The Prevention of Communal and Targeted Violence (Access to
Justice and Reparations) draft bill, 2011, proposed by the National Advisory
Committee was released in the month of May last and suggestions and amendment
proposals were welcomed upto June 10, 2011. Accordingly, NAC on June 21 agreed
to make as many as 49 amendments to the Bill, including the one which created
doubts about Centre-State relations while deciding with such violence. It
agreed to delete a clause which referred to Article 355 of the Constitution, as
it created a fear that it might interfere with the federal structure of the
country.
According to Clause 20, Chapter III of the draft bill, “The
occurrence of organized communal and targeted violence shall constitute
‘internal disturbance’ within the meaning of Article 355 of the Constitution of
India and the Central government may take steps in accordance with the duties
mentioned thereunder, as the nature and circumstances of the case so required.”
This Clause has since been deleted.
There were some concerns about excessive powers to the
National Authority and some clauses were deleted. The NAC Working Group placed
the full list of amendment to the draft bill on the website and later forwarded
the draft bill to the government.
All the while in the newspapers and magazines in Tamil Nadu
there were no reports about the developments in the last three months and
suddenly on July 30, the dailies carried a statement of Jayalalitha, issued on
the previous day expressing strong opposition to the bill terming it as
‘undemocratic and fascist’ and ‘against and totally repugnant’ to the basic
principles of the Constitution. Incidentally it was on the next day that the
Executive Committee of the ADMK met and adopted several resolutions among which
one on the above stated matter was conspicuously not found. So the issue raised
by Jayalalitha now is only her position and not that of the ADMK, officially at
least. Two days later she had forwarded her statement to all non-Congress,
non-DMK MPs requesting them to raise their voice against the Bill.
When a time and again proven anti-democrat and fascist
Jayalalitha dubs a bill as ‘anti-democratic and fascist’, any balanced-thinking
person will naturally develop apprehensions. What is the bill and why it is
needed?
The acid test for democracy, is the sense of security,
safety and equality that minorities of all hues genuinely feel and are ensured.
In a vibrant and mature democracy, there would be no need to
have special laws to prosecute the powerful or protect the weak. If a crime
takes place, the law would simply take its course. In a country like ours,
however, life is not so simple. Terrible crimes can be committed involving the
murder of hundreds and even thousands of people, or the loot of billions of
rupees. But the law in India
does not take its course. More often than not, it stands still.
The new draft bill on the prevention of communal and
targeted violence is a modest contribution towards ensuring that India's
citizens enjoy the protection of the state regardless of their religion,
language or caste.
The draft law framed by the National Advisory Council and
released for comment and feedback is a huge improvement over the bill
originally drawn up by the United Progressive Alliance government in 2005. The
earlier version paid lip service to the need for a law to tackle communal
violence but made matters worse by giving the authorities greater coercive
powers instead of finding ways to eliminate the institutional bias against the
minorities, Dalits and adivasis, which lies at the heart of all targeted
violence in India.
The November 1984 massacre of Sikhs provides a good
illustration of how the institutionalised “riot system” works. Let us start
with the victim. She is unable to get the local police to protect the lives of
her family members or property. She is unable to file a proper complaint in a
police station. Senior police officers, bureaucrats and Ministers, who by now
are getting reports from all across the city, State and country, do not act
immediately to ensure the targeted minorities are protected. Incendiary
language against the victims is freely used. Women who are raped or sexually
assaulted get no sympathy or assistance. When the riot victims form makeshift relief
camps, the authorities harass them and try to make them leave. The victims have
to struggle for years before the authorities finally provide some compensation
for the death, injury and destruction they have suffered. As for the
perpetrators of the violence, they get away since the police and the government
do not gather evidence, conduct no investigation and appoint biased
prosecutors, thereby sabotaging the chances of conviction and punishment.
With some modifications here and there, it was a mere sickening
script which played out in Gujarat in 2002,
when Muslims were the targeted group.
The genocide which took place in Gujarat
in 2002 against Muslims, established a bad example for the country, because it
was very different from all previous violence that had taken place across the
country. In this State-sponsored pogrom, entire state machineries from top to
bottom, directly or indirectly, intentionally or unintentionally, deliberately
or unwittingly involved. Mobs led by ministers and politicians of the state’s
ruling BJP and other Sangh parivar outfits attacked muslims and destroyed their
properties. Even limited time table with all details of Muslims were given to
Hindutva forces to vent out their anger. Instead of attempting to stop the
violence, Chief Minister Narendra Modi’s regime was reported to have instructed
the police at a meeting that they allow Hindutva forces to ‘vent their anger’
against Muslims over attack on at Godhra railway station at the Sabarmati
Express. After the end this pogrom, state machineries came into movement and
prevented victims from registering FIRs and efforts were made in which
perpetrators got bail very easily.
On a smaller scale, all victims of organised, targeted
violence — be they Tamils in Bombay in 1967 when attacked by Shiv Sainiks and
in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other
parts of the country — know from experience and instinct that they cannot
automatically count on the local police coming to their help should they be
attacked.
If one were to abstract the single most important stylised
fact from the Indian “riot system”, it is this: violence occurs and is not
immediately controlled because policemen and local administrators refuse to do
their duty. It is also evident that they do so because the victims belong to a
minority group, precisely the kind of situation the Constituent Assembly had in
mind when it wrote Article 15(1) of the Constitution: “The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them”.
How are policemen and officials able to get away with
violating the Constitution in this manner? Because they know that neither the
law nor their superiors will act against them. What we need, thus, is not so
much a new law defining new crimes (although that would be useful too) but a
law to ensure that the police and bureaucrats and their political masters
follow the existing law of the land. In other words, we need a law that
punishes them for discriminating against citizens who happen to be minorities.
This is what the draft Prevention of Communal and Targeted Violence (Access to
Justice and Reparations) Bill, 2011 does.
The CTV bill sets out to protect religious and linguistic
minorities in any State in India,
as well as the Scheduled Castes and the Scheduled Tribes, from targeted
violence, including organised violence. Apart from including the usual Indian
Penal Code offences, the NAC draft modernises the definition of sexual assault
to cover crimes other than rape and elaborates on the crime of hate propaganda
already covered by Section 153A of the IPC. Most importantly, it broadens the
definition of dereliction of duty — which is already a crime — and, for the
first time in India, adds offences by public servants or other superiors for
breach of command responsibility. “Where it is shown that continuous widespread
or systematic unlawful activity has occurred,” the draft says, “it can be
reasonably presumed that the superior in command of the public servant whose
duty it was to prevent the commission of communal and targeted violence, failed
to exercise supervision … and shall be guilty of the offence of breach of
command responsibility.” With 10 years imprisonment prescribed for this
offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their
watch.
Another important feature is the dilution of the standard
requirement that officials can only be prosecuted with the prior sanction of
the government. The CTV bill says no sanction will be required to prosecute
officials charged with offences which broadly fall under the category of
dereliction of duty. For other offences, sanction to prosecute must be given or
denied within 30 days, failing which it is deemed to have been given. Although
the bill says the reasons for denial of sanction must be recorded in writing,
it should also explicitly say that this denial is open to judicial review.
Another lacuna the bill fills is on compensation for those
affected by communal and targeted violence. Today, the relief that victims get
is decided by the government on an ad hoc and sometimes discriminatory basis.
Section 90 and 102 of the CTV bill rectify this by prescribing an equal
entitlement to relief, reparation, restitution and compensation for all persons
who suffer physical, mental, psychological or monetary harm as a result of the
violence, regardless of whether they belong to a minority group or not. While a
review of existing state practice suggests victims who belong to a religious or
linguistic ‘majority' group in a given state do not require special legal
crutches to get the police or administration to register and act on their
complaints, the CTV bill correctly recognises that they are entitled to the
same enhanced and prompt relief as minority victims. The language of these
Sections could, however, be strengthened to bring out this aspect more
strongly.
The CTV bill also envisages the creation of a National
Authority for Communal Harmony, Justice and Reparation. The authority's role
will be to serve as a catalyst for implementation of the new law. Its functions
will include receiving and investigating complaints of violence and dereliction
of duty, and monitoring the build up of an atmosphere likely to lead to violence.
It cannot compel a State government to take action — in deference to the
federal nature of law enforcement — but can approach the courts for directions
to be given. There will also be State-level authorities, staffed, like the
National Authority, by a process the ruling party cannot rig. The monitoring of
relief and rehabilitation of victims will be a major part of their
responsibilities.
The BJP and others who have attacked the bill by raising the
bogey of “minority appeasement” have got it completely wrong again. This is a
law which does away with the appeasement of corrupt, dishonest and rotten
policemen and which ends the discrimination to which India's religious and linguistic
minorities are routinely subjected during incidents of targeted violence. The
BJP never tires of talking about what happened to the Sikhs in 1984 when the
Congress was in power. Now that a law has finally been framed to make that kind
of mass violence more difficult, it must not muddy the water by asking why it
covers “only” the minorities. In any case, the Bill's definition covers Hindus
as Hindus in States where they are in a minority (such as Jammu
and Kashmir, Punjab, Mizoram,
Meghalaya and Nagaland), as linguistic minorities in virtually every State, and
as SCs and STs. More importantly, persons from majority communities who suffer
in the course of communal and targeted incidents will be entitled to the same
relief as minority victims. If someone feels there is any ambiguity about this,
the bill's language can easily be strengthened to clarify this.
On the negative side of the ledger, the NAC draft made an
unnecessary reference to the power of the Centre and to Article 355 of the Constitution.
The aim, presumably, was to remind the Centre of its duties in the event of a
State government failing to act against incidents of organised communal or
targeted violence. But the Centre already has the statutory right to intervene
in such situations; if it doesn't, the reasons are political rather than legal.
The draft also unnecessarily complicates the definition of communal and
targeted violence by saying the acts concerned must not only be targeted
against a person by virtue of his or her membership of any group but must also
“destroy the secular fabric of the nation.” Like the reference to Art. 355,
this additional requirement was deleted by the NAC without diluting what is
otherwise a sound law. Unaware of this development or willfully, Jayalalitha
harps on Centre-State relations, Sarkaria Commission etc.,
Positive and rational legislative measures to correct
discriminatory exercise of state power draw their strength from a clear and
unequivocal constitutional mandate. Article 14 states that “the state shall not
deny to any person equality before the law or equal protection of the laws
within the territory
of India.” Article 21
places on the state the duty to protect all citizens from violence. Article
15(1) says that “the state shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them,”
thus recognising that vulnerable groups may require protection from
discrimination by the state .
The Protection of Women from Domestic Violence Act, 2005,
and the SC/ST (Prevention of Atrocities) Act, 1989, (and even Reservation for
SCs, STs and OBCs) are examples of special legislative provisions in response
to social reality and experience. The SC/ST Act does not deny that scheduled
castes may attack upper castes. But there is an assumption that when that
happens, upper caste groups stand fully protected under the general provisions
of the law because of instinctive support of the state machinery.
Any mature democracy must embrace legislative corrections to
protect its most vulnerable. We have, for decades now, needed a special law to
correct the discriminatory exercise of state power in the context of
identity-based violence — to restore equal access to the law.
At the end of the day, however, we need to be clear about
one thing: India
needs a law to protect its most vulnerable citizens from mass violence, its
minorities. This is a duty no civilised society can wash its hands of.
The Congress Party tendered apology to the Sikhs for the
riots and killings in 1984 in which some misguided Congress elements were
involved. But the BJP or RSS and Sangh Parivar outfits and Narendra Modi have
not even expressed regret over the pogrom in Gujarat
or for communal flare up, killings and destruction of properties or for the
communal riots and loss of life in various parts of the country following the
demolishing of Babri Masjid in Ayodhya. Mumbai suffered the worst with around
900 people killed, 875 of them being Muslims because that was their guiding
philosophy.
Secular forces including the Left and Left of Centre
democratic parties including those in the BJP-led NDA like the JD (U) have not
opposed the Bill. It is only the BJP and Sangh Parivar outfits which are
opposing the Bill and organizing agitations against it all over the country.
The BJP conspicuously did not field any of its Chief Ministers of States
including Narendra Modi in the campaign against the Bill, lest it will be
viewed partisan by others. And the election of Jayalalitha came in handy for
the communal forces to field her as the alibi for Narendra Modi, her close
friend and the BJP. She took a chartered flight to go to Ahmedabad to attend
the swearing-in of Modi in 2002 and in turn he attended her swearing-in ceremony
in May last. In 2007 she did not attend the swearing-in of Modi because on the
earlier occasion she was seated in a last row hurting her ego. She also hosted
him a lunch with 45 varieties of dishes during his visit to Chennai. In fact
many phrases like ‘draconian’ ‘fascist’ etc., are borrowed from the releases of
the BJP and VHP, and statement of Arun Jaitley. Centre-State relations –
Sarkaria Commission etc., are only ruse to cover up the communal motive of her
in supporting the cause of the Hindutva brigade.
She further says “While there is no place for vociferous
religiosity, all peace-loving and secular citizens of India would agree that
there is no room either for communal and targeted violence in a secular,
multi-religious, multi-lingual country like India.” This is not only far from
reality but also a blatant attempt to cover up the heinous record of Narendra
Modi in Gujarat and those of the Sangh Parivar
in various parts of the country. After all Jayalalitha herself is a person of
vociferous religiosity, in perception and practice. She had sent volunteers for
Kar Seva in Ayodhya and later asked, “If Ram temple cannot be constructed in
Ayodhya (at the disputed site) where else can it be constructed.” She spoke in
support of the cause in the National Integration Council. She also opposed
reservation for Muslims when it was introduced in Andhra Pradesh.
It is no wonder that the pro-RSS and pro-Jayalalitha daily
‘The New Indian Express’ was so thrilled over her ‘clarion call’ that it has
chosen to shower yet another editorial encomium on her in its issue dt. August
1. Her calling the UPA government at the Centre as ‘a central regime that is
not only running out of steam but also of ideas for survival’ is an indication
of her political agenda and should serve as an eye-opener for some misguided
elements in the Congress in Tamil Nadu.
Jayalalitha has addressed her letters to Chief Ministers of
other states and MPs in her capacity of Chief Minister of Tamil Nadu, a
disgrace to the land
of Thanthai Periyar and
Arignar Anna!
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