Friday, December 6, 2013

Communal Violence Bill is communal


Communal Violence Bill is communal

Kartikeya Tanna

5 Dec 2013



Although debates on the Communal Violence Bill were going on since National Advisory Council's (NAC) 2011 draft got circulated in the public domain, the past few hours have witnessed an exponential increase in the discussions. And, not without reason.

BJP's PM candidate Narendra Modi expressed his objections to the CVB in no uncertain terms. So, has the Leader of Opposition in the Rajya Sabha Arun Jaitley in a detailed legal critique. I recommend that readers go through these two very reasoned critiques of the CVB. The legislative history behind this latest draft is very interesting. In 2005, the draft was titled 'The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill'. Its purpose was:

"To empower the State Governments and the Central Government to take measures to provide for the prevention and control of communal violence which threatens the secular fabric, unity, integrity and internal security of the Nation and rehabilitation of victims of such violence and for matters connected therewith or incidental thereto."

This was a noble objective and communal violence was defined in an egalitarian manner. The victim could be anyone; the perpetrator could be anyone; and those deserving of rehabilitation could be from any community or section. In 2011, however, the National Advisory Council, came up with a draft titled 'Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill' which is now sought to be introduced in Parliament. Its purpose is:

"To respect, protect and fulfill the right to equality before law and equal protection of law by imposing duties on the Central Government and the State Governments, to exercise their powers in an impartial and non-discriminatory manner to prevent and control targeted violence, including mass violence, against Scheduled Castes, Scheduled Tribes and religious minorities in any State in the Union of India, and linguistic minorities in any State in the Union of India; to thereby uphold secular democracy; to help secure fair and equal access to justice and protection to these vulnerable groups through effective provisions for investigation, prosecution and trial of offences under the Act; to provide for restorative relief and reparation, including rehabilitation and compensation to all persons affected by communal and targeted violence; and for matters connected herewith and incidental thereto."

How the need to control communal violence affecting any community or section converted into the need to protect only minorities, religious and linguistic, and SCs and STs is perplexing. Strangely, the 'social entrepreneurs' in the NAC, as Arun Jaitley calls them, are selling the view that the need for defining a larger class of offences and to put in place higher evidentiary burdens in a situation of communal violence must only be in cases where the victim is from the minority.

This is not a Bill which seeks to distribute sops and schemes to sections which have remained backward for historical, social and other reasons (although, as I have argued earlier, that too is unfair). This Bill attempts to 'invent' an inequality of sorts between the majorities and minorities on grounds of their hands, bodies and access to weapons and arms for perpetrating violence. There is absolutely no regard to umpteen illustrations in India's longstanding communal violence history where the initiators of communal violence have been members of the minorities. This law is poorly conceptualised and, perhaps, deliberately so.

So far the question of whether this Bill, if enacted, will stand the test of judicial scrutiny, there are primarily two grounds under which it can be challenged. The argument that it discriminates on the basis of religion can be easily defeated on two counts: firstly, the draft cleverly includes linguistic minorities, SCs and STs in the 'group' which deserves protection under this Bill. This group is sufficiently wide so as to defeat the objection that it discriminates on any one ground.

Secondly, the judiciary, of late, has expanded the possibilities of having laws and schemes which benefit targetted sections despite those non-targeted sections being similarly situated. I have pointed that out in a previous column vis-à-vis minority scholarship scheme. The argument that this Bill violates the federal structure has merits although it is unfortunate that a huge amount of energy and resources shall be spent on invalidating a law which reeks of danger and will inevitably cause more hatred and disharmony.

There cannot be a law more communal than this Communal Violence Bill.


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