Would the "Communal Violence Bill" have reduced Hindus to the status of Jews in Nazi Germany?

A casual glance at the opening parts of National Advisory Council’s proposed “Prevention Of Communal And Targeted Violence (Access To Justice And Reparations) Bill, 2011” (PCTVB) is unnerving. The range and sweep of the draft bill is awesome to say the least. It is diabolical in design and appeared to be intended as CongI’s 2014 election manifesto. For in the aftermath of a plethora of corruption scams, and the self-goals it scored in Andhra Pradesh which returned 33 MPs each in 2004 and 2009, nothing but nothing is going to prevent its decimation in the next election. 

Indira Gandhi began diluting the processes of democratic institutions in 1969 culminating in their complete subversion in 1975. She had then ‘incarcerated the whole nation’, figuratively speaking, in order to safeguard her political power. Did her daughter-in-law seek to reduce the status of 85.5% of the nation’s population to that of Jews in Hitler's Germany? The analogy of Jews and Hitler's Germany seem perfect because the NAC appears to draw parallels from Hitler’s rubber-stamp Bundestag.  

Only in this case the NAC is nominated, but in a nation where the highest political office is nominated, it is no surprise. The greatest irony of India, trumpeted as the world’s largest democracy is its rule by an extra-constitutional body like the NAC. Second, in India, Sonia Gandhi’s extra–constitutional kitchen cabinet seeks to subjugate the majority population into submissiveness by stamping it under its legislative jackboot. If the chapter on definitions makes the bill’s invidious intentions unambiguously clear, the twist in the tale comes in Clause 129, which unveils its diabolical designs. 

Targeting Hindus 

Without any subterfuge, Clause 3 (e) makes it abundantly clear that the bill seeks to protect only “religious or linguistic minorities.”  The insertion of the word “linguistic” is clearly a diversion, for there were no instances of serious strife between one linguistic group and another in the past, unless the NAC wants to send Bal Thackeray to spend what little is left of his life as Azmal Kasab’s neighbour in Mumbai’s Arthur Road jail.  

The next part of the sentence, “in any State in the Union of India” does not mean anything, because, for any Central law to be applicable to Jammu & Kashmir, concurrence of the state legislature is necessary. Therefore, Clause I (2) is simply superfluous.  If the naïve believe that it is possible to extend the law to Jammu & Kashmir, perish the thought. The sleight-of-the hand Clause 3 (m) negates any such possibility: “In the event this Act is extended to the State of Jammu and Kashmir” (please note the conditional clause at the beginning of the sentence, not ‘when’, for the NAC knows that the state legislature can sit tight on it till Kingdom come!) “…any reference in this Act to a law, which is not in force in the State of Jammu and Kashmir, shall, in relation to the State, be construed as a reference to a corresponding law, if any, in force in that State.” In plain English, shorn of legalese, the law will never be applied in Jammu and Kashmir. [1] This is not surprising in view of the derision that an exalted member of the NAC has for the state’s minorities, the Kashmiri Pandits. She wrote in an article in Deccan Chronicle some time ago that the issue of Kashmiri Pandits has been ‘highly romanticized’ (sic).  

Please also note the capitalization of ‘S’ every time there is a reference to Jammu and Kashmir ‘state’ which means that Jammu and Kashmir shall remain a separate nation for ever, loosely attached to India only to drain its coffers. This also means ‘religious minority’ has one meaning in Jammu and Kashmir and quite a different meaning in the rest of India. More importantly, the act creates a group of ‘more equal’ citizens, giving ‘equality of justice’ that the Constitution promises all, a go by. 

If the objective of the bill is to protect the religious minorities, from whom does it seek to protect them? The definition of ‘association’ in Clause 3 (b) is scary and makes you and I shudder to think when the policeman knocks. You don’t have to be an enlisted member of any association ‘whether or not registered or incorporated under any law’. For if the ‘association’ need not be legally constituted to be accused of an offence, where is the question of ‘enlisted’ membership? If you are ipso facto a member of an ‘association’, it is enough for the act to take cognizance. [Of what, you may wonder. Please hold on for the nonce.] But it needn’t be organisations like the RSS or the VHP that may be described as an ‘association’ under the law. By implication, even the street-corner youth welfare association, which celebrates Ganesh Chaturdhi every year, is covered under the ambit of the proposed law. 

In view of the slant, words like ‘group’ and ‘association’ have in the act, all its clauses can be applied only one way and not the other. For instance, under Clause 3 (f) (i) of the act, a member of an ‘association’, causing ‘hostile environment’ against a ‘group’ as defined above, by ‘boycotting of the trade or profession of such person or otherwise making it difficult for him or her to earn a living’ – is a cognizable offence. Clause 3 (f) (v), which reads, ‘whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment’ tightens the noose further. Consider the following scenarios: 

Example 1:

You have had a tiff with the neighbourhood grocer belonging to a  minority religion for underweighting or passing off substandard goods. You informed your neighbours of this and they stopped buying from him. Does it amount to ‘boycotting of the trade or profession of such a person or otherwise making it difficult for him or her to earn a living’ [Clause 3 (f) (i)], or ‘mental psychological or monetary harm?’ [Clause 3 (j)]? 

Example 2:

 

Alternatively if employees belonging to the majority religion strike work in an establsihment being run by a person belonging to the minority religion, and as a result of which the establishment closes down, does it amount to ‘boycotting of the trade or profession of such a person or otherwise making it difficult for him or her to earn a living’ [Clause 3 (f) (i)], or ‘mental psychological or monetary harm?’ [Clause 3 (j)]? 

If you think these are extreme examples, the product of a feverish imagination, please think again. The first act of UPA upon coming to power was to repeal POTA under the pretext that it would be misused against the minorities. 

By the nature of definitions of ‘group’ and ‘association’ as defined by the act, Clause 8 (Hate Propaganda) can only be indulged in by the majority religion and not vice versa. 

Clause 9 (1) could be interpreted to mean mere membership of an impugned organisation is enough for cognizance of an offence under the act, irrespective whether an individual member has committed the offence or not. The onus of proving innocence is on the accused. 

Clause 9 (2), which enunciates, ‘…reasonably presumed that the public servant charged with the duty to prevent communal and targeted violence has failed to act to prevent’ read with Clause 13 (Dereliction of duty, punishable by imprisonment of up to two years under Clause 120), is sure to make officials over zealous in their ‘treatment’ of real or perceived offenders of the majority religion. 

On the other hand, Clause 12 (Torture) makes police officials wary and lenient if the offenders happen to be from the minority religion. For if the charge can be proved, the official/s could be punished with rigorous imprisonment of up to seven years under Clause 119. 

It is difficult to understand what ‘non state actors’ in Clause 15 means but a reading of the lengthy provisions in the clause makes one wonder whether it was not intended to ban Hindu organisations like the BD / RSS / VHP at the first available opportunity.Clause 20 empowers the Central government to invoke Article 355 and dismiss any state government, except of course Jammu and Kashmir. Clause 21 empowers the Central government to constitute a supra-judicial ‘National Authority’ which has both executive and judicial powers. However, a person who has ‘in any manner, exhibited bias against any group, by acts or in writing or otherwise’ is not eligible to become a member of the ‘National Authority’. By implication this might mean only persons with a left-liberal agenda could be appointed to the supra-judicial body – a permanent meal-ticket for some of our jholawallahs. 

A contentious issue in the Jan Lok Pal bill being discussed is about confiscation of property of a person accused of corruption. Whereas the Santhi Bhushan Committee wants such a provision, the government argued that it would amount to ‘needless harassment’ of the accused as litigation in India is a long and slow process. No such compunctions hamper the National / State Authority from not only confiscating but auctioning property of the accused under Clauses 81 & 82 of the PCTVB. 

Twist In The Tale 

The twist in the tale comes almost at the end of the lengthy draft in Clause 129 (Non-applicability of limitation). According to the clause the statute of limitations shall not apply to offences cognizable under the act. The implications of this clause are far-reaching. If for instance cases being investigated by the SIT in Gujarat fail to convict the well-known target of any complicity in the 2002 riots, a revision of the cases may be sought in a superior court – and to be tried under the new act. It is important to note that ‘offences’ under the act are non-bailable.

[1] The 2019 Constitutional amendment that abrogated Article 370 changed all that, but back in 2011, the authors of the PCTVB did not know that.