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.