22 June 2011

A bill to settle a terrible debt

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It's time to end this injustice...












22 June 2011
The Hindu

A bill to settle a terrible debt

Siddharth Varadarajan

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India's citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does. [PDF]

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority' group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority's role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn't, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India's religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill's definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill's language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

6 comments:

Anonymous said...

I agree with you that the standard law of the land should have worked in safeguarding the safety of its citizens. But our corrupt bureaucrats and netas will tweak this to their advantage. They will still get away with this. This "getting away" has emboldened them to ignore law.

Also, one very important point to be noted is that the mode of discrimination and exploitation has changed. Now, we have less communal riots or mass violence but minorities of every ilk and disadvantaged sections of the society face discrmination on daily basis.

It seems our societal structure is such that we'll always need one section at the bottom...And no law can cure this problem. As a society we need to reflect on our social,education and economic evolution.

Laws should not change society but it should be other way around.

Saif
New Delhi

Anonymous said...

I agree with you that the standard law of the land should have worked in safeguarding the safety of its citizens. But our corrupt bureaucrats and netas will tweak this to their advantage. They will still get away with this. This "getting away" has emboldened them to ignore law.

Also, one very important point to be noted is that the mode of discrimination and exploitation has changed. Now, we have less communal riots or mass violence but minorities of every ilk and disadvantaged sections of the society face discrmination on daily basis.

It seems our societal structure is such that we'll always need one section at the bottom...And no law can cure this problem. As a society we need to reflect on our social,education and economic evolution.

Laws should not change society but it should be other way around.

Saif
Doha

Aditya Singh said...

Siddharth,

I have read many of your writings in past for authoritative analysis on current affairs. I have followed television debates on this new proposed Prevention of Communal & Targeted Violence Act and have heard arguments from both sides.
But I have not heard anyone making a balanced analysis that mentions both the flaws and the benefits of the new bill. Unfortunately I did not get enough of that argument in your article either. You have whole heartedly supported it except for reference to article 355 and some other minor things which you have criticized.

Anyone who reads the draft bill is greeted with the statement that states "It extends to the whole of India. Provided that the Central Government may, with the consent of the State of J&K, extend the Act to that State". There in front of us is the reality of our country; where we have given so much autonomy to a minority community simply for being a majority in a particular state and yet the secessionist and divisive elements prevail in J&K. The moderates demand more autonomy and the extremists demand secession. Positive discrimination alone did not ensure harmony.

This forms my prime argument about the inherent flaw in this bill. The flaw is that of division of population in front of law and the definition of the victim "group". Any amount of special rights to a group will not bring justice for the individual. Simply because this is an intractable problem, there is no right division. There is no right definition of a “group”. In fact if this bill read in exclusion of the definition that this act uses for “group” and the word group is used in a more general term then this act would be an excellent act. In fact the definition of “communal and targeted violence” in this act is coloured by the definition of “group”. The victims of the “group” as defined in the law seem to be the real victims and the other victims are second class citizens.

I would say when you have to divide, divide down to the individual not to any particular group. So when you have to protect anyone by law, protect the rights of an individual irrespective of what group or subgroup he or she may belong to, as per a certain definition of a group. So I don't quite agree with the definition of group (minority) as per this bill and special protection for that group. I fear that further divisions of our society are being created in this anti-riots bill. How do you define minority? Do you define them only in terms of the religious and linguistic minority in a particular state by population? What if there is a Christian family living in a Muslim dominated ghetto in Nagaland? Also why does the bill treat all SC as one group, there are majority and minority religions in the SC/ST categories too. Where is protection for these groups under the provisions of this law?
This bill has simplified its definition of minority group by using the population in the entire state as a whole. This may be simple to define in a law but does it address all acts of group violence?

You have rightly mentioned that the greatest culprits have been the public servants who have been derelict in their duty and have taken sides in a communal violence. The law rightly has severe punishment for such dereliction of duty and makes it mandatory for them to take immediate actions. Creating provisions which discriminate against an individual victim because as per the law he or she belongs to a majority group is not fair. We as a nation have to evolve and grow over this group and sub-group mentality.

If we have to divide, divide down to the individual and protect every individual's right by treating him or her equal in the eyes of the law. That is the foremost fundamental right guaranteed by the constitution.

K P Ganesh said...

If the NAC which controls the present Central Government, are so confident that this law will help minorities, how come they reject the anti-conversion bill. I personally, think this law is squarely aimed to protect the politically vested Church and various Evangelist organizations who fund the missionaries for their conversion activities. And the NAC is having the Kandhamal riots issue in Orissa, in the back of their mind but selling to the nation the Sikh riots of 1984 and the Godhra riots of 2002. No wonder our pseudo-secular media too is playing the same tune that the Government wants to play. Simple question - why does DigVijay Singh have to convert to Christianity, as per information available in Wikipedia till a few weeks ago, suddenly change his religious status back to Hinduism. In India, no law is made to bring to task the corrupt politicians till the supreme court does so.

Anonymous said...

Practically every crime committed by violent thugs in communally charged situations, whatever their religion be, are already covered in various other laws including the Indian Penal code. What about implementing them?

Now the Sonia dynasty wants to fish for a minority vote or two by passing yet another ineffective law that will not serve the purpose..

Do we need special laws for CTA violence, domestic violence, violence against kids, elders, females, dalits, did I miss anyone else? Can we then do away with IPC?

Many of these special laws are shamefully immoral, undemocratic, draconian and shift burden of proof to the accused, jail people for years without investigation, let alone trial, trample on human rights and end up being exploited by unscrupulous people in collusion with corrupt policemen and greedy lawyers. The so called Anti-Dowry law is a classic example. Ironically it has become the biggest threat to many women who it was supposed to protect as the first recommendation of any divorce lawyer is to ask the wife to file a case under this act, send several relatives (mainly women) to prison and then blackmail.

Any surprise that lawyers were the biggest group protesting against 'dilution' of norms for arresting people without investigation?

Yet another law will become a crude weapon in the hands of these thugs to milk innocent victims dry. Sonia and her family will get a few votes, yellow propaganda puppets of the dynasty can score a few brownie points against the BJP and life goes on...

Anonymous said...

I agree with Aditya Singh above.We must get over this goup subgroup mentality.I'm an Hindu living in a Muslim ghetto.I might be targetted anytime.This majority kills minority is something that US,UK believes is part of democracy,so they must be protected.But US,UK do not have so much diversity so as to study the effects.In India Muslims inspite of being called a minority is such a potent votebank that some political parties even protect the bad elements to gain political mileage.