The Broad Mind | The draconian draft

The draft Prevention of Communal Violence bill prepared by the NAC can’t be allowed to be passed.

A draft Prevention of Communal Violence (POCV) bill [pdf here] has been circulated by the so-called National Accountability Council (NAC) headed by Sonia Gandhi, which had delayed passing this bill for many months. Ignoring the unconstitutionality of an unelected group of people forcing their policies on elected representatives of the people with their consent for now, it seems prudent to view the draft bill purely in terms of whether the policies it prescribes will make it easier for the Justice System today to deliver better or not. While policies can have good intention, the litmus test for a policy’s success is decided on whether it produces tangible results in reducing communal violence, and whether the it actually greases the wheels of justice causing them to turn more effectively, rather than not. A pre-requisite of a good law is a very clear definition of what is being targeted, specified in exact terms so that it can be applied without ambiguity on citizens who are deemed to potentially offend the terms of the POCV.

Starting with the preliminaries, the POCV arrogates itself to apply to the whole of India (Preliminary 1), without the consent of individual states which are responsible for Law and Order, and the POCV directly affects a Indian state’s ability to independently dispense justice. It boggles the mind that a directive that can potentially destroy the federal structure is being imposed by an unelected group calling itself “civil society”.

Consider the definition of “communal and targeted violence”: “Includes any act or series of acts, whether spontaneous or planned, resulting in injury of harm to person or property, knowingly directed against any person by virtue of their membership in a group, which destroys secular fabric of nation”. The entire charge of “communal violence” can be foisted on a person for “destroying the secular fabric of the nation”. There is no definition in the entire text for what exactly constitutes “destroying the secular fabric of the nation”. Citizens of India need to ask themselves whether a bill that purports to target communal violence do so with with an ill-specified and ambiguous definition of “communal violence”? An ambiguously defined term that carries with it a criminal sentence of violation of the ambiguous term, perpetrates injustice rather than justice. Equally dangerous is the definition of “Armed Forces or Security forces” which also treads on the deliberate constitutional line between treatment of military personnel under a different framework for violating military code, unless the act is committed while out of uniform. Even more mischievous is the definition of “group” which is defined as “religious or linguistic minority” violating the basic tenet that laws must address injustice against all groups of people equally. Such a mischievous and ill-specified definition can cause the opposite effect of reducing injustice from communal prejudices especially in India, land of a million minorities.

What really makes the POCV extremely dangerous to the justice system itself is the way it opens the door for frivolous lawsuits for “creating a hostile environment against a group” swamping an already tottering court system and a law&order mechanism stretched to limits. Consider each of the following ways in which an “association” of people can be targeted by the POCV for “hostile environment against a group”.

i)” Boycott of trade or businesses of such a person making it difficult to earn a living”: If India is supposedly the free country that it advertises itself to be, a person is free to boycott anyone they please. How does this law propose to differentiate between a trade that is doing poorly because it is being boycotted, as opposed to because its wares not standing up to the competition?

ii) “Publicly humiliate such a person through exclusion from public services, including education,…,or any act of indignity”: The words “humiliate” and “indignity” are all subjective terms, the same act can humiliate one person but not another, and criminalizing “humiliation” by causing “indignity” opens the door for a flood of lawsuits seeking legal reparations for being “humiliated”, potentially permanently shutting down our barely working court systems.

iii) “Deprive a person of his/her fundamental right”: Nowhere in this document is it specified what these “fundamental rights” are. Can a person go sue another group of people for violating his/her “right to food”? Where does this stop? Aren’t there existing laws to handle such violations of civil rights? What is the need for POCV to address this?

iv) “Force such persons to leave his or her home or place of ordinary residence”: Having cleverly excluded J&K from the bill in Preliminary 1, the POCV is of no use to Kashmiri pundits who have been forced exactly in this situation, not only because they do not constitute a “religious minority” according to the POCV and therefore not worthy of being protected by the POCV. Forcing a person out of his/her residence is usually a criminal violation starting with trespassing, so why is the POCV confusing the issue by associating it totally with communal violence?

v) “Any other act, whether or not it amounts to an offence under this act, that has the purpose of creating an intimidating or hostile or offensive environment”: This basically criminalizes “creating an offensive environment”, where “offensive” is not even defined anywhere in the text. Tomorrow, if a vegetarian finds meat-eaters in the neighborhood offensive, can the non-vegetarians be accused of creating an offensive environment under the POCV? You bet they can, the way this bill has been written by the NAC.

Various parts of the document refer to the Rome Statute of 1998 which was NOT signed by the Indian government in consideration of national interests, and now we have an extra-constitutional authority calling itself the NAC that is foisting the terms of the same treaty via the back door? In effect, the NAC has appointed itself the arbiter of justice for entities of the State itself, sidelining existing constitutional protections for the same.

The number of sloppily worded “crimes” in this document are numerous and every one of them will open the door to a flood of criminal lawsuits that will definitely not help healthy communal relations between Indian groups.

“The Central Govt. shall constitute a National Authority for Communal Harmony, Justice, and Reparation shall exercise powers and functions under this act”: POCV envisions the creation of a super authority that literally has jurisdiction over every person in the country. This authority has a random selection of people: 1 from Schedules Castes/Tribes, 4 women with any background, and 2 retired public servants, to be anointed by some unknown group of people who presumably constitute the “Central Government”. The dangers in allowing a random body of people to dictate terms to the state and the rank unconstitutionality of it all can be the cause of much trouble for the Indian State down the line.

The Bill also places onerous burdens on govt. officials to be “non discriminatory” or be accused of communal violence. For example, Chapter III, sec. 19: “Duty to exercise authority against unlawful assemblies:….shall exercise his or her duty in a fair, impartial, and nondiscriminatory manner”, and who decides that a government servant was unfair and discriminatory? According to this POCV bill, any random remark of accusation against a government servant is sufficient to for him/her to be considered guilty of violating Sec. 19. India currently has a deficit of law enforcement personnel at the ground level, and this bill makes that job even more unattractive than it already is.

Summarily, in addition to being discriminatory in protecting one group of citizens but not others, this POCV bill will summarily flood the overburdened Indian court system with lawsuits of dubious antecedents, and thereby not serving the cause of justice in any way. The sloppy and arbitrary wording of the document basically places the Indian govt. at the mercy of any NGO that wants to protect its turf from the Indian government itself. The draconian POCV bill may not put the brakes on communal violence, but it surely breaks the balance between state-center relations that have kept India together since independence. If it is passed by the parliament, it will be a signal that the Center can override the states in matters of law and order, in complete violation of federal principles of the Indian Constitution.

Srikanth R. is a researcher at the Takshashila Institution. You can follow him on Twitter at @_R_Srikanth

DISCLAIMER: This is an archived post from the Indian National Interest blogroll. Views expressed are those of the blogger's and do not represent The Takshashila Institution’s view.