The draft Bill prepared by the National Advisory Council evokes criticism

Frontline, Volume 28 - Issue 13 :: Jun. 18-Jul. 01, 2011

LEGISLATION

A flawed Bill

V.VENKATESAN

The draft Bill prepared by the National Advisory Council evokes criticism about, among other things, its very definition of communal violence.

LINGARAJ PANDA

A house destroyed during communal riots at Bramhanigaon village in Kandhamal district, Orissa. A file photograph.

INDIA has witnessed several widespread atrocities against minority communities throughout its history. The existing laws have been found to be grossly inadequate to prevent such violence and punish the guilty. As a result, a culture of impunity has taken root, manifesting itself from time to time during communal violence.

The 15-member National Advisory Council (NAC), set up as an interface with civil society, provides policy and legal inputs to the government with special focus on social policy and the rights of disadvantaged groups. It consists of distinguished professionals drawn from diverse walks of life, and its contribution to the preparation of draft Bills is significant. Therefore, when it constituted a five-member Working Group on the Draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, and formed a 24-member Advisory Group and a 10-member Drafting Committee comprising experts from outside the NAC last August to prepare the Bill, expectations were high.

A similar Bill, prepared by the United Progressive Alliance (UPA) government in 2005, was examined by the Parliamentary Standing Committee on Home Affairs but was not enacted. Considering that most political parties when in power (except the Left) had failed to stop communal and targeted violence at different points of time since Independence, the 2005 Bill did not inspire confidence.

The Working Group presented its draft Bill to the NAC on April 28, and the NAC placed it in the public domain for comments. On the basis of the comments that were received until June 4, the council will finalise its recommendation to the government. Even as the political class and civil society reacted to the various provisions of the draft Bill, deep fissures within the Advisory Group and the Drafting Committee came to the fore.

Many members of the Advisory Group opposed the key provisions of the draft Bill. Two of the Drafting Committee members, legal researcher Usha Ramanathan and civil liberties lawyer Vrinda Grover, quit the committee on February 20 expressing their displeasure over its insistence on creating a National Authority. The process of preparing the draft Bill came under criticism for the lack of democratic decision-making and transparency.

The Bharatiya Janata Party (BJP) has described the Bill as the “most dangerous to the country's unity” and threatened to launch a campaign against it. The controversy is over the very definition of communal and targeted violence in the draft Bill. Communal and targeted violence, according to the Bill, is any act resulting in injury or harm to any 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.

Many members of the Advisory Group took umbrage at the phrase “which destroys the secular fabric of the nation” because it sets a higher threshold for an act to be considered communal and targeted violence. According to Soumya Uma, a member of the Advisory Group, it is not possible to establish whether in a given case the secular fabric of the nation is destroyed, let alone threatened. “We had, therefore, suggested avoiding the use of such too general phrases, which is likely to cause confusion rather than help precise definition,” she said. But the Drafting Committee accepted the recommendation of the Standing Committee on Home Affairs in this regard, ignoring the protests that emanated from the Advisory Group.

The BJP has opposed the definition of the word “group” in Clause 3(e) of the draft Bill. A clear definition of group is important because communal and targeted violence has to be one knowingly directed against any person by virtue of his or her membership of any group. The Bill defines group as a religious or linguistic minority in any State in the Union of India or the Scheduled Castes and Scheduled Tribes. Critics of the Bill ask why violence against a majority community should not be considered communal and targeted violence.

There is, however, a consensus within the NAC that the definition of group should remain because there is a huge institutional bias against minorities. The definition acknowledges this bias so that there is no dilution of fair trial. Usha Ramanathan justifies this definition, saying that “our experience with communal violence has shown absence of institutional protection for the minorities”. NAC member Harsh Mander has pointed out that Hindus are a minority in seven States. He is also of the view that there are laws to take care of attacks by minority communities.

Under Chapter IV, the Bill seeks to create a National Authority for Communal Harmony, Justice and Reparation. The National Authority, the Bill says, shall consist of a chairperson, a vice-chairperson and five other members. A proviso adds that not less than four members, including the chairperson and vice-chairperson, shall belong to the minority community. Another proviso requires that at all times, there shall be one member belonging to the S.C. or S.T. and four women, whether as chairperson, vice-chairperson or as members.

According to the Bill, the National Authority shall conduct an inquiry suo motu or upon any information or otherwise received in relation to the occurrence or likely occurrence of offences of communal and targeted violence, and negligence in the prevention of communal and targeted violence by public servants. The Authority can issue advisories and make recommendations to state and non-state actors. The Bill seeks to create similar authorities at the State level. The National Authority can issue directions to the State authorities, and its directions shall be binding.

According to Usha Ramanathan, since the objective of the Bill is to break the culture of impunity, there is a need to enlarge the list of communal and targeted offences on the field. Instead, she says, the Bill creates overblown bodies in the form of National and State authorities. Since experience has shown that no Commission of Inquiry has been effective in breaking the culture of impunity, creating authorities at the Central and State levels – which are in practice Commissions of Inquiries – would hardly help prevent communal violence, she observes.

One of the key guiding principles of the Bill is that its basic framework must not rest on the declaration of “disturbed areas” because it will enlarge the state's powers, thereby threatening individual liberties. However, Clause 20 of the Bill says that the occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution, and the Central government may take such steps in accordance with the duties mentioned thereunder as required by the nature and circumstances of the case.

The experience of Central intervention under Article 355 during the 2002 Gujarat pogrom shows that it is hardly effective in the absence of political will to force the State government to take action. Article 355 says that it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution.

As the NAC reconsiders the draft Bill, in the light of the comments from political parties and civil society, it is hoped that it will result in a robust law to prevent communal and targeted violence.