From: The Times of India
Special Report
Draft of contention
Shobhan Saxena, TNN | Jul 3, 2011, 12.21am IST
On Thursday, victims of the 2002 Gujarat riots got the shock of their life as the state government claimed that crucial riot records, including phone transactions, vehicle logbooks and official movements, had been destroyed. It was a huge setback for the victims and their families who have been waiting for justice for nine years. It also shocked the legal fraternity. Many of them ask how the government could destroy the documents when "a judicial probe into the Godhra train carnage and the post-Godhra communal riots in the state is yet to submit its final report."
"This wouldn't have happened if we had a law which held public servants accountable for their actions. You can't prosecute them for dereliction of duty. You can't easily get sanction for their prosecution. In India, the law still protects state from people," says Vrinda Grover, a Delhi-based human rights lawyer. "We need a complete turnaround. I hope the proposed bill on prevention of communal violence takes care of this," she says.
The latest draft of Prevention of Communal and Targeted Violence Bill, likely to be introduced in Parliament's upcoming monsoon session, proposes that if there is no response to a request for sanction for prosecution of a public servant within 30 days, "sanction to prosecute will be deemed granted". That will be a big change.
The draft of the bill has been hanging fire since 2005, when it was first drawn up by the UPA government. After howls of protest from certain quarters, the National Advisory Committee has now made 49 amendments to its earlier draft. Though in its definition of communal and targeted violence, the NAC has dropped the reference to "destruction of the secular fabric", the main opposition party BJP is still accusing the UPA of indulging in "minority appeasement".
In a note on the draft bill circulated last week, the BJP dubbed it as "dangerous", "draconian", "discriminatory" and "damaging" to India's federal policy. And senior BJP leader Arun Jaitley went to the extent of saying that this "law would harm inter-community harmonious relations".
Is that right? Is the proposed bill all about so-called minority appeasement?
In a country with multiple religions, languages, ethnic groups and castes, the word 'minority' is a relative term. "Biharis constitute a linguistic minority in Maharashtra and Assam, where they have been vulnerable to attacks based on their regional and linguistic identity, but they are dominant in Bihar. Similarly, in several states in the Northeast, Punjab and Jammu & Kashmir, Hindus are numerically a religious minority," says Harsh Mander, member of NAC, dismissing the charge of minority appeasement. In fact, the draft doesn't divide people into 'majority' and 'minority' categories. It describes "hate-based targeted violence" as attacks on a "non-dominant group in a state, based either on language or religion, or on a member of a Scheduled Caste or Scheduled Tribe."
But it's not just the BJP which has questioned the bill. Even former judges of the Supreme Court have criticized the amended draft which was released last week. Questioning the need for a separate law to check communal violence, former Chief Justice of India Justice J S Verma said there was a "need to identify lacunae in present laws, if any, and make amendments. We have enough laws, in fact, the maximum in the world."
This kind of criticism, according to members of drafting committee, misses the point. "The Bill is only concerned with ensuring that when the group under attack is non-dominant then the officers of the state must not be allowed to let bias breach their impartiality," says Mander. "Communal and targeted violence spreads mainly because the public officials charged with preventing it either fail to act or act in a biased manner."
Even people like Grover, who had opposed the first draft of the bill, see it as a positive move. "We need to define the chain of command responsibility. In most cases, the junior officers get caught and punished and the higher ups go scot-free. We need to adopt international standards in such matters," says Grover.
The draft not only takes care of this lacunae in Indian law, it also casts legal duties on the state to "provide rescue, relief, rehabilitation, compensation and restitution to victims." Right now, says Grover, compensation depends on the whims of politicians and babus. That may change now. "This Bill provides that compensation shall be paid within 30 days from the incident, and in accordance with a schedule," says an NAC member.
Also the charge that the bill will violate India's federal structure doesn't hold ground as the draft clearly states the "all powers and duties of investigation, prosecution and trial remain with the state governments."
Why then the draft has become so controversial? Is it because of the word 'communal' in the bill? As it deals with hate crimes against non-dominant groups, will it be a good idea to call it hate crimes bill? "Yes, it will help if we change the name of the bill," says Mander. "The idea is to make sure that different kinds of minorities — the non-dominant groups — do not become victims of targeted violence."
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