The National Advisory Council’s Communal Violence Bill - Odd and flawed
Going by the statement of Kapil Sibal, the UPA II appears intent on taking forward the Prevention of Communal and Targeted Violence (Access to Justice and reparations) Bill, 2011 drafted by Sonia Gandhi’s National Advisory Council. He says the central government is determined to make individuals and state governments accountable for “the kind of things that happened in the past.”
But what happened in the past is much more than what happened in Gujarat. The Bill has obviously been shaped by the experience of 2002 Gujarat riots.
The Bill is distinctive in many respects, but there are some areas where the Bill’s peculiarities stare you at your face.
The Bill presumes that the victims of communal violence in all cases and circumstances are people belonging to minority communities. This presumption results from three definitions given in Section 3 of the Bill. One, it defines “communal and targeted violence” as any act or series of acts which cause injury or harm to the person and or property and are knowingly directed against that person “by virtue of his or her membership of any group, which destroys the secular fabric of the nation.” Two, the “group” means a “religious or linguistic minority” or Scheduled Castes and Scheduled Tribes in any State. Three, “Victim” means “any person belonging to a group” who has suffered harm due to violence.
So if a victim of communal violence does not belong to a religious or linguistic minority, that person is not covered by the provisions of the Bill. It also means that no person belonging to the minority can be accused of committing an offence of communal and targeted violence unless the victim also belongs to that group, which is highly unlikely.
It is reasonable for the government in a democratic society to legislate to protect the interests of disadvantaged groups, but in that case the legislation should state the objective clearly, as was done when the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed. If that is not done, the intention behind the piece of legislation is always questionable.
Chapter II of the Bill catalogues a few offences, like sexual assault, hate propaganda, continuing unlawful activity, aiding the commission of an offence, torture etc, but lists many offences of the Indian Penal Code 1860 in Schedule III. Section 11 of the Bill says that all such IPC offences shall be deemed to be offences of communal and targeted violence and dealt with accordingly. Chapter VIII prescribes penalties for these offences, ranging from three years imprisonment with fine or both for indulging in hate propaganda to rigorous imprisonment for life and fine for committing an offence of organised and targeted violence. All offences under the Act are cognizable and non-bailable.
Section 13 lists various failures by a public servant in dealing with the communal situation which would be treated as dereliction of duty, an offence punishable with imprisonment for two years which may extend to five years and fine. In addition to dereliction of duty, the Bill describes an offence of “breach of command responsibility” applicable to officers of armed or security forces, who fail to exercise control over persons under their command resulting in commission of offences under the Act. Officers guilty of such offences are punishable with rigorous imprisonment for life when such failure relates to organized targeted violence and in any other case with imprisonment for a term of ten years and fine.
Section 75 of the Bill says that the defence of sovereign immunity will not be available for offences committed under this Act. Sanction to prosecute public servants, as required by Section 197 of the Cr P C, shall not apply to offences mentioned in Schedule III. There is nothing wrong in marking a complete departure from the legal position stated in the Cr P C where no prosecution can be launched against a public servant for dealing with unlawful assemblies without permission from the government. However, the breach of command responsibility is too difficult to be proved in riotous situations and the penalty prescribed is unreasonably harsh. It would also lead to demoralisation of on-the- spot officers in controlling communal riots.
The Bill sets up a multiplicity of agencies to deal with the problem of communal violence. The National Authority for Communal Harmony, Justice and Reparation shall be set up to prevent and control the spread of communal violence and to monitor investigation, prosecution and trial of offences and payment of due relief and reparation. It shall also “observe, monitor and review the performance of duties by public servants” and also “postings, transfer and replacement” of individual officers “that affect areas where outbreaks of communal and targeted violence’ are reported or anticipated. A very tall order indeed. The creation of National Authority shall be supplemented with establishment of State Authorities for functions, which are more or less similar
The State Authorities may appoint Human Rights Defender for Justice and Reparations in each district. In addition, the Bill sets up State Assessment Committee and also District Assessment Committee to assess the quantum of compensation to be given to victims of communal violence.
The establishment of this highly unwieldy institutional framework raises more questions than it answers. It shows lack of faith in the existing administrative machinery, but some provisions of the Bill show that the new architecture will obviously be superimposed on what exists and not supplant it? If one goes by the past experience, such high powered bodies fail to function viably for long periods and generally end up by becoming post retirement benefit-accruing sanctuaries for politicians and bureaucrats.
The state governments have not shown any keenness to set up institutions that impinge on their powers. The reluctance of states to set up state security commissions suggested in the Supreme Court’s judgment in Prakash Singh’s case as a part of police reform programme is a clear example.
The state governments will have a stronger reason to oppose this Bill. Police and Public Order are subjects in the State List in the Seventh Schedule of the Constitution. Section 20 of the Biil
attempts to encroach on this domain of the state governments by authorising the centre to treat the occurrence of organised communal and targeted violence in a state as “internal disturbance” within the meaning of Article 355 of the Constitution of India and take suitable steps to deal with the situation accordingly. This is very dangerous provision for it will fracture the scheme of federal polity enshrined in the Constitution. How can one be sure that every incident of communal violence will not be interpreted as internal disturbance? After all, the tribe of governors like Buta Singh and H.N Bhardwaj is not yet extinct.
But what happened in the past is much more than what happened in Gujarat. The Bill has obviously been shaped by the experience of 2002 Gujarat riots.
The Bill is distinctive in many respects, but there are some areas where the Bill’s peculiarities stare you at your face.
The Bill presumes that the victims of communal violence in all cases and circumstances are people belonging to minority communities. This presumption results from three definitions given in Section 3 of the Bill. One, it defines “communal and targeted violence” as any act or series of acts which cause injury or harm to the person and or property and are knowingly directed against that person “by virtue of his or her membership of any group, which destroys the secular fabric of the nation.” Two, the “group” means a “religious or linguistic minority” or Scheduled Castes and Scheduled Tribes in any State. Three, “Victim” means “any person belonging to a group” who has suffered harm due to violence.
So if a victim of communal violence does not belong to a religious or linguistic minority, that person is not covered by the provisions of the Bill. It also means that no person belonging to the minority can be accused of committing an offence of communal and targeted violence unless the victim also belongs to that group, which is highly unlikely.
It is reasonable for the government in a democratic society to legislate to protect the interests of disadvantaged groups, but in that case the legislation should state the objective clearly, as was done when the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was passed. If that is not done, the intention behind the piece of legislation is always questionable.
Chapter II of the Bill catalogues a few offences, like sexual assault, hate propaganda, continuing unlawful activity, aiding the commission of an offence, torture etc, but lists many offences of the Indian Penal Code 1860 in Schedule III. Section 11 of the Bill says that all such IPC offences shall be deemed to be offences of communal and targeted violence and dealt with accordingly. Chapter VIII prescribes penalties for these offences, ranging from three years imprisonment with fine or both for indulging in hate propaganda to rigorous imprisonment for life and fine for committing an offence of organised and targeted violence. All offences under the Act are cognizable and non-bailable.
Section 13 lists various failures by a public servant in dealing with the communal situation which would be treated as dereliction of duty, an offence punishable with imprisonment for two years which may extend to five years and fine. In addition to dereliction of duty, the Bill describes an offence of “breach of command responsibility” applicable to officers of armed or security forces, who fail to exercise control over persons under their command resulting in commission of offences under the Act. Officers guilty of such offences are punishable with rigorous imprisonment for life when such failure relates to organized targeted violence and in any other case with imprisonment for a term of ten years and fine.
Section 75 of the Bill says that the defence of sovereign immunity will not be available for offences committed under this Act. Sanction to prosecute public servants, as required by Section 197 of the Cr P C, shall not apply to offences mentioned in Schedule III. There is nothing wrong in marking a complete departure from the legal position stated in the Cr P C where no prosecution can be launched against a public servant for dealing with unlawful assemblies without permission from the government. However, the breach of command responsibility is too difficult to be proved in riotous situations and the penalty prescribed is unreasonably harsh. It would also lead to demoralisation of on-the- spot officers in controlling communal riots.
The Bill sets up a multiplicity of agencies to deal with the problem of communal violence. The National Authority for Communal Harmony, Justice and Reparation shall be set up to prevent and control the spread of communal violence and to monitor investigation, prosecution and trial of offences and payment of due relief and reparation. It shall also “observe, monitor and review the performance of duties by public servants” and also “postings, transfer and replacement” of individual officers “that affect areas where outbreaks of communal and targeted violence’ are reported or anticipated. A very tall order indeed. The creation of National Authority shall be supplemented with establishment of State Authorities for functions, which are more or less similar
The State Authorities may appoint Human Rights Defender for Justice and Reparations in each district. In addition, the Bill sets up State Assessment Committee and also District Assessment Committee to assess the quantum of compensation to be given to victims of communal violence.
The establishment of this highly unwieldy institutional framework raises more questions than it answers. It shows lack of faith in the existing administrative machinery, but some provisions of the Bill show that the new architecture will obviously be superimposed on what exists and not supplant it? If one goes by the past experience, such high powered bodies fail to function viably for long periods and generally end up by becoming post retirement benefit-accruing sanctuaries for politicians and bureaucrats.
The state governments have not shown any keenness to set up institutions that impinge on their powers. The reluctance of states to set up state security commissions suggested in the Supreme Court’s judgment in Prakash Singh’s case as a part of police reform programme is a clear example.
The state governments will have a stronger reason to oppose this Bill. Police and Public Order are subjects in the State List in the Seventh Schedule of the Constitution. Section 20 of the Biil
attempts to encroach on this domain of the state governments by authorising the centre to treat the occurrence of organised communal and targeted violence in a state as “internal disturbance” within the meaning of Article 355 of the Constitution of India and take suitable steps to deal with the situation accordingly. This is very dangerous provision for it will fracture the scheme of federal polity enshrined in the Constitution. How can one be sure that every incident of communal violence will not be interpreted as internal disturbance? After all, the tribe of governors like Buta Singh and H.N Bhardwaj is not yet extinct.
