Prevention Of Communal And Targeted Violence Criminology Essay

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Violence in any society is indicative of resurgence of animal instincts and a collective failure to accept the citizens' code of peaceful coexistence. The economic and existential frustrations of various groups get manifested in mass violence when aired by irresponsible and motivated elements either with political vested interests or religious bigotry. The democratic values of Indian society are repeatedly put to test when simmering biases erupt as incidents of uncontrolled hostilities. The dominant sections more often than not get away with their misdeeds by virtue of their dominance not only in numbers but also due to their influence in the law and order machinery of the state. The protection of the weaker sections is the hallmark of any developed society. Prevention of communal and targeted violence against those, who are inadequately equipped either to protect themselves or capable of bouncing back in the post violent recovery phases, through enactment of potent legal tools has been on the mind of civil society since many a decade .The thought process is to protect and defend the rights of victims who are usually poor, downtrodden and get only lip service from the government.

A propos, A draft bill titled "Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill"2005 was presented in Lok Sabha in year 2005 but was trashed as it was found to be grossly inadequate and defective to address the issue of mass violence in the country. The draft of the bill has been revised as Prevention of Communal and Targeted Violence (Access to Justice and Regulations) Bill 2011, proposed by the National Advisory Committee (NAC) and has attracted welcome debate. The Bill is also called Communal Violence Bill colloquially. Any legislative measure, intended to correct a historical wrong, should indeed be subject to the closest scrutiny to improve and strengthen it to help realize the constitutional guarantees of equality before the law. Any mature democracy must embrace legislative corrections to protect its most vulnerable. There is a need to restore equal access to the law and to correct the discriminatory exercise of state power in the context of identity-based violence.

II Connotation of term 'Minority' for this bill

New political developments in India have given rise to newer forms of minorities. 'Minority' is not a frozen national concept based on religion alone; it is, on the contrary, an entirely shifting category at the level of the states. As the economy expands, populations migrate and demography changes, there may be many points of conflict whose roots are not religious bigotry but regional, linguistic and other chauvinisms heightened by economic competition. India is a continent with innumerable diversities besides those of faith. "Unity in diversity" will come about only if components of society work towards a reasonably fair society with equality in the working of the law for all - Tamil speakers in Karnataka, Biharis and UP migrants in Mumbai, Bengalis in some northeastern states, Biharis in Assam.

Society learns from the past but is not imprisoned by it; it seeks to prevent identity-based violence around old or new fault-lines by making states accountable. There cannot be classifications or assumptions regarding any particular group to be the perpetrator of communal violence. The perpetrator could be any person, belonging to any region, language, caste or religion. Irrespective of the numbers of any community or group, the majority community may become a minority when seen from a local demographic point of view. Hindus are an overwhelming majority - 80.46% - nationwide but constitute a minority in seven states, including Jammu and Kashmir, Punjab, Mizoram, Meghalaya and Nagaland, Manipur and Andaman-Nicobar. The focus of definition of 'minority group' for the purpose of this bill is religious, linguistic, caste and tribal. Hindus are linguistic minorities in many states. SCs and STs also become a minority on the same ground.  

III History of riots in India

Communal violence has wrecked India for decades. Partition of the subcontinent in 1947 was accompanied by horrific violence between Hindus and Sikhs on the one hand and Muslims on the other, leaving a million dead and over 10 times that number homeless. India has been subject to communal violence right from the first Post Partition riot of 1961 in Jabalpur. Later one saw the intensification of this violence in the decade of 1980, from which time it has become a major issue disrupting peace and amity amongst religious communities. The most disturbing of these riots have been the Anti-Sikh Pogrom of 1984 (Delhi) anti Muslim carnage of 1992-93 (Mumbai in particular) and 2002 (Gujarat). Anti Christian violence surfaced with the sporadic acts and went on becoming worsening, the burning alive of Pastor Graham Stains (1999) and Kandhmal violence of 2008 being the horrific example of this. In the 2005-09 period alone, 648 people were killed and 11,278 injured in 4,030 such incidents. Communal clashes during this period peaked in 2008 with 943 cases being reported that year.  [2] 

Some of India's worst riots against minorities such as the Ahmadabad riots of 1969, the Moradabad riots of 1980, the Meerut riots of 1987, and the anti-Sikh riots of Delhi went uncontrolled by the state. India, for three-quarters of a century or more, has witnessed significant collective violence. It is important to remember that such violence against religious minorities in India is not "spontaneous outbreaks of passion", but "productions by organized groups". [3] The data of last six decades is very revealing. In 1991, it was estimated that while the percentage of Muslim minorities is 12.4 in the population, amongst the riot victims Muslims were 80%. The latest data reveals that not only sporadic violence has been on the rise, there are concerted acts of violence. The violence against dalits and STs has been occurring regularly. Most clashes have been between Hindus and Muslims but Hindu-Christian violence too is not uncommon. While people of all religious communities suffer during these riots, it is the minorities - Muslims, Sikhs, and in recent years Christians who have borne the brunt. Muslims constitute 90% of the victims of violence.

Some of the worst communal pogroms have occurred in the past three decades. While recognizing that targeted hate-based violence occurs for many reasons; it may be engineered, or result from deep prejudice coupled with economic competition, or be entirely driven by any number of parochial ideologies. [4] In 1984, following the assassination of prime minister Indira Gandhi by her Sikh bodyguards, mobs led by politicians from the then ruling party incited and organized the burning and looting of property and killing of Sikhs in Delhi and other parts of North India. Around 3,000 Sikhs were killed. The government did nothing to halt the violence for at least three days. When the Babri Masjid, a famous mosque in Ayodhya was destroyed by Hindu nationalists in December 1992, riots broke out in various parts of the country. Mumbai suffered the worst with around 900 people killed, about 575 of them Muslims.A decade later, Gujarat convulsed with communal violence when mobs led by ministers and politicians of the state's ruling party and its fraternal organizations attacked Muslims and destroyed their property and state government did little to stop the violence. Rarely during communal violence have those targeted got state protection. Police ignore calls for help and refuse to register cases filed by victims. Seldom have the guilty been brought to justice."Out of 2,733 officially admitted murders [in the anti-Sikh violence of 1084], only nine cases led to convictions." Twenty-seven years since the pogrom, just over 20 of the accused have been convicted - a conviction rate of less than 1%. [5] Â Successive governments have set up various commissions to prevent atrocities against SC/STs, for protecting human rights and women's rights. But most of them have been toothless and have failed to prevent violence and protect the vulnerable groups from systematic and targeted violence.

The political bias and myopic motivation of the local political leadership invariably has a role to play to spring communal clashes. "While there are demographic, economic, and caste/communal differences that distinguish the populations in such localities, it is political activity, organization and leadership that demarcate most clearly the riot-prone or riot-affected from the less affected localities." [6] Political complicity is always under a question mark. "What causes communal riots in contemporary India? Politicians both cause them and, more importantly, have the power to prevent them, through their control of the state governments responsible for law and order." [7] At one time or another, politicians of ruling party have both fomented and prevented communal violence for political advantage. Congress governments have failed, for example, to prevent some of India's worst riots (e g, the Ahmadabad riots of 1969, the Moradabad riots of 1980, and the Meerut riots of 1987) and in some cases Congress ministers have reportedly instigated riots. [8] The other ruling parties including Bhartya Janta Party have their equal share in the blame from time to time.

IV Does state machinery abdicate its responsibility?

India has experienced recurring bouts of targeted violence since Independence. When citizens who are attacked because of their identity are numerically weak and socially disadvantaged - of minority languages and faiths, Dalits and tribal - the institutions of law and order and the criminal justice system most frequently act in ways that are biased and discriminatory against them. Those who manage the law and order machinery of the state can and do discriminate while exercising their powers. The past 63 years are replete with instances of discriminatory exercise of state power when the group under attack is non-dominant. Innumerable commissions of enquiry and fact-finding reports confirm recurring abdication of state responsibility, bias and even complicity of local administration, law enforcement and criminal justice machinery. They fail to prevent, control or provide basic relief. These include the targeting of Dalits and tribals across states; of Biharis in Maharashtra, Assam and elsewhere; of Sikhs in several states in 1984; of Muslims in Nellie, Bhagalpur, Bhiwandi, Mumbai, and Gujarat; of Tamils in Karnataka; of Christians in Kandhamal. Contrast this with any instance in which Muslims in Gujarat attack the dominant group or Biharis in Maharashtra attack the dominant group. The might of the state machinery would come down and prosecute them to the fullest extent of the law and beyond.

Almost as a rule, governments in India have failed to control riots when there is political complicity. Some political parties with a certain ideology will have a natural proclivity to actively or tacitly engage in such violence. However, all political parties may be equally prone to play some part, given the correlation between votes and violence. [9] If one were to abstract the single most important stylized fact from the Indian "riot system", it is this: "violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty." [10] It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them". Policemen and officials are generally able to get away with violating the Constitution during handling of communal violence because they know that neither the law nor their superiors will act against them. There is a need to have a law in place to ensure that the police and bureaucrats and their political masters follow the existing law of the land and to dissuade them from discriminating against citizens who happen to be minorities. [11] There has to be a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India's religious and linguistic minorities are routinely subjected during incidents of targeted violence. "What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities," [12] The panacea for communal discord therefore lies in exacting accountability from our political leaders and championing efforts to bring one and all into the mainstream erasing suspicion and distrust that stems from parochial schools and segregated neighborhoods. [13] 

V Important Features of Bill

According to the draft bill prepared by the NAC, the legislation is intended to enhance state accountability and correct discriminatory exercise of state powers in the context of identity-based violence. The explanatory note on Prevention of Communal and Targeted violence (Access to Justice and Reparations) Bill, 2011, lists its key provisions as explained below: [14] 

Dereliction of duty by public servants: The bill recognizes offences of both omission and commission. Public servants who act or omit to exercise authority vested in them under law and fail to protect or prevent offences or act with malaise and prejudice shall be guilty of dereliction of duty with penal consequences.

Defining communal and targeted violence: The provisions of this Bill will apply only when it is first established that the offence was 'targeted' in nature. Offences under the Indian Penal Code shall be considered offences under this bill when they meet the definition of 'targeted'.

Breach of command responsibility: The bill seeks to ensure that the power of holding command over the actions of others is indeed upheld as a sacred duty, and that there is culpability for those who are 'effectively in-charge'. The chain of command responsibility may extend to any level where effective decisions to act or not act are taken.

Sanction for prosecution of public servants: The bill proposes that if there is no response to a request for sanction for prosecution within 30 days from the date of the application to the concerned government, sanction to prosecute will be deemed granted. In relation to certain offences under the Indian Penal Code, 1860, when committed by a public servant, the requirement of obtaining sanction is being dispensed with.

Monitoring and accountability: Monitoring and grievance redress shall be the responsibility of the National Authority for Communal Harmony, Justice and Reparation (NACHJR) and corresponding State Authorities for Communal Harmony, Justice and Reparations (SACHJR).

The monitoring mechanism of national and state authorities will also provide the 'paper trail' to ensure robust accountability of public officials in a court of law.

Composition of the NACHJR: The bill proposes that NACHJR will have seven members of which four must belong either to a linguistic minority or religious minority in any state or to the SCs or STs. No more than two members of the NACHJR may be retired public servants. 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 buildup of an atmosphere likely to lead to violence. It cannot compel a State government to take action - in deference to the federal nature of law enforcement - but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

Offences of communal and targeted violence: The Indian Penal Code (IPC) contains most offences committed during episodes of communal and targeted violence. These have been appended in a schedule to the bill and shall be considered offences when they meet the threshold of being 'knowingly directed against any person by virtue of membership of a group'.

The brutal forms of sexual assault (beyond the limited IPC definition of rape) and torture have been included in the bill. Additionally, it defines hate propaganda.

Victims' Rights: This bill seeks to strengthen the rights of the victim in the criminal justice system, through certain provisions in their struggle for justice.

Relief and Reparation including compensation: All affected persons; whether or not they belong to non-dominant groups in a state have been given justifiable rights to immediate relief, and comprehensive reparations, including compensation if they suffer any harm as a result of any offence of communal and targeted violence recorded under this Bill. No compensation for death shall be less than Rs.15 lakh. No compensation for rape shall be less than Rs.5 lakh.

The federal principle: Advisories and recommendations of NAJCHR are not binding on state governments. All powers and duties of investigation, prosecution, and trial remain with the state governments.

VII Spirit of the bill

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course and more often than not, it stands still. This bill is a focused enactment to enthuse a sense of security and protection to the minorities irrespective of their cast, religion and language. It is to inspire confidence amongst those 'groups' who have already been historically the victims of 'communal and targeted violence'. [15] 

Article 14 states that "the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India." Article 21 places on the state the duty to protect all citizens from violence. Article 15(1) says that "the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them," thus recognizing that vulnerable groups may require protection from discrimination by the state. The Protection of Women from Domestic Violence Act, 2005, and the SC/ST (Prevention of Atrocities) Act, 1989, are examples of special legislative provisions in response to social reality and experience. The SC/ST Act does not deny that scheduled castes may attack upper castes. But there is an assumption that when that happens, upper caste groups stand fully protected under the general provisions of the law because of instinctive support of the state machinery.

The core doctrine of this draft Bill is its recognition that dalits, tribal as well as linguistic and religious minorities are particularly vulnerable groups. They are targeted for 'who they are'. A law to address violence against minorities is nothing if it goes against this grain. It makes provisions for punishment only for communal violence against the minority communities. Since this is not a law to tackle all forms of communal violence, its title should have explicitly stated as much. Calling it the "Prevention of Communal and Targeted Violence Bill" leaves room for ambiguity. In the manner of plain speaking, it ought to have been named "Protection of Minorities from Targeted Communal Violence Bill" [16] 

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalized "riot system" works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government does not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment. With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organized, targeted violence - be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country - know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

The argument that it does not address the violence of minority against the majority religious community is a deliberate politically motivated propaganda. This Bill is aiming at curbing the mass violence. The mass violence has been mainly against religious minorities. The religious minorities also suffer from the institutional bias at the hands of the police, bureaucracy and other state institutions. Police attitude is heavily biased against religious minorities and that in most of the mass violence cases a situation is created by the majoritiarian political groups, where by the Muslims are cornered, forced against the wall; where sometimes they throw the first stone out of sheer frustration [17] . This Bill deals with the mass violence and not isolated incidents. The existing clauses of IPC and Cr PC are fairly adequate to deal with the violence against majority community.

The focus of the Bill is very similar to the focus of Domestic Violence bill and the bill against atrocities on Dalits and STs. While there may be few acts of violence against men by women, it is primarily women who are the major victims of domestic violence. Similarly while upper caste may be the victims of violence by dalits-STs occasionally, the major brunt is borne by dalits and STs. It also does not mean that violence against men or upper caste will go unpunished or unaddressed. Similarly those from the majority who suffer due to violence initiated by minorities should be suitably given justice, most of the provisions for this are already there. Needless to say even in the anti-minority targeted violence, some from the majority also have to suffer incidentally; justice to them is part of the system and existing provisions. [18] 

A study of draft Bill reveals that for the first time a significant step in communal violence control has been undertaken in the most serious way. This Bill covers most of the points which lead to violence, add to sustaining it, and later lead to denial of justice. As such the most neglected areas of violence against women, the area of rehabilitation and reparation also get a prominent and adequate recommendation from this Bill.

The major highlight of this Bill is to ensure the accountability of the officials whose act of commission and omission are at the root of the continuation of the violence. They in turn are sometimes being dictated by the political leadership. No act of communal violence can go on beyond 48 hours unless the administration is complicit in the violence. [19] It is the constitutional right of every citizen, no matter how numerically weak or disadvantaged, to expect the state to be impartial and just. A strong need is felt to harness the public servants and make them accountable."Dereliction of duty" by any public servant should be an offence, combined with the principle of command responsibility; so that a mere constable alone will not be prosecuted for prejudicial failures of state institutions. The bill does not add further to the powers of the state, because the administration has enough and more powers to control violence when it chooses to do so. The bill maintains that riots can be controlled, and justice and healing secured, if public officials do their duty. The bill not only creates stern punishments for public servants for dereliction of duty towards victims, but also holds their superiors accountable. "Where it is shown that continuous widespread or systematic unlawful activity has occurred it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision ... and shall be guilty of the offence of breach of command responsibility."  [20] With the bill providing for sentences of up to 10 years imprisonment for breach of command responsibility, "superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch." [21] . 

The attempt of the Draft Bill is also to pin down the political leadership which is behind the foot soldiers on the rampage in the streets. The experience in most of the riots and the inquiry reports of most of the major events of communal violence show that there is a well planned execution of the anti minority violence. This bill attempts to address the politically motivated perpetration of violence and hate propaganda against the vulnerable communities and their economic and social boycott. [22] The bill is only concerned that when the group under attack is non-dominant in the state, public officers must not be allowed to let bias breach their impartiality or color the performance of their sworn constitutional duty.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not.

VIII Is the bill biased towards minorities?

It often takes one bias to correct another. Since numerical supremacy always places the majority community in any society at a certain advantageous position that can be leveraged socially and politically, minorities always need safeguards and a positively biased law is just what is required to ensure protection of minorities. In fact, other such positively biased laws are already in place, such as the one that makes even verbal insults and taunts against Dalits a punishable offence.

It is debated that the draft Bill simply presumes that violence cannot be perpetrated against the majority community. Of course, violence can be directed against the majority community too and this should be firmly and comprehensively dealt with under provisions of the Indian Penal Code. When the majority community faces targeted violence, experience shows that two factors will ensure that such violence - however fierce at the beginning - will sooner be quelled and blunted out by sheer (a) dominance and (b) prevalence of the majority community. The retributive phase that follows will then be more acute and grisly. Then, killings will happen on an industrial magnitude because the 'economies of scale' kick in. Overpowered and subdued, the minorities suffer far greater number of casualties. Invariably, a contagious effect ensures that newer riots occur at locations far away from the original site of dispute and are abetted, commanded and managed by the majority community, often involving political players. Typically, peace is ensured when anger is satiated. For those who find the draft biased has obviously failed to see its real purpose in the wake of "concrete realities" in Indian society as the minorities have after all suffered disproportionately during communal violence. [23] 

The communal violence Bill is an act of faith - an affirmation by vulnerable groups for protection against targeted violence by politically and economically powerful sectarian groups. Understandably, it has been dubbed as 'anti-majority' by the opposition benches and has been criticized as a kneejerk response to the Gujarat violence of 2002-03. There is also a fear that it may alter the federal structure and adversely impact the autonomy of the states. But protection of minorities and vulnerable groups like tribal and Dalits is well within the constitutional scheme. Hence, any provision to protect the secular fabric of the nation and the right of vulnerable groups to live in peace and harmony cannot be dubbed as an 'anti-majority' measure. Take, for example, a hospital, where all inmates are equally threatened with opportunistic infections. The hospital will have sufficient routine measures to prevent such infections. Despite these, the wards of children and the elderly enjoy enhanced protective measures, as they form the vulnerable sections simply because of 'who they are'. While infections can visit all inmates, children and the elderly will be less effective at fending them off. The strong aspects of the Bill relate to ensuring that state as the guardian of all, vulnerable sections included, must take responsibility of the victims of violence, their rehabilitation and process of reparation put in place to ensure that the affected communities are not boycotted after the violence and are able to live the life of peace and amity. The germane issue remains the same: all violence is deplorable but vulnerable groups need special security.

IX The making of draft bill

.

The new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India's citizens enjoy the protection of the state regardless of their religion, language or caste. The draft law framed by the National Advisory Council is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India. The assumptions that apparently were drawn when the Bill was drafted on the drawing board can be elucidated as follows :-

Violence against a minority community is considered targeted communal violence. 

India's constitution declares the country to be secular. However, institutional bias against religious and linguistic minorities is deeply entrenched, making them vulnerable to violence.

Communal violence in India is rarely spontaneous. It is mostly engineered. 

If communal violence occurs and is not controlled immediately it is because the police and local authorities refuse to do their duty.

Rarely have victims received the relief they are entitled to. 

The Communal Violence Bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organized violence. Apart from including the usual Indian Penal Code offences, the draft Bill modernizes the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Responding to criticism, the NAC has made 49 amendments to its earlier draft. In its definition of communal and targeted violence it has dropped the reference to "destruction of the secular fabric". It has also deleted a clause in the earlier draft that allowed the federal government to unilaterally intervene in communal situations in states as it had raised concern over its implications for the working of the country's federal structure. This proposed bill has roughly 60 clauses. Out of the 60 clauses, barring clause 55, all clauses give power to the state government to notify to declare a disturbed area to take action, so it is purely a power given to the state government. Clause 55 gives power to the central government but hatched in by three cumulative conditions:

First, the Central government will bring to the attention of the State government the communally sensitive situation prevailing in that state.

Second, it will wait for the state government to act on that intimation information.

Third, if despite persistent advisory, the state government fails to act, then the central government gets powers to act. [24] 

X Criticism of the bill

The bill's attempt to correct institutional bias against religious and linguistic minorities has drawn fire from Hindu nationalists, who see it as evidence of the United Progressive Alliance (UPA) government's appeasement of Muslims. They are asking why violence against the majority community should not be considered communal. "I have no doubt that once this law is implemented with the intention with which it is being drafted, it will create disharmony in the inter-community relations in India. It is a law fraught with dangerous consequences. It is bound to be misused. Perhaps, that appears to be the real purpose behind its drafting. It will encourage minority communalism. The law defies the basic principles of equality and fairness." [25] 

If this Draft Bill becomes law, it will become Constitutionally accepted that only Hindus cause riots; and that Muslims, Christians and other minorities can never be held responsible for riots because the definition of the term 'group', which is the backbone of this Draft Bill, is made totally in such a manner that the majority, that is the Hindus, will be at the receiving end of the stick. Thus, if this Draft Bill becomes law, the Indian Constitution will accept that only Hindus incite and provoke religious hatred and denigrate other religions; and that Muslims and Christians can never do that. If this Bill becomes law, all the accused in the Gujarat riots will be culpable and be sentenced, while all those responsible for the death of train passengers at Godhra would be presumed to have harbored only goodwill for Hindus. Only Hindus will be tried, convicted and sentenced for communal violence and incitement of communal hatred because the constitution will refuse to accept that Muslims and Christians are capable of violence and hatred. Any anonymous complainant can file a police case against a Hindu for inciting communal hatred - and the police will have to register it as a non-bail able offence. The accused - who would be arrested - would not even have the right to know who the complainant is. And the accused Hindu will virtually be presumed to be guilty unless he or she can prove his her innocence. A Hindu activist who complains against fanatic Christian missionaries converting tribal through inducements and bribes will be sent behind bars; the Christian missionary who openly calls Hindus 'heathens' or 'Kafirs' and tramples upon idols of Hindu Gods and Goddesses will be forever found innocent by the Indian Constitution. [26] 

The Bill violates the fundamental principle of equality enshrined in our Constitution which is the bedrock of our legal system. The murderer has to be tried under the Indian Penal Code on the basis of his crime, and not whether he is from the majority or minority community. Communal riots in our country are almost always confined to a district or a city. The Gujarat, anti-Sikh and post-Ayodhya riots were exceptions. There are many districts in which the majority in that state is in a minority. Thus the yardstick for this atrocious bill should have been the district, and not the state. If the administration is not effective in dealing with communal violence, it should be made effective instead of enacting a new law promoting divisiveness and violating natural justice. [27] If only state governments enforces section 153-A of Indian Criminal Code in right earnest and arrests all those who make hate speeches and vitiate communal amity, there will be no communal disturbances. No politician would like to go to jail for three years. Right from Jabalpur riot in 1961 to Gujarat riots in 2002 to anti-Christian riots in Kandhamal, Orissa, not a single politician was arrested for openly and blatantly provoking communal violence. [28] 

The Bill has apparently anti-federal tilt that gives the Centre and the National Authority new powers to intervene in a state's law and order problem. The States will be watching hopelessly when the Centre goes ahead with this misadventure. Their power is being usurped. The Bill makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organized communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn't, the reasons are political rather than legal. [29] A viewpoint reflects that the search for communal harmony is through fairness - not through reverse discrimination. [30] Forging bonds at the level of civil society could be the great game changer: "If vibrant organizations serving the economic, cultural, and social needs of the two communities exist, the support for communal peace not only tends to be strong but it can also be more solidly expressed." [31] "This bill seems to repose inordinate trust in the police and administrative machinery rather than finding a way to empower the victimized community" [32] . Muslim community has pointed out "According to the bill, interim relief will be made available within a month, without any provisions for housing and feeding during that period," [33] 

"This bill is practically useless in dealing with aspects that make organized communal violence a special case. It says nothing about preventive arrests after intelligence tip-offs, attempts to contain the spread, etc. No standard measure for reparations and relief has been laid down. It makes no attempt to ensure that FIRs and investigations are taken seriously. [34] If the CrPC was found lacking in certain situations of premeditated group violence, then those aspects should be directly addressed. If anything, the anti-communal violence bill reflects a Twenty20 approach to lawmaking - one that focuses on quick-and-dirty workarounds rather than refining the law that exists. Sticking a legislative label on our most intractable problems and setting up a caucus of good people to oversee it is no alternative to really taking on the problem, with method and commitment. [35] 

Cynicism prevails even among those who have participated in the drafting process. Some prominent legal visionaries think that this bill will divide the country. The Act will function only to the extent that there is a political will to do so. Without it, it will be reduced to a paper tiger and a drain on the exchequer as it would require a huge financial commitment to make it functional, to create the necessary infrastructure at the Centre, state and district levels and a parallel process away from all existing government and statutory bodies. It also takes on several functions that are at present carried out by state functionaries and might thus absolve them of any liability and responsibility of initiating criminal prosecutions and carrying out rescue and rehabilitations.

XI The way ahead

The bill aims at creating a framework for preventing pogroms and the provision of relief for victims of such violence. It has kicked up a storm with some people criticizing it as "draconian" and "anti-Hindu" and others dismissing it as "toothless and meaningless". Citing practical reasons of "political consensus," the controversial definition of "group" which goes against the federal principles of the constitution, have been done away with in the outline of the new draft proposed. The NAC draft defined "group" as "religious or linguistic minority or the Scheduled Caste or the Scheduled Tribe." This triggered accusations from the right-wing Hindu groups that it was "anti-Hindu." The definition of "group" has been made "irrelevant" in the new initiative, adding that there should not be any kind of discrimination against the victims of communal and targeted violence. The civil society activists are advocating "providing reparative justice to the victims and survivors of communal and targeted violence" including "victim protection and rescue, relief camps, protection of property, compensation, restitution and right of return." [36] The nature of National Authority for Communal Harmony, Justice and Reparation, as suggested by NAC, with 7 members, four of them being from minority community is a welcome part of the draft and should be modeled on the functioning of Election Commission, with adequate powers without disturbing the existing mechanisms, just ensuring that existing power structures and mechanisms become properly answerable. In this accountability and command responsibility of those from the top also come under the purview for their decisions related to commission or omission both.

"We cannot create a monster that is even superior to Parliament and the Supreme Court. But we do need an independent entity which is free of political misuse, which can investigate, and which can bring about synergy between Union and state governments in preventing communal violence, controlling it if it breaks out, and bring relief, rehabilitation and reparations for the victims. The existing institutions have historically failed miserably. And the administration has failed in even being able to use existing laws under the Indian Penal code to prevent and control violence." [37] 

The role of Central Government in monitoring the whole process and the center-state relations are the points which do need further refining so that Center is able to curb the mass violence without stepping on the toes of the state Government. That's a matter of fine tuning the bill. "Mere laws don't solve all the problems. The need to instill the values of amity and harmony as embodied in our freedom movement need to be re-emphasized by the state and social movements so that such a bill becomes a real effective check on the divisive tendencies in the society." [38] Â In spite of variety of voices there is undoubtedly need of a law that can curb the mass violence in the country and the revised draft by NAC has to be debated seriously and a political consensus arrived to show it the light of the day.

XII Conclusion

Good law-making and legal amendments are meant to learn from practical events, take into account emerging tendencies that require attention, fix new flaws and retrofit newer relevant clauses that become necessary. Broadly, the bill targets the acts that result in injury and are directed against persons because of their affiliation to any group. Such acts include sexual assault, hate propaganda, torture and organized communal violence. The bill creates a National Authority for Communal Harmony, Justice, and Reparation, charged with preventing acts of communal violence and monitoring investigations into incidents. It also covers the punishment of officials who fail to discharge their duties in an unbiased manner during outbreaks of such violence. For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It's time to end this injustice. One concedes that some rough edges of the Bill do need smoothening, but still overall it is a landmark step in trying to create an institutional mechanism to boost national integration and communal harmony. Communal violence is plaguing us even today in Assam and Utter Pardesh when I am writing these lines and the political elite and legal luminaries need to put their heads together before the hope becomes a mere mirage.

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