Till 2002, the successive governments did not take any notable legislative actions but to check the sporadic events of communal violence, the UPA government had in 2005 brought forward the “Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005”. This bill provided measures for Prevention and control of communal violence; Speedy investigation and trials as well as rehabilitation of victims. This bill could never see the light of the day and the parliamentary standing committee tagged this bill as something, which violates the basic federal principle of the Indian Constitution. After that, the National Advisory committee drafted and brought forward the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill. In February 2014, the UPA-II government decided to not to go ahead with this bill also.
Salient Features of Communal Violence Bill 2005
The most important provision of the above bill was about declaring the Communally Disturbed Area. As per provisions of this bill, if the state government was of the view that communal violence is taking place in one or more areas of the state, which can pose a danger to the secular fabric, integrity, unity or internal security of India; then the state government can declare that area in question as “communally disturbed area”. Once that is done, the district magistrate or the competent authority appointed by the state government can take measures such as regulating assembly, directing persons to deposit their arms, searching premises etc. to control communal violence.
Apart from this, the bill also provided for double punishment as per other laws. The bill empowered the state government to establish special courts to try the offences related to communal violence. For rehabilitation, the bill provided creation of Communal Disturbance Relief and Rehabilitation Councils (CDRRC) at national, state and district levels. It also made provisions that such district level council shall pay at least 20% of total compensation as immediate compensation to victims.
However, this bill failed to become an act. The most important reason was that it was more tilted towards the post-violence scenario and not about checking the violence in the first place. Further, there were ambiguities regarding declaring the communally disturbed area and the state government officials were given unprecedented powers without any accountability. Further some provisions overlapped with the Criminal Procedure Code and some even violated the provisions of the constitution and other statutes.
Overall, the 2005 bill was held to be against the federal principle enshrined in the constitution.
Important provisions of the 2011 Bill
The important provisions of this bill are as follows:
- It includes acts which may result in injury to persons or property, if such acts are directed against persons on the basis of their affiliation to any group, and if such an act destroys the secular fabric of the nation. Sexual assault, hate propaganda, torture and organized communal violence included.
- The public servants were made punishable for failing to discharge their stated duties in an unbiased manner.
- The duties of the public servants also include duty to provide protection to victims of communal violence.
- There is a provision to establish a National Authority for Communal Harmony, Justice, and Reparation (NACHJR) and State Authorities for Communal Harmony, Justice, and Reparation (SACHJRs). These would prevent acts of communal violence, incitement to communal violence, contain the spread of communal violence, and monitor investigations into acts of communal violence.
- Central and state governments given authority to intercept any messages or transmissions if they feel that such messages may lead to communal violence.
- The public officials liable to be prosecuted for offences under the bill. The state government would need to grant sanction for such prosecution within 30 days.
- The states are required to set up Human Rights Defender of Justice and Reparations’ in every district. The Human Rights defender will ensure that those affected by communal and targeted violence are able to access their rights under existing laws.
- There are provisions of state and district-level authorities for assessing compensation for victims of communal violence. There are several obligations of the states towards victims, such as the establishment of relief camps, ensuring proper facilities, medical provisions and clothing for those within such camps, etc.
Why the 2011 Bill has been opposed and on what grounds it has been now deferred by the Government?
The 2011 bill sought the fundamental changes in how the present system of governance deals with the violence against minorities. The bill has religious minorities at its heart, though it also deals with SCs and STs. The major flaws in the bill are as follows:
- The bill defines that the term “group” against which communal violence occurs stands to be a linguistic or religious minority. So, what would happen if there is a communal violence by the minority against the majority? Although a democracy must protect its minorities from violence, but there are several regions in India where otherwise majorities are minorities and otherwise minorities are majorities. The bill projects as of only minority is vulnerable to communal violence, thus is anti-majority. Thus, no member of the majority community can ever be a victim. It opens up a huge scope for abuse and would act that they would never be charged under the act.
- Second contention is with the creation of the National Authority under the bill at the Central level. This has been seen as an attempt to curtail the jurisdiction of the states as any direction issued to the state authority by the National Authority is binding.
- In the bill, ‘hate propaganda’ is an offence against minority community and not otherwise. The law makes only members of the majority community culpable and discriminates on the basis of a religion or caste. The definition of the hostile environment is not clear, to which acts would precisely fall under the ambit of this Act. Therefore it may also include a speech, music or video clippings which may have the capability of creating an intimidating, hostile or offensive environment and who shall have the discretion to decide as to which Act qualifies as being intimidating or hostile is left out.
- The bill makes the public officials liable for riots against minorities. It says that if the “communal and targeted violence” against minorities’ takes place, it will automatically be assumed that the civil servant in charge of law and order has not exercised “lawful authority vested in him or her under law” and he or she “shall be guilty of dereliction of duty”.
- It seems to be a welcome move because often public officials wait and act as per the orders of their political masters. By making it clearly their own responsibility, the bill seeks to strengthen the civil servant against the politician. But this is only half truth. The remaining half is that the riots are partly produced by politicians and leaders who may or may not be the part of the government. Communal violence is also a function of socio-economic fabric of a particular town. A civil servant may be extremely successful in carrying out his duties at one place may find himself or herself helpless at another place, just because of many factors. Thus the provisions of the bill have a prejudice against public officials.
Thus, overall, the bill has many flaws. In February 2014, the government was forced to abandon plans to introduce this bill. The notable points from the debate which led to deferral of the bill are as follows:
- The bill was mainly opposed on the ground that “Law and Order” is a state subject and central government has absolutely no jurisdiction in bringing such a bill. As pointed out by Arun Jaitley of BJP, the bill is entirely beyond the legislative competence of Parliament. This was countered by Kapil Sibal of UPA by saying that if it is a state-sponsored communal activity, then it is not a law and order issue.
- The bill includes provisions on what sort of action should be taken against state government officials who fail to prevent riots, and provides guidelines for the maintenance of public order. These are exclusively state subjects and this within the domain of the state executive. The opposition claimed that the government is willing to pass this bill just before elections to win the Muslim votes.
The bill assumes that only members of a minority can be targeted during a riot, that the majority community will never be victims. This provision was revised but then it drew censure from chief ministers such as Jayalalitha, who claimed that the bill would give “unfettered powers” to human rights bodies at the centre and state, allowing them to issue orders to the state government.
Current Status and Significance
The bill was finally withdrawn by UPA-II government. The 2011 bill was an attempt to bring crimes in the name of religion under a legal ambit. It identified religious and linguistic minorities including the Scheduled Castes and Scheduled Tribes as groups that need protection. As discussed above, the bill was withdrawn due to criticism that it assumes the majority to be perpetrators of violence and violative of principles of federalism.