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August 21, 2011

Page: 8/42

Home > 2011 Issues > August 21, 2011

News and Views
A Communal Bill
Injurious to unity, integrity and fraternity of the people

By Justice (Retd) Dr M Rama Jois

IT is astonishing that a Bill like Prevention of Communal and Targeted Violence (Access To Justice and Reparations) Bill, 2011 which is flagrantly violative of the right to equality and patently discriminatory being violative of Article 15(1) could have been even thought of by the National Advisory Council under the chairmanship of Sonia Gandhi who has taken oath to uphold the Constitution and the Government headed by Dr Manmohan Singh who is also under similar oath and introducing it in the Parliament. To put it in a nut shell the Bill is intended to give immunity to religious minorities against serious criminal offences committed by violent groups among them against the life and property of majority and penalise the majority for the crimes committed by such militant groups among minorities and in adition to reward the culprits by providing compensation at the cost of exchequer.

Therefore if it were to be passed into Law; though it is difficult even to imagine that it will be passed by the Parliament; it would be void ab initio. Therefore this is one such Bill which should not be permitted even to be introduced in the Parliament.

The Bill is more disastrous than the Partition of India on communal lines as it is intended to divide us the people of India on communal lines; for by Partition India lost a portion of its territory but by this ill-conceived Bill the citizens who are all children of Bharatamata, stand divided on communal lines providing instigation to the militant and violent sections of minorities to indulge inviolence against majority with impunity.

A reading of the definition of the word group and of communal targeted violence in the Bill which disclose the entire mischief of the Bill read –

“Group means a religious or linguistic minority in any 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.”

Definition of the Communal Targeted Violence:

The communal target violence means and includes any act or series of acts whether spontaneous or planned, resulting in injury or harm to the person 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.

The above definition read with the various provisons of the Bill indicate that only minority group can be the victim of communal and targeted violence and only the majority indulge in or instigate communal violence.It is preposterous top resume, that the majority instigates violence against minority and not vice versa in view of the two definitions. It is therefore needless to analyse the various provisions of the Act to show how unreasonable and arbitrary they are , and how they are designed to destroy the unity and integrity of the nation and fraternity among the people which are the noble principles enshrined in the Preamble to the Constitution of India.Further the provisions of the Bill are designed to destroy the federal structure and render the states subordinate to the Centre.

I conclude this article by stating that the Bill is unconstitutional relying on the Constitution bench judgment of the Supreme Court of India in which an exactly similar classification was struck down as voilative of Article 15 of the Constitution(state of Rajasthan vs. Thakur Pratap Singh; AIR 1960 Supreme Court 1208)

Shortly after the commencement of the Constitution Congress Government of Rajasthan issued a notification under Sec. 15(5) of the Police Act after having levied the cost of additional police force stationed in certain villages, on the local citizens granting exemption to Muslims and harijans from such levy. The constitution bench of the Supreme Court of India stuck down the said notification. Relevant portion of the judgment reads:-

The State of Rajasthan in defence of the exemption stated thus ….

“The Harijan and Muslim inhabitants of these villages have been exempted from liability to bear any portion of the cost of the additional force not because of their religion race or caste but because they were found to be peace loving and law- abiding citizens , in the 24 villages where additional force has been posted” ..

The Supreme Court rejected the defence thus:-

“It would be seen that it is not the case of the state even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace -loving and law- abiding, though it might very well be, that according to the state, a great majority of these other communities were inclined the other way, If so , it follows that the notification has discriminated against the law- abiding members of the other communities and in favour of the Muslim and Harijan communities, - (assuming that everyone of them was ‘ peace loving and law-abiding”) on the basis only of “caste” or “religion” . If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Article 15 (1), and that Para 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned judges of the High court were clearly right in striking down this paragraph of the notification.

The present Bill proves that old habits hardly die

In the light of the law down by the Supreme court of India the present Bill in liable to be rejected at the stage of introduction itself.

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