Tuesday, June 7, 2011

Disputed term “Group” in Communal Violence Bill, 2011

Since the drafting of Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill, 2011, it has come under the light of dispute along with its opposition from various political parties and legal scholars. Recently, it was termed by some political leaders as a threat to the National Unity. It would be very important to notice as to what are the points under this draft which makes it so controversial in the eyes of so many political leaders and legal scholars. In recent times, India had to witness a huge political chaos. Initially, it had to witness the issue relation to Lokpal Bill and then Communal Violence Bill.

Although, Communal Violence Bill could not get much importance and remained hidden. But, the issue relating to Communal Violence Bill is as important as that of Lokpal Bill, and for that matter the issue which has been raised by Baba Ram Dev. Some political leaders have also demanded the implementation of Sarkaria Commission on Centre-State Relations, and also the implementation of Venkatachalaiah Commision in order to establish independent collegiums for the selection of chiefs of the CBI, the CAG and CVC with re-visiting the role of a Governor.

The Bill has been proposed by National Advisory Council which is currently headed by UPA chairperson Sonia Gandhi. Section 3 (j) of the Prevention of Communal and Targeted Violence (Access to Justice and Reparation) Bill, 2011 [Hereafter, it would be referred as “Bill”] states that a person can become a victim of violence as mentioned under this bill only if he belongs to certain groups. Now, it would be necessary to read the definition of a “group” defined under this bill.

Section 3 (e) states that “group” means a religious or linguistic minority, inany 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. This means that if a person belongs to any of the above groups as mentioned under this bill, then he can be subjected to violence. Hostile environment can only be created for these groups under Section 3 (f) of this Bill.

But, it would be absurd to conclude that people belonging to the groups other than those mentioned under the bill, cannot be subjected to violence. This provision of the bill may come under the ambit of Article 14 of the Indian Constitution. And if it comes under the ambit of Article 14, then it would be very difficult to understand as to why only a particular group of Indian society is included under the act. There are various other flaws in this bill which would be discussed in other posts e.g. Federal Structure, Centre-State Relation etc..This post is confined to the issue relation to that of term “group”. Laws are enacted taking into account the conditions prevalent at the time of enacting it, and there would also be some strong reasons behind including only certain groups of society within the ambit of the bill. There are some laws which have been enacted keeping in mind the patriarchal nature of the society for e.g. IPC. There are some provisions in IPC which clearly indicate that women section was not empowered at that time e.g. Rape, Sexual Assault. There was indeed a perception which has been followed even today, and which has lead to the enacted of various women oriented laws. But, there have been many instances when men have been subjected to violence, and cannot raise their voice in the matter due to lack of any law.

Read this –

1. India’s “Domestic Violence Act” " A Study Report -Compiled by Rudolph D’Souza and Others

2. Fact sheet on domestic violence against men

3. Now, men seek cover under domestic violence law

Right to Equality has been guaranteed to each and every citizen of India by its constitution irrespective of their caste, sex, religion, place of birth etc. The question ought to be resolved here in this case is whether the term group as mentioned inside the Communal Violence Bill would be a violative of Fundamental Right to Equality. Right to equality envisages that equal persons should be treated equally, and treating unequal persons equally would be highly unjustifiable. Before including or restricting the term group only to a certain sections or groups of the society, it would be very important to understand the conditions under which they can be subjected to violence. A person is subjected to violence if it comes under any of these categories –

1. Sexual Assault.

2. Hate Propaganda.

3. Organized Communal and Targeted Violence.

4. Aiding financially, materially or in kind for commission of offence under this Act.

5. Offence under the Indian Penal Code, 1860.

6. Torture.

Now, it would be very difficult to understand the conditions under which any member of this “group” can be subjected to violence differently from those persons who do not find place in this bill. A woman belonging to a majority community can be subjected to sexual assault in the same manner as those women who find place in this bill. There have been various instances when a majority group like Hindu has been subjected to communal violence e.g. 1998 Chamba massacre, the 2002 fidayeen attacks on Raghunath temple, the 2002 Akshardham Temple attack, Godhara Train burning etc. On the other hand, there have been various instances when minorities groups or other section mentioned in the bill have been subjected to violence e.g. Sikh riots 1984, Christian Violence in Orissa, Godhara Riots in Gujarat etc. And, it would be more interesting to note that leaders belonging to Congress government have been charged for 1984 riots, namely Jagdish Tytler and Sajjan Kumar, and it is the same government which is proposing a bill which would protect certain sections of the Indian Society against communal Violence.

There are certain exceptions to the Fundamental Right of Equality, but these exceptions find very valid and sound reasons. Certain provisions have been made in favour of backward caste by means of reservation in various education institutions, government jobs. But, these provision are justifiable in the sense that these groups are not equal in their economic standards, social standards etc, which provides a strong reason for implementing such provisions. A person belonging to backward caste cannot be treated equally for the purpose of education, employment. Certain states like Tamil Nadu and Kerela have reservation policy specifically for Muslim Community. But, again the reason behind implementing such provision are sound, and there has been a general perception for a long period of time that most of the government posts were held by forward castes and religions for a long period of time. And, in order to empower backward sections of the society, reservation can be one of the most successful means. But, when we discuss the issue pertaining to violence against a person, making an exception in such case would be a very difficult task. What are the conditions under which a person can be subjected to violence? Would it be the same for a person belonging to backward and minority section and a person belonging to majority and forward sections? Suppose a person is murdered in a communal violence. It would be an absurd argument that a person belonging to backward section was murdered in a special way than that of a person belonging to forward section. Murder is murder i.e. its definition is same for everyone. Both the person have lost their life and under the same circumstances. Again, suppose a person has been tortured. The abysmal condition of a person belonging to minority group and a person belonging to a majority group would be the same. It would make no difference whether person belongs to a minority group or not. Every law, act etc. should be made on some reasonable grounds, and simply making it in favour of those persons belonging to certain groups of the society when they are placed under the same conditions would be highly unjustifiable. Another reason can be the pressure from various organisations working for minority communities and for the backward communities. But, public pressure should not affect the decision making process of the law making body of our country. A law has to reveal the valid grounds on which it has been based.

Then, what is the basis for not including majority sections of the society under the ambit of this bill. One of the reasons behind it can be the general perception prevalent in the society, that a minority can easily be subjected to violence. But, sometimes this general perception doesn’t hold true and famous example in this regard can be Godhara train burning where thousands of Hindus were allegedly burnt alive by certain members belonging to Muslim Community. The plight of Hindus in Kashmir can be another example in this regard. This can be a clear violative of Fundamental Right o Equality, and the very basis not including majority sections of the society appears to be flawed. Because, it would be very difficult to find any sound reason for differentiating violence suffered by majority and violence suffered by minority section, because violence is “Violence”. Caste, religion etc. may become irrelevant factors in this regard. Origin of this bill itself is under great controversy, and Indian political scenario would come under new chaos once this bill is introduced in either house of the Parliament.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. - Martin Luther King, Jr.

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