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The clause of worry

Draft communal violence bill is in the eye of a storm as debate over the ‘minority community’ rages; BJP says it’s been prepared with Gujarat riots in mind.

delhi Updated: Jun 02, 2011 23:17 IST
Vikas Pathak

Congress President Sonia Gandhi-led National Advisory Council’s (NAC) draft Communal Violence Bill has come in the eye of storm soon after it was brought in the public domain for comments.

Politically, the proposed legislation has a strong symbolic value so far as addressing “minority alienation” and Dalit sensitivities are concerned — particularly with UP elections round the corner — but there is a range of technical criticism from different quarters, including the principal opposition party BJP.

It is being argued that the Bill — which seeks to protect “groups” from communal violence and harm — in clause 3 (a) of chapter 1 defines the victim groups as “religious and linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes”.

“This draft Bill 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,” senior BJP leader Arun Jaitley recently wrote critiquing the Bill. “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 offences at all. This draft law thus proceeds on an assumption that redefines offences in a highly discriminatory manner.”

The BJP sees the draft Bill as having been prepared with the “Gujarat experience” as the subtext, and is combative on it. It also believes that this is a Hindutva issue gifted to it by the government on a platter.

Human rights lawyer Vrinda Grover has a different take: “There is enough documentary evidence to show there are targeted attacks on religious minorities. So, it is not against the constitutional mandate to make a law to protect them. There is evidence of state complicity and institutional bias against minorities.”

Lawyer Aman Lekhi disagrees, “This is a retrograde step and the goriest instance of class legislation.”

However, there are grey areas as far as the definition of “group” is concerned.

If the perpetrators of violence against a religious minority in a riot happen to be Scheduled Castes or Tribes — a case often noticed in studies on riots — they too are technically a “group” under the Act, and can say they are victims.

Grover agrees — saying in this case the proposed legislation would not apply to either community, as one “group” cannot use it against another “group” — but adds a nuance: “But people who are found to have indulged in planning, sponsoring, or indulging in hate propaganda, as also guilty officials, may not be SCs and STs, and will be covered by the draft Bill.”

Grover, however, has issues with Clause 20, which holds that communal violence constitutes “internal disturbance” under Article 355 of the constitution, and permits the Centre to take steps thereunder. “This violates the federal structure of our polity.

The Centre should not be given additional powers in the name of internal disturbance.”

Interestingly, the BJP too said the draft Bill was against the federal system, arguing that the Centre was thereby seeking to invade upon the states’ domain.

In Clause 3 (c) of chapter 1, “communal and targeted violence” has been defined as that “which destroys the secular fabric of the nation”. While the BJP has faulted this vague definition, arguing that there can be different perceptions of what secularism means, Vrinda Grover says this clause makes the draft toothless.

“Only those acts of violence that destroy the secular fabric of the nation would be covered under this. One may argue that Kandhamal did not destroy secular fabric and is thus not covered,” she said. “In this way, almost every act of violence will be exempt from it.”

Saying that Scheduled Castes and Scheduled Tribes may fall within the ambit of the draft Bill in a state, the BJP has also sought to know — in view of the fact that the offences under the Bill were “in addition to” those under the SC and ST (Prevention of Atrocities) Act, 1989 — whether a person could be punished twice for the same offence?