National advocacy and prayer campaign for Communal Violence Prevention Bill

[Dr. John Dayal]

JOHN DAYAL

Mr Hazare and many of the middle class who have joined him in his
national camoaign against corruption do not seem to take the threat of
communalism as seriously. No national campaign has yet been launched
against the sort of hate violence that leaves hundreds dead every year
in various parts of the country, and periodically peaks in the
massacre especially of the religious minorities, particularly Muslims,
and occasionally Christians and Sikhs.

It has therefore fallen, so to speak, on the church in all its
denominational diversity to launch a united campaign of advocacy and
prayer to urge that Government of India urgently bring before
Parliament and pass the Prevention of Communal and Targeted Violence
(Access to Justice and Reparation) Bill 2011 after suitable amendments
that take care of continuing concerns of minorities, and some concerns
of state governments.

The Bill, commonly called the CV Prevention Bill, was drafted earlier
this year by the National Advisory Council and is now with the Union
government. The All India Christian Council , an apex Human Rights and
Freedom of Faith forum, and several other groups recently inaugurated
the prayer campaign with large meetings of priests, pastors and laity
in Bangalore, Mysore, Pune and Panchkula in Haryana. Meetings are
planned nationwide. The Catholic Bishops Conference of India, the
National Council of Churches, Diocesan Bishops and heads of various
church groups and NGOs are also being requested to take the prayer and
advocacy campaign to the grassroots in every state.
The Bill, with some proposed amendments, has been strongly supported
by religious minorities as well as by most members of civil society as
an effective means to curb communal violence which has plagued this
country after Independence in 1947, and bring justice to the victims.
In the last ten years there have been more than 6,000 incidents of
communal violence, according to information provided by the government
to Parliament.

Among the most heinous mass crimes against religious communities in
India have been the anti-Sikh violence of 1984 in New Delhi and other
cities, the anti-Muslim pogrom in Gujarat of 2002 and the anti-
Christian massacre and mass arson in Kandhamal in Orissa in which
56,000 persons were forced to flee to forests when over 5,600 houses
in 400 villages were burnt down by Hindutva mobs. Over 100 persons
were killed, Nuns and other women were raped and over 290 churches
destroyed. In all cases, the police and officials stood by without
acting. Many police and civil officers were guilty of involvement in
all these acts of mass violence, and others were guilty of inaction
and impunity.
In the first week of December 2011 again in Orissa, 12 families of
Christians were attacked in a will planned manner in Keonjhar
district.
In Kashmir, Pundits in a major way and local Christians have also been
subject of targeted violence and threats by fundamentalist elements..
All these have been in reported in Indian Currents.

Justice, rehabilitation and resettlement in all cases has been tardy.
The worst is the issue of justice. Most victims, including of murder,
have been denied justice. In Kandhamal, for instance, not a single
person has been convicted for murder.
The proposed Bill seeks to secure justice for victims and end the
climate of impunity by bringing the guilty officials to book. The
proposed law maintains that minorities are denied justice because of
the communal behaviour of a section of religious and political
extremists and the apathy or involvement of the administration.

The Bill will also curb hate speech and similar actions. In recent
months, VHP leader Dr Praveen Togadia has called for the beheading of
missionaries in issues of conversion. Janata party leader Subramaniam
Swamy has launched a slander campaign against the Christian and Muslim
communities.

The Christian groups have denounced conspiracies to scuttle the Bill.
The last meeting of the National Integration Council was an example of
how the government failed to intervene effectively in support of the
bill which, expectedly, came under severe attack from Chief Ministers
of BJP Ruled stares as also some allies of the Congress who had issues
with the powers of the states on matters of law and order. The
government seems reluctant to take immediate steps and discuss the
Bill with political parties to end the attempt of Hindutva groups to
raise false alarms against the proposed law.

Christian leaders in Mumbai had earlier filed a formal complaint
demanding legal action against Dr Subramaniam Swamy for spreading hate
and violating the Constitution when he wrote an article in a Mumbai
newspaper advocating that Muslims should not be given voting rights.
Complaints were also filed in New Delhi.

Communalism is as evil as corruption. The minority communities have
repeatedly called for strong laws to curb hate campaigns and similar
activity which leads to the targeting of minorities and marginalised
communities, including Muslims, Christians, Dalits and Tribals. It
remains to be seen if gthe government will wake up to its duty in this
matter.

------- --------------

All that you wanted to know about the Prevention of Communal and
Targeted Violence Bill 2011

The Prevention of Communal and Targeted Violence (Access to Justice
and Reparations) Bill, 2011 is intended to enhance State
accountability and correct discriminatory exercise of State powers in
the context of identity-based violence, and to thus restore equal
access to the law for Scheduled Castes, Scheduled Tribes, and
religious and linguistic minorities. It is the Constitutional right of
every citizen, no matter how numerically weak or disadvantaged, to
expect equal protection from an impartial and just State. Evidence
from state records and several of Commissions of Enquiry has confirmed
institutional bias and prejudicial functioning of the State
administration, law enforcement and criminal justice machinery when a
non- dominant group in the unit of a State, based either on language
or religion, or a member of a Scheduled Caste or Scheduled Tribe, is
attacked because of their identity. This prevents such non-dominant
groups from getting full and fair protection of the laws of the land
or equal access to justice.

The Bill does not give additional powers to the State. This
administration already has adequate powers to prevent and control
communal violence when it chooses to do so. Communal and targeted
violence spreads mainly because the public officials charged with
protecting and preventing, either fail to act or act in a biased
manner.

Existing laws of the land and the machinery of the State are found to
work relatively impartially when targeted identity-based offences are
committed against dominant groups in a State, but not similarly for
non-dominant groups. This Bill will provide correction of
institutional bias against groups particularly vulnerable in any
State. All citizens, no matter how small their numbers or where they
choose to be domiciled, get an equal playing field, in enjoying their
full measure of rights as citizens. This is a special provision Bill,
for the non-dominant groups, being the linguistic and religious
minorities in the unit of the State, and the Dalits and Tribals across
the country.

KEY PROVISIONS OF THE BILL

1. Defining communal & targeted violence: The provisions of this Bill
will apply only when it is first established that the offence was
‘targeted’ in nature i.e. it was knowingly committed against members
of a non-dominant group because of their membership of that group, and
not for any other reason. Offences under the Indian Penal Code shall
be considered offences under this Bill when they meet the definition
of ‘targeted’ above. The Bill also specifically defines
‘organized’communal and targeted violence as mass violence that
consists of multiple or mass commission of crimes that is widespread
or systematic in nature.

2. Dereliction of duty by Public Servants: This Bill recognizes
offences of both omission and commission. Often the greatest cause for
communal and targeted violence against non-dominant groups occurring,
spreading and persisting, is that public officials do not act. Public
servants who act or omit to exercise authority vested in them under
law and thereby fail to protect or prevent offences, breach of public
order, or cause an offence, screen any offender, or fail to act as per
law, or act with malafide and prejudice shall be guilty of dereliction
of duty with penal consequences. This is the heart of the legislation,
for such accountability shall serve as a deterrent to biased action.

3. Breach of Command Responsibility: This Bill seeks to ensure that
the power of holding command over the actions of others is indeed
upheld as a sacred duty, and that there is culpability for those who
are ‘effectively in-charge’. Given the hierarchical nature of
administrative systems, the reality is that too often it is those
higher up in a chain of administrative or political command that are
responsible for failure to perform their duties. Yet, it is only the
junior officer on the ground whose dereliction is visible. The
tendency for accountability to be fixed only at the most powerless
levels of the official hierarchy is being prevented through the
offence of breach of command responsibility. The chain of command
responsibility may extend to any level where effective decisions to
act or not act are taken.

4. Sanction for prosecution of public servants: This Bill proposes
that if there is no response to a request for sanction for prosecution
within 30 days from the date of the application to the concerned
government, sanction to prosecute will be deemed granted. In relation
to certain offences under the Indian Penal Code, 1860, when committed
by a public servant, the requirement of obtaining sanction is being
dispensed with. This is because these are offences against public
justice. Judges shall be the most competent persons to assess the
situation and proceed without sanction when satisfied that public
justice has been obstructed.

5. Monitoring and Accountability -: This Bill seeks to put in place
mechanisms such as a National Authority for Communal Harmony, Justice
& Reparation and State Authorities that can make the administrative
and criminal justice system work as it should, free from favour or
bias or malafide intent. Monitoring and grievance redressal shall be
the responsibility of the National Authority for Communal Harmony,
Justice and Reparation (NACHJR) and corresponding State Authorities
for Communal Harmony,

Justice and Reparations (SACHJR). Their mandate is to ensure that
public functionaries act to prevent and control communal & targeted
violence and also that public servants ensure victims have access to
justice and reparation when violence occurs. The functions of the
NACHJR/SACHJR are to watch, advise, remind, recommend and warn of
consequences if public servants fail to act as per law. The NACHJR or
the SACHJRs do not, in any instance, take over any existing powers of
any public official or institution, nor supersede the existing law
enforcement machinery. They merely monitor to ensure that the system
works impartially. The NACHJR/SACHJRs will thus monitor, inquire into
complaints, receive or suo moto seek information, and issue advisories
and recommendations only when there is alleged inaction or malafide
action by public officials and governments. The monitoring mechanism
of the National and State Authorities will also provide the ‘paper
trail’ to ensure robust accountability of public officials in a court
of law.

The NACHJR and the SACHJR shall monitor the implementation of the law
and prevention of communal and targeted violence. Almost all modern
legislations enacted in the last 5 years like the Mahatma Gandhi
National Rural Employment Guarantee Act, 2005 and the Right to
Education Act, 2009 have built-in provisions for monitoring and
grievance redressal.

6. Bi-partisan selection of members of the National Authority for
Communal Harmony, Justice & Reparation (NACHJR): The Bill proposes a
bi-partisan Selection Committee for members (including Chairperson) of
the NACHJR consisting of the Prime Minister (Chairperson), Leader of
the Opposition in the Lower House, Leader of Opposition in the Upper
House, Minister for Home Affairs, and the Chairperson of the National
Human Rights Commission.

7. Composition of the National Authority for Communal Harmony, Justice
and Reparation: The Bill proposes a total of 7 members of the NACHJR,
of which 4 shall belong to the non-dominant ‘group’ i.e. 4 members
must belong either to a linguistic minority in any State in the Union
of India, or to a religious minority in any State in the Union of
India, or to SCs or STs. Further, no more than 2 members of the NACHJR
may be retired public servants.

8. Offences of communal and targeted violence: The Indian Penal Code
(IPC) contains most offences committed during episodes of communal and
targeted violence. These have been appended in a Schedule to this
Bill, and shall be considered offences under this Bill when they meet
the threshold of being ‘knowingly directed against any person by
virtue of membership of a group’. These offences shall attract the
same penalties as laid down in the IPC. Government is currently
considering two other forms of violence for inclusion as offences in
our statute books, either in the form of amendment bills or new bills.
These include brutal forms of Sexual Assault (beyond the limited IPC
definition of Rape in S. 375) and Torture. Both these offences have
therefore been included in this Bill. Additionally, this Bill defines
an offence of Hate Propaganda, because if hate propaganda can be
effectively stopped it will enhance the chances of preventing
violence.

9. Victims Rights : This Bill seeks to strengthen the rights of the
victim in the criminal justice system, through certain provisions in
their struggle for justice – from the simple right to information at
all stages, the right to get copies of all their statements, to the
right to be heard in a court of law, right to protection, right to
appeal, and the right to file a complaint with the NACHJR/SACHJR if
and when they are aggrieved by failure of the system to protect and
secure for them justice and reparations. These provisions are based on
the documented experience of the denial of basic rights to victims of
non-dominant groups in a State. Indian criminal law is based on the
assumption that the State is always on the side of the victim, against
the accused, and therefore primarily the rights of the accused need to
be protected. The State investigates, prosecutes, and also adduces
evidence and appeals. The victim has limited rights in this process.
The reality of targeted violence against non- dominant groups is that
a biased State may in these cases, be on the side of accused and
actively hostile to the victim. This Bill seeks to correct this
bias.

10. Relief and Reparation including Compensation for all affected
persons whether or not they belong to a non-dominant ‘group: This Bill
recognizes that there are no statutory norms and rights for any Indian
citizen under present law, for relief, reparation, and compensation.
Thus, all affected persons, whether or not they belong to non-dominant
groups in a State have been given justiciable rights to immediate
relief, and comprehensive reparations, including compensation if they
suffer any harm. The Bill casts legal duties on the State to provide
rescue, relief, rehabilitation, compensation and restitution, to
ensure that all affected persons are restored to a situation better
than which prevailed before they were affected by violence. This is
based on the experience that some state governments fail to provide
even elementary humanitarian services, by refusing to establish relief
camps or forcefully disbanding these prematurely. The Bill also
recognizes and protects the rights of Internally Displaced Persons,
who are temporarily or permanently dislocated because of targeted
violence.

11. Compensation – a national standard for all ‘affected persons’:
This Bill requires that when there is violence, and citizens lose
their lives, livelihoods, and homes, then each devastation must be
recognized in the same manner. Each life lost must be compensated for
justly and uniformly. Regrettably this has not been the case, and
governments have been both arbitrary and selective in awarding
compensation to different groups of citizens with different standards
of generosity. Compensation must not be a matter of charity or
largesse, but a justiciable right with a single uniform standard for
every Indian citizen. This Bill provides that compensation shall be
paid within 30 days from the date of the incident, and in accordance
with a Schedule, which shall be revised every 3 years. No compensation
for death shall be less than Rs. 15 lakhs. No compensation for rape
shall be less than Rs. 5 lakhs.

12. The Federal Principle: This Bill takes care not to violate in any
way the federal nature of our polity. All powers and duties of
investigation, prosecution, and trial remain with the State
Governments.

WHO ARE THE NON-DOMINANT GROUPS IN ANY STATE?

The Bill defines non-dominant ‘groups’ as religious or linguistic
minorities in any State in the Union of India, and SCs and STs.
Examples of non-dominant groups who have, in recent years, come under
attack because of their identity in different States and where the
State machinery has acted prejudicially, would include Tamils (as a
linguistic minority) in Karnataka, Biharis (as a linguistic minority)
in Maharashtra, Sikhs (as a religious minority) in Delhi, Muslims (as
a religious minority) in Gujarat, Christians (as a religious minority)
in Orissa, and Dalits and Tribals in several places in the country.

The salient principle is that each of these non-dominant groups in a
State may be vulnerable to institutional bias, and thus need special
support to restore equality in the way the law works at the local
level.

‘Minority’ which refers to both linguistic groups and religious
groups, is a shifting category at the level of the States. Thus
Biharis, of all religions, constitute a linguistic minority in
Maharashtra or in Assam – where they have been vulnerable to attack
based on their regional/linguistic identity, but they are dominant in
Bihar. Tamil speakers are similarly a linguistic minority in
Karnataka, but not in Tamil Nadu. In several states in the Northeast,
in Punjab, in the Union territory of Lakshadweep, and in Jammu &
Kashmir, Hindus, belonging to any region, are numerically a religious
minority. Constitutional arrangements in this regard require that the
State of Jammu & Kashmir may suitably domesticate relevant aspects of
this legislation, keeping in mind the unique situation prevailing in
that State.
IS ANY PARTICULAR GROUP THE PERPETRATOR OF COMMUNAL & TARGETED
VIOLENCE?

The Bill does not classify or assume any particular group to be the
perpetrator of communal & targeted violence. The perpetrator of
violence could be any person, belonging to any region, language, caste
or religion. The Bill is only concerned with ensuring that when the
group under attack is non- dominant in that State, then the officers
of the State machinery must not be allowed to let bias to breach their
impartiality or colour the performance of their sworn legal duty.

THE CONSTITUTIONAL MANDATE : There exists a clear mandate to
legislate on the issue of prevention and control of communal and
targeted violence. Positive and rational legislative measures to
correct discriminatory exercise of State power draw their strength
from the Constitution of India. 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
guarantees right to life and personal liberty, thus State is under
duty to protect all its citizens from any kind of violence against
them. Article 15 (1) lays down that ‘the State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them’. The Constitution thus recognizes that
vulnerable groups, defined in Article 15(1), may require protection
from discrimination by the State. The Protection of Women from
Domestic Violence Act, 2005 and the Scheduled Castes and Schedules
Tribe (Prevention of Atrocities) Act, 1989 are examples in the Indian
legal system of special legislative provisions for vulnerable groups
in response to social reality and experience. Entry 2A and 97 under
List 1 of the seventh schedule empower the Central Government to enact
laws for the protection of life and liberty.