Out with the hate : pros and cons of communal violence bill

The Telegraph, 6 July 2011

Out with the hate

A law to prevent communal violence is in the offing. Shabina Akhtar weighs its pros and cons


Fourteen people were charred to death when a violent mob chanting communal slogans set fire to Best Bakery in Vadodara during the Gujarat riots in 2002. That was just one incident in the long and bloody history of communal rioting in India. Whether it was the Nellie killings in Assam in 1983, or the anti-Sikh riots of 1984, the Godhra riots in 2002 or the anti-Christian violence in Orissa’s Kandhamal district in 2008, the country has often erupted in a frenzy of communal hatred and thousands of innocent lives have been lost.

According to PRS Legislative Research, a Delhi-based organisation that provides research support on legislative and policy matters, between 2005 and 2009 as many as 648 people were killed and 11,278 injured in 4,030 incidents of communal violence. To combat this recurrent problem, the United Progressive Alliance government asked the National Advisory Council (NAC) to draft the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill.

Based on suggestions from citizens, citizen groups and the government, as many as 49 changes were incorporated in the draft bill, which now lies with the additional solicitor general (ASG) of India. The PCTV bill is likely to be tabled in the monsoon session of Parliament.

The demand for a law to curb communal violence is not new. Investigations into incidents of communal riots — such as the Madon Commission report on the Bhiwandi riots of 1970, the report on the Bhagalpur riots of 1989 and the Sri Krishna Commission report on the Bombay riots of 1992-1993 — all revealed the need for such a law.

“Each of these reports made it clear that the minorities seeking justice had to face state complicity and institutional bias among different public authorities and state officials,” says Usha Ramanathan, a law researcher based in Delhi.

Most activists and minority community leaders are happy that the law is at last about to become a reality. Says Kamal Faruqui, a Samajwadi Party leader and a member of the Muslim Personal law board, who is also an advisory group member of the NAC, “The draft bill has addressed some of our non-negotiable terms such as the definition of communal violence, equal compensation for all victims of communal violence, the accountability of officials, and so on. Now that the bill is ready, I think it’s the moral responsibility of the central government to see that it is passed.”

The PCTV Bill aims to protect religious and linguistic minorities, including the Scheduled Castes and the Scheduled Tribes, from targeted violence. Apart from including the usual Indian Penal Code (IPC) offences, it also elaborates on the crime of hate propaganda, which is already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty on the part of public servants when communal rioting breaks out.

“Where it is shown that continuous widespread or systematic unlawful activity has occurred, it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence failed to exercise supervision… and shall be guilty of the offence of breach of command responsibility,” says the draft bill. Officers guilty of inaction or complicity in situations of communal violence have been prescribed with imprisonment of 10 years.

The bill also dilutes the rule which requires one to take the sanction of the government before a public servant can be prosecuted. Clause 76 has omitted prior sanction for offences detailed in Schedule III of the IPC. However, as Colin Gonsalves, a senior Supreme Court counsel, points out, “Prior sanction has been retained for graver offences like rape and murder that have been enumerated in Schedule II, and almost all the other crimes mentioned in the bill.”

The draft bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. It will comprise a chairperson, a vice-chairperson and five other members. Of them, no fewer than four members are supposed to belong to a minority group. However, experts say that by limiting its power to receiving and investigating complaints of violence and of dereliction of duty on the part of officials, the bill is advocating a toothless body. “What’s the use of a body that has no judicial power and cannot compel the state government to take action,” asks Gonsalves.

Moreover, the compensation to victims suggested by the bill is way below global standards, he points out. “It is just Rs 2 lakh or Rs 3 lakh whereas international standards are much higher and could go up to $1 million.”

Another clause in the bill that has come in for flak is the suggestion that the state be allowed to intercept phone communication during violence. “We know from past experience that no riot could have been possible without the complicity of some public officials. In such a scenario, interception of communication can be fatal. The intercepting officer can pass on the details to people who are involved in the rioting,” says John Dayal, member of the National Integration Council and of the NAC’s working group on the PCTV Bill.

In the past week, some important changes have been made to the draft bill. In the original version, “organised communal and targeted violence” was envisaged as constituting “internal disturbance” within the meaning of Article 355 of the Constitution. This irked many people as Article 355 has been invoked in many strife-torn areas like Kashmir and the Northeast and the Army called in to put down “internal disturbance”. Says Dayal, “We did not want the phrase ‘internal disturbance’ as this has been misused and abused by governments in the past.” The contentious phrase has now been dropped from the draft bill.

Another important amendment to the bill relates to the definition of communal and targeted violence as something that leads to the “destruction of the secular fabric”. It was agreed that this was too high a threshold, and therefore this phrase has also been deleted.

However, Vrinda Grover, former member of the NAC’s drafting committee, remains sceptical about what shape the bill will finally take. “The NAC website says that 49 amendments have been approved. But we are not really clear about what changes have been made. We hope that the bill will be made public once again before it is sent to the home ministry. What if the government overrules the changes made?”

Others fear that the government may drag its feet when it comes to pushing the bill through in Parliament. As Faruqui puts it, “My worry is that the Congress might now backtrack on its promise on the pretext that some people or body do not agree with the draft bill.”

As things stand, though, it seems likely that a law to prevent communal violence will soon come into force. What remains to be seen is if it will dissipate the culture of communal hatred that simmers beneath the surface of India’s social fabric.