Analysis of Anti-Hindu Communal Violence Bill in Hindi by Dr. Subramanian Swamy at Jawaharlal Nehru University (JNU) in Indraprasth (Delhi)
By Dr. Subramanian Swamy
PRESS RELEASE OF DR.SUBRAMANIAN SWAMY ISSUED ON 25-10-2011
Yesterday I posted to the SHO of the Crime Branch of Delhi Police, located in Rohini, Delhi a written complaint for registering a FIR against Ms.Sonia Gandhi, Chairperson of the National Advisory Commission (NAC) and 14 other unnamed persons who are members of the NAC.
The offences alleged to have been committed arises from a draft Bill prepared by the NAC and known as Prevention of Communal and Targeted Violence Bill of 2011. This was widely circulated as also posted on the NAV website.
The charge is that Ms.Sonia Gandhi and her NAC members have by writing and drafting such a Bill for adoption by Parliament have incited the Christians and Muslims to attack the Hindus by rioting and mayhem of rape promising legislative protection to them as a “group”, and giving immunity under the provisions of the Bill when enacted, from prosecution even if the said “group” attacks the “dominant” Hindu community.
Hence, Ms.Sonia Gandhi and the members of the NAC are culpable under Section 153A & B, 295A and 505 (2) of the IPC.
If the Delhi Police does not register this FIR by November 10th, I shall approach the court to seek directions to the Delhi Police to register the FIR.
I am giving below THE FULL TEXT of the FIR sent by Dr.Subramanian Swamy yesterday (24-10-2011) to SHO/Insp: D.P.Singh, Crime Branch, Sector 18, Rohini, New Delhi.
Dr Subramanian Swamy , President of Janata Party, A-77, Nizamuddin East, Sector 18, Rohini, New Delhi-110013:
SHO/Insp: D.P. Singh, Sector 18, Rohini, Crime Branch, New Delhi.
Re: Registering of FIR u/s 153A & B, 295A & 505(2) of Indian Penal Code.
Dated: October 24, 2011.
1. In public interest I am sending by Courier service a complaint in my name against Chairperson Ms. Sonia Gandhi of National Advisory Council, which has its office at 2 Motilal Place, New Delhi-110011, Tel: 23062582, and also against unnamed other members of the said NAC for committing offences of propagating hate against the Hindu community of India by circulating for enacting as law a Draft Bill described as PREVENTION OF COMMUNAL AND TARGETED VIOLENCE BILL OF 2011. This Draft Bill has been posted on the NAC official website, is dated July 21, 2011 and sent for adoption by Parliament. That this 2011 Draft Bill is mischievous in content of targeting the Hindu community, malafide, unreasonable and prejudicial to public order, is apparent from the second section of Explanatory Note [Annexed herein] to the Draft Bill titled “Key Provisions of the Bill”, thereby inciting crimes against the Hindu community with impunity, and thus committing offences u/s 153A & B, 295A and 505(2) of the Indian Penal Code.
2. The UPA Government in December, 2005 had introduced earlier a Draft Bill  in the Parliament described as THE COMMUNAL VIOLENCE (PREVENTION, CONTROL AND REHABILITATION OF VICTIMS) BILL (2005).
3. The Draft Bill however did not find favour with any Party. Leaders of several political parties felt that the Draft Bill provided sweeping powers to the Central Government thus undermining the authority of the State Governments. But the most vocal opposition to this draft Bill came from the Muslim, Christian and so called secular quarters. Their contention was just the opposite of what the political leaders were saying. The view of Muslim and Christian groups was that the 2005 Draft Bill was “completely toothless”. They demanded that the powers of managing communal violence be vested in non-government actors and make governments and administration at all levels accountable them for communal violence.
4. The All India Christian Council was in the forefront of this campaign against the 2005 Draft Bill as being “too weak”. In a letter written to the Prime Minister, Ms Sonia Gandhi, herself a Christian, through the AICC had conveyed to the PM the Christian Council concerns about the 2005 Draft Bill, and then revised the same as the 2009 Draft Bill.
5. The Muslim bodies too joined in the protest campaign against the draft as being too weak. They wanted provisions to make police and civil administration and state authorities “accountable” to public bodies. The Joint Committee of Muslim Organizations for Empowerment (JCMOE) made the demand on behalf of these organizations. JCMOE also urged the government to convene a meeting of leaders of “targeted communities” to note their views on the Bill as follows:
“The Bill does not make police or administration or state authorities accountable and provide for timely and effective intervention by the National Human Rights Commission, if the communal violence spreads or continues for weeks, or by the Central Government under Articles 355 and 356 of the Constitution, duly modified. On the other hand, ironically, the Bill grants more power to the local police and administration, which, more often than not acts in league with the rioters by declaring the area as ‘communally disturbed area’ JCMOE statement said.
6. It is interesting to note that these two statements, the Muslim and the Christian, come at around the same time as though they were premeditated. They probably were.
7. From their arguments in opposition to the Draft Bill, it is clear that they wanted a Bill that would consider only the Christians and Muslims as the “generally targeted” victims of communal violence; and that the word ‘communal violence’ be re-defined in such a way that only the Muslims and Christians are treated as victims and Hindus as predators, and that the local police and administration, including the State administration, considered hand-in-glove with the perpetrators of violence. Hence the Bill should empower the Central Government to invoke Art. 355 and 356 of the Constitution against any state in the event of such communal violence.
8. Since the Prevention of Communal Violence Bill (2005) does not discriminate between the perpetrators and victims of communal violence on religious grounds and also it does not envisage the State administration as committed in preventing such violence, these groups wanted the Bill to be withdrawn.
9. The National Advisory Council (NAC) was re-constituted in 2009 by the UPA Government again under the chairmanship of Ms. Sonia Gandhi. The UPA Government promptly handed over the re-drafting of the Bill to the newly constituted NAC and asked it to come up with a fresh draft.
10. The basic communally provocative premise of the re-drafted Bill is that: a) there is a non-dominant group in every State in the form of religious and linguistic minority which is always a victim of violence; b) the dominant majority (usually Hindus) in the State is always the perpetrator of violence; and c) the State administration is, as a rule, biased against the non-dominant group.
11. The object of the re-drafted Bill thus was the basic premise of the NAC that the majority community – read Hindus – are the perpetrators of communal violence in India and the minority – read Muslims and Christians – are the victims, clearly is incitement of religious strife.
12. What is more important is to conclude is that in all cases of communal and targeted violence, dominant religious and linguistic group at the State level is always the perpetrator and the other the victims. Similarly the conclusion that the State machinery is invariably and always biased against the non-dominant group is a gross misstatement of the sincerity and commitment of millions of people who form State administration in the country.
13. This dangerous premise is the incitement of communal strife in this Bill.
14. One can safely conclude that the script writers of this Bill are themselves blinded with religious biases. In India communal violence happens mostly because of politico-communal reasons. In many instances, as documented by several Commissions of Inquiry, it is the so-called minority group that triggers the trouble. We hence need laws that can prevent such violence irrespective of whoever perpetrates it. To argue that since the administration is always biased in favour of the dominant group we need acts that are biased in favour of the non-dominant group is imprudent and puerile.
15. The final Draft is available on the NAC website now. One is not sure when the same will be placed before the Parliament. However, a close scrutiny of the Draft is essential to understand the serious implications of and threats from it to our national integration, social harmony and Constitutional Federalism.
16. This Bill when it becomes an Act will apply to whole country except the State of Jammu and Kashmir. Note that J&K is one of the two States in India (excluding the North East and other tiny UTs) that has Hindus as minority – the ‘non-dominant group’ according to this Bill. Punjab is the other State where the Sikhs constitute the majority, while in the rest of the entire country it is the Hindus who constitute ‘dominant group’ and by implication the perpetrators of communal violence, according to this Draft Bill.
17. The mischief in the drafting primarily lies in the ‘Definitions’ part contained in Art.3 of the first chapter. Art. 3 (c ) defines Communal and Targeted Violence as under:-
“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”.
18. The mischief is centered round the word ‘Group’. Art 3(e) defines what constitutes a ‘Group’.
“Group” means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses of the Constitution of India;
19. Having thus established that the individual member of the Minority community is always considered a part of the Minority group the Draft Bill goes on to add several detrimental clauses subsequently. Art.3 (f) defines ‘Hostile environment against a group’ thus:
“Hostile environment against a group” means an intimidating or coercive environment that is created when a person belonging to any group as defined under this Act, by virtue of his or her membership of that group, is subjected to any of the following acts:
(i) boycott of the trade or business of such person or making it otherwise difficult for him or her to earn a living; or
(ii) publicly humilitate such person through exclusion from public services, including education, health and transportation of any act of indignity; or
(iii) deprive or threaten to deprive such person of his or her fundamental rights;
(iv) force such person to leave his or her home or place of ordinary residence or livlihood without his or her express consent; or
(v) any other act, whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment.”
Note the Clause (v) – ‘Any other act, whether or not it amounts to an offence under this Act’. The intention here seems to be to make anything and everything an offence, even if it doesn’t come under any definition of an offence. It is clear that the entire definition of ‘hostile environment’ is malafide.
Clause (k) defines who is a ‘victim’. Here the draft makers are very explicit:
“victim” means any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or hr property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate;
“Victim” can only be belonging to a ‘group’ as defined under this Act. And the group as defined under this Act is the Minority – the ‘non-dominant group’. That means this act will consider only the Minority as the victims. And he or she will become a ‘victim if he or she has suffered physical, mental, psychological or monetary harm….’ Now, physical harm is measurable, mental harm is difficult to gauge, but how on earth can anyone define ‘psychological harm’? The Bill does not define it. Then how can be so-called ‘psychological harm’ be one of the reasons for victimhood?
Similarly, Art. 4 (a) states as follows:
4. Knowledge. – A person is said to knowingly direct any act against a person belonging to a group by virtue of such person’s membership of that group where;
(a) he or she means to engage in the conduct against a person he or she knows belongs to that group;
20. Art 7 of the draft Bill defines ‘sexual assault’. It is by far the most widely covered definition that is very much needed to protect women from becoming targets of sexual violence as part of communal violence. But against the problem is that this definition is applicable to the women belonging to Minority group and women of the Majority community cannot benefit from it. Secondly, it also states that in a case of communal violence sex by consent also can be construed as a crime.
21. Patriotic Indians now realize that the present draft Bill is a standing proof that neo Jinnah-ism – the belief that the minority is perpetually oppressed in India by the Hindu majority – is still poisoning our minds even today by mischievous minds..
22. The present Draft Bill will only promote disharmony. With these kind of laws the LeTs and Hujls across the border need not have to promote terrorism in our territory anymore. All that they need to do is to encourage a minor communal riot and they can achieve what they want – huge rift between the Majority and Minority communities.
23. Hence, the NAC, with Ms Sonia Gandhi as Chairperson, and other members have jointly committed offences under IPC Sections 153A & B, 295A, and 505(2).
24. It is significant that even well known persons of secular credentials have condemned this Bill as divisive. The Tamil Nadu Chief Minister Ms. J. Jayalalitha has in a Press Release dated July 29, 2011 [Annexed] has concluded that “the remedy sought [in the Draft Bill] to be provided against communal and targeted violence is worse than the disease itself”.
25. Therefore, this complaint be taken as a basis to register an FIR and conduct investigation into the communal mentality of the NAC chairperson Ms. Sonia Gandhi and other members and take necessary action under the law to prosecute the offenders under the cited sections of the IPC.
By Dr. Subramanian Swamy
October 17, 2011.
Dr. Manmohan Singh,
Prime Minister of India,
Dear Prime Minister,
Patriotic Hindus who constitute the overwhelming majority of Indian population, feel that the draft of the Communal and Targeted Violence (Prevention) Bill as unconstitutional. I am writing therefore to you to drop from further consideration, the draft Bill of 2011 authored by Ms. Sonia Gandhi, Chairperson of the National Advisory Council. This Bill violates individual and State rights as well as the principles of equality under the law, separation of powers, innocent- until- proven- guilty principles underlying due process, and democracy.
Communal violence is a tragedy that must indeed be prevented. It mars India’s long history of religious pluralism and respect. No doubt India’s brand of pluralism is a direct extension of the inter-religious respect promoted by its indigenous and majority Hindu traditions and related faiths.
The Bill, while arguably intended to protect against and prevent such violence, unfortunately ignores obvious historical and contemporary realities, and will consequently only serve to further instigate inter-religious and communal tensions as it wrongly singles out a particular community – the Hindu majority for blame.
It is impossible to read the Bill without seeing the blatant politicization of the issue of protecting victims, with a “special focus on disadvantaged groups”: This Bill even on a quick reading exhibits the following flaws:
1. The Bill creates two “groups” of citizens. The language used in defining “group” is mischievously, vague. It is unclear as to whether a ‘group’ is a religious minority as determined by national demography or by state demographics –
(a) If the Bill intends to determine groups as religious minorities based on national demographics as seems to be the intention, it leaves unprotected large groups of religious and linguistic minorities, namely, the Hindu minority in the States of Jammu and Kashmir, Nagaland, Mizoram and Meghalaya -
Example : A dozen Hindu women in a small village are mass gang raped by a mob of Muslim men because of the women’s religious identity or ‘membership’ in the Hindu community, the Bill will fail to protect these victims.
(b): If however the Bill intends to determine groups as religious minorities based on State demographics (i.e. non-Sikhs in Punjab), it leaves unprotected religious and linguistic minorities that may constitute a minority in the context of smaller geographically definable regions such as a district, village, section of a city, despite being members of the majority according to State demographics -
Example: Two of the only Christian businesses in a predominantly Hindu village in Mizoram are boycotted by the Hindu villagers. Under the Bill, boycotts on the basis of group membership is a chargeable offence. Christians constitute a majority in Mizoram. If minority status is determined by the State demographics, the Bill fails to protect these victims.
© While linguistic minorities are presumably based on State demographics, the Bill’s language is unclear because it conjoins “religious” and “linguistic” without a logical qualifier.
(d) The way in which the Bill has defined “group” and afforded special protection on the basis fails to address and acknowledge the historical reality of communal and targeted violence perpetrated by minority groups against the majority and minority against another minority.
Example: In 2007, inter-communal violence erupted between Sikhs and followers of Dera Sacha Sauda, a distinct religious institution and followers from Hinduism, Sikhism and Islam. The Akal Takht, “the highest temporal seat of the Sikhs,” called for a “social boycott” of Dera Sacha Sauda members and of their leader, and called for a “closure of all deras” of the Sacha Sauda in the Punjab. The religious majority of Punjab is Sikh. The Bill does not deal effectively with such complex scenarios, especially where both groups can be considered minorities by national demographics or one group has members belonging to the majority, and both engage in offenses under the Bill. This Bill fails to address the complexities of communal relations.
2. The Bill will lead to uneven application across Indian States and fail to protect minority Buddhist, Sikh and SC/ST populations from communal and targeted violence in the State of Jammu and Kashmir, should the State not consent. Minority Hindus in Kashmir, who have been on the receiving end of communal and targeted violence for several decades and have been ethno-religiously cleansed from the Valley, according to this Bill would not be afforded protection as a member of the National majority, regardless of whether the State of Jammu and Kashmir consents to the Bill.
3. The Bill, in establishing a National Authority and various State Authorities, grants bodies of unelected citizens the power to interfere, obstruct, and override some of the essential functions of both National and State governments, namely law enforcement and adjudication of the law. The powers of these bodies violate basic principles of separation of powers and rights of States.
4. The Bill violates the basic common law principle of the right of the accused to confront one’s accuser by empowering the National Authority with duty to protect the identity of informants.
5. The Bill provides blanket immunity from criminal prosecution to any person who provides a statement before the National Authority, regardless of his/her role in engaging in or orchestrating violence related to the matter under investigation.
6. The Bill establishes parallel National and State Authorities creating unnecessary bureaucracy, conflicts of interest, as well as confusion, let alone violating basic principles of State autonomy and separation of powers and the rights of States.
7. The Bill usurps State police powers through broad and sweeping language, such as “through any means in whatsoever manner,” providing unchecked police and/or investigative powers to State Authorities under the Bill.
8. The Bill violates the basic common law principle of “innocent until proven guilty” by failing to provide an equivalent right for an accused to file a complaint of bias, lack of impartiality, or unfairness with the National or State Authority in general. This chapter does not lay out any procedures to protect the due process rights of the accused, including rights to a fair trial and legal representation, and ensuring investigations are conducted in a fair manner.
9. The Bill presumes that an offence is communal rather than a purely criminal act, based solely on the fact that the victim was a member of a particular community as defined under this Bill. It allows inferences to be made without imposing any burden of proof or requiring the prosecution to actually prove that the offence is a communal act.
10. The Bill removes the prosecutional burden to prove that the accused knowingly and intentionally committed an act of communal and targeted violence, and assumes, it was communal based simply on the victim’s membership in a protected group.
11. The Bill again violates the common law principle of “innocent until proven guilty,” by failing to provide any remedy to an accused in the event the Public Prosecutor shows bias against the interest of the accused.
12. The Bill provides relief and reparation to victims, whether or not they are minorities, and therefore contradicts other provisions of the Bill if the Bill provides relief to victims of the majority community, it should also provide for prosecution of minorities involved in communal and targeted violence.
13. The Bill denies legal remedies to any person (s) wrongfully accused prosecuted or convicted under this Bill. The Bill once again implements unnecessarily and sufficiently vague language such as “protection of action taken in good faith” by government, thus providing protection to government officials who may have acted negligently or improperly in accusing prosecuting or convicting a person (s) under the Bill.
I therefore urge the Government to reject this Bill.
The Prevention of Communal and Targeted Violence Bill as it is drafted is to target the Hindu community, and hence a blow to India’s democracy, which is secular because the Hindus of the country want it so. This Bill therefore might ignite a mass upheaval amongst Hindus that would jeopardize secularism and usher in a theocratic Hindu state. The Bill thus is a cure worse than the disease it claims to cure.
( SUBRAMANIAN SWAMY )
By A Surya Prakash, Daily Pioneer
The proposed Communal Violence Bill, which paints Hindus as criminals and minorities as their victims, is downright dangerous.
Determined to promote its minority-appeasement agenda, the United Progressive Alliance regime is readying itself to introduce an obnoxious Bill that could disturb communal harmony, wreck the federal features of the Constitution and give the Union Government a fresh set of excuses to interfere in the governance of States.
The aim of this Bill — called the Prevention of Communal and Targetted Violence (Access to Justice and Reparations) Bill — is ostensibly to curb communal violence and hatred, but it rests on the flawed premise that in all situations the religious majority perpetrates violence and members of the religious minority are the victims. Therefore, ab initio it treats the Hindus, who constitute the majority in 28 of the 35 States and Union Territories, as the offenders and Muslims, Christians and other religious minorities as the victims of communal hatred and violence. The draft of this abominable law has come from the National Advisory Council, which has among its members some pseudo-secularists, Hindu-bashers and Nehru-Gandhi camp followers, all of whom have been hand-picked by its chairperson, Ms Sonia Gandhi.
The Bill describes “Communal and Targetted Violence” in Section 3 ( c ) as “any act or series of acts … knowingly directed against any person by virtue of his or her membership of any group”. The biggest mischief is in the definition of the word “group” that occurs in Section 3(e). It says a “group” means “a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes…”. This means that Hindus, who today constitute the majority in most States and Union Territories, will not constitute a “group” under this law and, therefore, will not be able to invoke its provisions, even if they are victims of Muslim or Christian communalism, hatred or violence.
In other words, if this law had been in force in 2002, the relatives of the 59 Hindus who were burnt to death by a Muslim mob at Godhra Station in Gujarat would not have had the right to lodge an FIR under this law because Hindus constitute a majority in that State, but the Muslims would have used its provisions to prosecute the perpetrators of the post-Godhra violence. If enacted, this Bill will amount to treating Hindu victims of communal violence as second class citizens and would approximate to the kind of anti-Hindu laws that prevail in the Islamic Republic of Pakistan.
The Bill describes a “victim” as a member of a religious minority who has suffered “physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate”. Going by this description, a Muslim or Christian in most parts of India who is aggrieved with a Hindu neighbour over some issue can turn around and accuse him or her of causing “psychological harm”. Further, if the “victim” is not inclined to deploy this mischievous provision, the Bill allows his or her relatives to do so.
Hindu-bashing appears to be the primary aim of this exercise. The Bill says once enacted the law will extend to the whole of India. However, when it comes to the only Muslim-majority State in the Indian Union — Jammu & Kashmir — it says that “the Central Government may, with the consent of the State of Jammu & Kashmir, extend the Act to that State”. One must see what other caveats will be put in place in respect of the only Muslim-majority Union Territory — Lakshadweep — where Hindus constitute just 3.7 per cent of the population.
However, though Hindus will bear the brunt of this Bill’s obnoxious provisions, Muslims, Christians and Sikhs could also find themselves in trouble because the State is the unit to determine the issue of majority-minority. As per the religion data in the 2001 Census, Sikhs constitute 59.9 per cent of the population in Punjab, whereas the Hindu population in that State is 36.9 per cent. If this law comes into force, the Sikhs (constituting the majority) will face the music if Hindus begin accusing them of promoting communal hatred and anti-secular policies. Similarly, Christians, who have an overwhelming majority in three States — Nagaland ( 90 per cent ), Mizoram ( 87 per cent) and Meghalaya (70.3 per cent ) — will find themselves in deep trouble if the Hindu minority in these States begins to leverage this law and lodge complaints against the religious majority.
Therefore, citizens who are Muslims, Christians or Sikhs should not be taken in by the claims of the Congress that this Bill will strengthen secularism. Because this law does not treat all perpetrators of communal violence and hatred equally, these citizens will face the heat in all States where they are in a majority. Also, the demographic reality in some States will place the Hindus at a disadvantage. For example, there are States like Manipur (46 per cent Hindu) and Arunachal Pradesh (34.6 per cent Hindu) where no religious group has a clear majority. So, who is the “culprit” and who is the “victim” in these States?
Further, if you exclude the Scheduled Castes and Scheduled Tribes from the Hindu population, what will be the percentage of Hindus in these States? Kerala, with 56.2 per cent Hindus, is also a case in point. If you exclude Scheduled Castes and Scheduled Tribes (22 per cent approximately), what is the percentage of the Hindu “majority” in that State? Can this so-called “majority” be seen as the oppressor of the Muslim “minority” (24.7 per cent) or the Christian “minority” (19 per cent)? The Bill also tends to intimidate the bureaucracy and the police in the States. These provisions, which are repugnant to the federal features of our Constitution, will have to be discussed separately.
Finally, far from being a “Prevention of Communal and Targetted Violence Bill”, this is a “communal” and “targetted” Bill because it empowers only religious minorities and targets not all communalists but only the religious majority. Should Ms Gandhi and her cohorts have their way, the country’s unity and integrity will be in peril. Instead of promoting communal harmony, this law will promote communal strife. Such a Bill could only have come out of the Devil’s workshop! It could not have been drafted by persons who care for India’s unity and integrity. Where has the original draft come from? We must investigate.
By A Surya Prakash, Daily Pioneer
The proposed Communal Violence Bill aims to slip in provisions that will restore the dadagiri of the Union Government over the States.
Apart from generating communal strife and pitting religious minority communities against the majority community in every State and Union Territory, the proposed Prevention of Communal and Targetted Violence (Access to Justice and Reparations) Bill, prepared by the National Advisory Council, incorporates some extremely dangerous provisions which seek to re-impose the ‘dadagiri’ of the Centre on the States and even promote insubordination in the administration in the States. There is also an attempt to introduce some mischievous provisions to classify crimes on communal lines.
In the earlier article on this proposed Bill, this writer had referred to provisions that ab initio treat members of religious minority communities as ‘victims’ and members of the religious majority community as ‘culprits’ in every instance of communal violence. The other insidious aspect of the proposed law is the attempt to use communal violence as a pretext to usurp the States’ right to maintain law and order and to signal to bureaucrats and policemen that Big Brother in New Delhi is watching them.
It is obviously a cunning attempt to re-acquire the unbridled powers which the Union Government had exercised under Article 356 of the Constitution before the Supreme Court’s verdict in the Bommai case. Prior to the Bommai case, the Union Government imposed Article 356 with reckless abandon. The Congress, which was ill at ease with the growth of regional parties, used this provision regularly to sack duly elected State Governments and to impose President’s rule on the States.
For example from 1950, when the Constitution came into being, to 1994, when the Supreme Court pronounced its judgement in the Bommai case, Article 356 was used by the Union Government on 102 occasions. On 77 of these occasions the Congress was in power at the Centre and just one Prime Minister — Mrs Indira Gandhi — used this provision 50 times. The Supreme Court stopped such misuse of Article 356 through its judgement in the Bommai case.
The court declared that henceforth the proclamation issued under Article 356 would be judicially reviewable and the court would examine whether the proclamation was issued for mala fide reasons. It said the court would retain the power to reverse the actions taken by the President if they were found to be mala fide. This judgement virtually put an end to the misuse of Article 356. The Communal Violence Bill now offers scope for mischief via a backdoor entry of Article 356 as it stood prior to the Bommai case in the guise of ensuring minority rights.
Initially the proponents of the Bill wanted organised communal violence in a state to be classified as “internal disturbance”. Article 355 imposes a duty on the Union Government “to protect every State against external aggression and internal disturbance”. Therefore, this was a clever move to snatch away the basic constitutional right of every State to manage law and order and to impose Central rule.
However, following public protests, the NAC has recently announced that this provision has been deleted from the draft Bill. But the threat to the independence of State Governments is not over because of certain other provisions in the Bill, like Sections 9, 13, 14 and 16 pertaining to the bureaucracy and the police in the States and Section 15 which directly targets office-bearers of political parties. Section 13 pertains to dereliction of duty and is so worded that every public servant working in the district or State administration (with some responsibility in regard to maintenance of law and order) can be hauled up in the event of a communal flare-up.
Officials can also be accused of helping or harbouring culprits belonging to the majority community. Section 14 deals with public servants for breach of command responsibility, meaning their failure to control the men in their command. In other words, police officers can be prosecuted if men under their control commit an offence or are accused of committing an offence against a religious minority community. The law proceeds on the assumption that the officer ought to have known that persons under his command would commit an offence.
But the worst provision is Section 16, which is directly aimed at promoting insubordination in the police and para-military forces deployed in a troubled State. It says, “Where an offence has been committed under this Act, the fact that it was committed by a person pursuant to an order of a superior shall not relieve that person of criminal responsibility...”. In other words, it encourages every policeman to question or challenge his superior right up the line of command and, if he so believes, to disobey his superior. Every policeman will need to worry about how the Union Government (and not the State Government) will view his actions. It is difficult to find a more irresponsible provision in any law.
The law proposes for the establishment of a National Authority for Communal Harmony, justice and reparation and similar authorities in the States. It empowers the national authority to enter any building and seize any documents, which means it has the authority to intrude into State Government offices and even the chambers of Chief Ministers. Several other provisions also hit at the root of federalism and weaken the States.
Equally disgusting is the communal colour that this Bill gives to every major offence. Though the Indian Penal Code deals with all such crimes, the proposed law draws a distinction between rape of a ‘minority’ woman and a ‘majority’ woman and assault of a ‘minority’ person and a ‘majority” person. The victim acquires an exalted status if he or she belongs to a ‘minority” community. Nowhere in the democratic world does one get to see such communalidation of crimes.
Finally, politicians belonging to parties which are not part of the political dispensation at the Centre had better watch out. Section 15, which talks of offences committed by “other superiors”, says, “Whoever, being any non-state actor or superior or office-bearer of any association…”. The implication of this is that office-bearers of political parties and associations and organisations affiliated to political parties in power in the States can be hauled up under this law. This is obviously a provision to enable the Union Government to haul up political opponents and their affiliates in the States.
The net result is that this Bill will destroy communal harmony, weaken the federal structure and encourage authoritarian trends at the Centre. The Communal Violence Bill must be rejected lock, stock and barrel.
Terming the proposed Communal Violence Bill as "dangerous", the BJP on Saturday opposed the legislation at the National Integration Council meeting here, saying it presumes that the majority community is always responsible for such riots.
"We feel that the Communal Violence Bill is a dangerous Bill as it harms the federal structure of the Constitution. It allows the Centre to hold all the powers. Moreover, it does not consider anybody a citizen and treats a person only as one belonging to either a majority or a minority," leader of opposition in the Lok Sabha Sushma Swaraj told reporters.
Her Rajya Sabha counterpart Arun Jaitley and chief ministers of three BJP-ruled states -- Ramesh Pokhriyal Nishank (Uttarakhand), Sadanand Gowda (Karnataka) and Raman Singh (Chhattisgarh) -- echoed these sentiments at the NIC meeting.
The BJP made it clear that the Bill in its present form, which has been drafted by UPA Chairperson Sonia Gandhi-led National Advisory Council, should not come to Parliament.
"You will write off a person as a criminal, just because he or she is born in a majority community and you will presume that a person would be a victim only because you are born in a minority community. This bill is very dangerous," Swaraj said.
The main opposition insisted that if passed, this legislation will encourage communal tension instead of reducing it, as it seeks to divide the country into majority and minority communities.
"The draft bill presumes that the majority community is unjust, and the minority community is the victim. But in our country, various sections of community are in a minority in one state and a majority in another state. The provisions of the Bill will go against the majority community in various states," Swaraj said.
Swaraj said that a person should be judged by his character and style of working, and not by the religion in which he or she is born.
She insisted that it is wrong for the proposed Act to presume that those belonging to the majority community are always guilty of starting communal violence.
"It is also wrong to assume that a person born in a particular community would belong to the majority everywhere in the country. Some communities are a majority in one region and a minority in another," the BJP leader said.
Citing examples, she said Christians may be a minority in north India but are a majority in some north-east states. Similarly, the Muslims would be a majority in some pockets and a minority in others.
The BJP also argued at the NIC meeting that a discussion on communal violence at this juncture was not at all relevant as there have been no instances of such acts in the recent past.
"There have been two major terror incidents in Mumbai and Delhi recently. The incidents of naxal attacks are also on the rise. Therefore, today's agenda is not relevant as there has been no incident of communal violence in the country in the recent past. A discussion on naxalism and terrorism would have been more productive," Swaraj said.
She also pointed out that holding a meeting of the NIC once in three years make the body virtually redundant and this should be an annual affair. The last NIC meeting was held in 2008.
By Dr Mrs Hilda Raja, Vadodara
I belong to a minority community and the reading of the so called Prevention of communal and targeted violence bill was shocking to say the least. I have touched only on one aspect-namely the ‘Group’ and ‘the others’ The proposed Prevention of Communal and Targeted Violence Bill 2011 seems to be drafted by Nazi mentality persons who are hell bend on communalizing the nation and ultimately destroying this country. It is just not senseless but drafted with malice intention and purport. The very terminology is misleading because this is no Prevention of communalism but arousing and abetting communalism. Again why the term ‘Targeted Violence’? It should have been simply violence. It starts thus with assumptions and presumptions that violence is targeted which means violence is directed against specific targets (read here Muslims) this assumes that the perpetrators are non Muslims. It is flawed right from the caption and the minds that sat down to scribble-not draft this Bill had preconceived notions and a hidden agenda which found its expression in the so called bill.
First I would like to question the authority of the NAC to draft such a bill. Why an extra constitutional body should be engaged in this task. Do we not have ministers-the cabinet and government advisors to the Prime Minister-Group of empowered ministers to take up the task. All these are paid by the common people’s tax money and apart from these a super body with handpicked anti-Modi, anti Hindu persons to form the NAC with an Italian heading it to abet the disintegration of this nation. This cannot go and it will be relevant if Baba Ramdev and Anna team joins together to throw this bill into the dustbin of history. This is their obligatory duty because corruption is one but the survival of the country as a nation comes first. This so called bill cannot go even if redrafted because from A to Z it is flawed. It is seditious and treason.
A blatant and arbitrary division of the Indian people into ‘group’ and ‘others’ is made by the drafters of the Bill, which reveals the mal-intent. It goes beyond mere appeasement of the Muslims but aims at disintegration of the country. The drafters have given the Muslims and the religious Minorities a free run of violence including rape which is a crime but they have the license to commit these and go scot free. The same criminality and violence committed by a Hindu calls for stringent punishment but if committed by the Muslims escape the law (this is worse than the jungle law).This because the Muslims and the Minorities are the ‘group’ and the Hindus are ‘the others’ ungrouped. The people thus are grouped into two-the victims-which is ‘the group’ and the perpetrators which are ‘the others.’ No country in the world except the Nazis had this mind set when it came to the Jews. No civilized country would accept such blatant miscarriage of law and justice. The Congress had right from the beginning been sowing divisive politics in the country- on the basis of region, religion, caste and language. Now it is emboldened to reveal its devilry. Just two camps of people in the country-the victims and the perpetrators. So even before the violence the NAC has envisaged violence and that is directed against the Muslims and Minorities. Indian history does not vouch to this assumption. The drafters of the Bill presume that riots and violence are perpetrated by ‘the others’ (read Hindus)This is not true and not the reality. ‘According to Ms Zenab Banu’s ‘Politics of communalism: a politico-historical analysis of communal riots in post independence India with special reference to the Gujarat and Rajasthan riots” (1989), there have been 74 communal riots between 1953 and 1977 of which 75 percent were instigated by Muslims’ Even today 98 percent of terrorism cross borderand /or Indian born is planned, instigated and perpetrated by Muslims.Only Islam has the Jihad and hence Jehadis. Yet PC could coolly make a reference to ‘saffron’ terror. This clearly indicates the mindset of the Congress.
The Communal Violence Bill is based on hate philosophy but even in this it is skewed. There have been riots in which Hindus were victims and Indian history stands testimony to the atrocities against Hindus, by the Muslim invaders-the destruction of temples and the desecration of Hindu gods and goddesses. In recent time the fate of the Kashmiri pundits will vouch for this. The Hindus have been massacred, their homes have been burned and they have been driven out of the Valley. Till date no justice has been done. Is this because they belong to the ‘others’?
Violence is violence and criminality is criminality it cannot change because of the victim and the perpetrator. These must to be snuffed out and the same penal code must address these crimes. The same laws must be applicable to the citizens of India. This is their Right. The proposed Bill violates the Constitution with immunity not only on Federalism but on Fundamental Rights. How can a Parliament even look at it and waste its time. I shudder to think that the NAC have people sitting in it with such a mindset. And are to pay for them by out tax money? To make this feasible the NAC is proposing to bring out two penal codes-one for the Hindus and the other for the religious minorities. It would be better then to say that the religious minorities do not come under any penal code-they can run amuck commit crimes and indulge in violence .They will not be apprehended. If a nation divides its people on the basis of two sets of penal code; next it will seek two flags for the country-one for the group and the other for the Hindus. So a nation quietly and ingeniously divided into two. Do we need geographical partition? And in this divide which flag will the NAC hold? What about the national anthem? Which flag will be unfurled on the Independence Day? It is simply beyond my comprehension that the NAC could draft such an atrocious bill aimed at dividing the nation and get away with it. They must be charged for treason.
Let us hypothetically envisage that this Prevention of Communal and Targeted Violence Bill is passed and becomes a Bill. Then posthumously Rajiv Gandhi must be tried and sentenced. The Congress leaders-Jagdish Tytler ,Sajjan Kumar must be put on trial-the Congress government which was in power at the Centre with all those officers then in service must be tried and punished because they failed to prevent the butchering of the Sikhs, the arson and the rapes The Congress party must be banned. The history of this country does not start with the NAC and end with NAC. One should have a sense of history and thus the same Bill drafted by the NAC will be first directed against the Congress party headed by Mrs Sonia Gandhi. It will end the NAC and will throw the Congress party out of the relevance of Indian history. What you sow you reap.
Dr Mrs Hilda Raja
The BJP government in Himachal Pradesh today opposed the proposed bill against communal violence alleging it was an attempt to appease the minorities.
Speaking at the National Integration Council meeting in here, Himachal chief minister Prem Kumar Dhumal termed "Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011", as an "interference" in the domain of states, which is against the federal structure of the country.
He said the present laws should be effectively implemented to deal with communal violence.
Dhumal also asked the Centre to extend the industrial package for Himachal upto the year 2020 and said the industrial incentive package was sanctioned for 10 years in the year 2003 but it was curtailed by the present UPA government, thus "badly hitting" the industrial development of the state.
Dhumal sought enhanced assistance from the Centre under border area development scheme for accelerating the developmental programmes in areas near the 201-km-long international border with Tibet and China.
He said the budget of Rs 2,000 lakh has been allocated by the Centre for these areas for 2011-12 and pleaded for more budgetary support keeping in view the tough geographical and topographical locations as all these areas were in the tribal snow-bound areas where construction cost is much higher in comparison to plains.
He also sought sanction for two additional police battalions for maintaining peace in border areas.
Dhumal urged the Centre to fully reimburse the cost of providing security to Tibetan spiritual leader Dalai Lama and the 17th Karmapa Ogyen Trinley Dorje. He said, at present, around 33,500 Tibetan refugees are living in the state.
Dhumal asked the Centre to provide special package of Rs 5,214 crore for 2011-12 for the state as compensation due to under-assessment of Himachal's committed liabilities by the 13th Finance Commission, which resulted in lesser devolution of funds.
He also sought special plan assistance of Rs 2,500 crore for the state's annual plan for 2012-13, saying the Finance Commission had scaled down the projected liabilities of the state by projecting average growth of around 2 per cent in pay for the year 2010-15, even as the actual expenditure growth is estimated around 10 per cent and salary bill has escalated to Rs 2,000 crore annually.
An increase in the borrowing ceiling from the present Rs 1,647 crore to Rs 2,034 crore on realistic assessments was also sought.
He also urged the Centre to adopt uniform funding pattern for all special category states and sought 90 per cent central funding for all centrally-sponsored schemes in the state.
He called for early construction of Pathankot-Leh railway line of strategic importance and said it will promote tourism and generate economic activities in the state.