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Draft Communal Violence Bill 2011: Areas of Concern

The National Advisory Council's draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 rests on the premise that while the existing legal framework adequately addresses communal violence directed at dominant groups, it fails when the group affected is a religious or linguistic minority. However, there exist several concerns in the draft related to accountability, command responsibility, and the watering down of accepted principles of criminal jurisprudence. Further, is an entirely new legislation replete with tough restrictions on civil liberties the best solution that we can think of?

COMMENTARY

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First, it restricts the offences under the Draft Communal Violence Bill bill to those that are committed against a minority group (i e, either religious, lin2011: Areas of Concern guistic or SC/ST) in any state, irrespective of the identity or membership of the perpetrator.3 Second, it establishes a para-Suhasini Sen digm of accountability for public servants,

The National Advisory Council’s draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 rests on the premise that while the existing legal framework adequately addresses communal violence directed at dominant groups, it fails when the group affected is a religious or linguistic minority. However, there exist several concerns in the draft related to accountability, command responsibility, and the watering down of accepted principles of criminal jurisprudence. Further, is an entirely new legislation replete with tough restrictions on civil liberties the best solution that we can think of?

Suhasini Sen (suhasini.sen@gmail.com) is a lawyer practising in Delhi.

Economic & Political Weekly

EPW
august 6, 2011

F
ew can deny that independent India has been no stranger to the divisive forces of communalism.1 From the electoral violence in Nellie in 1983, to the anti-Sikh riots of 1984 and the tragedy of Gujarat in 2002, communal violence is an open wound on our democracy, constantly reminding us of its existence. These events cast a terrible burden on our polity and citizenry, and, yes, undoubtedly, there is a need for both preventive and reparative action. The draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 prepared by the National Advisory Council is the latest attempt at doing so.

The draft in its current form purports to “ensure equality in the working of the law for non-dominant groups in every state”.2 On the basis of experience gleaned from the above-mentioned and other instances of communal violence, it seeks to correct the prevalent institutional biases that o perate against the ends of justice when the targeted group is a religious or linguistic minority in any state or belongs to the scheduled castes and tribes (SC/ST) (Kaushal 2011). To achieve these aims, the bill primarily seeks to do the following.

vol xlvi no 32

and invokes the international law doctrine of “command responsibility” to punish both public servants and non-state a ctors for crimes committed by their subordinates.4 Third, the bill brings in a flurry of tough provisions such as placing additional strictures on the grant of bail, and authorising the interception of private messages.5 Fourth, it also envisions the creation of a separate bureaucracy, the National Authority for Communal Harmony, Justice and Reparation, and authorities at the state-level to both assist in and independently investigate, and recommend a ction in instances of offences under the Act and to oversee reparations and relief.

1 Definition of ‘Group’

The most contentious issue that the draft bill raises is the fact that it applies only to minority groups in a state. The rationale for this is that while the existing legal framework adequately addresses communal violence directed at dominant groups, it fails to do so when the group affected is non-dominant,6 and therefore, this imbalance requires legislative correction. The frivolity of right-wing claims that the Act excludes Hindus (Vyas 2011) is immediately revealed on a cursory reading of Section 3(e), which shows that the Act

COMMENTARY

a pplies to both religious and linguistic m inorities. Therefore, Tamil-speaking Hindus in Karnataka, or Gujarati-speaking Hindus in Maharashtra, for example, would also come under the contemplation of the definition. However, this definition is problematic on two levels. First, at a logical level, the stipulation that the identity of the perpetrator of an offence under the bill is irrelevant to the commission of the offence leads to mind-bogglingly bizarre hypothetical situations. Does the bill then equate communal violence by members of one non-dominant group against another non-dominant group with communal violence perpetrated by a dominant group on a non-dominant group? (Gagdekar 2011).7 Are the foundational premises of institutional bias on which the bill rests equally valid in both cases? However, to redraft the provision so as to specify that an

o ffender must be a member of a majority group is also quite troublesome.8 It appears that by its very nature the defining of “communal and targeted violence” in terms of the group of people that are a ffected by it is untrue to the reality of communal violence as an all-pervasive s ocial phenomenon where perpetrators and victims belong to both dominant and non-dominant groups. Therefore, though the bill attempts to address the disproportionate effects that communal violence has on certain groups, it seems to rely on a flawed legal conceptualisation to do so.

The second cause for concern is rooted in the effectiveness of the general manner in which Indian legislators have been choosing to tackle crimes that are specifically targeted towards certain groups of people, i e, by making the entry point of the crime dependent on the identity of the victim. In the past, Indian lawmakers have recognised the need to make criminal statutes specifically for the protection of certain groups of people, notably the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and more recently the Protection of Women from Domestic Violence Act, 2005. Offences in these cases are clearly perpetrated against one specific group of people, whose experience of persecution is uniquely their own. Similarly, in cases of communal violence there is much evidence to show that the violence and persecution experienced by minority groups differs substantially in its sheer scale from what is experienced by dominant groups. However, is it effective to address these discrepancies via a legislation that seeks to define the offence itself as one that is perpetrated solely against a non-dominant group?9 The very fact that the drafters of the bill thought fit to specifically include SC/STs within the definition of “group” is testament to the fact that problems persist despite the presence of an already existing specific law (Samuel 2010).10 Thus, the i nsistence on creating a categorisation of victims does not always justify the weight of the social stratification that it creates.

In this regard, an interesting feature of the bill is that while it defines communal violence as being restricted to acts perpetrated on non-dominant groups, it provides that relief and reparation shall be granted to all persons affected by communal violence irrespective of their membership to a “group” as defined under the bill.11 This indicates that the bill also implicitly accepts the idea that the impact of communal violence is often felt across the board, albeit more severely by already disadvantaged groups. If relief and reparations are open to all, then is there a need for the insistence that the victims of the crime should be confined to only a particular set of people? Examples of hate crime legislation in other jurisdictions such as the United States (US) show that legislators have leaned in favour of retaining existing penal provisions as opposed to enacting separate laws but increasing the “grade” of punishment for hate-motivated crimes (Freeman 1992).12 It could be useful to study the imposition of motivebased punishments to see if they provide an escape route from creating an unnecessary legal categorisation and further stoking an already polarising issue.

2 Shifts in Jurisprudence

2.1 On Accountability

The bill creates a framework of legal accountability for public servants, which is far more detailed than the provisions in the Indian Penal Code (IPC). It also fixes liability on both public servants and non-state actors by transplanting the inter national law concept of “command responsibility” onto the Indian statute books.13 Under the bill, a public servant can be held culpable for “dereliction of duty” both for acts that lead to or are likely to lead to communal and targeted violence and also for omissions and the failure to take reasonable steps to prevent communal and targeted violence.

The insistence on higher standards of accountability is welcome as the history of communal violence is liberally peppered with instances of public servants abrogating their responsibility either maliciously

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august 6, 2011 vol xlvi no 32

COMMENTARY

or otherwise. However, there is another point to be considered. Recent work has highlighted that communal trouble for the most part is the joint product of both how police and civil servants discharge their duties and also how social and economic relations are organised in a given local community. This, it is posited, is the explanation for why certain towns and cities in India have witnessed repeated instances of communal violence, while neighbouring towns have not (Varshney 2011). As it currently stands, in addition to penalisation for “dereliction of duty”, the bill also removes the usually present safeguard for actions taken in “good faith”.14 This may be unwise, considering the evidence that shows that the success of the officer in preventing violence and maintaining order may be at least partially outside his or her control, even with the best efforts.

Command Responsibility

In seeking to bring public servants in charge of the armed forces or the security forces,15 non-state actors, and leaders of associations into its purview, the bill relies upon the international law doctrine of command responsibility, which was most famously invoked by a US military court in the conviction of general Yamashita of J apan, who was found guilty of the

o ffences committed by his troops in the Philippines.16 The doctrine of command responsibility is an overarching conception meant to cover the variety of ways in which individuals in positions of responsibility are held accountable. Essentially, it makes a person liable for the actions of one’s subordinates as if he or she themselves had committed those acts. It is pertinent to point out that the usage of command responsibility in general international law as transposed from military law has itself been viewed as problematic by several scholars for its watering down of accepted criminal jurisprudence, which states that a person is usually only culpable for his own actions. In fact its continued usage in international law is justified largely on the basis that crimes of an international character merit treatment different from domestic crimes (Damaska 2001).

There is an additional problem as well. Section 15 of the bill applies to any non-state

Economic Political Weekly

EPW
august 6, 2011

actor, superior or office-bearer of an a ssociation as defined. “Association” is widely defined in Section 3(b) to mean “any combination or body of individuals, whether or not registered or incorporated under any law for the time being in force”. Liability under the Act will be imposed if the offences committed were activities which “were within the effective responsibility and control of such non-state actor or superior or office-bearer of any association”.17 The imposition of a military standard of accountability on a civilian, coupled with an extremely broad definition of such a civilian is unacceptable, and might be inherently problematic to any liberal conception of criminal theory. While past accounts of communal violence have shown that the real orchestrators of violence are higher up on the power ladder, and the need to ascribe liability on them certainly exists, it might be more in tune with humanistic standards to mediate between administrative punishment and the harsher extremes of criminal liability.18 Should we not as citizens of the largest democracy in the world be looking to do so in ways which are more in conformity with the constitutional principles that our society is built on?

2.2 Beyond Existing Criminal Law Standards

While the merits and demerits of other features of the bill are arguable, the one undeniably regrettable feature is the attempt the bill makes to alter criminal procedure. Certain clauses in the bill make deep incursions into civil liberties and unfortunately rely on legislations of dubious history such as the Maharashtra Control of Organised Crime Act (MCOCA), the Prevention of Terrorism Act (POTA) and the Terrorist and Disruptive Activities Act (TADA) to do so. The most striking example of this is Section 85, which places an additional limit on the grant of bail for persons charged with offences under the Act.19 This provision is lifted almost verbatim from Section 21 of the MCOCA. Couched in mandatory terms, it stipulates that a person will not be granted bail if it is found that he or she is on bail for any offence under any Act in force. The fact that a provision so deeply antithetical to the idea of personal liberty should find place in more than one statute is truly sad

vol xlvi no 32

and that it has been incorporated into a bill intended to protect a minority group from violence is deeply ironic, given the history of minority persecution in India.

The bill also provides for the appointment of special public prosecutors to be facilitated through “general public comments” about his or her appointment.20 As has been pointed out by several groups, this defeats the very idea of the impartiality of a trial, as a prosecutor cannot represent the ideas of one group of people and must by the very nature of his office discharge his duties in a completely unbiased manner.21Another provision that could raise eyebrows among legal experts would be the attachment of property of an a ccused irrespective of whether such property is connected to the offence.22 The bill also authorises the interception of private messages by the central and the state government in relation to offences committed under this Act.23 A bill that specifically seeks to check the malign use of state power should certainly not be concentrating more power in its hands.

A New Bureaucracy

Almost predictably, the draft bill has envisioned the creation of a new authority, the National Authority for Communal Harmony, Justice and Reparations and a host of state authorities as well. The primary function is to check the build-up and spread of communal violence and oversee reparations and relief. The qualifications for membership are the traits of impartiality and integrity. Interesting however is that fact that a person would be disqualified from membership if he or she has “exhibited bias against any group in writing or otherwise”.24 How these credentials will be determined is unclear. What such an authority, armed as it is with the same powers of information collection and recommendations, will be able to achieve that the National Human Rights Commission has not is equally unknown.25 The creation of state authorities in a bill which is already so sceptical of state governments is another bizarre feature of the bill, since the very premise of the bill seems to invalidate the likelihood of such a body being able to function impartially let alone function at all.

COMMENTARY

The draft is based on the wholly justified assumption that communal violence affects different groups of people differently. Yet, do these differences merit a lternative criminal procedures to deal with them? The watering down of accepted principles of criminal jurisprudence and the across-the-board importation of rigid military standards of accountability to a widely defined group of people are the main causes of concern in the bill in its present format. The creation of another recommendatory body to help meet the aims of the bill is as avoidable as the controversy surrounding the bill’s exclusivist definitions. The idea that public servants need to be made accountable is valid. Equally valid is the fact that systems must be created to e nsure r ehabilitation and compensation when violence does break out. But there does not seem to be the need for another law to do this. Perhaps, instead of assuming that new legislations will solve our society’s problems, we should be making a serious and scientific attempt to amend and suitably adapt the laws we already have.

Notes

1 During 2005-09, 648 people were killed and 11,278 injured in 4,030 incidents of communal violence as found at http://www.prsindia.org/ Draft Draft Billtrack/security-law-strategic-affairs/ and accessed on 18 July 2011.

2 “Explanatory Note to The Prevention of Communal and Targeted Violence” (Access to Justice and Reparations) Draft Bill 2011 dated 28 June 2011.

3 S 3(e). 4 Ss 13-16. 5 S 67 and S 85(2). 6 “Explanatory Note”, op cit. 7 See further Engineer (2002). The author has

highlighted that there have been repeated instances of dalits being used by right wing groups to attack Muslims in Gujarat.

8 For example, under the SC/ST (Prevention of Atrocities) Act, 1989, an offender is anyone who is not an SC/ST, however, the logic of this categorisation does not apply to “communal violence”, which is not confined to only one set of people.

9 There are several countries that have enacted criminal statutes.

10 The author points out that despite the enactment of the Prevention of Atrocities Act, 1989, the national average of crimes against SC/STs shows no decline at 33,956. This implies a daily average of 93 registered crimes. Further, out of 1,76,397 pending cases, the police have performed an investigation in only 1,34,534 cases. And out of this, only in 97,341 cases the charge sheet has been submitted.

11 S 90 provides, “90.Right to relief, reparation, restitution and compensation.-(1) All persons, whether or not they belong to a group as defined under this Act, who have suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and when death has occurred as a consequence thereof, the next of kin of such deceased person shall be entitled to relief, reparation, restitution and compensation as applicable to them in accordance with the provisions under this Chapter”.

12 It is pertinent to point out that the definition of “communal and targeted violence” in the bill does make motive relevant to the commission of the crime. That alone should be enough to determine culpability without an exclusive definition of who the victim should be.

13 Ss 13-16.

14 S 130. The section specifically removes public servants charged with “dereliction of duty” from its purview.

15 Schedule I of the Draft Bill. The “Armed and Security Forces” include both those exclusively under the control of the central government and also the regular police force, the Central Reserve Police Force, etc, who fall under Entry 1, of the Concurrent List of the Constitution of India.

16 In Re Yamashita, 327 US 1 (1946). The decision of a US military court to hold General Yamashita guilty was reviewed and ultimately approved by

the US Supreme Court.

17 S 15 (1)(ii).

18 For example, considering the creation of graded punishments that operate between the scale of mere negligence and an overtly mala fide act. Both S 121 and 122 of the Draft Bill make the punishment rigorous imprisonment for life for breach of command responsibility which leads to organised and targeted violence

19 S 85(2) of the draft bill reads as follows: “Notwithstanding anything contained in the Code, the accused shall not be granted bail if the Designated Judge under this Act finds that he or she was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.”

20 S 78 S 78(3) reads as follows “The State Government shall give prior notice of the proposed appointment and invite from the general public comments on, or any objection to, the proposed appointment before appointing the Special Public Prosecutor”.

21 Press release dated 11 June 2011 as accessed on http://www.anhadin.net/article136.html on 17 July 2011.

22 S 82.

23 S 67.

24 S 23.

25 See Chishti (2011). Recently, Justice J S Verma and Justice B N Srikrishna criticised the attempts

of the draft bill to create another body to deal with communal violence as unnecessary and poorly thought out.

References

Chishti, Seema (2011): “Justices Verma and Srikrishna Red Flag the NAC Anti- Communalism Draft Bill”, The Indian Express, 26 June, found at http:// www.indianexpress.com/news/justices-vermaand-srikrishna-redflag-nac-draft-anticommunalviolence-Draft Draft Bill/808751/3 as accessed on 18 July 2011.

Damaska, Mirjan (2001): “The Shadow Side of Command Responsibility”, The American Journal of Comparative Law, Vol 49, No 3 (Summer), pp 455-96, as found at http://www.jstor.org/stable/ 840901.

Engineer, Asghar Ali (2002): “Gujarat Riots in the Light of the History of Communal Violence”, Economic Political Weekly, Vol 37, No 50, pp 5047-54.

Freeman, Steve M (1992): “Hate Crime Laws: Punishment Which Fits the Crime”, Ann. Surv. Am. L, pp 581-85, as found at http://www.heinonline.org as accessed on 22 July 2011.

Gagdekar, Roxy (2011): “Dalit Boycott by Muslims Leaves Gujarat’s Sanand Village Edgy”, DNA, 12 July, as found at http://www.dnaindia.com/ india/report_dalit-boycott-by-muslims-leavesgujarat-s-sanand-village-edgy_1565010 as accessed on 22 July 2011.

Kaushal, Akshat (2011): “QA: Harsh Mander, Member, NAC”, Business Standard, 5 June, found at http://www.business-standard.com/india/news/ qa-harsh-mander-member-nac/437871/ as accessed on 17 July 2011.

Samuel, Dibin (2010): “Prevention of Atrocities Act Bring No Reprieve to SC/STs”, Christian Today, 22 April as found at http://in.christiantoday.com/ articles/prevention-of-atrocities-act-brings-noreprieve-to-scsts/5295.htm as accessed on 21 July 2011.

Varshney, Ashutosh (2011): “Rethink the Communal Violence Draft Bill”, The Indian Express, 16 July as found at http://www.indianexpress.com/news/ rethink-the-communal-violence-Draft Draft Bill/ 818096/1 last accessed on 20 July 2011.

Vyas, Neena (2011): “Draft Bill on Communal Violence More Draconian than TADA: Jaitley”, The Hindu, 27 May as found at http://www.hindu.com/ 2011/05/27/stories/2011052767641600.htm accessed on 17 July 2011.

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