Communal violence of any sort is to be abhorred. The loss of even one life is a loss of one too many. Communal violence in India India India India
Whether the Bill is eventually passed or not is a different matter (and I hope it is not passed in its current form), the fact that a pseudo-intellectual entity like the NAC had the guts to even introduce this malignant tumour in the Indian legal system is an indicator of what times India is facing today while people are busy with cricket and reality shows.
At the outset, I am not a lawyer and these questions, doubts, interpretations etc are from my reading of the actual bare Bill. I confess to have skipped some sections that I thought would be procedural and hence not contain anything out of the ordinary, but they possibly do and I am letting the Bill of easy on those counts. I also read a couple of other blogs for ideas and I don’t care who takes credit for this rant. It belongs to all those right-minded, nationalistic Indians who have blogged about this draconian Bill. If I have read something wrong, please feel free to point it out in the comments section.
Ok, my first complaint about the Bill is its general wishy-washy nature. It makes sweeping statements with no words on the procedure that needs to be followed. It does not outline any sort of tests to the applied to a lot of statements it says are offenses. A good (or is it bad?) example of this is the Section 3 (c):
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, which destroys the secular fabric of the nation;
What constitutes the destruction of the secular fabric of the nation? Is a question that is left unanswered. Ok. So say a hindu pick-pocket, robs a muslim man who was dressed to reveal his religion (cap, beard et al), can that be construed to mean destruction of the secular fabric of the nation?
Another example: Lets say India defeats Pakistan
My second and the BIGGEST objection to the Bill is that it itself identified Hindus as criminals in any act (violent or not) that violates the secular fabric of the nation (a statement that itself is frivolous as I mentioned above). Q) How does it do this? A) By first defining a ‘Group’ in section 3 (e):
“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 (24) and (25) of Article 366 of the Constitution of India;
As can be read above, ‘Group’ means a religious (or linguistic) minority. The minority is measured based on State and not a locality of a region. So apart from J&K (BTW, J&K is conveniently excluded from the ambit of the Bill, the one state where Hindus have faced genocide) and Kerala a Group basically means only Muslims and Christians. Well, it also includes SCs/ STs but we all know who the Bill is *really* framed for, don’t we?
The next step in cementing the communal nature of the Bill is its definition of a ‘victim’ under the Act. This is done in the section 3(j)
“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 her 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;
So in any case of communal violence, Muslims and Christians will automatically be the victims and by corollary Hindus will be the criminals?
In fact, Section 6 to 12, which all outline the violent acts, all mention that the act has to be committed against the Group (Muslims and Christians) for the act to be considered as an illegal offense.
An example. A muslim majority in India, say Bhindi Bazaar or Malegaon, sees communal violence and a group of muslims (lets just call them misguided youth) assault a hindu woman, would it be considered as an act of communal violence under this Act? In my reading, no, it would not! The reason, Bhindi Bazaar and Malegaon are part of the Maharashtra State
Apart from these two explicit points the draconian, anti-majority nature of the Bill is strengthened by its wishy-washy nature, as I mentioned above. Some examples:
Section 3 (f) defines hostile environment (again only for Muslims and Christians). Hostile environment includes several points. But point no 5 is the most interesting one. It says, …includes 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
Any act (?!), even if its not an offense under the law? So anyone humming the national anthem in Malegaon
Section 4: 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; or,(b) with the knowledge that the person belongs to a group, he or she means to cause injury or harm to such person because of the membership of such person to that group
Seriously? How does the law judge what a person ‘meant’ to do when he/she committed violence against anyone? What are the legal tests or procedures to prove this? Will we be taking on the clairvoyance services of Benny Hinn when we try to find out what a person was thinking (ie is someone mugging someone for money or because he thinks the ‘victim’ is a muslim?). No answers that I noticed here, please enlighten me.
There is more…
Section 13. Dereliction of duty.- When any person who is or was a public servant not removable from his or her office save by or with the sanction of the Central Government or State Government, as the case may be, authorized to act under any provision of this Act:
(a) exercises the authority vested in him or her colourably or in a manner otherwise than provided under law for the time being in force, which causes or is likely to lead to an offence of communal and targeted violence or by which he or she intends to screen or knowing it to be likely that he or she will thereby screen any person from legal punishment;
Again, perhaps I am stupid, but the terms ‘colourably’ and ‘likely’ are wide open to interpretation, especially given that the government has already pronounced Hindus as the criminals in the definition section of the Act itself.
What is the test for checking the public servant has exercised authority ‘colourably’. What colour? Saffron perhaps?
Similarly, What tests are in place to judge (and who judges?!) that the public servant will ‘likely’ commit an offence? Who defines ‘likely’?! For example, will they pre-emptively punish a police commissioner because he is a hindu and his religion in itself is a crime for which he is ‘unlikely’ to enforce this ridiculous law in his jurisdiction? Clearly, the law must have made provisions for pre-cogs like in the movie “Minority Report” (apt film title?) who can gauge what is likely to happen in the future. If people can be arrested by the NAC’s pre-crime division why do the jholas in the NAC protest when the police arrests someone who is likely to commit a terrorist act…or is it because that is the correct ‘colour’?
I noticed sections 4, 9 and 14 are adopted from the Rome Statute of the International Criminal Court. I find that surprising because Government of India has consistently opposed the court . Is this a surreptitious attempt to bring India under Rome
The third most shocking part for me in this Act was its Section 20.
Section 20: The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India
It seems like a harmless section at the first glance, why, it even references the Indian Constitution! Should be pretty fool-proof till another blog hinted at the chapter under which Section 355 falls in the Indian Constitution. Its falls under something called “Emergency Provisions”. Now I again stress, I am not a lawyer, but I am guessing that the last time Emergency provisions were invoked, the excesses were carried out by the government itself! Section 20 empowers only the Central government to declare emergency conditions? It does not even specify what scale of violence would be needed, would 2 people killed in some state in some tragic violence be enough grounds to invoke section 355? Someone please advise!
Ok, there ridiculous sections go on an on. So I will try summarise. The Act calls for the formation of a pompously named National Authority for Communal Harmony Justice and Reparation (NACHJR). It appears that since the law has basically convicted Hindus before any trial of any sort the NAC had no hesitation in giving the NACHJR sweeping powers. After all, no risk of anyone from the ‘correct’ religion being caught since they are all victims anyway. Section 39 gives the commission power over public sevants (isn’t this the parallel government we were told about that Lokpal would bring?). It even brings the armed forces under this, thus undermining (IMHO) the only relatively honest institution that we have left in the country (e.g. would the army be guilt of destroying the communal fabric of the country if it carried out operations against terrorists?, Did the police upset the secular fabric when they killed terrorists in the Batla House encounter?). Section 58 makes all offences cognizable and non-bailable. So any offense, however small and frivolous will result in some majority community member going to jail without possibility of bail. Another section also appears to allow the government to gag the press, so ‘wrong reports’ are not circulated.
Section 74 is special in the sense it appears to change the basic structure of natural justice by presuming guilt unless innocence is proven…what?!
I will copy-paste the take of someone on a legal blog on this section:
“The biggest lacuna which exists in the Act is the presumption of guilt on the accused unless it can be rebutted by the accused. Section 74 however makes two fold presumptions which are against the very ethos of Criminal Justice System i.e. A person is deemed to be innocent unless proven guilty of an offence.
The first presumption is that the accused shall be guilty of an offence that he has been charged with, unless that can be proven otherwise. The second presumption is further discriminative as it states that Whenever an offence of organized communal and targeted violence is committed and it is shown that a hostile environment against a group exists or the offence of hate propaganda under section 8 was committed against a group, it shall be presumed, unless the contrary is proved, that the said offence was knowingly directed against persons belonging to the group by virtue of their membership of the group.
The consequences may have a very negative influence on the entire state of affairs. For instance, a speech that was made in a politically sensitive area may be qualified as hate propaganda to be knowingly directed against the people of the minority group and shall attract a punishment of three years as per section 115 of the Act. The very presumption is devoid of rationality as the definition of the term Hate Propaganda is so wide that any act could be construed as being culpable in nature.”
All in all, while a lengthy blog, I believe it raises some pertinent questions on not just this Act but also the intentions and motivations of people who have framed it. For a layman like me, if this Act is implemented with its open ended definitions and draconian Commissions, life for any majority community member would be impossible. We possibly had more secular laws under Aurangzeb, one might think.
Having said that, nothing would give me more pleasure than someone reading through the Act and telling me that my fears are FACTUALLY INCORRECT.
http://www.rediff.com/news/column/arun-jaitley-why-the-communal-violence-bill-is-flawed/20110526.htm
ReplyDelete-- possibly a more informed take :)