Sunday, April 29, 2012

Communal Violence Bill 2011- Comments

1. NAC, though pompously called National Advisory Council, is in effect Not Accountable Cabinet has perfected a PREVENTION OF COMMUNAL AND TARGETED VIOLENCE (ACCESS TO JUSTICE AND REPARATIONS) BILL, 2011. The draft can be accessed at Communal violence bill

My partial comments, more might follow. Members are requested to look at the draft and then offer comments, if so desired.

S 3(j) “victim” means any person belonging to a group as defined under this Act, who has 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 includes his or her relatives, legal guardian and legal heirs, wherever appropriate

Section 3 (e) states that “group” means a religious or linguistic minority, in many State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses(24) and (25) of Article 366 of the Constitution of India. This means that if a person belongs to any of the above groups as mentioned under this bill, then he can be subjected to violence. Hostile environment can only be created for these groups under Section 3 (f) of this Bill.


Reading both these sections together brings out the following:

1. The “group” can only be muslims, Christians and SC/ST.

2. That apart them there cannot be any victims of targeted violence. It is clear that Hindus just cannot complain if they are victims of targeted violence, ie, those who died in torching S-6 coach cannot be victims in terms of this bill. Question is how will they be categorized? How will they get compensations? Who will compensate them? Sadly they would be left out in the cold.

3. The “group” is defined on state wise basis. What about local groups? For example, there are districts in W. Bengal where Hindus are a MINORITY, hence a GROUP. But in terms of definitions of the bill, Hindus are a majority in W. Bengal. Hence they CANNOT be victims!!

Read further

S 2, providing for extra territorial jurisdiction.

2. Punishment of offences committed beyond, but which by law may be tried within, India.- Any person liable under any Indian law including this Act, to be tried for an offence committed beyond India shall be dealt in accordance with the provisions of this Act for any act committed beyond India in the same manner as if such act had been committed within India.

Examine in the light of Article 14, then it would be very difficult to understand as to why only a particular group of Indian society is included under the act.

Christians in Egypt qualify to a “group”. Anti Christian violence by Egyptian muslims seems to be punishable under this bill. But question is how those Egyptians can be brought to justice in India? No way.

Section 4 - Knowledge.- A person is said to knowingly direct any act against a person belonging to a group by virtue of such person’s membership of that group where a) he or she means to engage in the conduct against a person he or she knows belongs to that group; or,(b) with the knowledge that the person belongs to a group, he or she means to cause injury or harm to such person because of the membership of such person to that group.

At the risk of sounding stupid, how do you prove this ? This will require the services of a clairvoyant who can read the minds

13. Dereliction of duty.- When any person who is or was a public servant not removable from his or her office save by or with the sanction of the Central Government or State Government, as the case may be, authorized to act under any provision of this Act a) exercises the authority vested in him or her colourably or in a manner otherwise than provided under law for the time being in force, which causes or is likely to lead to an offence of communal and targeted violence or by which he or she intends to screen or knowing it to be likely that he or she will thereby screen any person from legal punishment; or, (b) omits to exercise lawful authority vested in him or her under law, without reasonable cause, thereby fails to prevent the commission of communal and targeted violence, breach of public order or disruption in the maintenance of services and supplies essential to a group, shall be guilty of dereliction of duty.

Wow – how do you prove colourable. Colour can cover a lot of territory, but mostly it will cover saffron colour.

2. 33. Powers of the National Authority.- (1) The National Authority in the fulfillment of its objectives and in furtherance of its functions shall have the following powers, namely:-

(b) appointing any person to observe, gather facts and information, inquire on its behalf;

Quite a vague provision. What is an any persons? Can such a person be a foreigner? Can ISI of Pakistan be appointed for this task? Can Teestas make such a demand and get away with it? Sadly, the answer is YES.

(3) The National Authority shall have power to require any person, subject

to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such matters as, in the opinion of the Authority, may be useful or relevant to, the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code.

Any law also includes International laws, conventions, treaties etc. Any privilege also includes diplomatic privileges too. Certain Constitutional,office holders enjoy certain immunities. Will they too be covered? Seems YES to both.

Can it be workable?

3. Advisory Group Members

Abusaleh Shariff -Muslim

Asgar Ali Engineer -Muslim

Gagan Sethi

[ Gagan Sethi is the Managing Trustee of Jan Vikas, an NGO in - Similar

Gagan Sethi is the Managing Trustee of Jan Vikas, an NGO in Ahmedabad which has been active in the struggle for justice for the victims of the 2002 Gujarat ... What do you expect from him?]

H.S Phoolka

John Dayal -Christian

Justice Hosbet Suresh -Christian

Kamal Faruqui -Muslim

Manzoor Alam -Muslim

Maulana Niaz Farooqui -Muslim

Ram Puniyani -rabid christian

Rooprekha Verma - [ spoke glowingly about Saffron War, a film exposiong, in her words, Hindu terrorism. Haha]

Samar Singh - who is he?

Saumya Uma

Shabnam Hashmi -Muslim

Sister Mary Scaria -Christian

Sukhdeo Thorat

Syed Shahabuddin -Muslim. He cannot see beyond muslims and claims so openly.

Uma Chakravarty

Upendra Baxi - In Warwick, UK, since 1973. GOOD]

What could you expect from this group?

4. Knowledge.- A person is said to knowingly direct any act against a person belonging to a group by virtue of such person’s membership of that group where:

(a) he or she means to engage in the conduct against a person he or she knows belongs to that group; or,

(b) with the knowledge that the person belongs to a group, he or she means to cause injury or harm to such person because of the membership of such person to that group.

You know the potential of this "knowledge" ? I hope you do. Suppose in village there is anti muslim riot. First, cause is immaterial. Second each and every Hindu in the village can be hauled up. Don't say it will not happen. If something CAN happen, it SHALL happen.

This section provides for a collective guilt and collective punishment. Leastwise, each Hindu can be fined. Maximum they go to jail.

Read it with:

(k) “witness” means person who is acquainted with the facts and circumstances, or is in possession of any information or has knowledge, necessary for the purpose of investigation, inquiry or trial of any crime involving an offence under this Act, and who is or may be required to give information or make a statement or produce any document during investigation, inquiry or trial of such case and includes a victim of such offence;

Get the import? A wife can be forced to testify against her husband and vice versa. This does not happen in any civilized state. Pal, there are special ways in which a woman can be intimated by the law enforcers AND victims. I need not spell them out, do I?

Reducing the accused to penury

82. Attachment of property.- (1) Where the charge has been framed in relation to an offence under this Act, the Designated Judge may direct that the property of the accused person be attached during the pendency of the trial and until conviction or acquittal, as the case may be.

(2) The provision under section 60 of the Code of Civil Procedure, 1908 shall apply to in relation to property being attached under this section.

The mere accusation and framing of charges is enough to attach the whole of the property of the accused. This action is taken only when the accused consistently refuse to appear before the court. In most cases the attachment order is never issued. MFH did offend Hindus, not a group anyway, and failed to respond to non bailable warrants. Was his property attached? By jove NO NO. Attachment of property on just being accused vis nowhere provided anywhere in the civilsed states.

The accused is unable to utilise his money for his proper defence. What a sham of a natural justice by presumption of guilt and then depriving the accused to get defence lawyers. Which other law provides for such draconian measures? Had it been a general law, then A. Rajas, Kalmadis etc would be penniless.

Since Hindus are the presumed offenders, so whole Hindu population of village after after village can be made penniless. And who gets their houses, lands, movable assets? Sure, the perpetual victims, aka non Hindus.

1. 83. Sale of attached property on conviction.- Where upon conviction, the Designated Judge imposes a fine in addition to any other sentence under this Act, he or she may direct the property attached under section 82 to be sold and proceeds thereof to be paid and the amount so recovered be applied in defraying the expenses properly incurred by the Central Government or the State Government in discharge of its functions under sections 92, 93, 98, 99, and 107 of this Act.

This is a very draconian provision. Anywhere in the world, only the property gained by commission of a crime is confiscated, not all. The family of the accused already on the road and reduced to penury loses all further hopes.

2. TADA and POTA which Cong was crying against did not have the Doctrine of Presumptive Guilt. Nor did they a distinction between terrorist committed by a group and non-group. They nowhere talked of castes, creeds etc. But this atrocity of a bill, does all that.

74. Presumptions as to offences under this Act.- (1) If in a prosecution for any offence committed under this Act, it is shown that the accused committed or abetted or conspired to commit the offence of hate propaganda under section 8, it shall be presumed, unless the contrary is proved, that the offence committed was knowingly directed against a person by virtue of his or her membership of a group.

Comments: The bill has already made it clear that:

- Victim can ONLY belong to a group [like minorities], never to non-group [read Hindus].

- Presumptive guilt has already been implied.

- This sub section gives it a legal sanctity.

- Once an offence is seen to be committed, the Hindus of the area are automatic suspects, and must prove their innocence. No more evidence is needed.Sub section (2) only underlines it.

(2) Whenever an offence of organized communal and targeted violence is committed and it is shown that a hostile environment against a group exists or the offence of hate propaganda under section 8 was committed against a group, it shall be presumed, unless the contrary is proved, that the said offence was knowingly directed against persons belonging to the group by virtue of their membership of the group.

Doctrine of Presumptive Guilt is found only in the islamic laws, nowhere else. Even TADA and POTA demanded corroborative evidence, confession alone was not enough.

PS: I would request all to continue with the subject of the thread and post value added comments, for or against the bill.

3. How to pack the prosecutors

78. Special Public Prosecutors.- (1) For every State, the concerned State Government shall, by notification in the official gazette, appoint a panel of Special Public Prosecutors for prosecuting offences under this Act, and who shall be deemed to be Special Public Prosecutors under sub-section (8) of section 24 of the Code of Criminal Procedure, 1973 within the meaning of clause (u) of section 2 thereof.

(2) The State Government shall ensure that this Panel is representative of various groups and at any given time, not less than one third of the Special Public Prosecutors actively assigned for the prosecution of offences under this Act are from the religious and linguistic minority communities and the Scheduled Castes and the Scheduled Tribes of the State, and at least another one third are women.

(3) 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.

Provided that no person who has exhibited a bias against any group or against whom objections have been received shall be appointed as the Special Public Prosecutor.

(4) Special Public Prosecutors shall conduct the prosecution of offences under this Act in a fair and impartial manner and in the interest of justice. In the event the Special Public Prosecutor conducts the prosecution in a biased manner against the interest of the informant or the victim, the State Government may, on its own or on information received from a victim or informant, replace the Special Public Prosecutor.

Does it require special foresight to know that it assumes that only prosecutors from minorities can be unbiased? Are other prosecutors biased against minorities. The prosecutor who handled Mumbai blast cases can now be very well labeled as bias.

It assumes that the judges would be dumb enough to allow bias. Will the defence attorneys be so dumb as not to pounce on any bias?

Curiously, the bill does not make such reservations of judges!! Is it hard to see that that dice is heavily loaded against a Hindu accused? First attach his property, after this forced penury do not provide ANY legal aid, and then pit prosecutors from the "group" against them, who will play every trick to get a guilty verdict, easy anyway under this bill.

This section too has not been received well in the legal circles. Religion, not merit is the yardstick.


21. Constitution of National Authority for Communal Harmony, Justice and Reparation.-

(1) The Central Government shall constitute a body known as

the National Authority for Communal Harmony, Justice and Reparation to exercise the powers and perform the functions assigned to it under this Act.

(2) The National Authority shall be a body corporate with the name aforesaid having perpetual succession and a common seal with the power, subject to the provisions of this Act to acquire, hold and dispose of property and to contract, and may, by the aforesaid name, sue or be sued.

(3) The National Authority shall consist of a Chairperson, a Vice-Chair-person and five other Members.

Provided that, at all times, not less than four Members, including the Chairperson and Vice-Chairperson, shall belong to a group as defined under this Act.

Provided further that, at all times, there shall be -

1. one Member belonging to Scheduled Castes or Scheduled Tribes;

2. four women, whether Chairperson, Vice-Chairperson or Member;

Please read it with:

23. Qualifications.- (1) The Chairperson, Vice-Chairperson and Members of the National Authority shall have the following qualifications and shall be chosen from amongst persons:

(a) having expertise in relation to law or criminal justice or human rights;

(b) having a record of promoting communal harmony;

Teesta "fulfills these conditions. Arundhaty Roy too. Gilani too. But Teesta is tops, she has an experience of doctoring the witnesses, preparation of false affidavits etc.

Section 21. Seven member authority is the lynch pin in prosecutions, identifying groups and victims etc. Dominated by the "group" can you foresee it as recommending the prosecution of a member of a group? Can an upper caste member be ever heard in the din of the groups? The dice is further loaded against the Hindus. Yet it is called NATIONAL!! More like a minority caucus it is.

If you bread Sec 31, you will find that powers and functions of this body are almost as demanded by Anna Hazare for the Lokpal.

1. A door to Emergency of 70s.

Remember internal emergency in the wake of unseating of Indira Gandhi? Bet, most members have not heard of it, what to talk os seeing it. Yet I was was a young man of 25 at that time. I know the atmosphere of fear prevailing in the country, a veritable PRISON. Newspaper were pre censored. Some of them like like Indian Express showed blank spaces where the excised news WAS to appear, but COULD not. Others too soon followed suit. Then the elections were announced in 77. Not much attendance at election rallies, Emergency was force. Come voting day. Election booths saw long, longggg lines. No public display, but the outcome was predetermined and known to the sovereign people.

Counting day was a special day when people ignored 144, police warnings to disperse etc. A big, biggest throng was there in front of Express office. News of defeats of Congi "bigwigs": poured in and were greeted withh loud cheers. Till the news came of Indira's defeat. Soon defeat of Sanjay was put up on the board.

For vat least the crowds were silent. Know about pin drop silence? Then the cheers broke. That was at about 12 in the midnight or so. Yours truly WAS there. Half an hour later lots of military movement was seen. It was then that scooted back to my home. Once I broke the news, it spread like a wild fire.

My dear friends that EMERGENCY was under Art 355 of Const. Want to know more about it? I can tell more, after all I lived it.

This bill provides a back door to Art 355.

See for yourself, don't believe me.

20. Power of Central Government in relation to Organised Communal and Targeted Violence.- The occurrence of organised communal and targeted violence shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution of India and the Central Government may take such steps in accordance with the duties mentioned thereunder, as the nature and circumstances of the case so requires.

A small riot in a village and Art 355 is there. Do you people want such provisions? It FORCES the prez's hands. A SATISFACTION of the prez, even though fictitious, is replaced by this bill.

Mind you, Zail Singh did not sign Post Office Bill into a law. Venkataran too kept it pending. Then SD Sharma returned it without comments and it was buried QUIETLY.