CCMMUNAL VICLLNCL 8ILL 2010

lndla's secular fabrlc ls aL rlsk uesplLe Lhe small and yeLLobe maLerlallzed and
execuLed vlcLory of lndlans ln Lhe flghL Lo pass Lhe !an Lokpal blll (anLlcorrupLlon
ombudsman) Lhere ls one Lruly dlsLurblng blll LhaL Lhe Plndu communlLy musL
waLch ouL for 1he lteveotloo of commoool ooJ 1otqeteJ vloleoce blll (Lhe blll) ls
geLLlng closer Lo belng passed 1he blll ls welllnLenLloned ln name only ln Lhe
pro[ecL l seek Lo ralse Lhe lssues of unfalrness and amblgulLy as Lhls proposed
blll ls llLLered wlLh such faulLs lf one ls Lo read Lhe blll llnebyllne Lhen one flnds
LhaL Lhe blll ls compleLely oneslded l presenL a humble aLLempL Lo dlssecL Lhe
key concerns of Plndus regardlng Lhls blll
PROBLEMATIC DEFINITIONS & INSTITUTIONS
The bill deIines those who are victimized as:
the :group' where group means a religious or linguistic minority, in any 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.
What is one to take away Irom this deIinition? The way it reads, the bill is simply
stating that communal and targeted violence is only perpetrated by a majority
community upon a minority community. A member or members oI a majority
community can never be victims! II identical oIIences were committed by minority
groups against the majority, then they would not be deemed oIIences according to
this bill. In addition, the deIinition oI group` in its current Iorm opens the door to
many diIIerent interpretations oI who all are eligible. Is communal violence a one-
sided aIIair? Aren`t their retaliatory actions perpetrated as well? Isn`t it possible
that minority groups may also instigate and perpetrate communal and targeted
violence towards other groups?
Going deeper into the analysis by deIining the term victim` as per the bill:
o #n# meoos ooy petsoo belooqloq to o qtoop os JefloeJ ooJet tbls Act wbo
bos soffeteJ pbyslcol meotol psycboloqlcol ot mooetoty botm ot botm to bls ot
bet ptopetty os o tesolt of tbe commlssloo of ooy offeoce ooJet tbls Act ooJ
locloJes bls ot bet telotlves leqol qootJloo ooJ leqol belts wbetevet opptoptlote
nce again, this deIinition Iurther enhances the suspicion that this bill limits the
scope oI victimhood to members oI minority communities only. A perIect example
oI how there is an anti-majority bias in this bill is Iound in Clause 7 which states
that a person is said to commit a sexual assault oIIence against a person belonging
to a group` by virtue oI that person`s membership oI a group. This clearly implies
that a sexual assault is only considered an oIIence under this bill iI it is perpetrated
by a member oI the majority community. How is this Iair? What about the reverse
situation? The Clause in its present Iorm is a slap in the Iace to all victims oI
sexual assault as it ranks the level oI severity based on the community/group that
the victim belongs to. Sexual assault is an inhuman act which cannot be taken
lightly.
Another concern is that the bill aims to Iorm a new level oI redundant and wasteIul
bureaucracy which will grab away law and order powers Irom the States. The bill
aims to set up the Aational Authority for Communal Harmony, 1ustice and
Reparation (a seven member panel) to exercise the powers and perIorm the
Iunctions assigned to it under this bill. The composition oI the authority is deIined
by the bill below:
The National Authority shall consist of a Chairperson, a Jice-Chair-person and
five other Members. Provided that, at all times, not less than four Members,
including the Chairperson and Jice-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, Jice-Chairperson or Member.
n top oI the National Authority, a State Authority will be set up in each state. The
size and composition oI the State Authority will perIectly mirror the National
Authority. The potential risks oI having the new National and State Authorities
will be discussed in the section on risks.
rlLlclsms of Lhls blll have come from many dlrecLlons Cne of Lhe leadlng volces
has been Arun !alLley of Lhe 8! !alLley has argued law and order are squarely ln
Lhe hands of Lhe SLaLe" 1hen why musL a enLral CovernmenL agency handle a
SLaLe's law and order lssues? uoesn'L LhaL compromlse and usurp Lhe
[urlsdlcLlonal prlvlleges of Lhe sLaLe? WhaL message are we sendlng Lo SLaLe
governmenLs regardlng communal vlolence? 1haL Lhey are lncompeLenL and are
noL quallfled or honesL enough Lo handle Lhe problem? 1he enLral governmenL
cannoL become Loo powerful 1haL ls a reclpe for dlsasLer PlsLory has LaughL us
how an overly powerful cenLer can have very negaLlve and desLrucLlve
consequences
DOUBLE STANDARDS?
II we talk oI communal and targeted violence and justice Ior victims, then our dear
and unIortunate Kashmiri Pandits/Hindus, Buddhists and Sikhs are not guaranteed
saIety by this bill. The bill extends to the whole oI India. But it will only extend to
the State oI Jammu and Kashmir (J&K) iI the State grants consent to the Central
government. Many may argue that since J&K has special status in India, that it
goes without saying that this bill would be voluntary Ior the State. However, it is
also very convenient that the only State which has such an option is also
a Hindu minority State.
While reading numerous articles regarding this bill, I came across a truly
disturbing double standard. When Iaced with the question oI how this bill would
treat a situation in which a Muslim group were to attack a Hindu group (where
Hindus are in minority), Justice M S Liberhan (oI Ayodhya Commission Iame)
replies 'the law can be amended later to accommodate them (the Hindus). Why
can`t this bill accommodate Hindus to begin with? Why must Hindus be victimized
Iirst and then be granted the right to be accommodated by this bill? Does anyone
remember J&K and what happened there? We`ve already had our Hindu brethren
victimized in places where they were in minority. We do not even need a legal
precedent in order to strengthen the case Ior having Hindus accommodated in this
bill. Yet, our legislators would preIer their tyrannical bill as it is. What message is
the Central government sending to India`s Hindu population? Also, just imagine
hypothetically how horrible a scenario we could have iI J&K`s government decides
not to enIorce the bill in its jurisdiction and sponsors violence against its Hindu
minority! What saIety net is there Ior the Kashmiri Hindus? I can only see
vulnerability and the mouths oI Lashkar-e-Toiba, Hizbul Mujahideen, and other
terrorist groups watering.
RISKS
The imposition oI this bill may create many risks. Its been already discussed how
this bill does not accommodate Hindus. However, in the event oI communal or
targeted violence perpetrated by members oI the majority community, would the
perpetrators have the right to a Iair and unbiased trial? The way I read the bill
suggests that the seven-person National and State Authorities will be
predominantly composed oI women and members oI the groups` as deIined in this
bill. There is absolutely nothing wrong with having women or members oI the
groups` as the authorities in this bureaucracy, but one may argue that this creates a
serious judgment bias. How can we guarantee the neutrality and Iairness oI
judgment oI these members oI the panel? There is not a single line in this bill
which discusses this area oI concern.
Secondly, a truly major risk is that it may provide terrorist and secessionist groups
(like the Naxals) with ample scope to operate their businesses under the shelter and
auspices oI this bill. It is worth mentioning that Sundeep Waslekar (President,
Strategic Foresight Group) wrote a Iine article on Forbes India (August 2011)
which neatly laid out the misconceptions about terrorist groups and their abilities.
Waslekar argues that terrorist groups are very well organized, politically savvy,
and are shrewd business people. They are always looking Ior new revenue sources
and communal and targeted violence is the next source oI growth Ior them (given
that this bill may soon pass). The consequences oI terrorist inIiltration in to
communal issues can be absolutely devastating Ior the Iuture oIIndia. The worst
part is that this bill provides loopholes Ior these trouble creators to operate and not
even be pursued.
Lastly, the secular Iabric oI India will be ravaged by this bill. A Iuture communal
harmony cannot be Iorseen in the light oI such a backward, anti-progressive, and
draconian bill. Heaven Iorbid that another large-scale act oI communal/targeted
violence was to occur aIter the successIul passing oI this bill. Every step oI the
process oI seeking justice would create even more conIlict and carnage. Just the
thought oI what we may have in store Ior us is a scary one. It is important is to
Iocus on the Iact that the bill exhibits inequality and unIairness both oI which go
against the very nature oI law.
THE DRACUNIAN PRUVISIUNS UF THE NEW LAW
1. Protection to religious or linguistic minority and Scheduled Castes and
tribes - It is directed to punish the oIIenses done or anticipated against a group
which essentially comprises oI a religious or linguistic minority and Scheduled
Castes and tribes (Sec 1 (e)). Nobody else is given protection. II in certain area,
hindu population is minority and attack is targeted against them or where the
minorities themselves start organized attacks and riots, this law wont help to
Hindus. Such is the viciousness oI the draIt bill. Crimes committed by the
minorities will be prosecuted by the regular criminal procedure.
2. Curbing freedom of expression by terming it as Hate propaganda - Even
publishing, communicating or disseminating oI opposition may be termed as Hate
Propaganda u/s 8 and is may extend to 3 years and/or Iine. Again, it is targeted
against the Hindu literature and and not anti-hindu literature.
Section 18 makes anything said or expressed against the minorities may be taken
up as oIIence under this Act. The Govt. is to keep a constant vigil on this as to who
is criticizing minorities, even Iair criticizing may invite action by state else the
public servant will be prosecutes - Sec. 18 - This provision may be misused widely
even in the time oI peace, Ior it is a continuing process.
3. Offenses to be non-bailable and cognizable - The oIIenses under the act are
summarily non-bailable and cognizable even iI they are not so under I.P.C. by
virtue oI (Sec. 11 and 58)
4. Government machinery will be made a slave to the minorities - Under this
Bill, public servants will be under constant supervision and torture- dereliction oI
duty and it casts vicarious liability on them(Sec. 12 to 16). As also the victim can
at any point oI time gets a right to know the stage oI proceedings and can complain
to the National authority against the Govt. Machinery.
5. Obeying orders is not a defense - Apart Irom the vicarious liability, the order
obeying police etc. can not say that they obeyed the orders. Even iI one obeys an
order oI his senior, he also is a accused. In the times oI riots or attacks, controlling
the same will be too much diIIicult because oI this. (Sec. 16)
6. Creation of a post - Defender for 1ustice and Reparations. - (Sec. 56) It
appears that his sole activity will be to press Ior the rights oI minorities.
7. Creation of National Authority for Communal Harmony, 1ustice and
Reparation
lL shall have separaLe lnvesLlgaLlon agency wlLh a ulrecLor Ceneral of ollce
C (Sec 29)
2 lLs advlsorles and recommendaLlons wlll be blndlng on Lhe SLaLe and
enLral CovL (Sec 32 (a) and (d) read wlLh Sec 29)
3 lL can lnLerfere ln Lhe ourL proceedlng ( SLc 32 [ and k)
4 lL wlll have Lhe sLaLus of a lvll ourL
8. The public servants like District Magistrate or Police Superintendent made
directly answerable to the National Authority. (Sec. 72,29, 69, 71, 4138,39)
9. Presumption of guilt and burden of proof on the accused (Hindus) - The
accused will have to prove innocence ( Sec. 74) This changes the entire legal
proceeding against the hindu accused people.
10. More than one third of public prosecutors will be from the religious or
linguistic minority. ( Sec. 78)
11. Provision for funds - There will be Iunds diverted Irom the Consolidated
Funds oI India in addition to the Iines collected under this act which will be
disbursed to the alleged victims.
12. Apart from punishment the convict will have to pay to the victim -
Whatever is given to the victims are in turn subrogated Irom the the persons
allegedly responsible Ior the loss oI property, liIe or liberty (Sec 110)
13. Protection of action taken in good faith - All the persons acting under this
Act will have blanket 'protection oI action taken in good Iaith'. ( Sec. 130)
14. This act is in addition to any other laws that are in force at present (Sec.
138)
ANOMALIES OF THE BILL(In Detail)
O It is anti the Republic oI India.
O It is against the basic principles oI non discrimination
O It violates the rights oI the States
O It violates the rights oI individuals.
O It over rides the basis oI the criminal justice system and says 'guilty by
association and guilty until proved innocent`.
And that is just Ior a start.
Looking at these deIinitions:
O e) 'group means a religious or linguistic minority, in any State in the
Union oI India, or Scheduled Castes and Scheduled Tribes within the
meaning oI clauses (24) and (25) oI Article 366 oI the Constitution oI India;
What happens iI the Tamils and the Biharis in Maharashtra riot against each other
? is it a communal riot or is it a Iriendly skirmish ?
What happens iI a SC group` that is Buddhist riots against a ST group that is
Christian ? obviously another Iriendly skirmish. What happens iI a Maharashtrian
Hindu Iamily in Dharavi ( predominantly settled by Tamilians oI all religions) is
attacked is the Maharashtrian Hindu Iamily a majority or a minority ? Are the
people who died in the train compartment in Godhra marjority or minority or
simply victims. what a discriminatory clause !!
O j) 'victim means any person belonging to a group as deIined under this
Act, who has suIIered physical, mental, psychological or monetary harm or
harm to his or her property as a result oI the commission oI any oIIence
under this Act, and includes his or her relatives, legal guardian and legal
heirs, wherever appropriate;
so iI there is a riot in Mumbai between a majority community either linguistic or
religious and a minority community either linguistic or religious -and I a
minority cannot get to work Ior 5 days have i suIIered monetary harm ?
O 4 - Knowledge.- A person is said to knowingly direct any act against a
person belonging to a group by virtue oI such person`s membership oI 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 oI the membership oI such person to that group.
Now how do we prove this ?
O 8 - Hate propaganda. Notwithstanding anything contained in any other
law Ior the time being in Iorce, whoever publishes, communicates or
disseminates by words, either spoken or written, or by signs or by visible
representation or otherwise acts inciting hatred causing clear and present
danger oI violence against a group or persons belonging to that group, in
general or speciIically, or disseminates or broadcasts any inIormation, or
publishes or displays any advertisement or notice, that could reasonably be
construed to demonstrate an intention to promote or incite hatred or expose
or is likely to expose the group or persons belonging to that group to such
hatred, is said to be guilty oI hate propaganda.
ok iI we write vehemently against the hap Panchayats and let us say that the
people rise up against the Khap Panchayat, and maybe beat them up is it hate
propaganda ?
O 10. Aiding financially, materially or in kind for commission of offence
under this Act.- Whoever knowingly expends or supplies any money or any
material or aids in kind thereoI, in Iurtherance or in support oI an act which
is an oIIence under this Act is said to be guilty oI aiding Iinancially in the
commission oI an oIIence under this Act.
Again how can this be proved?
13. Dereliction of duty.- When any person who is or was a public servant not
removable Irom his or her oIIice save by or with the sanction oI the Central
Government or State Government, as the case may be, authorized to act under any
provision oI this Act:(a) exercises the authority vested in him or her colourably or
in a manner otherwise than provided under law Ior the time being in Iorce, which
causes or is likely to lead to an oIIence oI 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 Irom legal punishment; or, (b) omits to exercise lawIul
authority vested in him or her under law, without reasonable cause, thereby Iails to
prevent the commission oI communal and targeted violence, breach oI public order
or disruption in the maintenance oI services and supplies essential to a group,shall
be guilty oI dereliction oI duty.
How do we prove colourable .
O 20. Power of Central Government in relation to Organised Communal
and Targeted Violence.- The occurrence oI organised communal and
targeted violence shall constitute 'internal disturbance within the meaning
oI and the Central Government may take such steps in accordance with the
duties mentioned thereunder, as the nature and circumstances oI the case so
requires.
The reIerernce cited here is Article 355 which says
Duty oI the Union to protect States against external aggression and internal
disturbance It shall be the duty oI the Union to protect every State against external
aggression and internal disturbance and to ensure that the government oI every
State is carried on in accordance with the provisions oI this Constitution
Article 355 oI the Constitution is Iollowed by Article 356 which calls Ior
President`s Rule.
Chapter 4 calls Ior the setting up oI a National Authority Ior Communal Harmony,
Justice & Reparation I don`t have too much oI issue with the idea oI the body,
except that communal harmony cannot be brought about by a National Authority
it is brought about by equitable policy and ensuring that diverse groups and India
is a country oI unimaginable diversity have equal access & opportunity. What i
do have an issue with is the Iollowing:
O 31. Functions of the National Authority.- The National Authority shall
perIorm all or any oI the Iollowing Iunctions, namely:-(a) inquire or
investigate, suo motu or upon any inIormation or otherwise received in
relation to the:(i) occurrence or likely occurrence oI oIIences oI communal
and targeted violence in the manner prescribed by rules under this Act;(ii)
negligence in the prevention oI communal and targeted violence by public
servants.(b) receive and collect inIormation on:(i) any acts that indicate a
build up by State or non-state actors oI oIIences under this Act;(ii) any Iorm
oI communication, propaganda, mobilisation or the activities oI persons,
which may promote enmity or hatred against groups.(c) entertain appeals
against decisions oI the State Assessment Committee in relation to non-
inclusion oI names oI persons under section 98.(d) issue advisories and
make recommendations, in relation to clause (a) above and section 32, to
State and non-state actors;(e) Irame, in consultation with the Central
Government, schemes Ior relieI, reparation and restitution oI all persons
entitled under section 90 including those registered under section 98;(I)
Irame, in consultation with the Central Government, guidelines in relation to
the prevention and control oI communal and targeted violence;(g) receive
regular reports at least once every quarter on incidents, outbreaks and
patterns oI communal and targeted violence Irom all State Authorities
constituted under this Act;(h) visit, under intimation to the State
Government, any relieI camp under the control oI the State Government,
where persons registered under section 98 are lodged to review the living
conditions oI such persons;(i) visit, under intimation to the Central
Government or the State Government, any jails or any other institution under
the control oI the Central Government or the State Government, as the case
may be, where persons are detained or lodged Ior the purposes oI inquiry or
investigation into any oIIence under this Act;(j) observe proceedings in court
in relation to any oIIence punishable under this Act either through Members
oI the State Authority or by appointing independent observers;(k) intervene
in any proceeding, involving any allegation oI communal and targeted
violence pending beIore a court, with approval oI such court;(l) such other
Iunctions that it may consider necessary Ior the preservation oI communal
harmony and prevention and control oI communal and targeted violence.
WonderIul and why do we have the Parliament, Cabinet, Judiciary, State
Governments, Police, Bureaucracy .. shall we disband all oI them and hand over
power to the National Authority ?
And, iI one thinks that this is bad check out the powers oI the National Authority
:
O 33. Powers of the National Authority.- (1) The National Authority in the
IulIillment oI its objectives and in Iurtherance oI its Iunctions shall have the
Iollowing powers, namely:-(a) requisitioning inIormation Irom the:(i)
Central government, any State government or concerned Union Territory or
any oI their oIIicers or departments; or(ii) non-state actors;(b) appointing
any person to observe, gather Iacts and inIormation, inquire on its behalI;(c)
issue directions to State Authorities in relation to the conduct oI any
inquiry.Provided that any direction issued by the National Authority to any
State Authority shall be binding on the State Authority.
I can see a whole bunch oI States standing up and screaming, violation oI Federal
Compact .
O 41. Statutory InIormation.- (1) It shall be the duty oI any District Magistrate
or Police Commissioner having knowledge or inIormation oI patterns and
incidents oI outbreaks oI communal and targeted violence or anticipating
any oI these, to report to the National Authority in writing without any
delay.(2). All reports received by the Ministry oI Home AIIairs, the Home
Departments oI all State Governments, and District Magistrates relating to
communal and targeted violence, build-up and possibilities thereoI and
advisories related therein shall be sent to the National Authority without any
delay.
combined this with the dereliction oI duty clause, every time someone sneezes
you are going to have a despatch sent to the National Authority saying riot`.

Chapter 5 deals with State Authorities that report to the National Authority.
Chapter 6 deals with Investigation, Prosecution and Trial and the setting up oI
Special Public Prosecutors and to appoint designated judges
chapter 7 deals with RelieI, Reparation and Restitution


CONCLUSION
This bill reeks oI political and judicial revenge against the majority Hindu
community oI India, post-Gujarat riots. Laws should not be made in order to take
revenge on certain groups. Also, retributive justice is a vicious cycle. Restorative
justice gives us a chance to try and live together and heal each other`s wounds.
Why can`t our legislators in India understand this? India has more laws than it can
handle and enIorce. The goal oI all legislators should be to help enIorce the laws
that exist and amend them when need be. Simply adding one more level oI
bureaucracy will not prove to be a solution Ior the communal and targeted violence
problem oI India.
This democracy is becoming a draconian and anti-progressive system oI hyper-
appeasement and inter-caste/inter-community retribution. This bill will usurp the
power oI the States and it will create a wasteIul new layer oI bureaucracy to an
already over-burdened judicial system. This anti-communal violence bill will only
create more unrest and resentment between the various communities oI India as it
considers communal violence as an act perpetrated only by a majority community
on a minority community. It will also incentivize terrorists, Naxalites, and corrupt
politicians to inIiltrate minority groups in order to stir up trouble. Where a terrorist
attack may kill some people and strike Iear in others, a pre-meditated communal
violence incitement can have larger, longer-lasting collateral damage. We can`t
give the enemies oI India this golden opportunity!
I can`t imagine supporting this Bill it is draconian, goes against the principles
oI Federalism and deeply Ilawed. Between this and the Jan Lok Pal Bill with all
their good intentions - they are going to destroy the Republic oI India..
A riot is about hate, murder, arson, rape, and violence while you may not be able
to legislate hate, the rest are under its purview apply the laws that exist. Don`t
create new super agencies with a concentration oI power.