Government must bring Bill against Communal and Targetted viiolence

National advocacy and prayer campaign for Communal Violence Prevention Bill JOHN DAYAL Mr Hazare and many of the middle class who have joined him in his national camoaign against corruption do not seem to take the threat of communalism as seriously. No national campaign has yet been launched against the sort of hate violence that leaves hundreds dead every year in various parts of the country, and periodically peaks in the massacre especially of the religious minorities, particularly Muslims, and occasionally Christians and Sikhs. It has therefore fallen, so to speak, on the church in all its denominational diversity to launch a united campaign of advocacy and prayer to urge that Government of India urgently bring before Parliament and pass the Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill 2011 after suitable amendments that take care of continuing concerns of minorities, and some concerns of state governments. The Bill, commonly called the CV Prevention Bill, was drafted earlier this year by the National Advisory Council and is now with the Union government. The All India Christian Council , an apex Human Rights and Freedom of Faith forum, and several other groups recently inaugurated the prayer campaign with large meetings of priests, pastors and laity in Bangalore, Mysore, Pune and Panchkula in Haryana. Meetings are planned nationwide. The Catholic Bishops Conference of India, the National Council of Churches, Diocesan Bishops and heads of various church groups and NGOs are also being requested to take the prayer and advocacy campaign to the grassroots in every state. The Bill, with some proposed amendments, has been strongly supported by religious minorities as well as by most members of civil society as an effective means to curb communal violence which has plagued this country after Independence in 1947, and bring justice to the victims. In the last ten years there have been more than 6,000 incidents of communal violence, according to information provided by the government to Parliament. Among the most heinous mass crimes against religious communities in India have been the anti-Sikh violence of 1984 in New Delhi and other cities, the anti-Muslim pogrom in Gujarat of 2002 and the anti-Christian massacre and mass arson in Kandhamal in Orissa in which 56,000 persons were forced to flee to forests when over 5,600 houses in 400 villages were burnt down by Hindutva mobs. Over 100 persons were killed, Nuns and other women were raped and over 290 churches destroyed. In all cases, the police and officials stood by without acting. Many police and civil officers were guilty of involvement in all these acts of mass violence, and others were guilty of inaction and impunity. In the first week of December 2011 again in Orissa, 12 families of Christians were attacked in a will planned manner in Keonjhar district. In Kashmir, Pundits in a major way and local Christians have also been subject of targeted violence and threats by fundamentalist elements.. All these have been in reported in Indian Currents. Justice, rehabilitation and resettlement in all cases has been tardy. The worst is the issue of justice. Most victims, including of murder, have been denied justice. In Kandhamal, for instance, not a single person has been convicted for murder. The proposed Bill seeks to secure justice for victims and end the climate of impunity by bringing the guilty officials to book. The proposed law maintains that minorities are denied justice because of the communal behaviour of a section of religious and political extremists and the apathy or involvement of the administration. The Bill will also curb hate speech and similar actions. In recent months, VHP leader Dr Praveen Togadia has called for the beheading of missionaries in issues of conversion. Janata party leader Subramaniam Swamy has launched a slander campaign against the Christian and Muslim communities. The Christian groups have denounced conspiracies to scuttle the Bill. The last meeting of the National Integration Council was an example of how the government failed to intervene effectively in support of the bill which, expectedly, came under severe attack from Chief Ministers of BJP Ruled stares as also some allies of the Congress who had issues with the powers of the states on matters of law and order. The government seems reluctant to take immediate steps and discuss the Bill with political parties to end the attempt of Hindutva groups to raise false alarms against the proposed law. Christian leaders in Mumbai had earlier filed a formal complaint demanding legal action against Dr Subramaniam Swamy for spreading hate and violating the Constitution when he wrote an article in a Mumbai newspaper advocating that Muslims should not be given voting rights. Complaints were also filed in New Delhi. Communalism is as evil as corruption. The minority communities have repeatedly called for strong laws to curb hate campaigns and similar activity which leads to the targeting of minorities and marginalised communities, including Muslims, Christians, Dalits and Tribals. It remains to be seen if gthe government will wake up to its duty in this matter. Box item All that you wanted to know about the Prevention of Communal and Targeted Violence Bill 2011 The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 is intended to enhance State accountability and correct discriminatory exercise of State powers in the context of identity-based violence, and to thus restore equal access to the law for Scheduled Castes, Scheduled Tribes, and religious and linguistic minorities. It is the Constitutional right of every citizen, no matter how numerically weak or disadvantaged, to expect equal protection from an impartial and just State. Evidence from state records and several of Commissions of Enquiry has confirmed institutional bias and prejudicial functioning of the State administration, law enforcement and criminal justice machinery when a non- dominant group in the unit of a State, based either on language or religion, or a member of a Scheduled Caste or Scheduled Tribe, is attacked because of their identity. This prevents such non-dominant groups from getting full and fair protection of the laws of the land or equal access to justice. The Bill does not give additional powers to the State. This administration already has adequate powers to prevent and control communal violence when it chooses to do so. Communal and targeted violence spreads mainly because the public officials charged with protecting and preventing, either fail to act or act in a biased manner. Existing laws of the land and the machinery of the State are found to work relatively impartially when targeted identity-based offences are committed against dominant groups in a State, but not similarly for non-dominant groups. This Bill will provide correction of institutional bias against groups particularly vulnerable in any State. All citizens, no matter how small their numbers or where they choose to be domiciled, get an equal playing field, in enjoying their full measure of rights as citizens. This is a special provision Bill, for the non-dominant groups, being the linguistic and religious minorities in the unit of the State, and the Dalits and Tribals across the country. KEY PROVISIONS OF THE BILL 1. Defining communal & targeted violence: The provisions of this Bill will apply only when it is first established that the offence was ‘targeted’ in nature i.e. it was knowingly committed against members of a non-dominant group because of their membership of that group, and not for any other reason. Offences under the Indian Penal Code shall be considered offences under this Bill when they meet the definition of ‘targeted’ above. The Bill also specifically defines ‘organized’communal and targeted violence as mass violence that consists of multiple or mass commission of crimes that is widespread or systematic in nature. 2. Dereliction of duty by Public Servants: This Bill recognizes offences of both omission and commission. Often the greatest cause for communal and targeted violence against non-dominant groups occurring, spreading and persisting, is that public officials do not act. Public servants who act or omit to exercise authority vested in them under law and thereby fail to protect or prevent offences, breach of public order, or cause an offence, screen any offender, or fail to act as per law, or act with malafide and prejudice shall be guilty of dereliction of duty with penal consequences. This is the heart of the legislation, for such accountability shall serve as a deterrent to biased action. 3. Breach of Command Responsibility: This Bill seeks to ensure that the power of holding command over the actions of others is indeed upheld as a sacred duty, and that there is culpability for those who are ‘effectively in-charge’. 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 junior officer on the ground whose dereliction is visible. The tendency for accountability to be fixed only at the most powerless levels of the official hierarchy is being prevented through the offence of breach of command responsibility. The chain of command responsibility may extend to any level where effective decisions to act or not act are taken. 4. Sanction for prosecution of public servants: This Bill proposes that if there is no response to a request for sanction for prosecution within 30 days from the date of the application to the concerned government, sanction to prosecute will be deemed granted. In relation to certain offences under the Indian Penal Code, 1860, when committed by a public servant, the requirement of obtaining sanction is being dispensed with. This is because these are offences against public justice. Judges shall be the most competent persons to assess the situation and proceed without sanction when satisfied that public justice has been obstructed. 5. Monitoring and Accountability -: This Bill seeks to put in place mechanisms such as a National Authority for Communal Harmony, Justice & Reparation and State Authorities that can make the administrative and criminal justice system work as it should, free from favour or bias or malafide intent. Monitoring and grievance redressal shall be the responsibility of the National Authority for Communal Harmony, Justice and Reparation (NACHJR) and corresponding State Authorities for Communal Harmony, Justice and Reparations (SACHJR). Their mandate is to ensure that public functionaries act to prevent and control communal & targeted violence and also that public servants ensure victims have access to justice and reparation when violence occurs. The functions of the NACHJR/SACHJR are to watch, advise, remind, recommend and warn of consequences if public servants fail to act as per law. The NACHJR or the SACHJRs do not, in any instance, take over any existing powers of any public official or institution, nor supersede the existing law enforcement machinery. They merely monitor to ensure that the system works impartially. The NACHJR/SACHJRs will thus 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. 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 NACHJR and the SACHJR shall monitor the implementation of the law and prevention of communal and targeted violence. Almost all modern legislations enacted in the last 5 years like the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and the Right to Education Act, 2009 have built-in provisions for monitoring and grievance redressal. 6. Bi-partisan selection of members of the National Authority for Communal Harmony, Justice & Reparation (NACHJR): The Bill proposes a bi-partisan Selection Committee for members (including Chairperson) of the NACHJR consisting of the Prime Minister (Chairperson), Leader of the Opposition in the Lower House, Leader of Opposition in the Upper House, Minister for Home Affairs, and the Chairperson of the National Human Rights Commission. 7. Composition of the National Authority for Communal Harmony, Justice and Reparation: The Bill proposes a total of 7 members of the NACHJR, of which 4 shall belong to the non-dominant ‘group’ i.e. 4 members must belong either to a linguistic minority in any State in the Union of India, or to a religious minority in any State in the Union of India, or to SCs or STs. Further, no more than 2 members of the NACHJR may be retired public servants. 8. Offences of communal and targeted violence: The Indian Penal Code (IPC) contains most offences committed during episodes of communal and targeted violence. These have been appended in a Schedule to this Bill, and shall be considered offences under this Bill when they meet the threshold of being ‘knowingly directed against any person by virtue of membership of a group’. These offences shall attract the same penalties as laid down in the IPC. Government is currently considering two other forms of violence for inclusion as offences in our statute books, either in the form of amendment bills or new bills. These include brutal forms of Sexual Assault (beyond the limited IPC definition of Rape in S. 375) and Torture. Both these offences have therefore been included in this Bill. Additionally, this Bill defines an offence of Hate Propaganda, because if hate propaganda can be effectively stopped it will enhance the chances of preventing violence. 9. Victims Rights : This Bill seeks to strengthen the rights of the victim in the criminal justice system, through certain provisions in their struggle for justice – from the simple right to information at all stages, the right to get copies of all their statements, to the right to be heard in a court of law, right to protection, right to appeal, and the right to file a complaint with the NACHJR/SACHJR if and when they are aggrieved by failure of the system to protect and secure for them justice and reparations. These provisions are based on the documented experience of the denial of basic rights to victims of non-dominant groups in a State. Indian criminal law is based on the assumption that the State is always on the side of the victim, against the accused, and therefore primarily the rights of the accused need to be protected. The State investigates, prosecutes, and also adduces evidence and appeals. The victim has limited rights in this process. The reality of targeted violence against non- dominant groups is that a biased State may in these cases, be on the side of accused and actively hostile to the victim. This Bill seeks to correct this bias. 10. Relief and Reparation including Compensation for all affected persons whether or not they belong to a non-dominant ‘group: This Bill recognizes that there are no statutory norms and rights for any Indian citizen under present law, for relief, reparation, and compensation. Thus, all affected persons, whether or not they belong to non-dominant groups in a State have been given justiciable rights to immediate relief, and comprehensive reparations, including compensation if they suffer any harm. The Bill casts legal duties on the State to provide rescue, relief, rehabilitation, compensation and restitution, to ensure that all affected persons are restored to a situation better than which prevailed before they were affected by violence. This is based on the experience that some state governments fail to provide even elementary humanitarian services, by refusing to establish relief camps or forcefully disbanding these prematurely. The Bill also recognizes and protects the rights of Internally Displaced Persons, who are temporarily or permanently dislocated because of targeted violence. 11. Compensation – a national standard for all ‘affected persons’: This Bill requires that when there is violence, and citizens lose their lives, livelihoods, and homes, then each devastation must be recognized in the same manner. Each life lost must be compensated for justly and uniformly. Regrettably this has not been the case, and 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 Rs. 5 lakhs. 12. The Federal Principle: This Bill takes care not to violate in any way the federal nature of our polity. All powers and duties of investigation, prosecution, and trial remain with the State Governments. WHO ARE THE NON-DOMINANT GROUPS IN ANY STATE? The Bill defines non-dominant ‘groups’ as religious or linguistic minorities in any State in the Union of India, and SCs and STs. Examples of non-dominant groups who have, in recent years, come under attack because of their identity in different States and where the State machinery has acted prejudicially, would include Tamils (as a linguistic minority) in Karnataka, Biharis (as a linguistic minority) in Maharashtra, Sikhs (as a religious minority) in Delhi, Muslims (as a religious minority) in Gujarat, Christians (as a religious minority) in Orissa, and Dalits and Tribals in several places in the country. The salient principle is that each of these non-dominant groups in a State may be vulnerable to institutional bias, and thus need special support to restore equality in the way the law works at the local level. ‘Minority’ which refers to both linguistic groups and religious groups, is a shifting category at the level of the States. Thus Biharis, of all religions, constitute a linguistic minority in Maharashtra or in Assam – where they have been vulnerable to attack based on their regional/linguistic identity, but they are dominant in Bihar. Tamil speakers are similarly a linguistic minority in Karnataka, but not in Tamil Nadu. In several states in the Northeast, in Punjab, in the Union territory of Lakshadweep, and in Jammu & Kashmir, Hindus, belonging to any region, are numerically a religious minority. Constitutional arrangements in this regard require that the State of Jammu & Kashmir may suitably domesticate relevant aspects of this legislation, keeping in mind the unique situation prevailing in that State. IS ANY PARTICULAR GROUP THE PERPETRATOR OF COMMUNAL & TARGETED VIOLENCE? The Bill does not classify or assume any particular group to be the perpetrator of communal & targeted violence. The perpetrator of violence could be any person, belonging to any region, language, caste or religion. The Bill is only concerned with ensuring that when the group under attack is non- dominant in that State, then the officers of the State machinery must not be allowed to let bias to breach their impartiality or colour the performance of their sworn legal duty. THE CONSTITUTIONAL MANDATE : There exists a clear mandate to legislate on the issue of prevention and control of communal and targeted violence. Positive and rational legislative measures to correct discriminatory exercise of State power draw their strength from the Constitution of India. Article 14 states that ‘the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India’. Article 21 guarantees right to life and personal liberty, thus State is under duty to protect all its citizens from any kind of violence against them. Article 15 (1) lays down that ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’. The Constitution thus recognizes that vulnerable groups, defined in Article 15(1), may require protection from discrimination by the State. The Protection of Women from Domestic Violence Act, 2005 and the Scheduled Castes and Schedules Tribe (Prevention of Atrocities) Act, 1989 are examples in the Indian legal system of special legislative provisions for vulnerable groups in response to social reality and experience. Entry 2A and 97 under List 1 of the seventh schedule empower the Central Government to enact laws for the protection of life and liberty.