The Communal Violence Bill: A flawed law in the making

D.L. Horowitz, in his ‘The Deadly Ethnic Riot’ defines Communal violence (which is sometimes also referred as inter-communal violence) as a situation where violence is perpetrated across ethnic-lines, and victims are chosen based upon ethnic group membership often resulting in massacres.

As is common knowledge, recently the NAC (National Advisory Council) of India has formulated a draft bill termed as ‘The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011’ that is going to be tabled in the monsoon session of the Parliament, dealing with the same issue. However, is the bill actually what it claims to be?

First and foremost, I would like to say that the short title of the bill is itself a misnomer. Well, yes, I know that’s a pretty strong claim but consider this. What the bill claims to protect the population against is ‘Communal violence’, which is a fairly common occurrence in South Asia, especially the Indian subcontinent, owing to its large ethnic and cultural diversity and typically means a form of mutual aggression, in which members of all involved ethnic groups and sects serve both as the perpetrators as well as the victims of violence. However, a closer look at its various provisions would show that actually it only protects against ‘Genocide’, which is just a sub-category of communal violence, forming a smaller circle within that bigger circle, in which the participating ethnic groups and sects, can be assigned mutually exclusive roles as either perpetrators or victims of violence, i.e. there is solely a one sided aggression. Now, It may not look much but let me warn you that even a small discrepancy can spell ‘hell’ for the people it governs. This ‘Genocide’ is what took place in Nazi Germany while independent India evidently has no proven history of any such event. What India really needs is quite certainly a law dealing with the core issue of ‘Communal violence’ and certainly not a half-hearted vote-bank driven legislation.

One of the biggest scopes for improvement that I see is in the definition clause itself. Many of the provisions contained therein like “Association”, “Communal and Targeted Violence”, “Dereliction of Duty”, “Destroying the secular fabric”, “Hate propaganda”, “Hostile Environment”, “Intimidation”, “Knowledge” and more particularly “Group” and “Victim” are not precise and are of a preferential nature which may give the government unbridled power leading to misuse and could greatly curb the freedom of speech and expression of the press, amongst others.

Also, It gives the Central government previously unseen powers to intervene with the judiciaries’ functioning, including power to refer cases for trial to the Judiciary under the Criminal code, treating proceedings conducted by it as judicial proceedings and power to move cases to judges and courts outside a state on the mere apprehension of impartiality.

Moreover, the bill wrongly takes an extremely perverted assumption that the perpetrator of Communal violence is always the majority. Also the bill empowers any anonymous complainant to file a police case against a member of the majority community for inciting communal hatred binding the police to register it as a non-bailable offence. This could be very easily and widely misused.

What’s more? To complete the picture, the bill even has a striking resemblance to previously failed and misused anti-terror laws like TADA (Terrorist and Disruptive Activities (Prevention) Act), 1985 and POTA (The Prevention of Terrorism Act), 2002.

Further, the National Authority has been presented as an unchecked autonomous body. There is no mention in the entire draft bill on how exactly the proposed ‘National Authority’ will be accountable to the Parliament for its interventionist conduct beyond the token act of placing its annual report during the monsoon session.

With all this and more, if nothing else, the bill certainly manages to raise some deep reaching Questions:

1.                  Is this not a legally objectionable outsourcing of an inherently governmental function of drafting the bill to an external body headed by the UPA chairperson?

2.                  Are the provisions concerning the government’s powers over the judiciary not in violation of the constitution? Don’t they partially take away judiciaries’ independence in its functioning and its powers especially that of administering its own affairs?

3.                  "Who will guard the guards themselves?" doesn’t the same timeless question that the UPA government has been raising as a shield against the Jan Lokpal Bill become the dagger in it own chest in this case?

Thus, before concluding I would just say that even though the current draft of the Prevention of Communal & Targeted Violence Bill is a much improved one, atleast from its previous versions, yet it greatly falls short of the requirements of the times and the expectations of the people.

(Leaving aside any politically motivated debate, this article is purely meant to provide a strictly legalistic exposition of the much-hyped Communal Violence Bill. It only provides a summary view of my own opinion and is meant to raise some hard hitting questions within the minds of its readers and probe them on, into a healthy debate.)