The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011
As prepared by the National Advisory Council
The Bill seeks to create a framework to prevent, investigate and prosecute certain offences as defined in Sections 7 to 12, harmonised with the SC/ST (Prevention of Atrocities) Act, 1989.
- The Act is prepared by the NAC, which is not empowered by the Constitution to do so. Nonetheless, as long as it goes through consultations and then to Parliament (and a standing committee if required), it's alright.
- The Act makes references to the Rome Statute of the International Criminal Court, which India has not ratified. Such a reference would question why India has not ratified the Statute.
- Sections 23(1)(b) and 46(1)(b) dealing with appointment of members to the proposed Authorities ask that the members be known to have promoted communal harmony. This is a fairly difficult thing to prove objectively and leaves to question whether absence of attempts to promote communal harmony maybe thought of as being communal.
- Section 30(c) along with 41(1) effectively take away control of investigating agencies from State Governments without their consent and without the consent of the judiciary. This is made up by the fact that the Authorities are deemed to be Civil Courts, but this provision still goes against federalism.
- Section 77(2) on permission to prosecute certain offices is good and should be applied to all cases where such permission is required in other laws. [Deals with refusal to prosecute only with written reason.]
- Section 88(2) calls for videos of the trials to be given to all those related to the case. A clarification would be useful as to whether this video would be made available under the RTI Act, 2005.
- The Act makes a strong attack on federalism. The Constitution gives States the exclusive power to handle law and order. However, Section 20 allows acts defined by the Bill to be an "internal disturbance" and thus invite Art. 356 of the Constitution (which allows for President's Rule). Furthermore, it widens the ambit of the Indian Telegraph Act, 1885 and allows for tapping of phones for yet another kind of suspected activity. Thus, the Bill takes a set of offences which are already crimes under the IPC and brings them under Art. 355 of the Constitution for no reason except to damage federalism and attacks the right to privacy at the same time!
- The Bill is itself communal in nature because Section 3(e) defines a "group" as a religious and linguistic minority and thus assumes that only the majority is capable of communal and targeted violence. The Bill does not discuss the scope under which it is observing this - a group could be a majority nationally but a minority in a particular state, district or area. If Bodo tribesmen attack Garo tribesmen within Meghalaya, the Act would not come into force, as the latter is a majority being attacked by a minority. Logically, the Act should have a national scope.
- Furthermore, the Bill does not apply directly to Jammu and Kashmir, despite the fact that the largest form of communal and targeted violence took place there and saw the mass exodus of Kashmiri Pandits. The Bill does not even recommend that the Government of India press the J&K Government to consider a similar Bill. This, read with the comment above, makes one believe that this Bill is specifically designed to penalise Hindus and adds linguistic minorities as makeup.
- In continuation of the previous comment, Section 100 calls for a right to return for all those displaced by communal and targeted violence, which would find major applicability to Jammu and Kashmir. Yet, the Bill makes a token provision for Jammu and Kashmir and fails to achieve its goal of justice where it is needed the most.
- The Bill introduces the idea of command responsibility, which would mean that the entire political leadership of the State Government can be prosecuted for violence. This is not an established part of our law; if this were to be accepted, then logically, the Prime Minister should be with A Raja in Tihar Jail. The Bill brings in this concept for no reason but to break federalism and ensure the fall of the State Government.
- Interestingly, the Bill provides for rehabilitation and reparation to all communities, majority or minority, and provides no reason for that. How can the majority alone be held accountable for communal and targeted violence while both the majority and minority are entitled to compensation? There is no logic for that - both should be held accountable.
- The Bill is very weak on acts committed by the Armed Forces of the Union (as listed in the schedule) and does not really do anything to prevent or prosecute acts committed by them. Thus, the Bill gives no protection to citizens wronged by the Armed Forces (Special Powers) Act in Jammu and Kashmir and Northeast India.
- The provisions for selection of members to the proposed Authorities are somewhat vague. It is not clear as to whether the party of the Leader of the Opposition in the Lok Sabha would get an additional representative. The overall balance of power in the selection committee between the Government and the Opposition is also not clear - it is possible that the Opposition has no voice, since the selection committee would probably work by majority and not consensus. This is particularly worrisome in the case of the National Authority.
The Bill, prepared by an organization that as such is not empowered to do so by the Constitution, comes with major flaws and appears to be designed to target Opposition-ruled states and the Hindu community, which forms the majority. The Bill is made with good intentions but is off the mark right in the beginning. In its current form, it would be disastrous and should not be passed by Parliament without modifications.
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