Christian reponse to draft bill on preventing communal violence

Christian community issues with National Advisory Council Draft Bill on ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011

The following note was endorsed at a National Consultations of Christian Leaders on Saturday, 11th June 2011, presided over by the Archbishop of Delhi, His Grace Vincent M Concessao, and attended by Bishops, Church leaders from the CBCI, NCCI, CNI, EFI, aicc, Evangelical and Pentecostal churches, NGOs and lawyers and Scholars from across India endorsed the following response and commentary on the National Advisory Council Draft Bill on ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. Supreme Court advocate and Human Rights activist Ms Vrinda Grover facilitated the Consultations, held at the India International Centre, and hosted by the All India Christian Council.

This note articulates major issues of agreement with the NAC draft, which is a great improvement on the 2005 Bill now in the Rajya Sabha, but also some points of serious disagreement. It also answers the questioned in some political quarters as to why the law on Communal Violence must specifically address protection of religious minorities.

Dr John Dayal, Advocate Sister Mary Scaria and Advocate P I Jose were members of the NAC working group. Of them, Adv P I José was on the drafting committee and Dr Dayal and Sister Mary on the advisory Committee. At all stages of the year long discussions we had filed our points of view, suggestions and objections in writing to the NAC. We worked in the backdrop of the anti Christian violence ion Kandhamal in 2007-2008, in Gujarat and Karnataka and in 12 other states in the last ten years. These states were ruled by the BJP, the Congress and by various regional parties.

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The need for a new legislative mechanism, to deal with communal violence targeting religious minorities, was confirmed by the experience of the 1983 Nellie killings in Assam, anti Sikh massacre of 1984, the genocidal pogrom against Muslims in Gujarat in 2002 among others. The abdication of all preventive measures, absence of protection for the lives and properties of the religious minorities and the absolute impunity thereafter for these crimes characterised each violent assault.

State records, such as Commission of Inquiry reports, of the 1961 Jabalpur riots, the Madon Commission report of Bhiwandi riots in 1970, the report into the Bhagalpore riots of 1989 and the Srikrishna Commission report on Bombay riots of 1992-1993, all documented that, prior to, during and post the violent attacks on religious minorities, state complicity and institutional bias was evident among different public authorities and state officials. Time after time the protection of minorities was highlighted as an issue of concern and this placed centre stage the need for legal and other measures to be taken to ensure protection of religious minorities.

Some of the issues that emerged from the narratives of these experiences reveal acts of omission and commission by officers of the state and others, who wield the power of the state. It was found time and again that violence could have been controlled or stopped if there had been willingness to act on behalf of the state. The problem of state complicity and impunity are recurring themes in all these episodes.

People impacted by communal violence do span all communities. However studies and data clearly indicate, that religious minorities suffer greater harm and loss, and find less protection from the law, due to institutional bias in the performance of statutory duties. This has been a serious lacunae that has for some decades required to be addressed.

The Constitutional promise of equality before the law, as embodied in Article 14, requires us to make rational discrimination in our treatment of problems that come before us. The mounting evidence in the decades past, show that the legal protection secured for religious minorities has declined, gravely infringing their enjoyment of the right to life and other fundamental rights, as citizens. This calls for a corrective measure in the exercise of state power and actions of state agencies, to restore equality in the working of the law. This explains why a special legislation for religious minorities is being proposed. The outcry by the BJP against a law for protecting the rights of religious minorities is neither legally nor factually tenable. In so far as Scheduled Castes and Scheduled Tribes are concerned the State under Article 15(4) Constitution can make laws for their protection.

Campaign for a CV law initiated by civil society activists
The campaign, for a law to protect religious minorities and punish the sponsors, abettors and perpetrators of communal and targeted violence, was initiated by civil society groups and activists. (This legislation is commonly referred to as the CV Bill). The CV Bill placed before Parliament by the UPA Government in 2005, was rejected outright by civil society. Through 2 National Consultations, the key elements and a draft outline of the law was prepared, drawing upon experience, insights and discussions with victim survivors, activists and legal and other experts.

There was unanimity that a new law was required to respect and protect the rights of religious minorities Scheduled Castes and Scheduled Tribes, cognizant of the contours of communal and targeted violence. The primary focus of such a law, it was agreed, would be making those exercising state authority and power accountable to the law; through the setting out of offences by public officials and those with the power to protect persons and communities affected by communal and targeted violence; hold the superior functionaries culpable; dilute the shield of impunity. Enabling provisions to allow the victim/ witness to access the criminal justice system would be incorporated, mindful that fair trial standards and rights of the accused are respected.

The new law would also introduce the rights of all affected persons to reparation from the State. From the analysis of communal and targeted violence, it was clear to the activists that the new legislation should not in any way enhance the arsenal of State power. A draft outline of the CV Bill was submitted by civil society activists to the Hon’ble Law Minister, in May 2010.

In July 2010 the NAC Working Group on the Communal Violence Bill set up an Advisory Group and Drafting Committee, to prepare a draft legislation on the subject. The Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, prepared by NAC and on which comments are invited, has some disturbing features which we believe are contrary to the purpose and objectives of such a law. It is a cause of serious concern for all of us that a Bill which contains regressive and draconian principles, has been adopted by the NAC and proposed as its draft CV Bill.

The pernicious idea of “disturbed area” was proposed in the Government CV Bill of 2005. Well aware that the accumulation of extraordinary powers in the hands of state authorities leads to gross violations of human rights, as witnessed in Punjab, Nagaland, Manipur and Kashmir, civil society contested any use of the mechanism of disturbed area on the pretext of providing protection to victims. The Key Elements of the CV Bill as enumerated on the NAC website also state that the “Basic framework of law must not rest on declaration of “disturbed areas””. This has been the consistent position through the discussions on the making of the law.

The NAC draft Bill however in Clause 20 reintroduces the idea of “internal disturbance” and states that organized communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution, and empowers the Centre to take such measures as required. During the drafting process it was suggested to the NAC that reliance for Entry point of the law should be on the latter part of Article 355, “to ensure that the government of every state is carried on in accordance with the provisions of this Constitution”.

The inclusion of any form of “ disturbed areas” device to concentrate power in the hands of certain government functionaries is not acceptable. Clause 20 also attempts to reconfigure the federal equation between the Centre and State, a move that is ill advised and counterproductive. It would indeed be short sighted of civil society to support any provisions that further legitimise use of draconian measures by the state against the citizenry.

Central to the drafting of a new CV Bill is a definition that describes what constitutes ‘’communal and targeted violence”. Civil society groups had through public consultations arrived at a working definition in May 2010, and forwarded the same to the Law Minister. The NAC Draft CV Bill, proposes in Clause 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.” This definition is central to the Bill, and all offences and rights of victims to justice and reparation will ensue only if the action warrants description as a communal and targeted violence. It is arguable, if any event of violence in post independent India, whether against religious minorities or Scheduled Castes or Scheduled Tribes, can be said have destroyed the secular fabric of India.

The aim of the civil society campaign for a CV Bill is to provide statutory protection against all and each act of communal and targeted violence. The NAC draft Bill has raised the threshold so high that no act of communal and targeted violence against Dalits, Scheduled Tribes or religious minorities would come within the ambit of the CV Bill. This preliminary definition, by shifting its focus away from affected people, whose security, equality and citizenship are jeopardized by communal and targeted violence or organized communal and targeted violence, has ousted the most vulnerable from its statutory protection, rendering this Bill toothless and meaningless.

One main thrust of this legislation is to counter impunity by securing accountability from all persons exercising State power, for acts of omission and commission, relating to communal and targeted violence. This requires the acknowledgment of certain offences in the CV Bill. At the same time since this Bill deals with offences it is important to define them sharply and clearly. The NAC Bill falters on both these counts. It fails to incorporate crimes such as disappearances, although India is already a signatory to the Convention Against Enforced and Involuntary Disappearances and has in its recent pledge before the Human Rights Council at the UN, stated that it would work towards ratification of the Convention.

The definition of Torture in Clause 12 of the NAC draft Bill falls short of the definition proposed by the Rajya Sabha Select Committee on the Prevention of Torture Bill. Definition of command or superior responsibility in Clauses 14-15 as well as offences by public servants in Clause 13, which extend criminal liability to those who mastermind, sponsor and allow communal and targeted violence, lack legal certainty and precision. Inclusion of phrases such as ‘impartial’, ‘fairness’, ‘respectful’ or ‘dignity’, do not secure any rights for the victims nor do they place any legal obligation on duty bearers. For impunity to be reined in, particularly at the top echelons of political and administrative authority, much more purposeful drafting is required.

The NAC draft Bill makes a half-hearted attempt to address the difficult circumstances in which victims of communal and targeted violence find themselves in the aftermath of an attack. Clause 61 of this Bill, recognizes the need to assist displaced victims to initiate legal proceedings. However it is baffling why the police officer visiting the relief camp, “will record statements and conduct an inquiry into the circumstances and cause of each individual being displaced and put in a relief camp”. Would the cause of justice not be better served if the police officer records statements of victims with respect to commission of cognizable offences, dispatch such statements to be registered as FIR and investigated by the Police Station of competent jurisdiction. Similarly Clause 64 (1) is misconceived, as it makes it compulsory for the statement of victim- informant to be recorded by a Magistrate on oath. This does not recognize the situation in which victims find themselves after a communal and targeted assault and will only heighten their vulnerability, particularly in light of the scant protection offered to witnesses by this Bill. Clause 64 (4), which permits a victim or witness to submit any statement or material directly to the Designated Court and the same shall form part of the chargesheet is contrary to all norms of fair trial standards and deserves deletion.

For victims and witnesses of communal and targeted violence to access justice, a few enabling provisions are required. The NAC Bill fails to draw upon the advances made in the jurisprudence and practices of victim and witness protection and restricts victim protection only to ‘the period of investigation and trial’ (refer to Clauses 86-87). The NAC draft Bill places no obligation on the State to protect witnesses after they depose against the socially and politically powerful. This Bill claims to offer protection during trial by keeping the identity of the witnesses confidential. However Clause 88 of the NAC draft Bill makes it mandatory for all court proceedings under this law to be video recorded and a copy of this recording to be given to the accused person among others. While apparently enhancing transparency, there is a serious apprehension that in the short term and long run, these video recorded proceedings may increase the vulnerability of the victim/witnesses.

Further to withstand legal scrutiny, the deviation from, the Criminal Procedure Code and the law of evidence in this legislation, must be minimal. It is extremely unfortunate that the NAC draft Bill draws upon provisions found in draconian laws such as MCOCA and earlier in TADA and POTA, to modify criminal procedure. Illustrative of this is Clause 82, which authorises attachment of property of the accused at the stage of charge, without the usual guidance that such property should be linked to the offence.

Again Clause 85, increases the period of detention of the accused and places a heavier burden on the accused for securing bail. Similarly Clause 67, of this Bill gives the state and central government the power to intercept telephonic communication, and censor and control the same. The draft Bill states that "any message or class of messages to or from any person or class of persons or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the government ..." This could well be used to stop messages going out to, or from, victim groups. Why would we want to risk legalising this kind of power? It is regrettable that no lessons seem to have been learnt, that the whittling down of civil liberties in one sphere provides the state with an alibi to erode rights across the board. The very ‘group’ that this Bill seeks to protect could well become the target of such excessive measures.

Clause 78 of this Bill is based on a flawed understanding of the criminal justice system. The Special Public Prosecutor (SPP) in a criminal trial represents the state and not the victim/ informant or witness. The role of the SPP is to advance the interests of justice in a criminal trial and not the interests of a victim or witness. Accordingly the appointment or dismissal of a SPP cannot be decided through “general public comments” or to serve the interests of any party before the Court. Fair trial standards demand that the SPP discharges his duty without bias against any party.


With 178 human rights institutions already in existence, clearly any proposal to establish newer bodies must be approached with maturity and sobriety. The limited purpose why a National Authority is needed is only to ensure that the changes brought in through this CV law, particularly in relation to offences committed by public servants, superiors and commanders are operationalised. That is the specific purpose and it is to ensure this that that the latter part of Art. 355 is operationalised. This is an important function of the Union government at the Centre, not to be intrusive, not to be usurping of the power of the state, but to ensure that the laws are implemented and the State performs its functions in accordance with the constitution. If there is a state authority, as envisaged in the NAC draft Bill, the drafts persons may need to explain how an authority located within the state will keep itself aloof from the immediacy of the violations and not be open to use and abuse.

The most promising aspect of the relief and rehabilitation chapter of the NAC draft Bill, is that it recognizes that while the religious minority suffer a particular disadvantage in terms of impunity and complicity of the state, all victims of communal and targeted violence need to be recognized in law for purposes of compensation, relief, rehabilitation etc. That has been acknowledged in the law and this is an important acknowledgment. However due to tardy drafting, rights for all affected persons regardless of denomination, is not reflected in Clause 90.

The way relief and rehabilitation has been conceptualized in this Bill however is quite problematic, it is paternalistic and does not invest rights in the affected persons. The term reparation under international law encompasses within it aspects of rescue, relief, compensation, rehabilitation, public apology and guarantee of non-repetition. The term ‘reparation’ in the NAC draft Bill has been used alongside relief, compensation etc. which is confusing and misleading. A clear articulation of the right to reparation and what it encompasses is required in the law.

The idea that loss of earning capacity should be a criterion for determination of compensation for victims of communal and targeted violence is contrary to any notion of reparative justice. The draft Bill does not recognise that victims of targeted and communal violence are not akin to victims of natural disaster, or victims of industrial disaster, or victims of workplace accidents (Schedule IV). Introducing loss of income as the basis for determining compensation misses the distinctiveness of victims of targeted and communal violence, which often includes dislocation, exclusion, difficulties of return, the failure of responsibility of the state to protect. The present Schedule is a partial compilation of existing provisions, but it is difficult to see how these may be relevant in the context. More thinking needs to go into what would constitute compensation where communal and targeted violence occurs. The Bill sees State assessment committee and District Assessment committees as agencies that will identify victims, make lists, issue identity cards and certificates. There is an objectification of the victim that apart from other things is not in consonance with the way international law has developed to help us see the place occupied by victims. There is a token mention of agencies of victims with the full participation of the victims but the same is not actualised in the way the chapter is set out. Revamping of this chapter to recognise the rights of the victims, the responsibility and obligations of state actors, liabilities of the state and consequences when these obligations are not fulfilled, is necessary.

Clause 111 of the draft Bill seems to have strayed into this Bill. It is taken from the Bhopal Claims Act 1985, which was later introduced in Schedule to the National Environment Tribunals Act 1995 (which passed into oblivion without ever being notified). The Bhopal Claims Act dealt with a situation where a corporation, as an economic centre of power, may be required to pay for all costs, injuries and losses arising from an industrial disaster. The CV Bill does not share any aspect of the situation. The idea that administrative costs and litigation costs, for example, are to be recovered does not acknowledge the complicity of the state nor how the offender will be identified who should pay for the costs set out in the Schedule. This is inapposite, and adds to the confusion on compensation and reparation.

Among the disturbing equivalences made in the draft Bill is the use of the standard in the Land Acquisition Act 1894 in computing loss due to injury to property. It is widely known that `compensation’ in the 1894 Act is as contested as the power of the state to compulsorily acquire under that Act. Reference to compulsory acquisition as setting the standard, and relying on the highly contested 1894 Act to dictate compensation for injury to property, is inexplicable.

The retention of requirement of prior sanction for prosecution of public servants and the good faith clause for actions done in pursuance of the Bill, subvert the main objective of this Bill and is a contradiction in terms. Interestingly Clause 76 of this draft Bill excludes prior sanction for offences detailed in Schedule III, which are largely offences under the Indian Penal Code pertaining to the performance of official functions by public servant. However the requirement of prior sanction has been retained for graver offences enumerated in Schedule II and more significantly for all the crimes formulated in this draft Bill. Clause 130 of this draft Bill, retains the good faith clause for all acts done by public servants of the Central government, State government, National Authority and State Authority, sowing the seeds for lack of accountability and transparency in discharge of public functions.

We, cannot accept the present NAC Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. We continue our struggle for a meaningful and effective CV Bill, fully engaging government and civil society in the process.

Would they count you if you said you were a Dalit Christian?

Pitfalls and questions on the Caste-religion-poverty census

John Dayal

When St. Stephen’s college this year did away with the “”Dalit Christian Quota” they had announced some years ago with such fanfare, it was not the college management, much maligned though it is, but the country’s legal dispensation which made the retrograde step inevitable. How does a Dalit Christian really prove his identity? The Bishop or pastor will give him a baptism certificate attesting to his membership to a church. But who will give him the “Dalit” certificate. Civil authorities will routinely deny the student a Scheduled Caste certificate because under existing law – the “black law” of Para Three of Article 341 of the Constitution of India – will recognise him worthy of affirmative action only if he is a Hindu, or at least a Buddhist or a Sikh. Christians, and Muslims, are just outside the law, much as their ancestors were outside Manu’s legal perimeter of caste.

It may be interest to note that the National Sample Survey Organisation, which conducts regular qualitative surveys in the country, in its report on the 61st round data for 2004-05 says only about 26 per cent of all Hindus are considered as the High Castes or socio-economically better offs; whereas, about 60 per cent of Muslims fall into the non-OBC and thus socio-economically better off category. This is because none from the Muslims, and Christians, are classified under the Scheduled Caste category. Many of them may well be listed as Hindus, as happens in Andhra all the time.

So what are the chances that the Caste census, controversial for a hundred other reasons, will count Dalit Christians? The chances seem Zero at the moment of writing, because the government has quite deliberately woven a cloud of confusion on just what is its intention.

And while the Muslims, and a section of civil society, have spoken out, the combined Church has kept quiet, possibly because it remains preoccupied with issues spiritual or in protecting institutions and text books from the vagaries of the State,. But also because historically, the church has sought not to be the first to intervene, or to cry foul, when civil and constitutional issues are being discussed. Little wonder that while the Muslim community is going into the preparation of the 12th Five Year Plan armed with thousands of pages of data and analysis, the best the Christian community journals and institutions have been able to do is to congratulate the handful of Christians nominated to various committees or commissions.

We should really have been the first to be awakened to the ramifications of a Census! Jesus was born in a manger in Bethlehem because Mary and Joseph were trudging to their hometown to be counted in a census ordered by Caesar.

But perhaps it is still not too late to stand up and be counted as others pose serious questions to the government on the caste census. The first question of course, should be whether this is within the laws which govern the work of the Registrar General of India, or the Census Commissioner as the office is popularly known, in preparing the. National Population Register (NPR).

This is an important issue because the laws specify that a citizen is free to spell out his identity as he sees it. The second is that the information that an individual gives to the enumerator is kept a secret. It is not the individual but the totals that are published in the final picture.

In fact the government goes much beyond the law when it comes to the Census. It releases the religious composition of the population of the country, and of individual states, much after it has released the general figures. And then, it refuses to announce the religious composition in units smaller than the district. There is no chance of anyone, including government departments, of ever finding out the religious composition of a “Block”, and there are eight to sixteen blocks in a district. The religious composition of any particular village within the block is of course never published. Even if every local politician and caste leader may know it by wrote, micro level religious (and caste,) breakdowns are deemed far too “sensitive” as data. Asked why is such data deemed to be sensitive, senior government officers told this writer that it may lead to religious profiling, and possibly violence if groups come to fear an unexpected growth in the number of a community they deem to be hostile, or at least estranged.

It was because of a political reluctance to face facts – the exact number and size of various caste groups in India – that the government never bothered to include Caste identity while enumerating censuses after the 1931 one, which was done at the height of the British Raj. After Independence in 1947, the only statutory enumeration was of the Scheduled caste (excluding those converted to Christianity and Islam) and Scheduled Tribes which was needed to fulfil Constitutional obligations by way of reservations in government jobs and educational institutions, and other affirmative action benefits and sops.

Even after the so called Mandal revolution which politically empowered the backward communities – catapulting into power such people as Mulayam Singh Yadav in Uttar Pradesh and Lalloo Yadav in Bihar -- the Union government fought off all demands to count the castes. The issue figured repeatedly in Parliament eve decade, with the government refusing to budge.

It was only as a consequence of the reservation of up to 27 per cent for Other Backward Communities (OBCs) ordered last decade that the government at last said it would consider making a head count of caste populations specific to each state. This was because castes defined as OBCs in one state may not be so defined in another case. An example was that of Jats (Hindu Jats, not Jat Sikhs of Punjab) who are a powerful landowning group in Uttar Pradesh and Haryana but are a weaker OBC group in Rajasthan. A political consensus was reached in parliament on such a census last year.

There was a bit of a national shock, however, when government changed its mind in October 2010, when preparatory work had almost been completed for the 2011 household survey and the Census. It was official: Caste was not being counted in the formal Census.

In the face of an almighty howl of protest from across the country, government reluctantly announced it would have a separate counting of OBCs, even if cost the national exchequer another couple of thousands of cores of rupees.
But this is not a government that let things be as promised. Even as agitated OBC groups were coming to terms with a separate Caste count, not a formal census as understood in law, came the news that the government planned to “dovetail” caste census with a survey of the BPL, or below the poverty line, families. As the Hindu newspaper reported, the entire exercise should be completed by the end of this year. Governmnt officials who briefed the newspaper off the record said dovetailing the two exercises would ensure that the castes enumerated can be correlated with the socio-economic data, and facilitate a more focussed targeting of the government's welfare measures. “Correlating people's caste identities with their educational and economic status would help map the population better, thus ensuring a more accurate targeting of welfare schemes.”

As currently envisaged, the caste census cum BPL survey will be conducted by the Registrar-General and Census Commissioner India, and the Union Ministries of Housing and Urban Poverty Alleviation (HUPA) and Rural Development (RD), sources added. While the HUPA Ministry will focus on the urban areas, the RD Ministry will survey the rural areas. Those surveyed will be asked to name their caste, but this caste data will not be cross-checked. People will be free to say “no caste” as well. Dalit Christians and Pasmanda Muslims unfortunately, cannot get thimbles listed. But in Tamil Nadu for instance, and in some other states, Christians in certain traditional professions such as boatmen and fishermen can articulate their OBC or Most backward Community status.

The spotlight focussed on the Below Poverty Line families after a World Bank review – done at the behest of the Planning commission now drafting the 12th Five year Plan – which analysed centrally-sponsored social security schemes, including the Mahatma Gandhi National Rural Employment Guarantee Scheme, the Public Distribution System, the Rashtriya Swasthya Bima Yojana, Indira Awas Yojana and Indira Gandhi Old Age Pension Scheme.

The World Bank is of course against programmes that are focussed on BPL groups. It finds serious problems with the scheme. According to its survey, a third of the poorest ten per cent of the people have been incorrectly identified as non-poor in the 2002 BPL census. The data becomes worse for slightly better off – but still BPL -- families.

The World Bank has a good word for “general” schemes such as the Mahatma Gandhi National Rural Employment scheme which covers the rural poor irrespective of caste, religion or other factors.
But we digress.

Dr Abu Sahel Sharief, the economist who actually wrote the celebrated Justice Rajindar Sachhar report on the socio-economic situation of Muslims in India, told this writer there are many controversies in terms of a methodology and variables which will be used to identify the poor.

“What is underplayed and not adequately highlighted is the fact that the Caste Census will be undertaken for the first time since the Independence. Such data are likely to be used in determining and revising the cast and class linked quotas in national and state government jobs, admissions in educational institutions such as in colleges and universities and access to targeted social services. The caste census is being conducted without adequate methodological and analytical preparedness and since caste, class and religious identities have complex inter-relationships there will be ramifications which will be difficult to resolve in future” he added in a written statement.
The Muslim community has done a detailed analysis of the situation.

They note that the collection of caste data is politically motivated and is expected to provide structured information so as to allocate or enhance respective shares in reservations for the SCs, the STs and the OBCs.
They feel the Indian Caste Census (ICC-2011) is likely to trigger a drive for Indian citizens of all castes and communities to get enrolled into deprived categorizations in what Abu Saleh Sharief calls Competitive Backwardness. Muslims converted from the former untouchable Hindu castes (now called Pasmanda Muslims as those who converted to Christianity from the same caste group are called Dalit Christians) will face census enumerators who will not recognize them because the ‘Census filtering procedures’ which only list officially recognised caste-religious groups. This entire issue is before the Supreme Court of India in a Public Interest Litigation writ filed by various Islamic and Christian groups.

The Census will also collect data on select economic and education indicators and asset ownership so as to categorize households into the ‘below poverty line’ or ‘above poverty line’ status. Such data long with religion and caste are expected to be used to compute the relative backwardness or forwardness of a caste group; which, the economist says, will have ramifications in determining the eligibility to jobs and higher level educational admissions under the quota system. In future, this may hinder efforts of the poorer sections of religious minorities from raising their economic and social status.

The government has not yet clarified if the caste-BPL census will be generally based on the Mandal Commission list of OBCs. The government at present does not really have any alternate lists to be used in the 30 States of the Union.

Muslim intelligentsia have suggested, a point I entirely endorse, that the caste Census should be undertaken only after the pending Supreme Court judgment in the matter of the recognition of the presence of ‘dalit’ identities amongst the Muslims and Christens in India is decided.

It is also suggested that enumerators be instructed to collect this information as reported, and not to filter out caste reporting linked to religion.

A civil society memorandum to the government, which this writer also signed, also demands that the caste-related data collected from June-December, 2011 reliably capture the castes’ educational status and their share in various job categories. This should show which castes have been left behind in education and employment in six decades of independence.

Secondly, the census should enumerate numeration socio-economic, educational, living standards, economic and employment profile, land holding and if the family has derived any benefits from Union and state development schemes.

The memorandum ahs again stressed the point raised by Dr Sharief, that data should be collected for all the castes and caste equivalents in non caste practicing communities or religious populations. No particular caste or caste group should be excluded from this. Any non-Hindu religious group that volunteers its caste identity -- Dalit Christians, for instance -- should be identified as such. But all this makes for data not legally sound, unless government bring it under the Census Act, 1948.

Christian Dalits will have to await the Supreme Court decision. And no one can say when that judgement will be delivered.

Battle over a Bill

JD For Mainstream June 2011
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
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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.