For a person who has been a victim of such violence has no recourse before the law, as the criminal justice system in India had enough measures to tackle with individuals being the perpetrators, but had limited legal remedies when the same action was committed by a very large group of individuals. The cost of an individual’s life is above any caste, creed, religious or linguistic majority/ minority. Therefore, state action should focus on the creation of an all-encompassing law which seeks to ensure that the fundamental right to life and liberty of every citizen must be upheld irrespective of his or her religious or social predilection.
The recent Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 which has been approved by the National Advisory Council (N.A.C.) regrettably broadens rather than addressing the problem. The very definition clauses run on the basic premise that violence can only be deemed to be communal if such a violence is committed by a religious or linguistic majority on minority and not vice versa. There are many other provisions mentioned in the bill which have further consolidated this presumption and which, if implemented, would result into the dispensing of justice, which is essentially preferential in character.
Definition of “Communal Violence”, “Victim”, and “Group”: Communal or targeted violence has been defined under Section 3 (c) as 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 the secular fabric of the nation. This means and includes that the intention of the legislature is to prevent any act which is against the tenets of secular value in India. However, the very next definition runs in contravention of the principles of secularity which the state endorses. Section 3 (e) defines a “group” which means a religious or linguistic minority, or Scheduled Castes and Scheduled Tribes.
Of particular significance is Sub Clause 3 (j) which defines a victim who is defined as a member of the minority group only. A pertinent instance could be that in India where Hindu population is dominant whereas Muslim population is a minority, if a communal riot breaks out, then only the members of the minority group can claim their right. So if there were 200 Hindu families which had to suffer the consequences as against 100 Muslim families, then under this law they have no recourse whatsoever.
The objective of any criminal justice system in the world is to uphold the rights of the society and to create a deterrence which is not to be vilified on account of one’s socio, political or religious association. The nature of punishment should be equal for every individual irrespective of what religious order he professes or to which region he belongs to. The provisions have mutilated the very canon of criminal law. Why should the nature of punishment vary on account of one’s religious or linguistic predilection? Violence is violence irrespective of whether it is been committed by a Hindu, Muslim, Parsee, Christian, Jew, etc. The imposition of punishment should therefore be the same and should not vary according to these frivolous demarcations.
“Hate Propaganda”: The scope and ambit of the definition of “Hate Propaganda” is so broad that it can cover almost any conduct which has the capacity to incite people. It includes any act, or words, whether spoken, written or any mode of visible representation which shall be construed to be capable of inciting violence. The provision is bereaved of pragmatism as every individual has been bestowed with the freedom of speech and expression and has a right to raise his voice in case of its violation. The legislators have not specified as to what acts would actually constitute the term “Hate Propaganda”. This would result into arbitrariness as a certain conduct shall be deemed to be an offence in one state whereas the same conduct might not qualify as an offence in another state.
Organized Communal Violence as Emergency?
The most draconian of all provisions is the power which has been bestowed on the Central Government to construe any act of Organized Communal Violence to constitute “Internal Disturbance” within the meaning of Article 355 of the Constitution of India. The prerogative of determining whether an act qualifies as being tantamount to Internal Disturbance solely vests with the Central Government under Section 20 of this Act. Historically speaking, India has witnessed the period of Emergency in 1975 wherein gross human rights violations were perpetrated by the functionaries of the State itself. The very nature of Emergency provisions bestows indomitable powers on the State and this can be used for political advantages as was done in Punjab and later in India. One can only speculate on the powers which the Government shall enjoy once this provision comes into force as it can decide on whether a given situation in a particular state requires the imposition of Emergency or not. This provision n consonance with the definitions of “group” and “victim” shall open flood gates to political manoeuvres.
The extent and scope of power vested with the National Authority does not merely extend to the state law enforcement agencies such as police officers but also brings the entire Armed Forces within the ambit of the term “public official.” This Bill therefore blurs the line between civilian matters and armed forces matters and brings it within the ambit of the National Authority. Schedule I appended to the Bill brings within itself all the forces including the Army, Navy, Air force, Paramilitary forces such as the Border Security Force, Indo Tibetan Border Police Force, Special Allied Forces, Central Reserve Police Force, Central Industrial Security Force, Coast Guards, Home Guards, Railway Protection Force, Territorial Army and even the National Security Guards.
Every citizen of India has been endowed with certain fundamental rights, which are so inherent to the core principles of Natural Justice that upholding the sanctity of these rights becomes the first and foremost duty of the state. However in guise of this law, the entire secular framework of our nation is in a state of grave jeopardy. The communal Violence bill provides for a selective remedy whereby only a particular segment could avail those rights irrespective of whether people from their families are the perpetrators or not. This law challenges the very secular fabric which it seeks to uphold.
The Bill in its present form has been reduced to a mere mockery which is against the core principles of criminal law; it is also pulverized to the extent by incorporating the preferential definition of what constitutes group and victim. If a law has to prevail, then it should be universal in its approach and its enforcement should be coupled with the system of checks and balances. The present bill regrettably promises none of these and is rather looked upon as a political faux pas.