Pseudo-secularism and the Communal Violence Bill

We live in terrible times, sixty four years after independence when the nation was divided along religious lines we are still at war within. Communalism has meanwhile morphed from what was traditionally the Hindu-Muslim divide, into what is now the radical Hindu versus every other religious minority divide. I use the term radical Hindu, because that’s what this growing and very potent segment of blinkered right wing Hindu politics has led us to, a state of potential anarchy. 

I came across a web-page the other day where a certain individual proclaimed to the world that apart from the Babri Masjid, Vatican City too was constructed on the remains of a Hindu temple. It was such a far-fetched notion, I laughed, my feelings of irritation and dismay at his diatribe against the Muslim and Christian communities replaced by mirth. One cannot but feel sorry for such people who live in a world that’s unreal. But then they also cannot be dismissed, and I’m sure he’s not the only one harbouring such ridiculous thoughts, there are many others like him, and who like him, spread their delusional and hateful thoughts and ideas like tentacles, encircling other ill-informed and delusional persons. Who then swept up in a frenzy, fuelled by unemployment, dissatisfaction and poverty, perpetrate injustices on others, fanned by politicians who use them to forward their agenda and then leave them to their own and rather dangerous devices. Much like fanatical Islamic extremists who perpetrate acts of frenzied violence in the name of jihad, which has now morphed into a bad word instead of its more wholesome meaning of self-purification and of fighting the “Holy war” within, the war against desire, lust… it is an internal spiritual journey and its true meaning is now lost, amidst the hate and violence it spawns. And how can we forget those extremists amongst the Christians in other parts of the world who perpetrate acts of violence, hatred and bigotry in the name of that greatest messenger of peace. Extremism exists everywhere. 

The current Congress led UPA government meanwhile feigns ignorance, choosing to apply the laws and rules currently in place to curb acts of communal violence on a selective basis, motivated more by vote-bank politics than by a genuine attempt to stamp out all that is dysfunctional in society. The Kandhamal incident in Orissa is evidence enough of the fact that Christians do not constitute a viable vote-bank, except perhaps in Goa, Kerala and some North- Eastern States; everywhere else they may as well be damned. The Communal Violence Bill, 2011, is therefore another half-baked attempt by the government to look at this issue that has gained the status of a national crime. And the BJP/RSS rant that Sonia is Christian and is therefore pushing forward the Communal Violence Bill is akin to referring to Mussolini as god-fearing. Being born in India doesn’t make all Indians Hindu… just as being born in Italy does not make all Italians Catholic or even Christian in their beliefs. As for references to Sonia being a “Vatican spy”, she wasn’t and isn’t Catholic, even if somewhere down the line her family did profess the Christian faith, there is a huge difference there. But why debate on Sonia’s religion when there are a several points on which one can fault the Congress party or even the UPA led government, or for that matter the BJP, or any other political party or politician or anyone for that matter. Surely as a citizen of India, I have the right to stand for high political office, just as I have the right to vote. It should not matter if I am Hindu, Muslim, Christian, Parsi or Jew. I have an unquestionable right. 

Prior to the framing of the Communal Violence Bill, instances of communal violence were dealt with under the provisions of the Indian Penal Code (IPC), all of which find themselves reflected again with the same/similar quantum of punishment as laid down under the IPC, for instance –

S. 153A – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

S. 153B - Imputations, assertions prejudicial to national integration

S. 295 - Injuring or defiling place of worship with the intent to insult the religion of any class

S. 295A - Deliberate and malicious acts intending to outrage religious feelings of any class by insulting its religion or religious beliefs

S. 296 - Disturbing religious assembly

S. 297 - Trespassing on burial places, etc

S. 298 - Uttering words, etc. with deliberate intent to wound religious feelings of any person

And then there are the more general provisions which may be extended to acts that supplement/compliment acts of communal violence, namely –

S. 141 to S. 147 – which fall under ‘Offences against Public Tranquility’, and include ‘Unlawful assembly’, ‘Rioting', ‘Assaulting or obstructing public servant when suppressing riot, etc.’, among others

In addition, IPC Sections 302 –Murder, 307 – Attempt to Murder, 375 – Rape, 376 – Punishment for Rape and Ss. 322 - Voluntarily causing grievous hurt, 324 - Voluntarily causing hurt by dangerous weapons or means and S. 436 - Mischief by fire or explosive substance with intent to destroy house, etc. also find mention in the Communal Violence Bill, as they do in the IPC.

In addition to the IPC, some of the other laws that deal with communal violence in some form or the other include - The Arms Act, 1959, the Explosives Act, 1884, Prevention of Damage to Public Property Act, 1984, Places of Worship (Special Provisions) Act, 1991 and the Religious Institutions (Prevention of Misuse) Act, 1988, among others.

So now we have the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 which was first introduced in Parliament in 2005, before it swung back and forth amidst opposition from various sources, and now the BJP through Arun Jaitley has gone on record terming the Bill anti-Hindu and draconian, while Muslim and Christian leaders too have expressed their reservations on the Bill. Meanwhile civil society represented through a conglomeration of various organisations, notably – the Movement for Peace and Justice, the Bombay Catholic Sabha, EKTA (Committee for Communal Amity), Citizens Initiative for Peace, Association for Protection of Civil Rights, BUILD and the Human Rights Law Network have held several rounds of consultations on the Draft Bill, proposing amendments to the same, which were considered before the June 22, 2011 amendments were made public.

Initially termed as the ‘Communal and Sectarian Violence Bill, 2010” by the National Advisory Committee, some of the key points or ‘guiding principles’ of that version of the Bill included provisions to –

• Broaden the title and applicability of the law to include ‘communal and sectarian violence’
• Propose an independent National Authority to ensure effective compliance with the law, without disturbing the federal structure
• Ensure accountability and criminal liability of public officials for acts of omission and commission, in order to prevent or control communal and sectarian violence, extending timely and adequate rescue, relief and rehabilitation provisions
• Define communal and sectarian violence to cover both isolated incidents as well as mass crimes, against people based on religious, caste, linguistic, regional and other identities.
• Define and include new offences including sexual assault, enforced disappearances, torture, long-lasting social and economic boycott and genocide, among others
• Remove the prior sanction requirement for ‘Hate Speech’ as reflected in Ss. 153A and 153B of the IPC
• Impose a statutory obligation on the government to lay down national standards for victims of communal and sectarian violence - including rescue, relief, compensation, rehabilitation, resettlement, restitution, reparation and as well as recognizing the rights of internally displaced persons
• Make amendments to the CrPC and the Indian Evidence Act in order to meet the ‘extraordinary circumstance’ of communal and sectarian violence to protect victims’ rights
• Ensure that specific provisions for victim-witness rights are made under this law

But as always loopholes abound as do glaring errors of omission, and apart from some of the more obvious ones, for instance, that a ‘Statement of Objects and Reasons’ is missing in the Draft Bill – We wonder if the purpose of the Act, whatever that is, will be achieved in real terms, once it comes into effect.

Meanwhile Section 5 of the Draft Bill states that, “Offences under section 7 to 12 (both inclusive) shall be offences of communal and targeted violence”.

These Sections as explained below elucidate the provisions as laid out under the Draft Bill -

Section 7 – Sexual assault – the provisions of the section cover and bring with the ambit of the term ‘sexual assault’ the following acts perpetrated against a person belonging to a group by virtue of that person’s membership of that group, to include – if the person is a woman – Rape, gang rape, mass rape (i.e. the rape of several women belonging to that group). And if perpetrated against any person, without their consent or against their will, to include - The introduction by a man of his penis or any other body part or an object into the vagina, mouth or anus, of that person, causing harm or hurt to reproductive organs or genital organs of that person, exposing of one’s sexual organs in front of any person, sexual contact of any sort, including the performance of sexual acts for any length of time, removing the persons clothes, partially or fully, or compelling that person to undress himself or herself, partially or fully, in public view or otherwise, or parading that person in undressed state in public view or otherwise, or any other act or conduct that subjects that person to sexual indignity.

The term ‘consent’ is deemed under Explanation 2 of the section to mean – The unequivocal voluntary agreement where the person has by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the act referred to in this section, where “unequivocal voluntary agreement” means willingness given for specific and be limited to the express act consented to under this Section. Explanation 3 goes on to clarify that consent in this section shall be deemed to be free of duress, threat, terror, fear, coercion, undue influence, misrepresentation or mistake of fact.

What was that again…?

“Unequivocal voluntary agreement” and “willingness to participate” – in what… Being sexually assaulted? How ridiculous is that!

[The June 22, 2011 Amendment thankfully sought to redefine the term ‘consent’ with the suggestion that the requirement of the victim having to prove that she/he did not consent to the sexual assault is to be dispensed with, as it is deemed to have been committed under circumstances which can be termed coercive. The amendment also proposed to make other changes to the Section by incorporating into the provision situations where a person belonging to a group is forced to commit sexual assault on a person of the same group by a non-group member, and in addition also proposed the introduction of specific procedures and evidentiary standards for sexual assault perpetrated in the context of communal and targeted violence.]

Section 8 – Hate propaganda – basically rehashes Sec 153A, of the IPC which promotes enmity between different groups by words, written or spoken or by signs etc, on grounds of religion, race, place of birth, residence, language, caste or community, or commits acts prejudicial to the maintenance of harmony on the same grounds as mentioned before etc… and applies it to the provisions of this Act to include – “whoever publishes, communicates or disseminates by words, either spoken or written, or by signs or by visible representation or otherwise acts inciting hatred causing clear and present danger of violence against a group or persons belonging to that group, in general or specifically, or disseminates or broadcasts any information, or publishes or displays any advertisement or notice, that could reasonably be construed to demonstrate an intention to promote or incite hatred or expose or is likely to expose the group or persons belonging to that group to such hatred, is said to be guilty of hate propaganda.”

[The June 22, 2011 Amendment proposed that the section be amended to remove the word ‘present’ from ‘clear and present danger’ as acts of violence may take place well after the initiation of hate propaganda. The amendment also proposed the addition of a proviso to exclude from the definition of ‘hate propaganda’ acts done which seek to promote values of equality and defend the principles enshrined in and fundamental rights guaranteed by the Constitution.]

Section 9 – Organized Communal and Targeted Violence – covers those acts of violence or threats of violence, or acts of intimidation, coercion committed by an individual, either singly or jointly with others, or as part of an association or on behalf of an association or acting under the influence of an association in a widespread or systematic nature, and which is knowingly directed against a group or part of a group, purely on account of their membership of that group. In situations where there is continuing widespread or systematic unlawful activity, the section purports to hold responsible for such activity any public servant who has been delegated with the duty to prevent communal and targeted violence, for his failure to prevent the same.

Section 10 – Aiding financially, materially or in kind for commission of offence under this Act – the section covers anyone who knowingly expends or supplies money or any material or aids in kind to further or support any acts deemed to be an offence under the Act. And such person will be said to be guilty of financially aiding in the commission of that offence.

Section 11 – Offence under the Indian Penal Code, 1860 – covers offences under the IPC as provided in – Schedule II, Parts A or B of the Act, when such offences are committed against any person belonging to a group by virtue of his or her membership to that group. In such instances the offences shall be deemed to be offences of communal and targeted violence and shall be dealt with accordingly.

Section 12 – Torture – This section, aimed at public servants or persons under the control or direction of or with the acquiescence of a public servant – holds them guilty of the offence of inflicting torture if they intentionally inflict pain or suffering, whether mental or physical, on a person belonging to a group by virtue of his or her membership of a group. The offence also includes the causing of grievous hurt or danger to life, limb or health or even sexual assault, for the purposes of obtaining from that person, or from a third person, information, or a confession or for the purposes of punishing that person for an act he or she or a third person committed or is suspected of having committed. The provision also extends to cover acts of intimidation or coercion of such persons or third persons, within the ambit of ‘torture’.

The proviso to the section however excludes pain, hurt or danger which may be caused or inflicted in accordance with law... leaving the provision open to abuse and misuse. After all in most instances of sectarian violence, often one finds the upholders of the law guilty of perpetrating the worst offences or at least being complicit in them.

[As per the June 22, 2011 Amendment the proviso to the above section is to be redrafted and the provisions of the section brought in consonance with the Rajya Sabha’s Select Committee recommendations on the Prevention of Torture Bill]

The amendments as mentioned above in brackets  […] were based on feedback received after placing the Draft Bill in the public domain on May 25, 2011, which were then endorsed by the National Advisory Council (NAC) on June 22, 2011, for legal vetting and drafting by Additional Solicitor General (ASG) Indira Jaising.

Given that the Bill has been dissected and re-dissected by all concerned from the majority and minority communities, with both expressing reservations, some of which are reflected in the amendments proposed to the Bill – it now moves to the next step, and one can well expect heated debates and other exchanges when it finally comes before Parliament.

What therefore is the purpose of this Act? What does it purport to do, in addition to what is already being covered under the IPC?

Nothing, really… Apart from the fact that if adopted by Parliament, the provisions of the Act will permit the center to intervene in cases of communal or targeted violence by invoking Article 355 of the Constitution, which considers it the duty of the union government to declare any case of communal violence as an “internal disturbance” and take appropriate action. 

According to Article 355:

“It shall be 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 this Constitution.”

So will the provisions of this Bill, when passed, amount to giving the centre arbitrary powers over any state where there is a government of a non-ally in power, in case of any incidence of what may be termed as ‘internal disturbance” wrought by instances viewed as “communal violence”?

Section 99, of the Bill – which deals with ‘Reparation and Restitution’ purports to include, the resettlement of persons or families affected by acts of organised communal and targeted violence in homes, dwellings and into places of livelihood, either in the existing locations or in new locations so as to restore them to the same situation as they were in prior to the acts of violence. This provision seems to be rather utopian, given that years after the anti-Christian violence in Orissa, many are still displaced and without homes. Even in the national capital, many victims of the anti-Sikh riots following Indira Gandhi’s assassination still await compensation, almost twenty-seven years after the event, and with many of them unable to trace the remains or find evidence as to the death of their loved ones, it remains a hopeless task.

The Act also proposes the establishment of a ‘Communal and Targeted Violence Relief and Rehabilitation Fund’, under Section 122 – but just as in the above case the efficacy of such a fund will have to be seen in motion, rather than on paper.

Another point of note can be found in the chapter on ‘Penalties’ (Chapter VIII of the Draft Bill) which largely reflects those as laid down under the IPC, and have not been enhanced, merely expanded on in keeping with the definitions of ‘Offences’ under the Bill as contained in Sections 7 – 12, prompting me to wonder, why not simply amend the IPC to broaden the scope of the offences as detailed under the Communal Violence Bill, with their respective penalties, enhancing them instead of maintaining the status quo, if at all it is to act as a deterrent?

Which brings me to some of the definitions under the Bill, of which, Section 3(c) of the Draft Bill defines; “communal and targeted violence” to mean and include “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”.

However what is striking is that the Act fails to define what is meant by the term ‘secular’ and the amendment of June 23^rd has chosen to simply lop off that part of the statement to have the section now read as:

Section 3(c) - “communal and targeted violence” to mean and include - "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."

So is India a Hindu nation, and is this secular face we display to the world just a farce? After all the word secular didn’t even exist in the original Constitution as it was when it came into effect on 26^th January 1950, having been passed by the Constituent Assembly on 26^th November 1948. It was an after-thought, added in retrospect twenty-six years later, by the forty-second amendment to the Constitution on 28^th August 1976. Why didn’t our founding fathers think it prudent to include it in the original draft and why did it take forty two amendments for our law-makers to realize that we are a secular nation, or did they take it for granted that we were, in a time when communal hatred was at its peak and when the nation had been torn apart, not so much by the British as by the politics of that time. Right-wingers among the majority community may vilify Gandhi as being the architect of Pakistan as much as Jinnah was, but I stand in defence of that individual who stood alone, against the joint forces of hatred and realised that it would be better to separate what was merely conjoined, two parts with the same heart but with different bodies, than to have the carnage go on. Perhaps it was a short-sighted vision, perhaps he was utopian, and perhaps all his years of fighting the system had left him diminished enough to think that the violence would end.

And then we look at Pakistan and see that they adopted their constitution only in 1956, a short lived document that lasted just 2 years before it was abrogated in 1958 with the promulgation of martial law. It would take two constitutions and a several political heads of State, and a cleaving off of their easterly limb, before Pakistan adopted the Constitution of 1973 which is still in force (with amendments) today, but they did at the very inception give themselves a religious identity, which we did not, choosing not to call ourselves a Hindu nation or at the very least adopt the term secular which has now come to stand for all that is not well within our religio-political makeup.

Section 3 (e) of the Bill defines the term “group” - to mean “a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India”, and by this definition excludes the majority community, thereby alienating them.  

Section 3 (j) meanwhile defines “victim” to mean, “any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate”.

In essence therefore, while the act purports to term anyone who by virtue of the fact that they belong to a religious or linguistic minority, the “victim” of any act of communal violence, it fails to extend the same benefit to members of the religious or linguistic majority, in effect, Hindi speaking, Hindus who may also be targets of communal violence.

Why give the act a religious or linguistic angle I wonder, instead of treating communal violence as just that, violence based on differences of thought, ideology, religion, language, birth, place of residence, or other similar grounds, regardless of majority or minority. And by this Bill we purport to perpetrate just that, entrenching a divide that already runs deep, fanning further the politics of hate and division, and creating grounds for even more senseless acts of violence. And what will happen when the Congress led UPA loses the next general election, or the election after that, will the Bill if enacted be repealed?

So I am compelled to ask, if after all this is just the politics of appeasement once again.

If so the Act should be renamed as the Prevention of Communal and Targeted Violence against Religious & Linguistic Minorities Act, 2011 – then and only then can it be termed fair, else it would be a waste of paper, time and the efforts of thousands of individuals who have worked on an ill-thought out document.