Flawed still

While the NAC’s revised draft Bill on prevention of communal and targeted violence has tried to address the issues raised by critics, it still has some grey areas.

September 10, 2011: (From right) Chief Ministers Bhupinder Singh Hooda (Haryana), Prithviraj Chavan (Maharashtra) and Shivraj Singh Chouhan (Madhya Pradesh) at the National Integration Council meeting in New Delhi. Chief Ministers of some prominent non-Congress-ruled States, such as Narendra Modi, Nitish Kumar, Mayawati and Jayalalithaa, did not attend the meeting in protest against the non-federal nature of the NAC’s Bill.

ON July 21, 2011, the National Advisory Council (NAC), which is the United Progressive Alliance government’s interface with civil society, released a 55-page draft Bill to prevent communal and targeted violence, with emphasis on access to justice and reparations. The NAC’s aim was to initiate a public debate about its contents as a prelude to its introduction in Parliament. The Bill was in cold storage for two years. However, reports in the media suggest that the government may finally introduce it in Parliament during the winter session. With the Bharatiya Janata Party (BJP) and some sections of civil society opposing the Bill for its perceived flaws, it appears as though a constructive debate about its contents may still elude us.

The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, available on the NAC website, is certainly an improvement on the initial draft, about which the NAC had invited comments and suggestions from civil society. It agreed to 49 amendments on the basis of the feedback. According to some experts, the final version is still not free from serious flaws. It is, therefore, necessary to understand the criticism voiced against the Bill and the NAC’s response to it.

Some red flags and the NAC’s responseRationale: Some legal experts were initially of the view that the NAC failed to provide a rationale for the Bill. Regarding the Bill’s provision for the creation of a National Authority for Communal Harmony, Justice and Reparation and the corresponding State Authorities for Communal Harmony, Justice and Reparation, critics questioned the constitutional validity of such bodies.

They wondered whether these authorities would be any different from the commissions of inquiry that are set up after every occurrence of communal violence. Like the commissions of inquiry, these bodies, too, would produce reports of academic value, with no power to prevent communal violence or to ensure justice, they said. They argued that simply creating layers of bureaucracies to collect data and make recommendations, as the Bill aimed to do, was not enough to prevent communal violence, as a major cause of communal conflicts was that government officials who allowed vulnerable sections to be targeted remained untouched.

The NAC’s explanatory note to the Bill has this to say: The Bill “is intended to enhance State accountability and correct discriminatory exercise of State powers in the context of identity-based violence, and to thus restore equal access to the law for Scheduled Castes, Scheduled Tribes, and religious and linguistic minorities”. The Bill seeks its legitimacy from “the Constitutional right of every citizen, no matter how numerically weak or disadvantaged, to expect equal protection from an impartial and just State. It is because evidence from State records and several Commissions of Inquiry has confirmed institutional bias and prejudicial functioning of the State administration, law enforcement and criminal justice machinery when a non-dominant group in the unit of a State , based either on language or religion, or a member of a Scheduled Caste or Scheduled Tribe, is attacked because of their identity in the unit of that State. This prevents such non-dominant groups from getting full and fair protection of the laws of the land or equal access to justice” (emphasis in the original throughout).

Defining “group”: An oft-repeated criticism of the Bill was with regard to Section 3(e) that deals with the definition of “group”, the membership of which invites acts that result in injury or harm to the person or property. This provision defines “group” as a religious or linguistic minority in any State in the Union of India, or as the Scheduled Castes and the Scheduled Tribes. Critics questioned why the Bill should confine itself to securing justice for members of the minority communities alone when members of majority communities too are targeted in a communal conflict.

The explanatory note says: “Existing laws of the land and the machinery of the State are found to work relatively impartially when targeted identity-based offences are committed against dominant groups in a State, but not similarly for non-dominant groups.”

It says that “often the greatest cause for communal and targeted violence against non-dominant groups occurring, spreading and persisting is that public officials do not act . Public servants who act or omit to exercise authority vested in them under law and thereby fail to protect or prevent offences, breach of public order, or cause an offence, screen any offender, or fail to act as per law, or act with mala fide and prejudice shall be guilty of dereliction of duty with penal consequences. This is the heart of the legislation, for such accountability shall serve as a deterrent to biased action.”

Punishing guilty officials Section 13 of the Bill deals with dereliction of duty, while Section 117 seeks to punish a public servant guilty of dereliction of duty with imprisonment for two years, which may extend up to five years, and a fine. Section 14 deals with offences by public servants for breach of command responsibility. Given the hierarchical nature of administrative systems, it is the higher-ups in a chain of administrative or political command who are responsible when those in the lower rungs fail to perform their duties. The chain of command responsibility may extend to any level where effective decisions to act or not to act are taken. Section 118, therefore, seeks to punish those guilty of breach of command responsibility with the severe penalty of rigorous imprisonment for life when such failure relates to organised targeted violence and in any other case with imprisonment for a term of 10 years and a fine.

Section 75 of 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 government concerned, sanction to prosecute will be deemed granted. With regard to public servants committing certain offences under the Indian Penal Code (as listed under Schedule III), the requirement of obtaining sanction for prosecution is dispensed with under Section 74. This is because these are offences against public justice.

The relevance of having national and State authorities to prevent communal violence has been explained in the note. “Their mandate is to ensure that public functionaries act to prevent and control communal and targeted violence and also that public servants ensure victims have access to justice and reparation when violence occurs.” The functions of the authorities “are to watch, advise, remind, recommend and warn of consequences if public servants fail to act as per law”.

They “do not, in any instance, take over any existing powers of any public official or institution, nor supersede the existing law enforcement machinery, but merely monitor to ensure that the system works impartially”. They will “inquire into complaints, receive or suo motu seek information, and issue advisories and recommendations only when there is alleged inaction or mala fide action by public officials and governments. The monitoring mechanism of the National and State Authorities will also provide the ‘paper trail’ to ensure robust accountability of public officials in a court of law.” This is indeed a promising agenda. Whether the authorities will indeed meet these expectations is a moot question.

There is a valid apprehension that the authorities may lack the teeth to prevent communal violence from happening. The Bill has just one provision relating to prevention, Section 29(k). It says the national authority shall perform such other functions that it may consider necessary for the preservation of communal harmony and the prevention and control of communal and targeted violence. Critics say that such a broad and vague reference cannot help the national authority to break the impunity of public servants who are responsible for controlling situations leading to the outbreak of communal and targeted violence. However, in the absence of an effective and strong legal framework that will compel a public servant to take effective steps to prevent the outbreak of communal and targeted violence, the role of the proposed authorities, which will collect and analyse information after an outbreak, may appear as a consolation. A proviso to Section 29 states that where any State authority has commenced an inquiry under the powers vested under this Act, the national authority shall not inquire into the same. Critics say that a State government that is complicit in the outbreak of communal and targeted violence can misuse this provision by forcing the State authority, comprising members in whose selection it played a predominant role, to commence an inquiry first just in order to prevent the national authority getting jurisdiction in the matter.

Section 127 protects the action taken in good faith by the Central and State governments, the national authority or the State authority in pursuance of the proposed Act or the rules made under it. The NAC appears to have ignored the fears of activists that such provisions will allow officials to act without accountability and transparency in the discharge of public functions.

Section 3(c) defines “communal and targeted violence” as any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, “knowingly directed against any person by virtue of his or her membership of any group”. Critics pointed out that the word “knowingly” in the provision would be an obstacle to proving an offence. It is because those accused of an offence under the Bill could take the plea that they did not know that the victim was a member of a non-dominant group. The relevance of Section 4 of the Bill, which further amplifies the meaning of “knowledge” as used in this definition, had also come in for criticism.

The explanatory note makes it clear that the advisories and recommendations of the national authority are not binding on State governments. This clarification appears to have been issued to dispel misgivings that the Bill violates the federal nature of India’s polity. Activists are perhaps right: if the Bill wants to ensure accountability, why not codify new offences to make the acts of commission and omission by public servants criminally liable instead of depending on non-binding advisories and recommendations of the national authority?

Notwithstanding some serious flaws in the Bill that raise questions about its effectiveness, the constitutional mandate behind the enactment of the Bill appears to be beyond dispute. The explanatory note specifically mentions Articles 14, 21 and 15(1) as the source of such mandate: The Constitution recognises that vulnerable groups, defined in Article 15(1), may require protection from discrimination by the state as it lays down that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

Besides, the note explains: “The Protection of Women from Domestic Violence Act, 2005, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are examples in the Indian legal system of special legislative provisions for vulnerable groups in response to social reality and experience. Entry 2A and 97 under List 1 of the Seventh Schedule empower the Central government to enact laws for the protection of life and liberty.”