PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS TO JUSTICE AND REPARATIONS) BILL, 2011 AND SUBSEQUENT AMENDMENTS

WHY DO WE NEED A SPECIFIC LAW FOR PREVENTING COMMUNAL VIOLENCE?

1) Long history of communal violence:

• Communal violence has wracked India for decades. Partition of the subcontinent in 1947 was accompanied by horrific violence between Hindus and Sikhs on the one hand and Muslims on the other, leaving a million dead and over 10 times that number homeless.
• Since independence, there have been countless instances of communal violence. In the 2005-09 periods alone, 648 people were killed and 11,278 injured in 4,030 such incidents, according to the PRS Legislative Research website. Communal clashes during this period peaked in 2008 with 943 cases being reported that year.

Some of the worst communal pogroms have occurred in the past three decades.

a)    1984 Anti Sikh riots:

• In 1984, following the assassination of prime minister Indira Gandhi by her Sikh bodyguards, mobs led by politicians from the ruling party incited and organized the burning and looting of property and killing of Sikhs in Delhi and other parts of North India. Around 3,000 Sikhs were killed.The government did nothing to halt the violence for at least three days.     

b)  1992 Hindu- Muslim riots following demolition of Babri Masjid:

• When the Babri Masjid, a famous mosque in Ayodhya was destroyed by Hindu nationalists in December 1992, riots broke out in various parts of the country. Mumbai suffered the worst with around 900 people killed, about 575 of them Muslims.

c)  2002 Gujarat riots:

• A decade later, Gujarat convulsed with communal violence when mobs led by ministers and politicians of the state’s ruling Party and its fraternal organizations attacked Muslims and destroyed their property.Government did little to stop the violence.
• In fact, police were reportedly instructed at a meeting that they allow Hindus to “vent their anger” against Muslims over an “attack” on a train, the Sabarmati Express, which was set alight a few days earlier, resulting in the death of around 59 passengers, mainly Hindu.
• The communal riots in Gopalgarh, Dhule and Muzaffarnagar are the recent examples.

 2) Institutional Bias:

• In some instances of communal violence, Institutional bias against minorities and oppressed sections has been shown up. Police ignore calls for help and refuse to register cases filed by victims. If communal violence occurs and is not controlled immediately it is because the police and local authorities refuse to do their duty impartially.
• In majority cases of Communal violence seldom have the guilty been brought to justice. According to Harvinder Singh Phoolka, a senior Supreme Court advocate who has been fighting for justice on behalf of victims of the 1984 riots, “Out of 2,733 officially admitted murders [in the anti-Sikh violence of 1984], only nine cases led to convictions.” Twenty-seven years since the pogrom, just over 20 of the accused have been convicted – a conviction rate of less than 1%.
• Therefore it is imperative to have such a legislation which hold government executive responsible.

 3) Inadequate relief and reparation:

• Another incontrovertible truth is that rarely victims have received the relief they are entitled to or whatever they have received is insufficient compared to loss of lives, property etc.

4) Communal clashes are different from Ordinary Law and Order problem

• Given that larger public sentiments are involved, Communal clashes are starkly different from ordinary law and order disturbances.
• Whatever the immediate trigger for communal clashes, they are engineered and sustained by chauvinist and anti-social elements in both the majority and minority communities.

         Prevention of Communal Violence (Access to Justice and Reparations) Bill 2011, seeks to address some of the problems associated with communal violence in India, and put in place an institutional mechanism for redress.

SOME IMPORTANT PROVISIONS OF THE BILL:

1. It describes “Communal and targeted violence” act that 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  secure fabric of nation. Such acts include sexual assault, hate propaganda, torture and organized communal violence.
2. The bill provides for the right to relief, reparation, restitution and compensation not only to not only to religious and linguistic minorities, Scheduled Castes and Scheduled Tribes but also to non-minorities and non-Scheduled Castes and Scheduled Tribes affected by communal and targeted violence.
3. The bill creates a National Authority for Communal Harmony, Justice, and Reparation, charged with preventing acts of communal violence and monitoring investigations into incidents. The law also makes it obligatory that at least four of the seven member posts in the National Authority for Communal Harmony, Justice and Reparation belong to a minority community.
4. It gives Centre to unilateral power to deploy forces during the incidents of communal violence if the Centre feels State has failed in its duty.
5. It also covers the punishment of officials (10 years imprisonment for breach of command responsibility) who fail to discharge their duties in an unbiased manner during outbreaks of such violence and it also holds their superior accountable.

WHY HAS IT MET WITH OPPOSITION? CONTROVERSIAL PROVISIONS AND THEIR SUBSEQUENT AMENDMENTS, REVISED DRAFT, 2013:

1. According to a key definition on the people who are presumably the focus of targeted violence, “group” means a religious or linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes (SC/ST)….” This provision of bill was criticized widely by some political parties. They objected to the way it set the defaults in favour of religious and linguistic minorities, its prior assigning of victimhood and agency.They are arguing why violence against the majority community should not be considered communal. However, after much hue and cry, this provision was amended and has now been made neutral between all groups or communities.
2. Earlier, the centre was given unilateral powers to send Central paramilitary forces during the outbreak of communal violence without consulting the state government. Given that law and order is state subject, States were seeing this provision as encroachment on jurisdiction of States and claimed that it endangers federal structure of country. After much opposition, the powers of intervention of the Centre in the event of riots have also been diluted in the revised bill as a result of which the Union government will not have any perceived overriding powers anywhere. The fresh draft says, “if the state government is of the opinion that assistance of the Central government is required for controlling the communal violence, it may seek the assistance of the Central government to deploy armed forces of the Union for such purposes…”
3. 3.     An earlier draft of the bill had irked secular sections as well. It had defined communal violence as that which has destroyed India’s secular fabric. This prompted criticism that the bill raised the bar for violence to be regarded as communal too high rendering it meaningless. After all it is arguable whether any incident of communal violence has actually destroyed India’s secular fabric. In the revised draft the term “India’s secular fabric” has dropped.
4. Some has pointed out that many of the provisions are worded vaguely,open to wide subjective interpretation, and hence misuse.
5. Instead of a sharp focus on communal violence, the bill proposes to target “hate propaganda” too. Thus, anyone who disseminates any information “that could reasonably be construed to demonstrate an intention to promote or incite hatred” could attract the penal provisions of this law. In the absence of specific phrasing, there is scope for misuse by subordinate law enforcers.
6. Significantly, a large section of minorities is also averse to legislation of this kind, which will facilitate fundamentalist forces to whip up frenzy against them. Their cynicism also stems from the fact that, despite an exemplary Constitution and a plethora of stringent laws, there has been no let-up in communal riots. They believe that rigorous implementation of the existing laws is needed, not a new law.
7. The new draft of the bill has scrapped the proposed national authority and entrusted the functions of overseeing communal harmony to the NHRC. Some people are also arguing that How would such a toothless recommendatory body contribute to ensuring justice and communal harmony?  Also it will out huge burden on the already burdened NHRC.
8. Many of the bill’s clauses tread the same ground as the Indian Penal Code. There is already an array of laws on inciting hatred, spreading propaganda, and duties are clearly laid out for the police and administration. Many sections are arguing that what would  it add new?
9. Some are also opposing the timing of introduction of bill just before the upcoming Lok Sabha election. They are claiming that govt. is trying to woo minorities.

Conclusion:

• The proposed bill ignores the deep pathological distrust and incomprehension that today appears to separate the Hindu and Muslim communities. A legal solution cannot solve the distrust and incomprehension between two communities.
• For now the major thrust of Government should be on rigorous implementation of existing laws, better policing and administrative precautions. The Government should also think of ways to promote fraternity among communities, which is the need of the hour.
• While there is no denying that India needs special legislation to deal with communal violence, but is it is equally important that the bill is redrafted to ensure a sharper focus on the specific issues of prevention of communal violence and reparation.