Arun Jaitley: Why the communal violence bill is flawed
BJP leader Arun Jaitley argues that it is a dangerous and discriminatory bill which presumes that the majority community is always to blame for communal violence
What does the bill in effect state
The most vital definition of the bill is of the expression ‘group’. A ‘group’ means a religious or linguistic minority and in a given state may include the Scheduled Castes and Scheduled Tribes. The bill creates a whole set of new offences in Chapter II. Clause 6 clarifies that the offences under this bill are in addition to the offences under the SC & ST (Prevention of Atrocities) Act, 1989. Can a person be punished twice for the same offence?
If the proposed bill becomes a law, then effectively it is the central government which would have usurped the jurisdiction of the states and legislated on a subject squarely within the domain of the states.
India has been gradually moving towards a more amicable inter-community relationship. Even when minor communal or caste disturbances occur, there is a national mood of revulsion against them. The governments, media, the courts among other institutions rise to perform their duty. The perpetrators of communal trouble should certainly be punished.
This draft bill however proceeds on a presumption that communal trouble is created only by members of the majority community and never by a member of the minority community. Thus, offences committed by members of the majority community against members of the minority community are punishable. Identical offences committed by minority groups against the majority are not deemed to be offences at all.
Thus a sexual assault is punishable under this bill and only if committed against a person belonging to a minority ‘group’. A member of a majority community in a state does not fall within the purview of a ‘group’. A ‘hate propaganda’ is an offence against minority community and not otherwise. Organised and targeted violence, hate propaganda, financial help to such persons who commit an offence, torture or dereliction of duty by public servants are all offences only if committed against a member of the minority community and not otherwise.
No member of the majority community can ever be a victim. This draft law thus proceeds on an assumption which re-defines the offences in a highly discriminatory manner. No member of the minority community are to be punished under this act for having committed the offence against the majority community.
It is only a member of the majority community who is prone to commit such offences and therefore the legislative intent of this law is that since only majority community members commit these offences, culpability and punishment should only be confined to them.
Terrorist groups may no longer indulge in terrorist violence. They will be incentivised to create communal riots due to a statutory assumption that members of a jihadi group will not be punished under this law. The law makes only members of the majority community culpable. Why should the law discriminate on the basis of a religion or caste?
Who will ensure implementation of this act
The bill provides for a seven-member national authority for communal harmony, justice and reparations. Of these seven members at least four of them including the chairman and vice-chairman shall only belong to a ‘group’ (the minority community). A similar body is intended to be created in the states. Membership of this body thus shall be on religious and caste grounds. The offenders under this law are only the members of the majority community.
It shall have powers to deal with the armed forces. It has a power to send advisories to the central and state governments.
The drafting of this bill appears to be a handiwork of those social entrepreneurs who have learnt from the Gujarat experience of how to fix senior leaders even when they are not liable for an offence.
Offences which are defined under the bill have been deliberately left vague. Communal and targeted violence means violence which destroys the ‘secular fabric of the nation’. There can be legitimate political differences as to what constitutes secularism. The phrase secularism can be construed differently by different persons. Which definition is the judge supposed to follow? Similarly, the creation of a hostile ‘environment’ may leave enough scope for a subjective decision as to what constitutes ‘a hostile environment’.
The states will be watching hopelessly when the Centre goes ahead with this misadventure. Their power is being usurped. The search for communal harmony is through fairness — not through reverse discrimination.