Letter to NAC on Proposed Communalism Prevention Bill

June 7, 2011
Dr. Manmohan Singh
Prime Minister of the Republic of India
Office of the Prime Minister
Secretariat Building - South Block
New Delhi, India
Smt. Sonia Gandhi, Chairperson
Secretariat of the National Advisory Council
2, Motilal Nehru Place,
New Delhi-110011
Honorable Prime Minister Singh and Madam Chairperson,
We write to you on behalf of the Hindu American Foundation (HAF) to express serious concern over the proposed Prevention of Communal and Targeted Violence Bill of 2011 (“The Bill”). HAF is a an advocacy and human rights group seeking to provide a voice for Hindus in the U.S. and Hindu minorities worldwide. Amongst our membership are Non-Resident Indians as well as the Indian citizen relatives, friends, and colleagues of members on behalf of whom we urge this Bill, which violates individual and State rights as well as the principles of equality under the law, separation of powers, innocent until proven guilty, fairness, due process, and a secular democracy, to be withdrawn from any legislative consideration.
Communal violence is a tragedy that must indeed be prevented. It disrupts India’s multi-religious and multi-cultural democracy and mars India’s long history of religious pluralism and respect. No doubt, India’s brand of pluralism is a direct extension of the inter-religious respect promoted by its indigenous and majority traditions -- Hinduism and other Dharmic faiths. Nonetheless, communal violence, fueled by politics, economics, history, and misunderstanding, has become a horrible reality that needs to be addressed.
Events throughout India’s history have shown that communal violence takes numerous forms and has diverse culprits and countless victims. There has never been a single theme to these events, and thus no one community should be subject to blanket culpability. Nor has any single community been the sole target of attack or victimization. The Bill, while arguably intended to protect against and prevent such violence, unfortunately ignores obvious historical and contemporary realities, and will consequently only serve to further instigate inter-religious and communal tensions as it wrongly singles out a particular community - the Hindu majority.
On its face, it is difficult to read the Bill without seeing the blatant politicization by the National Advisory Council of the issue of protecting victims. Created to “interface with civil society” with a “special focus on disadvantaged groups,” the National Advisory Council has failed miserably in carrying out its mandate by offering this bias-ridden, short-sighted, and ill-conceived measure. The Bill, on a cursory reading, exhibits the following fatal flaws:
  1.  The Bill creates two “groups” of citizens violating the basic democratic principle of equal protection under the law, as well as the rights of the majority of Indian citizens. The language used in defining “group” is unnecessarily and sufficiently vague. It is unclear as to whether a “group” is a religious minority as determined by national demographics or by individual state demographics (Ch.1.3.e).
    1. If the Bill intends to determine groups as religious minorities based on national demographics (this is the predominant understanding by experts and observers), it leaves unprotected large groups of religious and linguistic minorities, namely the Hindu minority (national majority) in the States of Jammu and Kashmir, Punjab, Nagaland, Mizoram, and Meghalaya.
      1. Example: A dozen Hindu women in a small village are mass gang raped by a mob of Muslim men because of the women’s religious identity or “membership” in the Hindu community. The mass gang rapes occur in the State of Gujarat. Hindus are neither a minority based on National or state demographics. The Bill fails to protect these victims.
    2. If the Bill intends to determine groups as religious minorities based on State demographics (i.e. non-Sikhs in Punjab), it leaves unprotected religious and linguistic minorities that may constitute a minority in the context of smaller geographically definable regions such as a district, village, section of a city, despite being members of the majority according to State demographics.
      1. Example: Two of the only Christian businesses in a predominantly Hindu village in Mizoram are boycotted by the Hindu villagers. Under the Bill, boycotts on the basis of group membership is a chargeable offence. Christians constitute a majority in Mizoram. If minority status is determined by state demographics, the Bill fails to protect these victims.
    3. While linguistic minorities are presumably based on State demographics, the Bill’s language is unclear because it conjoins “religious” and “linguistic” without a logical qualifier.
    4. The way in which the Bill has defined “group” and afforded special protection on this basis fails to address and acknowledge the historical reality of communal and targeted violence perpetrated by minority groups against the majority and minority against another minority.
      1. Example: In 2007, inter-communal violence erupted between Sikhs and followers of Dera Sacha Sauda, a distinct religious institution with followers from Hinduism, Sikhism, and Islam. The Akal Takht, "the highest temporal seat of the Sikhs," called for a "social boycott" of Dera Sacha Sauda members and of their leader, and called for a "closure of all 'deras' of the Sacha Sauda in the Punjab" (United News of India 22 Mar. 2009b, reproduced on UNHCR website). The religious majority of Punjab is Sikh. The Bill does not deal effectively with such complex scenarios, especially where both groups can be considered minorities by national demographics or one group has members belonging to the majority, and both engage in offenses under the Bill. This Bill fails to address the complexities of communal relations.
  2. The Bill will lead to uneven application across Indian states and fail to protect minority Buddhist, Sikh and SC/ST populations from communal and targeted violence in the State of Jammu and Kashmir, should the State not consent. Minority Hindus in Kashmir, who have been on the receiving end of communal and targeted violence for several decades and have been ethno-religiously cleansed from the Valley, according to this Bill would not be afforded protection as a member of the National majority, regardless of whether the State of Jammu and Kashmir consents to the Bill (Ch.1.1).
  3. The Bill, in establishing a National Authority and various State Authorities, grants bodies of unelected citizens the power to interfere, obstruct, and override some of the essential functions of both National and State governments, namely law enforcement and adjudication of the law. The powers of these bodies violate basic principles of separation of powers and the rights of States (Ch. 4/Ch.5).
  4. The Bill violates the basic common law principle of the right of the accused to confront one’s accuser by empowering the National Authority with duty to protect the identity of informants (Ch.4.40).
  5. The Bill provides blanket immunity from criminal prosecution to any person who provides a statement before the National Authority, regardless of his/her role in engaging in or orchestrating violence related to the matter under investigation (Ch. 4.42).
  6. The Bill establishes parallel National and State Authorities creating unnecessary bureaucracy, conflicts of interest, as well as confusion, let alone violating basic principles of state autonomy and separation of powers and the rights of States (Ch. 5).
  7. The Bill usurps State police powers through overly-broad and sweeping language, such as “through any means in whatsoever manner,” providing unchecked police and/or investigative powers to State Authorities under the Bill (Ch.5.53).
  8. The Bill violates the basic common law principle of “innocent until proven guilty” by failing to provide an equivalent right for an accused to file a complaint of bias, lack of impartiality, or unfairness with the National or State Authority. In general, this chapter does not lay out any procedures to protect the due process rights of the accused, including rights to a fair trial and legal representation, and ensuring investigations are conducted in a fair manner (Ch.6.70).
  9. The Bill presumes that an offence is communal, rather than a purely criminal act, based solely on the fact that the victim was a member of a particular community as defined under this Bill. It allows inferences to be made without imposing any burden of proof or requiring the prosecution to actually prove that the offence is a communal act (Ch.6.73).
  10. The Bill removes the prosecutorial burden to prove that the accused knowingly and intentionally committed an act of communal and targeted violence, and assumes it was communal based simply on the victim’s membership in a protected group (Ch.6.74.2).
  11. The Bill again violates the common law principle of “innocent until proven guilty,” by failing to provide any remedy to an accused in the event the Public Prosecutor shows bias against the interest of the accused (Ch.6.78.4).
  12. The Bill provides relief and reparation to victims, whether or not they are minorities, and therefore contradicts other provisions of the Bill. If the Bill provides relief to victims of the majority community, it should also provide for prosecution of minorities involved in communal and targeted violence (Ch.7.90).
  13. The Bill denies legal remedies to any person(s) wrongfully accused, prosecuted, or convicted under this Bill. The Bill once again implements unnecessarily and sufficiently vague language such as, “protection of action taken in good faith” by government, thus providing protection to government officials who may have acted negligently or improperly in accusing, prosecuting, or convicting a person(s) under the Bill (Ch.7.130).
Other multi-religious, multi-racial, and multi-ethnic democracies, including the United States, have successfully enacted legislation to curb and protect against identity-motivated crimes without favoring or further alienating one victim or community over another. Such laws, referred to as “hate crimes” or “bias crimes,” work to augment existing criminal laws by enhancing the degree of the crime and/or punishment, if the crime was motivated, in whole or part, by the perpetrator’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin. Similar legislation would better serve the citizens of India than this biased, politically-mischievous, and heavy-handed bill.
We respectfully urge the Government of India to reject this bill in its present form. The Prevention of Communal and Targeted Violence Bill as it is drafted is an affront to the majority community, and a blow to India’s secular democracy.
Ms. Suhag Shukla, Esq.
Legal Counsel/Managing Director, Hindu American Foundation
Mr. Samir Kalra, Esq.
Director, Hindu American Foundation
Smt. Pratibha Patil - Hon’ble President of India
Shri Mohammad Hamid Ansari - Hon’ble Vice President of India and Chairman of the Rajya Sabha
Smt. Meera Shankar - Hon’ble Ambassador of India to the United States
Smt. Meira Kumar - Hon’ble Speaker of the Lok Sabha
Shri Arun Jaitley - Hon’ble Leader of the Opposition in the Rajya Sabha
Shri Pranab Mukherjee - Hon’ble Leader of the Majority in the Lok Sabha
Smt. Sushma Swaraj - Hon’ble Leader of the Opposition in the Lok Sabha
Shri Kariya Munda, Deputy Speaker of the Lok Sabha
Ms. Farah Naqvi, Convener, Working Group on Communal Violence Bill, National Advisory Council of India