Bill of contention

Published : Jul 29, 2011 00:00 IST

The National Advisory Council amends its draft Prevention of Communal and Targeted Violence Bill, but some activists are still dissatisfied.

THE National Advisory Council's (NAC) draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill has elicited great expectations and also disappointment within the political class and civil society ( Frontline, July 1, 2011). With its deadline seeking comments from civil society (June 4) having passed, it was expected that the NAC would revise the draft Bill in the light of the comments and suggestions received from the general public.

On June 22, it agreed to 49 amendments on the basis of the feedback. It also placed a list of these amendments on its website and promised to send the revised draft to the government for its consideration.

The most important among these amendments is an agreement to delete a clause which refers to Article 355 of the Constitution. The NAC claimed this had mistakenly created a fear that it might interfere with the federal structure. Clause 20 of the draft Bill, as it originally stood, stated that the occurrence of organised communal and targeted violence shall constitute internal disturbance within the meaning of Article 355 and that the Central government may take such steps in accordance with the duties mentioned thereunder as the nature and circumstances of the case so require. In the revised draft, this clause stands deleted.

Under Article 355, it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. The NAC apparently agreed to delete Clause 20 because it was in conflict with one of its own guiding principles in bringing forward the Bill that the Bill's framework must not rest on the declaration of disturbed areas, which is likely to give undue powers to the Centre. Clause 20, however, was also intended to provide a rationale to the Bill in the form of the Union's duty to protect every State against internal disturbance. While agreeing to delete Clause 20, the NAC appears to have ignored the need to provide a rationale to the Bill, its critics say.

A constitutional justification for the Bill could have been provided had the NAC understood the need to draw the legitimacy for the Bill from the second part of Article 355, which says it is the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. This could have helped the government quell the critics' worry about the Bill's seeming impact on the federal structure of the country.

Usha Ramanathan, a former member of the NAC's Drafting Committee, suggested to the NAC that the second part of Article 355 could be included by suitably amending either Clause 20 or the Bill's long title. But the NAC appears to have rejected this suggestion without stating any reason. This omission to cite the second part of Article 355 will make it difficult to explain where the Central government will get the powers from and at the same time make it vulnerable to both political and legal challenge, she points out.

Clause 3(c) of the draft Bill, as it originally stood, defined communal and targeted violence as any act or series of acts 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, which destroys the secular fabric of the nation. The NAC agreed to delete the phrase which destroys the secular fabric of the nation as it set too high a threshold.

Critics, however, point out that the NAC should have deleted the word knowingly also in this definition as it was one more obstacle in proving an offence. Those accused of an offence under the proposed Bill can take the plea that they did not know that the victim was a member of a particular group, even if their role in the communal and targeted violence against a group is proved. Critics also question the relevance of Clause 4 of the draft Bill, which further amplifies the meaning of knowledge, as used in this definition.

National Authority

The NAC has claimed that in response to some concerns about the excessive powers given to a National Authority under the draft Bill, it has agreed, for abundant caution, to delete some clauses in this regard. Thus it has deleted Clause 32(ii) dealing with monitoring and reviewing by a National Authority of the performance of duties by public servants relating to postings, transfers and replacement of any individual officers from areas where outbreaks of communal and targeted violence are reported or anticipated.

According to the Bill, the National Authority for Communal Harmony, Justice and Reparation shall inquire or investigate, suo motu or upon any information or otherwise, [an] occurrence or likely occurrence of offences of communal and targeted violence and negligence in the prevention of communal and targeted violence by public servants. It shall also issue advisories and make recommendations in relation to the same to state and non-state actors. How will the NAC perform this ambitious function? Ironically, the draft Bill leaves that to the rules to be framed under the proposed Act.

Critics of the draft Bill feel that the NAC has not understood the basic reservations they have about the National Authority. As the very nature of its functions suggests, the National Authority hardly has any role in preventing communal and targeted violence. The only reference to preventive function is in Clause 31(f), which 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. According to them, 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.

Critics of the draft Bill, therefore, feel the need for a strong legal framework that would compel a public servant to take effective steps to prevent the outbreak of communal and targeted violence, rather than a National Authority that would collect and analyse information after the outbreak. According to them, the need to create a toothless body like the National Authority whose function will be purely academic is least convincing.

What is inexplicable is that the draft Bill also creates corresponding authorities in the States. According to the proviso to Clause 31, where any State Authority has commenced an inquiry under powers vested under this Act, the National Authority shall not inquire into the same. This will effectively bring to naught even the academic function which the National Authority is expected to perform under the Bill.

What the Bill leaves unstated is that a State government which is complicit in the outbreak of communal and targeted violence can force the State Authority, comprising members in whose selection it played a predominant role, to commence an inquiry first just in order to oust the jurisdiction of the National Authority in the matter. Such a State government can rest assured that the National Authority will then not be in a position even to embarrass it with its directions or recommendations.

Clause 76 of the draft Bill excludes prior sanction for offences detailed in Schedule III, which are largely offences under the Indian Penal Code pertaining to the performance of official functions by a public servant. However, prior sanction is required for graver offences enumerated in Schedule II and, more significantly, for all the crimes formulated in this draft Bill.

Besides, Clause 130 of the draft Bill 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 has not seriously addressed the fears of the activists that such provisions in the draft Bill would sow the seeds of lack of accountability and transparency in the discharge of public functions.

There is a sense of disappointment among those hoping for a robust anti-communal violence Bill that the NAC has lost an opportunity to correct the institutional bias and the general breakdown of the criminal justice system during the outbreak of communal and targeted violence. If the offences specified under the draft Bill were also included under the Criminal Law (Amendment) Act, it would have helped strengthen the resolve to fight the communal monster effectively, irrespective of whether the attacks are directed against the majority or minority community.

According to these people, it would have also helped rebut the criticism (mainly from the Bharatiya Janata Party) that the draft Bill is anti-majoritarian in outlook and achieve political consensus over the passage of the Bill in Parliament. As the bulk of the draft Bill is devoted to measures to tackle post-communal and targeted violence, there is an agonising but unstated assumption that such violence is perhaps unpreventable.

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