Battle over a Bill to prevent Communal Violence in India

[Dr. John Dayal]

Sangh strikes to pre-empt effective Prevent Communal Violence
Prevention Bill
But civil society and minorities too have issues with components of
the draft law
- - -
John Dayal
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Victims have not forgotten these brutal tragedies in the life of
Independent India, even if the State and political parties may pretend
to have.

1984 Delhi: On October 31, Prime Minister Indira Gandhi was
assassinated by her two Sikh bodyguards in revenge for Operation Blue
Star. For the next three days, as Doordarshan telecast the lying in
state of her body, over 3,000 Sikhs men and boys were burnt alive
while policemen, politicians and the world watched. A very few have
been prosecuted for India’s biggest communal violence since the
Partition riots of 1947. And twenty-five years later, the Government
is still to tell the people if there was a mastermind. A small group
of Sikh activists and lawyers have kept alive the pursuit of Justice
for the widows of 1984. Needless to say, the aggressors were mainly
from the majority community, allegedly owing allegiance to the
Congress party though quite a few of them from radical right wing
groups, including the Sangh Parivar who had done their share of the
work in polarising Punjab in those traumatic years of the 1970s.

2002 Gujarat: On 27 February 2002, the Sabarmati Express stopped at
the Godhra station, and its Coach Number six was set afire allegedly
by a group of Muslims presumably as a continuing response to the
demolition of the Babri Masjid by the Sangh Parivar almost ten years
earlier on 6th December 1992. The bodies of the 59 Hindu pilgrims from
Ajodhya who died in the fire were brought to Ahmedabad in a deliberate
political decision. And for the next several days, the city and
several other towns burned. In what the President and Prime minister
called “a blot on the cultural traditions of India”, the Union
government told Parliament that 790 Muslims were killed, 223 more
people reported missing and another 2,500 injured. More than 100,000
people fled their homes. Human rights groups feared the toll to be as
high as 2,000 Muslims killed. The National Human Rights Commission
found evidence of premeditation in the killings by members the
Rashtriya Swayamsevak Sangh, Vanvasi Kalyan Ashram, Vishwa Hindu
Parishad and Bajrang Dal with a large doze of complicity by the State
political and administrative apparatus headed by chief minister
Narendra Modi. Many Police officers were named in subsequent enquiry
commissions for their role in the violence which spread to 151 towns
and 993 villages in fifteen of the state's 25 districts between
February 28 and March 3. And after a drop, violence restarted on March
15, continuing sporadically till mid June. Once again, not many have
been prosecuted and sentenced for the violence even as Muslims have
been sentenced in the train fire. The Supreme Court and special teams
are still investigating allegations of mass rape of women, including
genital mutilation, and the tearing out of foetus from pregnant
women’s bellies.

2008: Kandhamal district, Orissa: The violence in Orissa between 23
August and 1 October 2008 was comparatively on a much smaller scale,
but was historically unique in being targeted against the micro-
minority Christian community by communal mobs out to avenge the
assassination of VHP vice president Lakshmanananda Saraswati in his
ashram by self confessed Maoists on 23 August. For almost a month, the
district of Kandhamal, on a plateau in the midst of the state of
Orissa, was out of bounds even the government’s troops while the
killer gangs roamed the countryside, killing perhaps as many as a 100
people – the government acknowledges 37 deaths – burning down 5,600
houses in 300 villages, destroying 257 big and small Churches and
forcing as many as 55,000 people to flee their houses. By May 2011,
several thousand are still living in make shift huts. They have been
barred from their villages by the Hindutva gangs who say quite openly
that they will allow the Christians to return only if they convert to
Hinduism. Orissa chief minister Naveen Pattnaik, who was in a
coalition with the Bharatiya Janata party during the violence, and
returned to power after severing relations with that party, told the
state legislature that the attacks were mainly led by right-wing
outfits such as the Vishwa Hindu Parishad and its youth wing Bajrang
Dal.
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The then Union Minister of State for Home Affairs, Ajay Maken, told
Parliament there were at least 3,800 communal clashes reported in
India between 2004 and 2008, marking a steady rise over the years. The
highest incidence of such violence in 2008 was the one in Orissa, of
course, followed by Madhya Pradesh with 131, Uttar Pradesh with 114
and Maharashtra with 109 and Karnataka in the south with 108, half of
them against Christians and the rest against Muslims. As per the total
number of communal incidents in each state during the last five years,
Maharashtra is on the top with 681 clashes, followed by Madhya Pradesh
with 654 and Uttar Pradesh with 613.

Data shows that barring the occasional incident of retaliation, the
Muslims were the overwhelming target in the violence, and yet in the
arrests, while 27,901 Hindus were arrested, so were as many as 7,651
Muslims. In firing by the police, again, 93 Muslims were killed as
also about 75 Hindus.

Human Rights Watch criticized the administrations for engaging in a
cover-up of the state's role in the massacres. .

The Union government finally brought forward a Bill to anticipate and
prevent communal violence. The 2005 Bill, which was introduced in the
Rajya Sabha – where it still lies – left civil society and specially
the Human rights groups aghast. Human rights groups and Muslim
intelligentsia – the Church was woefully absent in the exercise –
pointed out two major flaws in the Bill. It empowered the state
without empowering the victims and their communities. And it left
unaddressed the entire question of impunity, how to hold politicians,
police and bureaucrats responsible for their acts of commission and
inaction before, during and after acts of communal violence. In
passing, the Bill was also grossly inadequate in assuring reparations,
compensation and rehabilitation of the victims of mass violence. For
the Christian community, the 2005 Bill offered nothing. The community
is subject to individual and sporadic violence almost every day of the
year in some state or the other, and its smaller churches, house-
churches and independent pastors, specially those working in small
towns or villages in tribal and forest areas are particular targets.
But this violence was not even acknowledged or accepted as being
communally motivated.

The Bill was rejected out of hand. Though the government has not
withdrawn the 2005 Bill, the National Advisory Council headed by
United Progressive Alliance chairperson Mrs Sonia Gandhi set up a
working group coordinated by two NAC members, journalist-activist
Farah Naqvi and former bureaucrat and NGO activist Harsh Mander – with
members from the various religious communities. Major activist-members
included Shabnam Hashmi of Anhad, Teesta Setalvad of Mumbai, Vrinda
Grover and Usha Ramanathan, and both jurists, from Delhi, and this
writer. Advocate Sister Mary Scaria and Delhi lawyer P I Jose, senior
advocate Muchhala, and leaders of the Jamiat-e-Ulema-i-Hind and the
Jamiat-e-Islami-e-Hind were represented. For some time, Solicitor
General Subramaniam was also involved. The committee was also noted
for several eminent jurists including Prof Upendra Buxi who could not
attend a single meeting for personal or health reasons.
After sittings lasting more than a year, the working group came up
with a draft. This was sent to Additional Solicitor General Indira
Jaisingh for re-formatting. The resultant draft, called the Prevention
of Communal and Targeted Violence (Access to Justice and Reparations)
Bill, 2011 has been put on the NAC website and people’s reactions have
been sought with a deadline of 10th June 2011. The draft is not the
Bill which will be presented in either House of Parliament, presumably
later this year in the Monsoon or winter sessions. It still has to be
whetted by the Union Home Ministry, which has its own draft ready for
which it has been canvassing, and by the Union Law Ministry, the final
arbiter of its readiness for Parliament. Even if it clears these two
major hurdles and becomes a Bill, chances are it will be subject to a
minute examination in a select committee. One does not have to be a
parliamentary expert to predict the Bill will have really very
difficult passage indeed in the two houses of Parliament, even if the
government seems willing to stake its political future in backing the
bill.

But long before the processes take place for a sane debate, the Sangh
Parivar has launched a pre-emptive offensive. The Bharatiya Janata
Party, the political wing of the Rashtriya Swayamsevak Sangh, has held
formal press conferences, and its spokespersons have dominated the TV
channels in tailor-made debates. Sangh think tanks have called for
consultations on the issue, and their most articulate champion, leader
of the Opposition in the Rajya Sabha, advocate Arun Jaitely has gone
to town saying, as a newspaper headlines screamed, that the “Draft
Bill on communal violence [is] more draconian than TADA”. Arun
Jaitely wrote an extraordinary public note clearly indicating that not
only would the BJP not support it in Parliament but that it would
“fall foul of the Constitution as the Centre would have usurped the
jurisdiction of the States on law and order, a subject clearly and
entirely within their domain.”

Understandably, as the leader of a party repeatedly indicted for
spreading hate, Jaitely would be critical of any law that made hate
propaganda as an offence and an outbreak of communal violence
attracting President's rule in a state, presumably where the party was
in power. Jaitely also said the draft Bill was discriminatory as it
exclusively dealt with violence targeted against a minority and did
not deal with the possibility of minority violence against a majority
community. The proposed law was to “fix senior leaders,” the BJP felt.
Other aspects he faulted were the presence of four members of the
minorities on the proposed 7-member national authority for communal
harmony - and similar state authorities.

The Union government fielded HRD minister Kapil Sibal, more eminent a
lawyer than perhaps even Jaitely, to counter the BJP. Sibal said the
Centre was determined to make State governments and individuals
responsible for law and order “accountable” in cases of communal
violence. “A polity which is just, fair and equitable needs to protect
the weaker sections, minorities, SCs and STs,” Sibal said. The
Congress, he said agreed the State governments would have to be on
board if the draft Bill was ever to become law. Sibal’s party
colleague Manu Singhvi said a special law was needed because the
normal provisions were tardy, there were no special courts, and the
offense was not described and defined clearly.

National Commission for Minorities chairman Wajahat Habibullah, who
had taken over just this year said the existing laws are sufficient
because of the fact that they don't deal with prevention. “The Bill is
not an Act only to handle communal violence but it is also to prevent
it and then to rehabilitate those who are victims.” Habibullah made a
critical observation, noting that the important elements, repatriation
and rehabilitation, have so far met with a mental block in society.
“In our country, it is something that we can be ashamed of, the anti-
Sikh riots that took place, what happened in Kandhamal, what happened
in 2002. We do need to address these with a sense of urgency and also
with an essence of importance,” he said.

Outside of the political posturing of the BJP leadership, many in the
NAC and most in civil society the draft is not a perfect one. Its
formulation has not been without acrimony and controversy.

Ms Shabnam Hashmi, jurists Vrinda Grover and Usha Ramanathan and this
writer issued a press statement resigning from the working group,
expressing their own reservations to several aspects of the Bill,
especially in areas of Centre-State relations, impunity, and trigger
mechanisms to make operative central intervention. We had reservations
also about the powers and structures of the Central and State
authorities sought to be created to oversee the control of violence
and issues of reparation and so on and finally to ensure the
empowerment of the victims and ending impunity. There was a sense of
shock that the draft as it was finally put on the internet introduced
`internal disturbance' as one of the entry points, a matter which in
previous consultations had been firmly rejected. “It has a
constitutional history, and does things to the nature of state power
that we ought never to be endorsing.” The second part of Article 355,
which reads "and to ensure that the government of every state is
carried on in accordance with the provisions of this Constitution",
was to be the entry point for the law.

Several Muslim members have also wanted the draft law to be tweaked in
several areas to meet the challenge of hate campaigns, violence,
rehabilitation and reparations.

Understandably, again, the NAC is defensive about criticism of the
Bill, emanating from within or from political opponents. For one, Mrs
Sonia Gandhi ahs identified this issue as one of the major ones the
NAC must get the government to act upon, together with issues such as
food guarantee, and a life of dignity for domestic workers.
NAC members say the Bill made provision for all minorities — not just
religious, but linguistic and regional as well. Seven States — Jammu
and Kashmir, Punjab, Mizoram, Manipur, Meghalaya, Nagaland, Arunachal
Pradesh and the Union Territory of Lakshadweep Island –have Hindus as
a religious minority. The NAC has also made a specific recommendation
that the Bill should be extended to Jammu and Kashmir, so that
Kashmiri Pandits would also be covered; it also points out that
migrants from east Uttar Pradesh and Bihar in Maharashtra — most of
who are Hindus — would also be covered by the Bill. I must add that
several of us have issues with extending the law to Jammu and Kashmir
valley which is beset with so many other issues, including terrorism,
the heavy military presence, massive human rights violations, to name
the maor ones.

The focus of the Bill is those particularly vulnerable groups of
citizens, who are routinely subjected to violence or threats of
violence in different forms because of ‘who they are’. The existing
provisions of law fail because of a similar systemic bias in the
administrative and criminal justice machinery against these most
disadvantaged groups. Their vulnerability stands twice enhanced.

An important clause is the Accountability of Public Officials. This is
being secured through reiterating the duties of public officials, and
defining offences by public officials as the failure to perform those
duties. Offences by public officials shall attract penal consequences
under this Bill as often the greatest cause for communal and targeted
violence is that police and bureaucrats simply do not act. The Bill
recognizes the offences of both commission and omission.

Similarly, hate campaigns are sought to be checked in recognizing the
creation of a ‘hostile environment against a group’ and the Bill
specifically defines a series of acts that amount to creating a
intimidating or hostile environment against members of groups,
including economic boycott, denial of public services, and forced
migration. It defines as the duty of public servants to identify the
creation of such a ‘hostile environment’ and to prevent any communal
and targeted violence against such members of groups.

Perhaps the one of the most controversial issue is of Command
Responsibility. The NAC feels that 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
officer on the ground whose dereliction is visible. This Bill
identifies culpability for those who are ‘effectively in-charge,’
through the doctrine of command responsibility. In cases of
widespread, mass violence, the command responsibility shall reasonably
be presumed to extend to the immediate superior officer who shall be
held guilty of such offence. However, the chain of command
responsibility may extend to any level where effective decisions to
act or not act are taken. This also extends to Non State Actors and
any association.

But absolutely the most controversial is the attempt to create a:
National Authority for Communal Harmony, Justice & Reparation and
State Authorities for Communal Harmony, Justice & Reparation more
powerful than any other institution created after the Constitution was
promulgated in 1950. NAC defends itself saying the principle behind
this Bill is not to supersede the existing law enforcement machinery,
nor to disempower or paralyze the existing administrative and justice
mechanisms, but rather to strengthen them and make them work by making
them more accountable.

The primary monitoring and grievance redressal mechanism laid out in
this Bill in the form of the National Authority and State Authorities
(NA/SA) do not, in any instance, take over any existing powers of any
public official or institution. NAC says their only mandate is to
ensure that public functionaries act to prevent and control communal
and targeted violence, and to ensure justice and reparation when
violence occurs. The National and State authorities will 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.: NAC
says through the NA/SA this Bill is seeking to create a mechanism that
can make the administrative and criminal justice system work as it
should, free from favour or bias or malafide intent. 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 panels are to be chosen by a Selection Committee
for members consisting of the Prime Minister, Chairperson, Leader of
the Opposition in the House of the People, Union Minister for Home
Affairs, Leader of each recognized national political party in the
House of the People. The Selection Committee for members (including
Chairperson). In the States, the Chief Minister shall be the
Chairperson.

The new Offences of communal and targeted violence, including
‘organized’ communal and targeted violence and mass violence that is
widespread or systematic in nature is also defined specifically as
‘organized’ communal and targeted violence.

This Bill recognizes that for rights to relief, reparation,
restitution and compensation, there are no statutory norms and
provisions for any Indian citizen under present law. Thus, all
affected persons (whether or not they belong to a religious or
linguistic minority or are SCs or STs) have been given justiciable
rights to comprehensive reparations and compensation if they suffer
any harm as a result of an incident of communal and targeted violence.
So far, 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 5 lakhs.

Addressing the Arun Jaitely charge of violating the sacred nature of
federalism, NAC says the advisories and recommendations of the
National Authority are not binding on any State Government, nor does
the Bill create any new powers as they are already extant in law.

On our part, working group members have repeatedly reminder the NAC
that Communal violence is not inevitable; it is not the norm in a
maturing democracy, an economic and political superpower, and a caring
multi-cultural society such as India wants to be in the 21st Century.
Communal violence can be prevented if pre-emptive action by a non-
partisan administration [Intelligence, magistracy and police, as also
political leadership from Panchayat head to the Chief Minister of the
State] is taken at any stage before it explodes as a full-blown mass
murder and arson.

Most of us are sure a democracy needs be vigilant against virulent
political processes and entities, penetration of educational systems
and politicisation of civil, police and military structures and must
take pre-emptive measures. In Europe, Country Laws show they are aware
of the menace of Neo Nazism and Anti Semitism and have taken
precautions. The CV Bill must articulate this awareness.

Demonising and constructing images of the “Other”, specially of the
Christian and Muslim communities, in gossip and political activity in
the public domain, in general and political Media including the
electronic media and Internet are now routine. Care has to be taken
that it is not the victim-survivor who is punished anew by police and
administrative action in imposition of curfew, search and arrest
operations. Peace with Justice remains the core issue.