Losing sleep over communal violence and hate propaganda

Yes, I was in digital detox slumber..but the worthies at NAC managed to wake me up.  Below , collated readings on the Communal Violence Bill, proposed by the NAC. Do read and worry.  And add “hate propoganda” and attempts to destroy “secular fabric” of the nation to “scandalous information about high-profile people” and other such things you should worry about if you write a blog or say/write anything in public… The signs are not good..not good at all…

To start off, excerpts from Sh Arun Jaitley’s commentary on why the communal violence bill is flawed (emphasis mine):

…The most vital definition of the bill is of the expression ‘group’. A ‘group’ means a religious or linguistic minority and in a given state may include the Scheduled Castes and Scheduled Tribes. The bill creates a whole set of new offences in Chapter II. Clause 6 clarifies that the offences under this bill are in addition to the offences under the SC & ST (Prevention of Atrocities) Act, 1989. Can a person be punished twice for the same offence?

..Clause 8 prescribes that ‘hate propaganda’ is an offence when a person by words oral or written or a visible representation causes hate against a ‘group’ or a person belonging to a ‘group’.

…Any communal trouble during which offences are committed is a law and order problem. Dealing with the law and order is squarely within the domain of the state governments. In the division of powers between the Centre and the states, the central government has no direct authority to deal with the law and order issues; nor is it directly empowered to deal with them nor it can legislate on the subject.

If the proposed bill becomes a law, then effectively it is the central government which would have usurped the jurisdiction of the states and legislated on a subject squarely within the domain of the states.

India has been gradually moving towards a more amicable inter-community relationship. Even when minor communal or caste disturbances occur, there is a national mood of revulsion against them. The governments, media, the courts among other institutions rise to perform their duty. The perpetrators of communal trouble should certainly be punished.

This draft bill however proceeds on a presumption that communal trouble is created only by members of the majority community and never by a member of the minority community. Thus, offences committed by members of the majority community against members of the minority community are punishable. Identical offences committed by minority groups against the majority are not deemed to be offences at all.

…No member of the majority community can ever be a victim. This draft law thus proceeds on an assumption which re-defines the offences in a highly discriminatory manner. No member of the minority community are to be punished under this act for having committed the offence against the majority community.

It is only a member of the majority community who is prone to commit such offences and therefore the legislative intent of this law is that since only majority community members commit these offences, culpability and punishment should only be confined to them.  If implemented in a manner as provided by this bill, it opens up a huge scope for abuse. It can incentivise members of some communities to commit such offences encouraged by the fact that they would never be charged under the act.

…Why should the law discriminate on the basis of a religion or caste?

The bill provides for a seven-member national authority for communal harmony, justice and reparations. Of these seven members at least four of them including the chairman and vice-chairman shall only belong to a ‘group’ (the minority community). A similar body is intended to be created in the states. Membership of this body thus shall be on religious and caste grounds. The offenders under this law are only the members of the majority community.

…Under clause 74 of the bill if an offence of hate propaganda is alleged against a person, a presumption of guilt shall exist unless the offender proves to the contrary. An allegation thus is equivalent to proof. Public servants under this bill under clause 67 are liable to be proceeded against without any sanction from the state.

The special public prosecutor to conduct proceedings under this act shall not act in aid of truth but ‘in the interest of the victim’. ..The occurrence of organised communal and targeted violence under this act shall amount to an internal disturbance in a state within the meaning of Article 355 entitling the central government to impose President’s Rule.

…The drafting of this bill appears to be a handiwork of those social entrepreneurs who have learnt from the Gujarat experience of how to fix senior leaders even when they are not liable for an offence.

Offences which are defined under the bill have been deliberately left vague. Communal and targeted violence means violence which destroys the ‘secular fabric of the nation’. There can be legitimate political differences as to what constitutes secularism. The phrase secularism can be construed differently by different persons. Which definition is the judge supposed to follow? Similarly, the creation of a hostile ‘environment’ may leave enough scope for a subjective decision as to what constitutes ‘a hostile environment’.

…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.

Next, some excerpts from Offstumped’s excellent dissection of some of the clauses of the law (emphasis mine):

…The draft is 67 pages long and begins with definitions which need to be closely looked at. Especially definitions like:

…#2 Communal and Targeted Violence

which are so broad and vague that they are easily liable to all kinds of interpretations. As an example within the definition of “Communal and Targeted Violence” is the phrase “destroys the secular fabric of the nation”.

It is anybody’s guess what exactly  ”destroying the secular fabric”  means. What test will be applied and by who ?
…Yet another tax payer funded National Conscience Keeper is envisaged in the creation of the proposed “National Authority for Communal Harmony, Justice and Reparation”. Much of the rest of the draft bill goes into the bureaucratic aspects of the so called “National Authority”. The draconian and anti-federal character of the “National Authority” becomes clear on Page 16 under the “Powers of the National Authority”. Specific anti-federal powers include:
#1 – Binding directives to agencies of the State
#2 – Judicial Powers of a Civil Court in running inquiries and investigations
#3 – Power to search any building
#4- Power to refer cases for trial to the Judiciary under the Criminal code
#5 – Treating proceedings conducted by it as Judicial Proceedings
#6 – Wide investigative powers through any existing agency
# 7 – Role on inquiring into the conduct of Armed Forces
#8 – Democratically elected governments will be required  by law to explain within 7 days why the National Authority directives were not complied with
#9 – the setting up of a parallel structure within the states called the “State Authority”

The most hilarious aspect of the Bill is the permanent interventionist role it envisages for Left Liberal Jhollawallahs and NGOs under the guise of what it calls “Defenders for Justice and Reparations” where in the state authority can appoint any random individual and empower him or her with an interventionist role.

…The provision on free legal aid to victims must also take the cake for this ill conceived piece of legislation. So essentially Tax Payers of India shall foot the legal bill for victims, and given the broad definition of the word victim it is anybody’s guess how tax payer money shall be milked in the name of Justice.

The bill also provides for broad claims of reparations at the tax payers expense with even vague criteria like “psychological harm” being in scope.
The bill very conveniently sticks the bill for paying reparations to the state governments while conferring all kinds of powers on the Central Government to interfere.
…Another insight into the communally prejudiced mindset with which this bill was written becomes evident within the section on “Guarantee of non-repetition” on Page 50.
The search for the bodies of those killed or disappeared and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities
The above language exposes the communal mindset goes to show the NAC Left Libs who drafted this Bill have made the assumption that perpetrators will always be Hindus and the victims will always be Muslims or Christians.

and finally, excerpts from Communal Violence Bill: A Conspiracy by NAC by Manohar Seetharam (emphasis mine):

Many of the readers might be already familiar with the constitution, functioning and the orientation of the National Advisory Council (NAC). NAC is an extra-constitutional body that was constituted by an executive order in the year 2004. In this regard it is similar to the Planning Commission of India, which has acquired allmost an indispensable role for itself when it comes to economic policy. The crucial difference being that the Planning Commission is chaired by the PM, where as the NAC was peculiarly designed to suit the politics of UPA,i.e to portray Smt. Sonia Gandhi, Chairperson of NAC, as the saviour of the poor and oppressed. Despite being an outcome of national politics NAC has off late come to represent and position itself as a government within government, allowing the ruling party to position itself both with and against the government.

…As every new law these days does, this law too prescribes the setting up of a new official structures and offices with vested power. A body known as National Authority For Communal Harmony, Justice And Reparation. In a token gesture to our federalism (which it later proceeds to undermine) it calls for similar bodies at the state level too. Having ensured ghoda, gaadi, kursi and a lifetime of pension for themselves and their ilk they proceed to brazenly forward their agenda, in no uncertain terms and with clinical precision. If this has caused any outrage in you, then I am certain what follows is sure to bankrupt you of it completely.

…All the provisions provided in the bill are centered around and built on “ targeting a person by virtue of his of her membership of any group”. It is very clear even to a layman like me what it’s implications would be. Firstly, any targeted violence on those who are not a part of the “group” would automatically not qualify as communal violence. Hence violence reported in the recent times from places like Deganga or Meerut would fall outside the bill’s scope. Secondly, in a situation where there is violence from two or more sides targeted at each other, the provisions, powers and punishment of this bill would be deployed only against one such side.

…Leaving other issues like legitimisation of phone tapping and like aside the above two issues are sufficient to be really worried about this bill and it’s intended consequences. Sadly, but from a very few influential columnists this draft hasn’t received the treatement it deserves. Media apart, it is sad to see that the other stakeholders like the State government’s remain silent on such proposals. May be this bill won’t get passed, but it is important to use these opportunities to draw lines and set new thresholds which would stay etched in both institutional and individual memories. The biggest takeaway from this is that the NAC today feels much more confident and sure of itself. The many  battles they  fought with the PMO and the Cabinet has emboldened them to attempt such a thing.
With the public outrage solely focussed on the corruption cases, nobody has bothered to ask them  the right question, which is : How dare you ?.

Comments and thoughts welcome, as always.

Pl also see these set of slides on “Implications of the Communal Violence Bill”  that I had prepared for a talk at CIPL in Dec ’11