In 1998, five years after we launched Communalism Combat, we had pointed out, in possibly one of the first researched compilations on judicial pronouncements on communal violence, that from the first ever bout of communal violence in free India (Jabalpur, 1961) to the full-blown pogroms that followed some decades later, two characteristics typified the violent frenzies that frequently cost us lives and property (‘Who is to blame?’, Communalism Combat, March 1998).
Both characteristics hold good today.
One is the silent yet strident mobilisation by right-wing supremacist groups through hate speech and hate writing against religious and other minorities for months beforehand. Though these have always amounted to violations of the Indian Penal Code (IPC), they have gone unchecked and unpunished, creating a climate that is fertile ground for the actual outbreak of violence. The other major cause of such violence has been found, by several members of the Indian judiciary, to be the failure of large sections of the administration and the police force to enforce the rule of law, resulting in a complete breakdown indicating deliberate inaction and complicity.
Both these features combined each time – whether in Jabalpur (1961), Ranchi (1967, Justice Raghubir Dayal Commission of Inquiry), Ahmedabad (1969, Justice Jagmohan Reddy Commission of Inquiry), Bhiwandi, Jalgaon and Mahad (1970, Justice DP Madon Commission of Inquiry), Tellicherry (1971, Justice Joseph Vithayathil Commission of Inquiry), Hashimpura (1987) or Bhagalpur (1989) – to ensure that minorities were not just brutally targeted but also denied free access to justice and reparation.
The organised violence in
The newly drafted Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 (commonly referred to as the Communal and Targeted Violence Bill), which awaits a nod from the cabinet before it is tabled in Parliament, is an attempt to address the imbalance and the despair caused by over six decades of discriminatory justice delivery. Far from being discriminatory against the majority, it entitles any victim – whether from the majority or a minority – to a robust scheme for compensation and reparation.
The bill is legislative acceptance of the discriminations in justice delivery faced by sections of our population that have long been subject to communal and targeted violence. When citizens who are numerically weak and socially disadvantaged are attacked on account of their identity, institutions of governance – law enforcement and protection and justice delivery – most frequently act in ways that discriminate against them.
The Communal and Targeted Violence Bill seeks to protect religious and linguistic minorities in any state in
Most significantly, it deepens the definition of dereliction of duty – which is already a crime under the IPC – and for the first time in India includes offences by public servants and/or other superiors for breach of command responsibility. “Where it is shown that continuing unlawful activity of a widespread or systematic nature has occurred,” the draft bill says, “it may be presumed that the public servant charged with the duty to prevent communal and targeted violence has failed… to exercise control over persons under his or her command, control or supervision and… shall be guilty of the offence of breach of command responsibility.” With the minimum punishment for this offence being 10 years’ imprisonment, superiors will hopefully be deterred from allowing a
Positive and reasonable legislative steps to correct either the discriminatory exercise of state power or the discriminatory delivery of justice draw strength from a clear constitutional mandate. Article 14 of the Indian Constitution states that: “The state shall not deny to any person equality before the law or the equal protection of the laws within the
Every democracy is premised on the assumption that while the majority can take care of itself, minorities need special protection. Consider for a moment India’s experience in tackling communal violence (or its failure thereof) alongside our history of recurring bouts of targeted violence, when numerically weaker and socially disadvantaged groups –linguistic or religious minorities or Dalits or tribals – are attacked because of their identity. Throw into this analysis the review of the application (or non-application) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. And the reasoning behind the need for this law, applicable to minorities defined not just by faith but also by other criteria, becomes immediately evident.
“Minority” is not, or should not be, a rigidly frozen concept based on religion alone. The reality is otherwise, as our sordid experience of the attacks on Kashmiri Pandits in the Kashmir valley or the violence unleashed on North Indians/Biharis in Mumbai and
There is a simple way in which to make the proposed law applicable to the state of
A law to protect the minorities draws its source from already existing powers granted to the centre, implicit in Article 355 of the Indian Constitution regarding the “Duty of the union to protect states against external aggression and internal disturbance” which provides 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 this Constitution”. This has generated considerable debate and will also be deliberated upon when the bill is put before the parliamentary Standing Committee. Detractors who speak only of
Over the decades the collective experience of civil libertarians and jurists at such times has been to ask for law and order enforcement to be temporarily handed over to the army. Assimilating this experience without impinging on the responsibilities of state governments to protect lives and property, the proposed law, under Chapter IV, envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty and monitoring the build-up of an atmosphere likely to lead to violence.
The National Authority cannot compel a state government to take action – in deference to the federal nature of law enforcement – but it can approach the courts for appropriate directions. There will also be state-level authorities, staffed, like the National Authority, by a process that the ruling party of the day cannot unduly influence. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.
The creation of this new entity was incorporated in the draft bill after much deliberation with practitioners, including former judges who felt that without a body to supervise, monitor and properly intervene when smaller but recurring bouts of communal and targeted violence take place, state governments would continue to be lax, as we have seen even recently in Bihar (Forbesganj, June) Rajasthan (Bharatpur, September) and Uttarakhand (Rudrapur, October 2011).
The powers of this authority are recommendatory and in no way violate federal principles. Similarly, the state-level authorities have also been created in order to facilitate district-level inputs towards the prevention of violence and its containment as well as justice delivery. Moreover, the National Authority has no power to issue binding orders against any state government except for the purposes of providing information. The National Authority is only empowered to issue advisories and recommendations with which the concerned state government/public servants may disagree, the only condition being that the reasons for such disagreement must be recorded.
Since mid-2011 when the National Advisory Council (NAC) invited comments on the draft bill, many voices have been raised expressing concerns about some basic precepts of the proposed law. These concern, in the main, the definition of the victim group – religious and linguistic minorities and scheduled castes and scheduled tribes – and the creation of a National Authority to monitor the build-up and occurrence of targeted and communal violence, issue advisories, extract replies from the state governments and intervene in courts hearing the cases. The provisions on witness protection, the rights of victims during trials and the thorough scheme of compensation and reparation have been largely welcomed.
There are two questions of concern expressed among those, across the ideological spectrum, who have objected to the draft bill’s definition of the victim group. One of these voices disquiet about a law which, if it comes into existence, will divide people on the basis of minority and majority. The second objection is sharper; it asks whether a law premised on the assumption that a minority has never committed or will never commit acts of violence can be just or fair. It comes as no surprise that the second criticism was first made through an article by Arun Jaitley, the leader of the opposition in the Rajya Sabha who is also a senior lawyer. Others who have vociferously echoed Jaitley’s criticism – with the sole exception of Tamil Nadu chief minister Jayalalithaa who is also dead against the law – belong to
Other protests against the bill have come from the leaders of some regional parties, such as
Let us first address the concern relating to the definition of the victim group.
Democracies, based as they are on electoral and representative politics, reflect the voice of different sections but do also privilege the majority. This majority is not always religious; it could be from a certain social stratum or caste or committed to a certain ideology. At their best, democracies maintain the balance of power while always giving space and protection to the minority voice, the single voice. Short of this delicate balance, democracy can tip over into the rule of the mob, a mobocracy. Values of constitutional governance, equality for all, especially equality before the law, are principles that could fall by the wayside when mob rule takes over. Can we in
While we rightly celebrate elections as a fundamental reaffirmation of the vibrant, live democracy that
Sober reflection reminds us that even while we cringe at categories like majority and minority, the anomalies of the very electoral victories we celebrate must force us to reconsider our views. Mass crimes have sat comfortably with electoral politics in
Let us recall a moment in our history. In November 1984, within a short and bloody spell lasting about 72 hours, more than 3,000 Sikh residents of
Twenty-seven years have passed since then.
The four politicians identified as perpetrators of the 1984 Sikh massacres have never been punished. Instead, three of them were elected to Parliament within a month of the violence, from the city where they were accused of leading mobs, signalling democratic sanction for the brutal massacres. They had not only been given tickets by the ruling Congress party but Hindu voters, expressing brute majority support for their actions, had voted them in.
Should this brute democratic sanction of mob violence by the majority have gone legislatively unchecked?
Should Indian democracy not rise above political and partisan interests and enact a law that ensures protection of its minorities?
Following a similar pattern, those named as perpetrators of the violence against innocent Muslims in
The genocide in
Here constitutional governance has been held to ransom by the very aspects of democracy, the electoral politics that we celebrate. Unchecked with each bout of violence, the subversion of the justice process has reached an all-time high. When majoritarianism creeps into systems of governance, legislative checks like those contained in the Communal and Targeted Violence Bill become vital.
It is therefore evident that one of the greatest challenges of our time – though by no means the only one – is how we in
Nowhere does the Communal and Targeted Violence Bill make the assumption that targeted violence can never be perpetrated by a minority group. There is no denying that in, say, Marad (Kerala),
Hence the bill through its definition provisions provides that apart from the sections relating to remedy and reparation, all aspects that involve higher performance from the policeman and administrator are made applicable only if the victim is a member of the defined group. To ensure fair and non-discriminatory governance, the protected group comprises the religious and linguistic minorities and scheduled castes and scheduled tribes.
In 2009 about 50 Dalit organisations had collectively reviewed the functioning of the 20-year-old Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. In the course of this review, it was identified that among the many factors responsible for the failure in the act’s implementation was the absence of any provisions for pinning down the accountability of public servants. This coupled with the fact that in the caste hierarchy, scheduled castes and scheduled tribes represent the most deprived minority was the rationale for their inclusion in the protected group in the proposed law.
Apart from the Atrocities Act, we have in place the Protection of Women from Domestic Violence Act 2005 which was also a special legislative response to social reality and experience. Until this law was enacted, the amended Section 498A of the IPC was the section of criminal law invoked when domestic violence against women occurred. Many of those who had opposed the empowerment of women through this amendment had long argued for the repeal of Section 498A on the grounds that it had in a few cases been abused. Fortunately, the facts on the ground carried the day.
The BJP through Jaitley has also sought to project communal violence as a mere “law and order” problem even as it conveniently disregards the crucial element that allows communal violence to occur in the first instance, intensify in the second and fail to deliver justice in the third. They are equally outraged that the proposed law recommends that four of the seven members of the National Authority should, in the interests of representative governance, belong to minority communities.
The crucial component mentioned above – administrative and police bias – is blithely overlooked in Jaitley’s outraged arguments. This should come as no surprise, since his party rose to power on a wave of majoritarian mob frenzy and the crimes committed by BJP leaders (including a former deputy prime minister) in Faizabad-Ayodhya in 1992 and Gujarat in 2002 – to give only two examples – reflected the impunity of men secure in the knowledge that institutional tardiness and majoritarian bias would assist them in escaping prosecution. And punishment.
At a more intellectual level, the arguments proffered by sociopolitical commentator Ashutosh Varshney also appear to be mired in a frozen reality, three decades old. Unlike in the 1960s and 1970s when communal violence generally occurred in communally sensitive cities like Bhiwandi, Ahmedabad,
It is imperative that those concerned with justice and reparation join the campaign for the restoration of fair debate. Currently the proposed law has become the victim of hysterical propaganda – led, unsurprisingly, by players whose political trajectory gained momentum by legitimising irrational prejudice and even hatred, who rose to power on the wings of communal mob frenzy.
To enable a reasoned rational discourse on a long overdue law, the Communal and Targeted Violence Bill must be tabled in Parliament and be put before a Standing Committee forthwith. Any anomalies within it can be ironed out at that stage. We must not allow this process to be derailed by the same cynical political players who have gained political brownie points and mileage through the spread of hatred and the generation of mob frenzy.
This article of Teesta Setalvad is published as Cover Story in the November 2011 issue of sabrang.com and reproduced here in the interest of public awareness and information