Communalism


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Communalism

Possible questions.

  1. Is a communal violence bill needed? Arnt the existing provisions in law enough?
  2. What are the major features of the communal violence bill?
  3. How can communal harmony be promoted in the country? Suggest steps.

Why a law needed?

  • Commissions of enquiry setup after every major conflagration have consistently come down heavily on the State authorities as also certain parties and organisations for their role in violence
  • However, it is in very rare cases that perpetrators have been convicted.
  • By and large, police and the administrative class have been left untouched by the law
  • Hence, a carefully designed law on communal violence is the need of the hour

More arguments for a separate law

  • It can be seen that various provisions exist in the IPC to punish the perpetrators of violence. Under sections 153A and B of the IPC even hate speeches are actionable. Similarly, even a public servant can be charged under the ordinary law.
  • So it seems that at least a section of communal or targeted violence can be dealt with under the existing criminal law.
  • Failure to implement the law rather than its absence is one of the major problems confronting the prevention of communal violence.
  • But caveats exist
    • Turning a blind eye to communal and targeted hate speech
    • Refusal to register FIRs or registering them without naming the culprits even when some of the perpetrators are identified
    • Refusal to take adequate action to disperse mobs
  • However there are large areas where laws are absent or inadequate
  • Mass violence is a quantitatively different category from stray individual violence. The impact and trauma of mass violence is long term and ongoing.
  • Second, though laws exist on hate speech, they cannot be set into motion without the prior sanction of the government. In this case what really matters is which party is in power.
  • Third, even to prosecute public servants it becomes necessary to obtain the consent of the state which is a long, tedious process.
  • Fourth, a large number of cases in court collapse because witnesses are too frightened to depose truthfully. Though an individual witness can ask for police protection against threats there is no comprehensive witness protection law in India
  • Fifth, while in the aftermath of every carnage, a relief and rehabilitation package is announced, there is no uniformity in these packages. There is no legislative mandate or compulsion for reparation including relief and rehabilitation.
  • Besides, communal violence is a specific form of brutality which is required to be dealt with in a holistic and comprehensive manner since it includes within it element of hate propaganda, sexual assault, uprooting of communities, societal bias, state complicity and judicial indifference.
  • A law which deals specifically with targeted or communal violence thus becomes necessary

Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005

Objective:

  1. Prevention and control of communal violence
  2. Speedy investigation and trials
  3. Rehabilitation of victims

Sets conditions for the state government to declare an area as communally disturbed.

A competent authority can take measures (such as regulating assembly, directing persons to deposit their arms etc) to control communal violence.

Special courts to try offences under this law. Increased punishment.

Features in the draft bill

  1. Union Home Minister headed 11 member national council to oversee relief and the rehabilitation of victims. <Civil society is proposing instead a Communal harmony Justice and Reparation Commission (CHJRC) with national, state and district councils and wider powers>
  2. There is a provision to declare certain areas as communally disturbed. <Civil society objects to this on the ground that such declaration would give the government a free hand to use draconian laws in such areas>

This bill has been amended by the NAC and a new draft introduced in 2011.

Communal Violence Bill, 2011

The draft law features

  • 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, which destroys the secular fabric of the nation
  • Elaborate definition of sexual assault to cover not just women but men as well
  • Apart from treating some of the offences under the IPC as crimes under this law, the bill also creates certain additional offences like torture, command responsibility, etc
  • Public Servants
    • Penalises public servants for torture to specific groups
    • Penalises for dereliction of duty
    • Breach of command responsibility treated as an offence
    • Public servants with the duty of maintenance of public order also given the duty to prevent communal and targeted violence
    • Command Responsibility: Any public servant in command of forces who fails to exercise control over his sub-ordinates which results in offences under the bill shall be guilty of breach of command of responsibility
  • Emergency provisions can be invoked
    • The occurrence of communal and targeted violence shall constitute ‘internal disturbance’ within the meaning of Article 355 of the constitution and the Central Govt may take such steps as the nature and circumstances of the case so requires.
  • Witness protection provisions are incorporated.
  • Accountability framework set up concerning the police.
  • Entails the provision of relief and rehabilitation. Creates the Communal and Targeted Violence Relief and Rehabilitation Fund
  • National Authority for communal harmony, justice and reparation
    • The authority can initiate investigation and enquiry into complaints
  • Similarly, state authorities for communal harmony, justice and reparation
  • The act waives constitutional immunity for the purpose of proceedings under the act

 

Some issues with the draft:

  • The law applies to only the minorities – religious or linguistic – in a state (+ SCs and STs)
    • This assumes that the majority community is always the perpetrator of violence and never the victim
    • This criticism however misses the basic point of democracy: that majority can take care of itself but minorities need certain protection
    • Article 29 and 30 in the constitution are such provisions
    • Worldwide minorities are protected through laws – blacks in US, aborigines in US
  • Communal violence defined in terms of an act that destroys ‘the secular fabric of the nation’
    • This definition is liable to be misconstrued
    • Even large scale riots may not present an actual threat to the secular fabric of the nation.
  • The incorporation of the emergency provision

 

Conclusion:

  • Amended draft of the Communal and Targeted Viiolence Bill is a major step forward.
  • However, it needs to incorporate within it lessons learnt from recent international advancement especially in matters pertainin g to reparation and command responsibility.
  • The chapters concerning setting up of national and state level bodies need a complete review as do the provisions concerning dereliction of duties and witness protection.
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