Impressive words by Arif Mohammad Khan @ seminar in Hyderabad. He say,” The communal violence bill is a shameful attempt by the Congress to exploit the so-called minority votes by creating the bogey of majoritarian violence. The bill is anti-constitutional and will not stand in the court of law. But the damage on the psyche of the country will be immense. We are one nation and one people and everyone must be equal in the eyes of law”
Dr Subramanian Swamy , President of Janata Party, A-77, Nizamuddin East, Sector 18, Rohini, New Delhi-110013:
SHO/Insp: D.P. Singh, Sector 18, Rohini, Crime Branch, New Delhi.
Re: Registering of FIR u/s 153A & B, 295A & 505(2) of Indian Penal Code.
Dated: October 24, 2011.
1. In public interest I am sending by Courier service a complaint in my name against Chairperson Ms. Sonia Gandhi of National Advisory Council, which has its office at 2 Motilal Place, New Delhi-110011, Tel: 23062582, and also against unnamed other members of the said NAC for committing offences of propagating hate against the Hindu community of India by circulating for enacting as law a Draft Bill described as PREVENTION OF COMMUNAL AND TARGETED VIOLENCE BILL OF 2011. This Draft Bill has been posted on the NAC official website, is dated July 21, 2011 and sent for adoption by Parliament. That this 2011 Draft Bill is mischievous in content of targeting the Hindu community, malafide, unreasonable and prejudicial to public order, is apparent from the second section of Explanatory Note [Annexed herein] to the Draft Bill titled “Key Provisions of the Bill”, thereby inciting crimes against the Hindu community with impunity, and thus committing offences u/s 153A & B, 295A and 505(2) of the Indian Penal Code.
2. The UPA Government in December, 2005 had introduced earlier a Draft Bill  in the Parliament described as THE COMMUNAL VIOLENCE (PREVENTION, CONTROL AND REHABILITATION OF VICTIMS) BILL (2005).
3. The Draft Bill however did not find favour with any Party. Leaders of several political parties felt that the Draft Bill provided sweeping powers to the Central Government thus undermining the authority of the State Governments. But the most vocal opposition to this draft Bill came from the Muslim, Christian and so called secular quarters. Their contention was just the opposite of what the political leaders were saying. The view of Muslim and Christian groups was that the 2005 Draft Bill was “completely toothless”. They demanded that the powers of managing communal violence be vested in non-government actors and make governments and administration at all levels accountable them for communal violence.
4. The All India Christian Council was in the forefront of this campaign against the 2005 Draft Bill as being “too weak”. In a letter written to the Prime Minister, Ms Sonia Gandhi, herself a Christian, through the AICC had conveyed to the PM the Christian Council concerns about the 2005 Draft Bill, and then revised the same as the 2009 Draft Bill.
5. The Muslim bodies too joined in the protest campaign against the draft as being too weak. They wanted provisions to make police and civil administration and state authorities “accountable” to public bodies. The Joint Committee of Muslim Organizations for Empowerment (JCMOE) made the demand on behalf of these organizations. JCMOE also urged the government to convene a meeting of leaders of “targeted communities” to note their views on the Bill as follows:
“The Bill does not make police or administration or state authorities accountable and provide for timely and effective intervention by the National Human Rights Commission, if the communal violence spreads or continues for weeks, or by the Central Government under Articles 355 and 356 of the Constitution, duly modified. On the other hand, ironically, the Bill grants more power to the local police and administration, which, more often than not acts in league with the rioters by declaring the area as ‘communally disturbed area’ JCMOE statement said.
6. It is interesting to note that these two statements, the Muslim and the Christian, come at around the same time as though they were premeditated. They probably were.
7. From their arguments in opposition to the Draft Bill, it is clear that they wanted a Bill that would consider only the Christians and Muslims as the “generally targeted” victims of communal violence; and that the word ‘communal violence’ be re-defined in such a way that only the Muslims and Christians are treated as victims and Hindus as predators, and that the local police and administration, including the State administration, considered hand-in-glove with the perpetrators of violence. Hence the Bill should empower the Central Government to invoke Art. 355 and 356 of the Constitution against any state in the event of such communal violence.
8. Since the Prevention of Communal Violence Bill (2005) does not discriminate between the perpetrators and victims of communal violence on religious grounds and also it does not envisage the State administration as committed in preventing such violence, these groups wanted the Bill to be withdrawn.
9. The National Advisory Council (NAC) was re-constituted in 2009 by the UPA Government again under the chairmanship of Ms. Sonia Gandhi. The UPA Government promptly handed over the re-drafting of the Bill to the newly constituted NAC and asked it to come up with a fresh draft.
10. The basic communally provocative premise of the re-drafted Bill is that: a) there is a non-dominant group in every State in the form of religious and linguistic minority which is always a victim of violence; b) the dominant majority (usually Hindus) in the State is always the perpetrator of violence; and c) the State administration is, as a rule, biased against the non-dominant group.
11. The object of the re-drafted Bill thus was the basic premise of the NAC that the majority community – read Hindus – are the perpetrators of communal violence in India and the minority – read Muslims and Christians – are the victims, clearly is incitement of religious strife.
12. What is more important is to conclude is that in all cases of communal and targeted violence, dominant religious and linguistic group at the State level is always the perpetrator and the other the victims. Similarly the conclusion that the State machinery is invariably and always biased against the non-dominant group is a gross misstatement of the sincerity and commitment of millions of people who form State administration in the country.
13. This dangerous premise is the incitement of communal strife in this Bill.
14. One can safely conclude that the script writers of this Bill are themselves blinded with religious biases. In India communal violence happens mostly because of politico-communal reasons. In many instances, as documented by several Commissions of Inquiry, it is the so-called minority group that triggers the trouble. We hence need laws that can prevent such violence irrespective of whoever perpetrates it. To argue that since the administration is always biased in favour of the dominant group we need acts that are biased in favour of the non-dominant group is imprudent and puerile.
15. The final Draft is available on the NAC website now. One is not sure when the same will be placed before the Parliament. However, a close scrutiny of the Draft is essential to understand the serious implications of and threats from it to our national integration, social harmony and Constitutional Federalism.
16. This Bill when it becomes an Act will apply to whole country except the State of Jammu and Kashmir. Note that J&K is one of the two States in India (excluding the North East and other tiny UTs) that has Hindus as minority – the ‘non-dominant group’ according to this Bill. Punjab is the other State where the Sikhs constitute the majority, while in the rest of the entire country it is the Hindus who constitute ‘dominant group’ and by implication the perpetrators of communal violence, according to this Draft Bill.
17. The mischief in the drafting primarily lies in the ‘Definitions’ part contained in Art.3 of the first chapter. Art. 3 (c ) defines Communal and Targeted Violence as under:-
“Communal and targeted violence” means and includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property knowingly directed against any person by virtue of his or her membership of any group”.
18. The mischief is centered round the word ‘Group’. Art 3(e) defines what constitutes a ‘Group’.
“Group” means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses of the Constitution of India;
19. Having thus established that the individual member of the Minority community is always considered a part of the Minority group the Draft Bill goes on to add several detrimental clauses subsequently. Art.3 (f) defines ‘Hostile environment against a group’ thus:
“Hostile environment against a group” means an intimidating or coercive environment that is created when a person belonging to any group as defined under this Act, by virtue of his or her membership of that group, is subjected to any of the following acts:
(i) boycott of the trade or business of such person or making it otherwise difficult for him or her to earn a living; or
(ii) publicly humilitate such person through exclusion from public services, including education, health and transportation of any act of indignity; or
(iii) deprive or threaten to deprive such person of his or her fundamental rights;
(iv) force such person to leave his or her home or place of ordinary residence or livlihood without his or her express consent; or
(v) any other act, whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment.”
Note the Clause (v) – ‘Any other act, whether or not it amounts to an offence under this Act’. The intention here seems to be to make anything and everything an offence, even if it doesn’t come under any definition of an offence. It is clear that the entire definition of ‘hostile environment’ is malafide.
Clause (k) defines who is a ‘victim’. Here the draft makers are very explicit:
“victim” means 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 hr 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;
“Victim” can only be belonging to a ‘group’ as defined under this Act. And the group as defined under this Act is the Minority – the ‘non-dominant group’. That means this act will consider only the Minority as the victims. And he or she will become a ‘victim if he or she has suffered physical, mental, psychological or monetary harm….’ Now, physical harm is measurable, mental harm is difficult to gauge, but how on earth can anyone define ‘psychological harm’? The Bill does not define it. Then how can be so-called ‘psychological harm’ be one of the reasons for victimhood?
Similarly, Art. 4 (a) states as follows:
4. Knowledge. – A person is said to knowingly direct any act against a person belonging to a group by virtue of such person’s membership of that group where;
(a) he or she means to engage in the conduct against a person he or she knows belongs to that group;
20. Art 7 of the draft Bill defines ‘sexual assault’. It is by far the most widely covered definition that is very much needed to protect women from becoming targets of sexual violence as part of communal violence. But against the problem is that this definition is applicable to the women belonging to Minority group and women of the Majority community cannot benefit from it. Secondly, it also states that in a case of communal violence sex by consent also can be construed as a crime.
21. Patriotic Indians now realize that the present draft Bill is a standing proof that neo Jinnah-ism – the belief that the minority is perpetually oppressed in India by the Hindu majority – is still poisoning our minds even today by mischievous minds..
22. The present Draft Bill will only promote disharmony. With these kind of laws the LeTs and Hujls across the border need not have to promote terrorism in our territory anymore. All that they need to do is to encourage a minor communal riot and they can achieve what they want – huge rift between the Majority and Minority communities.
23. Hence, the NAC, with Ms Sonia Gandhi as Chairperson, and other members have jointly committed offences under IPC Sections 153A & B, 295A, and 505(2).
24. It is significant that even well known persons of secular credentials have condemned this Bill as divisive. The Tamil Nadu Chief Minister Ms. J. Jayalalitha has in a Press Release dated July 29, 2011 [Annexed] has concluded that “the remedy sought [in the Draft Bill] to be provided against communal and targeted violence is worse than the disease itself”.
25. Therefore, this complaint be taken as a basis to register an FIR and conduct investigation into the communal mentality of the NAC chairperson Ms. Sonia Gandhi and other members and take necessary action under the law to prosecute the offenders under the cited sections of the IPC.
( SUBRAMANIAN SWAMY )
Source : http://www.samvada.org
The Prevention of Communal Targeted Violence (Access to Justice and Reparation) Bill 2011 drafted by the “National Advisory Council” Chaired by Sonia Gandhi is based on the presumption that communal trouble is created only by the majority community and never by the minority community. Many of the moderate Muslim and Christian leaders accept that the character of Bharat is secular only because of the majority Hindus. Yet, the government seems to be hell bent on targeting the Hindus on some pretext or the others. This would be a very powerful tool in the hands of the rabidly anti-Hindu Congress. Some more important articles regarding the issue are documented below.
We must protest this. Kindly send your responses to firstname.lastname@example.org before 10th June 2011.
An online petition is also hosted at
It is time to act NOW.
Communal & Sectarian Violence Bill, 2010
Usha Ramanathan (upto 20 Feb 2011)
Vrinda Grover (upto 20 Feb 2011)
Conveners of Drafting Committee
Farah Naqvi, Convener, NAC Working Group
Harsh Mander, Member, NAC Working Grou
Advisory Group Members
Asgar Ali Engineer
Justice Hosbet Suresh
Maulana Niaz Farooqui
Sister Mary Scaria
Aruna Roy, NAC Working Group Member
Professor Jadhav, NAC Working Group Member
Anu Aga, NAC Working Group Member
Joint Conveners of Advisory Group
Farah Naqvi, Convener, NAC Working Group
Harsh Mander, Member, NAC Working Group
Important to note that the advisors are all from the NAC Working Group and most of the members of the Drafting committee are rabid anti-Hindus.
Who are the Members of NAC ?
NAC, National Advisory Council would be the extra-constitutional authority working like a super-cabinet governing the bill a. Some of the dubious profiles of the members are exposed below. I invite the readers to send any dubious information that you may have regarding the others as well.
Chair person – Smt.Sonia Gandhi – Nothing left to be said about her after all the exposes about her by Sri Gurumurthy and Sri Subramaniam Swamy. That she lived in the Prime Minister’s residence for 17 years without bothering to take a citizenship is testimony of the poor security system in the country. The actual power centre in the Congress..her role behind the attacks on the Sadhus, maths, plans to usurp temple lands, scams has to be investigated. More About Sonia
Ms.Aruna Roy -Magsaysay awardee and ex-IAS officer Aruna Roy, and self-proclaimed defender of ‘secular’ rights for Muslims in Gujarat. She along with Jean Dreze and Harsh Mander are one group. Roy is signatory to the ‘Decisions and Action Plan’ of the ‘People’s Conference against Globalisation, 21st-23rd March 2001, New Delhi’. Its full report appeared as a ‘special feature’ in the April 2001 issue of ‘Liberation, the central organ of the Communist Party of India (Marxist-Leninist)’. The CPI (M-L) is an avowed advocate of selective violence and has an established record of anti-nationalism and anti- Hinduism. Associated in the work of Parivartan are Harsh Mander, Aruna Roy and Shekhar Singh. The inference is obvious.
Ms.Farah Naqvi –Her road to fame was her role in the Bilkis Bano gang-rape case, which became the first Gujarat riot case to be reinvestigated by the CBI and transferred to Mumbai.
Shri Harsh Mander – He was awarded the Rajiv Gandhi National Sadbhavana Award for peace work, and the M.A. Thomas National Human Rights Award 2002. ( This person is a liar and an active participant in the Congress attempt to target Narendra Modi. He lied that he resigned from IAS due to the 2002 Gujarat riots whereas the fact is that he had applied for resignation much before the riots took place.
Dr.Jean Dreze – Jean Drèze, born in Belgium in 1959, has lived in India since 1979 and became an Indian citizen in 2002….( there is more to him than meets the eye). He along with Aruna Roy and Harsh Mander form a mutal admiration society.
Shri Naresh Saxena – Famously known to be the person who introduced Aruna Roy and later Harsh Mander to Sonia Gandhi and instrumental in gettting them into the NAC.
The above team is more than enough to exert influence over other members of the NAC. Some of the other members maybe well meaning, but on an issue like the Prevention of Communal Violence Bill, the above 6 persons intentions to demean Hindu society are well known. Their influence on such a bill is bound to be extremely high.
Prof. MS Swaminathan
Dr.Ram Dayal Munda
Prof Narendra Jadhav
Prof. Pramod Tandon
Shri Madhav Gadgil
Shri Deep Joshi
Ms.Mirai Chatterjee- SEWA
1. A fraudulent draft Communal Violence Bill
By Shivaji Sarkar
IT is a critically flawed move to usurp the powers of the state governments, devastate the federal structure of the country and create schism among different communities. The aim apparently is to create a unitary structure where the Central Government could function like a bully and interfere in the jurisdiction of the states, barred by the Constitution.
The draft bill called Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill is flawed also for the reason, its basic premise is against the secular spirit of the Constitution stated in the preamble.
No wonder. The bill is a creation of an extra-constitutional body – National Advisory Council (NAC) that is expected to function like a super-cabinet, surpassing the elected wisdom of the Prime Minister and the Council of Ministers. Technically NAC is created by the Prime Minister as a body to advise the government. The members are handpicked technically by the Prime Minister but in reality by the NAC chairperson.
Thus the NAC is not a representative body. It also leads to the question whether an elected government or its Prime Minister should have powers to create structures that are not enshrined in the Constitution.
The Prime Minister should have powers to function independently. But should he himself subjugate to the authority of his own creation? Who authorises him to do it? Why should he create a structure that is virtually neither responsible to him nor answerable to Parliament?
It is no wonder the NAC functions with populist views or indulges in vote bank politics to further the political objectives of some political party.
The NAC drafted the Food Security Bill not with the objective of providing food to the needy. Its primary objective was to create a political climate that would help the ruling party garner votes of the deprived classes. It has created enough rift between the officials of the Prime Minister’s Office (PMO), who found the “advice” beyond the capacity of the government to implement it. Any responsible body would have first evaluated the government’s physical and financial strength before jumping in to draft a bill.
The food security bill thus remains in the domain of discussion and may possibly not be given the final shape. Keeping it alive and finally blaming the bureaucrats would pay more dividends at the time of next elections than enacting a law that people are bound to forget even a year later. The NAC would serve the purpose of functioning like a permanent campaigning mechanism for the ruling party.
The proposed bill to prevent communal violence is yet another case of over-reach. It intends to arm the Centre with runaway powers to intervene in state affairs, creation of overlapping authorities and selective definition of victims. The bill, runs the risk of being struck down by the courts for falling afoul of federal principles set out in the Constitution’s seventh schedule that distributes legislative powers between the Centre and the states.
The bill defines that the victim in a communal violence would invariably be from a “group”. The definition of sufferers of communal violence as a “group” comprising only religious, linguistic or religious minorities or scheduled castes and tribes appears highly discriminatory as it can mean that even if a large number of majority community members bear the brunt of communal violence, they will not be victims of “targeted violence”.
If the bill is to meet the objectives of speedy justice and prevention of communal crimes, its framers need to recognise India’s political system is not unitary and states and political parties are bound to challenge the definition of a “group” and other provisions. Even if the bill gets through Parliament, it cannot escape constitutional and judicial scrutiny.
The Constitution does not allow interference on the issue of law and order of any state. Its role is limited to tender advice under Article 356. If the draft bill is enacted as law, it would provide sweeping powers to the Centre to intervene in the affairs of any state. This would be the technical provision but in reality states not ruled by the party at the Centre are to be targeted.
Is the bill targeting states like Gujarat? Is it finding in the rise of Narendra Modi, an efficient administrator with clean credentials, a threat to the pseudo-secularists? It is apparently so. Since Modi is emerging as a youth icon and no electoral politics can demolish him, a “secularist” bill with devastating intentions are sought to be drafted. The bill possibly for that reason does not include the majority community in the definition of a “group”.
Once the bill becomes law not only Modi but any leader of the majority community could be accused of “promoting ill will” against a minority community and he could be put behind bars. The provisions of the bill would provide enough ammunition to tar the image of a forceful leaders belonging to the majority community from any political party.
In fact, the Congress MP from Delhi, Sandeep Dikshit, son of Chief Minister Shiela Dikshit, could be arrested for his recent remarks that the St Stephen’s College promotes communal divide.
The draft bill is structured on the premise that the majority community could never be the victim of communal violence. It believes they would only be the perpetrators.
Those who have drafted the bill have forgotten the recurrence of communal violence by the minority community in 1960s in UP and Bihar. The states like Gujarat suffered recurrent minority violence till late 1980s. The Godhra burning of Ramsewaks in 2002 is too recent to be forgotten.
The bill has also no provision if two minority communities indulge in violence against each other. In fact, as per the provision of the bill even then any person from the majority community could be accused of inciting violence. He could have no defence under the draft bill. The accused would suo moto be considered “guilty” till he can prove his innocence. The bill virtually overturns the simple judicial norm of considering the accused not guilty till he is convicted.
So if there is a Shia-Sunni riot in Lucknow, the bill would not be applicable. It would also not be applicable if a Muslim group initiates violence against Christians, as witnessed recently in Kerala. No wonder it would give freedom to perpetrate crimes against Pandits and evict them from Kashmir for all times to come.
Nothing would also happen to the illegal Bangaladeshi infiltrators, who have captured almost a 20-km tract in West Bengal along the Bangladesh border and forcibly evicting the people of the majority community either through violent means or under threat of violence.
The draft bill also redefines crimes to suit its anti-majority mindset. According to the draft, the members of minority communities could not be accused for violence against the majority community.
Indeed it is “secular” exercise that could be done only in free (so far) country like India. The draft smacks of drawing inspiration from a theological state like Pakistan, where nobody except those following the state religion has the basic civic or human rights. Has the Wahabis or elements like that have penetrated the policy-formulation bodies of the Indian state?
The country needs to draw lesson from the recent developments in Nepal. Similar policy formulators many supported by the CPI-M and other Left parties from India changed the secular Hindu Constitution of Nepal and replaced the last Hindu monarchy. They even did not ponder the security threat it has created for India and the haven created for Pakistan-sponsored terrorists in the neighbourhood.
The Prime Minister is said to have wide international exposure. He is also stated to be a person of understanding. But it is difficult to understand why he has accepted the bill even to be discussed. The bill should have been dumped at the very first glance.
Even a discussion on the bill vitiates the atmosphere of bonhomie and tolerance that this country is known for. Co-existence of different communities and linguistic groups has been an age-old phenomenon.
The drafting a bill with such myopic and blatantly sectarian views would only create a divide that is not there in this country.
The bill needs to be immediately withdrawn and dumped. If the government tries to keep it in circulation it would only affect the social harmony.
But despite that if it is kept alive, it should be viewed as a move to communalise the political scenario in the country with a view to garnering votes of only one powerful minority community. The bill is not in the interest of any other minority groups either.
The draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill should be seen as a precursor to create another partition of the country and needs to be opposed by all right thinking people from all communities across the country.
Source : Organiser
Kill the anti-Hindu Bill – NAC’S draft is rabidly communal
By Shyam Khosla
THE obnoxious Prevention of Communal Targeted Violence (Access to Justice and Reparation) Bill 2011 drafted by the extra-constitutional “National Advisory Council” Chaired by Sonia Gandhi is based on the horrendous presumption that communal trouble is created only by the majority community and never by the minority community. Can a drafting committee be so biased and contemptuous of rationality and facts of life? How can a Bill to deal with a hugely sensitive issue like communal riots discriminate on religious and caste considerations? Senior BJP leader Arun Jaitley, famous for his legal and political acumen, has torn the Bill to shreds by his incisive analysis of the Bill’s several vicious provisions and questioned the very premise of the draft that implies that only majority community is responsible for all communal riots. The proposed law, he points out, will incentivise some communities to commit heinous offences encouraged by the fact that they would never be charged under the law and will encourage terrorist groups to incite communal riots knowing fully well that they too wouldn’t be covered under this pernicious piece of legislation. Church supported terrorist outfits operating in north-eastern states will be amongst the greatest beneficiaries as they too are outside the purview of the proposed law. They can indulge in crimes against the majority community with impunity. The Bill, if it is enacted as law by the Parliament, would keep jehadies who conspired and indulged in the Godhra carnage outside its purview. The NAC Bill would neither cover Shia-Sunni riots nor the heinous crime of chopping off the hand of a Christian professor by a Muslim radical group in Kerala as both the victim and the offender belong to the minority communities.
Hate propaganda against minorities is punishable under this stringent law. The law is likely to be abused in cases in which one were to make legitimate criticism of certain practices like discrimination against Muslim women under the Muslim Personal Law. However members and groups belonging to minority communities would not be liable to be booked under the law for spreading hatred against Hindus and their religious faiths and icons. Foreign funded Christian missionaries who indulge in fraudulent conversion of scheduled castes, scheduled tribes and other deprived sections of the Hindu society though a systematic hate campaign against Hindu beliefs and practices can gleefully continue to do so as they too would not be covered by the law on communal violence. Minority community groups would be free to spread hatred against Hindus by calling them kafirs and heathens without any fear of being hauled up under the law.
Yet another fundamental infirmity form which the draft suffers is that it equates communal conflicts with terrorism. Communal flare ups may be triggered by minor incidents and rumours spread by mischief mongers. Instead of curbing communal divisions and identity politics, the Bill is bound to widen the gulf between communities and would lead to communal tensions. That is perhaps the hidden agenda of the drafters of the Bill most of whom are guilty of promoting vote bank politics. Congress party’s untenable defence of the draft is that there is no point in discussing each and every provision at this stage and that these objections could be taken up when the Bill goes to the Parliamentary Standing Committees. Why publicise such an atrocious piece of legislation full of infirmities, if the purpose is not to illicit public opinion on its concepts and premises. Or is it meant to send a strong message to communal-minded Muslims and Christians that UPA II is out to appease them even at the cost of hurting national interests? The other argument that is equally bogus is that the draft is based on the experience that most riots are initiated by the majority community and it is the minorities that are always at the receiving end.
One of the provisions in the draft is that it would be enforced by a seven-member national authority of which at least four members, including the chairman and the vice chairman, must be from a minority community, It has raised the hackles of all right thinking citizens who believe in the principle that law must have a level-playing field. It is a dangerous and mischievous move. The authors are so biased and contemptuous of Hindus that they presume that an enforcement authority with a Hindu majority would not ensure fair play. The Bill is so irrational and biased that even the pro-Congress English language daily Hindustan Times has editorially condemned the NAC draft saying, “Its biggest flaw is that it makes provisions for punishment only for violence against minorities. Surely, if communal violence were visited on members of the majority community, the law can’t ignore this fact. This could mean that subversive elements in the minority community could indulge in communal violence without any fear of the law”. It goes on to point out that the most disturbing aspect of this Bill is the underlying presumption that it is only the majority community which is responsible for communal violence. No law should have different yardsticks for wrong doers on the basis of religion, ethnicity, language or gender. Further it negates the federal structure of the Union as it infringes on the powers of the State governments that are bound to resist Centre’s attempt to interfere in matters pertaining to law and order that is the domain of the states.
Critics have rightly raised serious objections to the very source of the draft – the National Advisory Council comprising of NGO types unelected and unelectable so-called representatives of the civil society. All of them have been hand-picked by Sonia Gandhi who enjoys enormous power without accountability. NAC is an extra constitutional authority that has been mandated to provide policy and legislative inputs to the Government. It is accountable to none but Sonia Gandhi. Its functioning has never been subjected to any review by Parliament. Its policy announcements and legislative initiatives exert coercive pressure on the Government. The very concept on which NAC was constituted is undemocratic and totally unacceptable in a parliamentary democracy.
3. An Endeavour to Imbalance Inter-Community Relationship
– Arun Jaitley in Rediff.com
A draft of a proposed legislation titled ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011′ has been put in the public domain. The draft bill ostensibly appears to be a part of an endeavour to prevent and punish communal violence in the country.
Though that may be the ostensible object of the proposed law its real object is to the contrary. It is a bill which if it is ever enacted as a law will intrude into the domain of the state, damage a federal polity of India and create an imbalance in the inter-community relationship of India.
What does the bill in effect state
The most vital definition of the bill is of the expression ‘group’. A ‘group’ means a religious or linguistic minority and in a given state may include the Scheduled Castes and Scheduled Tribes. The bill creates a whole set of new offences in Chapter II. Clause 6 clarifies that the offences under this bill are in addition to the offences under the SC & ST (Prevention of Atrocities) Act, 1989. Can a person be punished twice for the same offence?
Clause 7 prescribes that a person is said to commit sexual assault if he or she commits any of the sexual act against a person belonging to a ‘group’ by virtue of that person’s membership of a group. Clause 8 prescribes that ‘hate propaganda’ is an offence when a person by words oral or written or a visible representation causes hate against a ‘group’ or a person belonging to a ‘group’.
Clause 9 creates an offence for communal and targeted violence. Any person who singly or jointly or acting under the influence of an association engages in unlawful activity directed against a ‘group’ is guilty of organised communal and targeted violence.
Clause 10 provides for punishment of a person who expends or supplies money in the furtherance or support of an offence against a ‘group’. The offence of torture is made out under clause 12 where a public servant inflicts pain or a suffering, mental or physical, on a person belonging to a ‘group’.
Clause 13 punishes a public servant for dereliction of duty in relation to offences mentioned in this bill. Clause 14 punishes public servants who control the armed forces or security forces and fails to exercise control over people in his command in order to discharge their duty effectively.
Clause 15 expands the principle of vicarious liability. An offence is deemed to be committed by a senior person or office bearer of an association and he fails to exercise control over subordinates under his control or supervision. He is vicariously liable for an offence which is committed by some other person. Clause 16 renders orders of superiors as no defence for an alleged offence committed under this section.
Any communal trouble during which offences are committed is a law and order problem. Dealing with the law and order is squarely within the domain of the state governments. In the division of powers between the Centre and the states, the central government has no direct authority to deal with the law and order issues; nor is it directly empowered to deal with them nor it can legislate on the subject. The central government’s jurisdiction restricts itself to issue advisories, directions and eventually forming an opinion under Article 356 that the governance of the state can be carried on in accordance with the Constitution or not.
If the proposed bill becomes a law, then effectively it is the central government which would have usurped the jurisdiction of the states and legislated on a subject squarely within the domain of the states.
India has been gradually moving towards a more amicable inter-community relationship. Even when minor communal or caste disturbances occur, there is a national mood of revulsion against them. The governments, media, the courts among other institutions rise to perform their duty. The perpetrators of communal trouble should certainly be punished.
This draft bill however proceeds on a presumption that communal trouble is created only by members of the majority community and never by a member of the minority community. Thus, offences committed by members of the majority community against members of the minority community are punishable. Identical offences committed by minority groups against the majority are not deemed to be offences at all.
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’. A ‘hate propaganda’ is an offence against minority community and not otherwise. Organised and targeted violence, hate propaganda, financial help to such persons who commit an offence, torture or dereliction of duty by public servants are all offences only if committed against a member of the minority community and not otherwise.
No member of the majority community can ever be a victim. This draft law thus proceeds on an assumption which re-defines the offences in a highly discriminatory manner. No member of the minority community are to be punished under this act for having committed the offence against the majority community.
It is only a member of the majority community who is prone to commit such offences and therefore the legislative intent of this law is that since only majority community members commit these offences, culpability and punishment should only be confined to them.
If implemented in a manner as provided by this bill, it opens up a huge scope for abuse. It can incentivise members of some communities to commit such offences encouraged by the fact that they would never be charged under the act.
Terrorist groups may no longer indulge in terrorist violence. They will be incentivised to create communal riots due to a statutory assumption that members of a jihadi group will not be punished under this law. The law makes only members of the majority community culpable. Why should the law discriminate on the basis of a religion or caste?
An offence is an offence irrespective of origin of the offender. Here is a proposed law being legislated in the 21st century where caste and religion of an offender wipe out the culpability under this law.
Who will ensure implementation of this act
The bill provides for a seven-member national authority for communal harmony, justice and reparations. Of these seven members at least four of them including the chairman and vice-chairman shall only belong to a ‘group’ (the minority community). A similar body is intended to be created in the states. Membership of this body thus shall be on religious and caste grounds. The offenders under this law are only the members of the majority community.
The enforcement of the act will be done by a body where statutorily the members of the majority community will be in a minority. The governments will have to make available police and other investigative agencies to this authority. This authority shall have a power to conduct investigations and enter buildings, conduct raids and searches to make inquiries into complaints and to initiate steps, record proceedings for prosecution and make its recommendations to the governments.
It shall have powers to deal with the armed forces. It has a power to send advisories to the central and state governments. Members of this authority shall be appointed in the case of central government by a collegium which shall comprise of prime minister, the home minister, and the leader of the opposition in the house of people and a leader of each recognised political party. A similar provision is created in relation to the states. Thus, it is the opposition at the Centre and the states which will have a majority say in the composition of the authority.
What are the procedures to be followed
The procedures to be followed for investigations under this act are extraordinary. No statement shall be recorded under section 161 of the CrPC. Victim statements shall be only under section 164 (before courts). The government will have a power to intercept and block messages and telecommunications under this law. Under clause 74 of the bill if an offence of hate propaganda is alleged against a person, a presumption of guilt shall exist unless the offender proves to the contrary. An allegation thus is equivalent to proof. Public servants under this bill under clause 67 are liable to be proceeded against without any sanction from the state.
The special public prosecutor to conduct proceedings under this act shall not act in aid of truth but ‘in the interest of the victim’. The name and identity of the victim complainant will not be disclosed. Progress of the case will be reported by the police to the victim complainant. The occurrence of organised communal and targeted violence under this act shall amount to an internal disturbance in a state within the meaning of Article 355 entitling the central government to impose President’s Rule.
The drafting of this bill appears to be a handiwork of those social entrepreneurs who have learnt from the Gujarat experience of how to fix senior leaders even when they are not liable for an offence.
Offences which are defined under the bill have been deliberately left vague. Communal and targeted violence means violence which destroys the ‘secular fabric of the nation’. 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? Similarly, the creation of a hostile ‘environment’ may leave enough scope for a subjective decision as to what constitutes ‘a hostile environment’.
The inevitable consequences of such a law would be that in the event of any communal trouble the majority community would be assumed to be guilty. There would be a presumption of guilt unless otherwise proved. Only a member of the majority shall be held culpable under this law.
A member of the minority shall never commit an offence of hate propaganda or a communal violence. There is a virtual statutory declaration of innocence under this law for him.
The statutory authority prescribed at the central and state level would intrinsically suffer from an institutional bias because of its membership structure based on caste and community.
I have no doubt that once this law is implemented with the intention with which it is being drafted, it will create disharmony in the inter-community relations in India. It is a law fraught with dangerous consequences. It is bound to be misused. Perhaps, that appears to be the real purpose behind its drafting. It will encourage minority communalism. The law defies the basic principles of equality and fairness.
Social entrepreneurs in the National Advisory Council can be expected to draft such a dangerous and discriminatory law. One wonders how the political head of that body cleared this draft. When some persons carried on a campaign against the Terrorist and Disruptive Activities (Prevention) Act — an anti-terrorist law, the members of the UPA argued that even terrorists should be tried under the normal laws. A far more draconian law is now being proposed.
The states will be watching hopelessly when the Centre goes ahead with this misadventure. Their power is being usurped. The search for communal harmony is through fairness — not through reverse discrimination.