New Delhi, May 20 The draft of Communal Violence Bill “Prevention of Communal and Targeted Violence (Access to Justice and Repatriation) Bill, 2011”, prepared by a Working Group (WG) of the National Advisory Council (NAC) headed by UPA Chairperson Sonia Gandhi, is now out. It has been prepared after months of discussions among civil society groups, and with government representatives,
It is available on the website of NAC since May 20, 2011 for public comment. Simultaneously, it has been sent to the Union Ministries of Home Affairs and Law and Justice for their comments.
It goes beyond the existing legislation in four significant ways: It recognizes identity-based or targeted crimes and organized mass violence as special offences while placing accountability of public officials at the heart of the law, with varying penalties for dereliction of duty. Finally, it provides for the creation of a National Authority and the State authorities to ensure both accountability of public officials as well as to ensure justice and reparation once in the wake of violence.
The NAC's WG draft Bill seeks to address the lacunae in the Government's draft bill, while taking on board criticism by Government officials that the NAC—and the civil society groups it represents—were encroaching on Government turf, trying to dis-empower the existing administrative and justice mechanisms.
The Bill, therefore, stresses that the proposed National Authority/ State authorities are not intended to supersede the existing law enforcement machinery; neither will their advisories and recommendations be binding on any state government. What they will do is to monitor, inquire into complaints, receive or suo motu seek information, and issue advisories and recommendations only when there is alleged inaction or malafide action by public officials and governments. The object is to create a mechanism to make the administrative and criminal justice system work, free from favour or bias or malafide intent, and prepare a ‘paper trail' to ensure accountability of public officials in a court of law.
The NAC's WG wants the new law to cover religious and linguistic minorities as well as the Scheduled Castes and the Scheduled Tribes and, if possible, extend it to Jammu and Kashmir, so that its protection may extend to Kashmiri Pandits, a religious minority in that State. Regional minorities such as migrants from Uttar Pradesh and Bihar in Maharashtra will also be covered as linguistic minorities.
Communal and targeted violence has been defined 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….” In Indian law, so far, only the SC and ST Atrocity Act recognises that certain groups can be targeted.
The draft bill specifically defines acts that could create an intimidating or hostile environment against members of groups, including economic boycott, denial of public services, and forced migration. It, therefore, mandates that public servants must identify the creation of such a ‘hostile environment' and prevent any communal and targeted violence against such members of groups.
Penalties for Dereliction
While recommending a set of penalties for dereliction of duty by officials on the ground, it recognizes that often those higher up in a chain of administrative or political command are responsible for failure to perform their duties. This Bill, therefore, seeks to ensure that the power of holding command over the actions of others is upheld as a sacred duty, and that there is culpability for those who are ‘effectively in-charge' through the doctrine of command responsibility, which could go right up to, for instance, the Chief Minister.
Interestingly, the offence of breach of command responsibility is also extended to non-state actors and any association. This means that the head of a communal organization could be punished for the acts committed by the foot soldiers.
The Selection Committee for members (including Chairperson) of the National Authority will consist of the Prime Minister, the Leader of the Opposition in the Lok Sabha, the Union Home Minister and leaders of all recognized national political parties in the Lok Sabha. Of the seven members to be selected, at least four will be women, and no more than two can be retired civil servants, to provide greater space for civil society members.
The bill can be downloaded from the link: