism, Mumbai.
( B S Arun and Gayathri Nivas) Deccan Herald