The National Advisory Council (NAC), came up with a “Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, to address the growing concern of en masse violence - most serious social problem faced in India. The intention to come up with a bill to tackle communal violence is a fine thought. But in a society, the problem has to be tackled through correct and impartial laws that are in sync with the various provisions of the Indian Constitution and nothing more that undermines or negates the rules of separation of powers and checks and balances. The present draft version of the proposed bill by NAC, no doubt has undeniable strengths, but it also suffers from various fatal flaws.
The support for the bill can be brought from a practical point - How can one expect minorities to be patriotic, if they are by definition excluded from the joint ownership of the nation, and violence against them is permitted as a legitimate act or as service to the nation? It is because of this that we see, cases like Godhra riot followed by Best Bakery issue case, the issue of Christians in Kandhmal, etc, which calls for an urgent need for a democratic and secular country like India to protect its minorities from violence. The NAC is thus, then right to emphasise the vulnerability of minorities in Indian state. But do we need a new law and a new bureaucracy to make that point? And even if we do, the law has to be constitutionally sound in nature.
Following are some of the flaws of the draft bill:
1. The Bill is intended to prevent acts of violence, or incitement to violence directed at people by virtue of their membership to any “group”, the definition of which is, “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.”
This definition places the vast majority of the society outside the purview and protection of this bill. Also, this provision is in violation of the fundamental right to Equality (Art 14) enshrined in our constitution. It is not necessary that the violence may always be done by a majority. The reverse too can happen. What if there takes in a communal clash between any two linguistic minorities in a different state, for instance, a clash between south Indian communities and North Indian communities residing in Maharashtra? The definition what exactly constitutes a majority and a minority is way too debatable and no such strict line can be made in today’s migrating trend as to this population is the majority and this minority.
2. The clause 8 of Chapter 2 states that the “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”. This clause is against the freedom of speech and also censorship by media houses. Until and unless a direct causal relationship is established between the material and the act of violence the act to publishing or communicating the material should not be labeled as“hate propaganda”.
3. Now, the section 20 of the Chapter 3 defines an act of communal and targeted violence to constitute an “internal disturbance” under Art 355 and empowers the Central Government to take further action. Now, the Article 355 is followed by Article 366, which calls for Presidential Rule in the state. The Central Government can then not be given the issue to tackle (according to the Constitution). Moreover, issues of law and order fall under the states and are therefore to be looked and managed by the state governments and not by the Central government. Hence, this is against the Federal principle. And moreover, emergency can be proclaimed only if the internal disturbance has been caused by an “armed rebellion”, no such Proclamation can be made for internal disturbance caused by any other situation nor a Proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the Government of State cannot be carried on in accordance with the provisions of the Constitution.
4. The bill makes public servants punishable for failing to discharge their stated duties in an unbiased manner. In addition, public servants have duties such as the duty to provide protection to victims of communal violence and also have to take steps to prevent the outbreak of communal violence. Failing this, the civil servants shall be accused of not exercising “lawful authority vested in him or her under law” and he or she “shall be guilty of dereliction of duty”. The bill makes civil servants legally liable for riots. They will be fired, demoted or reprimanded, if a riot takes place under them. At one level, this is a good step. Quite often it has been seen that an IAS or IPS officers have taken decisions directed by political masters on how to deal with a riot, even though the rule-book makes it clear that the responsibility of law and order at the ground level lies with the civil servant, not with the politician. By making the civil servant liable, the bill seeks to strengthen the civil servant against the politician. The NAC’s assumption is that if civil servants were personally liable for riots, there is a greater chance they would act according to the rule-book, not wait for political signals from above. But this assumption is only half right. Rioting is increased when not checked properly by the administrators but it takes place due to various reasons. Rioting is also, in part, a result of how social and economic life is organised in a town, whether Hindus and Muslims are segregated or integrated, and what incentives or capacities such local structures have created for politicians, always in search of political gains, to inflame and polarise, or calm and unite, local communities. So, the same IAS officer could have functioned well in one district say, Shimla, or Nainital, often would feel helpless when given a district like Hyderabad, Mumbai, Ahmadabad, Meerut.
5. The bill also envisions creation of a new set of state institutions: a National Authority for Communal Harmony, Justice and Reparation, headquartered in Delhi. The National Authority will have seven members, supported by a “Secretary General, who shall be an officer to the rank of the Secretary to the Government of India”. Presumably, the members will have the rank of ministers of state and the chairperson will be of full ministerial rank. The National Authority will be given police and investigative staff when necessary; it can investigate the conduct of army officers during riots; it will have the powers of a civil court for inquiry and investigation; and all district magistrates and police commissioners will be required to report to it on matters concerning communal violence. There will be corresponding institutions at the state level, too. A massive bureaucracy will thus be created with unprecedented powers.
6. Further the extent and scope of power vested with the National Authority does not merely extend to the state law enforcement agencies such as police officers but also brings the entire Armed Forces within the ambit of the term “public official.” This Bill therefore blurs the line of differentiation between civilian matters and armed forces. With no judicial intervention, these powers can be extended to any extent.
To sum up, the bill in its present form is unconstitutional in many ways. Riots, in India today have decreased to a great extent but still the prejudice against certain communities remains. So, it is for this reason that we need a construction of an anti-discrimination law and an equal opportunity commission, not a new bureaucracy to prevent riots.