Communal Violence Bill: Pro-citizen or Communal?

DR. RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2014-2015

Subject: Basics of Legislation

Final Draft: Communal Violence Bill : Pro Citizen or Communal

SUBMITTED BY: UNDER THE GUIDANCE OF:

Vikesh Kumar Mr. Shashank Shekhar

ROLL NO:157 Assistant Professor

SECTION ‘B’ Dr.RMLNLU

B.A. LLB (Hons.), SEMESTER- II

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 Communal Violence Bill: Pro-citizen or Communal?

ACKNOWLEDGEMENT

It feels great pleasure in submitting this research project to Mr. Shashank Shekhar, Asst.
Professor (Law), without whose guidance this project would not have been completed
successfully. Secondly, I would like to express my gratitude towards Prof. Gurdip Singh,
Vice Chancellor and Prof. (Dr.) C. M. Jariwala, Professor, Dean Academics for their
support and encouragement.

Next, I would like to sincerely thank my seniors, whose suggestions and guidance
assisted me throughout the entire tenure of making the project.

Last but not the least, I would like to express my heartfelt gratitude towards my parents
and friends who guided me and helped me at every possible step.

Vikesh Kumar

B. A. LLB. (Hons.)

2nd semester

Roll. No. 157

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 Communal Violence Bill: Pro-citizen or Communal?

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 4

BACKGROUND TO THE BILL ................................................................................................... 5

MAJOR CONCERNS..................................................................................................................... 7

ROLE OF THE NATIONAL ADVISORY COUNCIL ............................................................... 12

INTERNATIONAL HUMAN RGHTS IN PICTURE ............................................................. 15

CONCLUSION ............................................................................................................................. 18

BIBLIOGRAPHY ......................................................................................................................... 19

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 Communal Violence Bill: Pro-citizen or Communal?

INTRODUCTION

Of late, communal violence in India has assumed alarming proportions. Hardly a year passes
without a communal incident in one part of the country or the other. Not only does it
dislocate social and economic life, but also leaves behind a trail of bitterness and
terrible memories. It weakens the task of national consolidation. Unless systematic, vigorous
and effective measures are initiated to contain the growing communalism, it does not
appear probable that our society can usher in an era of enlightenment, social cohesion
and economic well-being. Communal Violence is deemed to be one of those instruments
which are tantamount to being repressive, nefarious, and egregious and is bereaved of
any reverence for the pain and suffering endured by thousands of individuals, households,
villages and communities.

With the arrival of the UPA Government at the centre, a big hue and cry started
regarding a stricter law to prevent communal violence in the country. The enactment of
the recent Bill addresses the growing concern of en masse violence and therefore is of
great significance. The ruling Government decided to bring in a new act to prevent
communal violence in the country. Even though the protagonists for this act sounded
noble from day one but the ulterior motive of the protagonists in framing the act was
latent in nature. Finally the UPA Government did introduce a draft Bill in the
Parliament in 2005. It was described as THE COMMUNAL VIOLENCE (PREVENTION,
CONTROL AND REHABILITATION OF VICTIMS) BILL, 2005. Official declaration
described this bill as below:
“A bill to prevent and control targeted violence, including mass violence, against
Scheduled Castes, Scheduled Tribes and religious minorities in any State in the Union of
India, and linguistic minorities in any State in the Union of India; to thereby uphold
secular democracy; to help secure fair and equal access to justice and protection to these
vulnerable groups through effective provisions for investigation, prosecution and trial of
offences under the Act.”

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 Communal Violence Bill: Pro-citizen or Communal?

BACKGROUND TO THE BILL

For more than seven years now, the civil society has supported the idea of a separate
law on communal and targeted violence, to deal with crimes committed against religious
minorities with political complicity and intent, to make persons accountable for acts of
commission and omission perpetrated with an institutional bias, to provide justice to
victims and survivors, and to formulate a robust and workable legal regime that will
create a long-term deterrence.
The UPA government, in its National Common Minimum Programme issued in May
2004, promised to enact a comprehensive legislation on communal violence. Its election
manifesto of 2009, reiterated its “unflinching resolve to combat communalism of all
kinds”, and further promised to ensure “the right to compensation and rehabilitation for
all victims of communal, ethnic and caste violence on standards and levels that are
binding on every government.”
The government draft of 2005 – the Communal Violence Bill (Prevention, Control and
Rehabilitation of Victims) Bill – was rejected by the civil society, as it sought to make
the State more powerful and conversely increased the vulnerability of victim-survivors. In
June 2010, the government formed a Working Group on the Communal Violence Bill,
under the aegis of the National Advisory Council (NAC) and entrusted it with the task
of developing a draft Bill on the issue. The Working Group, consisting of a Drafting
Committee and an Advisory Committee, included government representatives as well as
members from civil society. The draft that was finalized through this process –
Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill
(PCTV Bill) was placed before the public in May 2011 for suggestions and feedback.

The 2011 Bill has made attempts to hold public servants accountable for dereliction of
duties, and has introduced the concept of ‘command and superior responsibility’ in order
to pin accountability on those who plot, plan and mastermind such forms of violence in
addition to those who directly commit the offences – though the provisions need to be
worded in a more precise manner. For the first time, it has also sought to address

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extreme forms of socio-economic boycott, forced migration and denial of public services
by recognizing the creation of a ‘hostile environment’ against a group. Significantly, the
law recognizes that even though religious minorities would be more disadvantaged and
vulnerable, all victims are entitled to relief and reparations. Despite these gains, serious
concerns persist with provisions in the Bill, some of which will be discussed further.
With the defeat of Congress in the 4 states results of which were declared on 8th
December 2013, one does not know the fate of the Prevention of Communal Violence
(Access to Justice and Reparations) Bill 2013 that was to be introduced in the last
winter session of the Parliament under UPA II. Some may say the UPA II government
is now a lame duck govt. and would not introduce such a legislation. On the other hand
the UPA has a duty to redeem its electoral promise and should introduce the legislation
to gain support of democratic and secular forces.1

1
Irfan Engineer, “Prevention of Communal Violence Bill 2013 would deepen democracy”, available at:
http://www.ummid.com/news/2013/December/11.12.2013/on-communal-violence-bill.html [last accessed on:
18/3/2014].

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 Communal Violence Bill: Pro-citizen or Communal?

MAJOR CONCERNS

In sheer scope and volume, the Prevention of Communal and Targeted Violence (Access
to Justice and Reparations) Bill is a remarkable piece of work, extending to 66 pages,
containing 138 sections, four schedules and four appendices, and leaving nothing to
chance. It is under attack principally on two fronts. The first is on the ground of
violation of the federal structure of the Constitution and vesting the Centre with a
wide range of powers to exercise control over States in the domain of law and order
which squarely falls within their ambit. The second objection originally raised by the
BJP, and now supported by the likes of the Bihar Chief Minister, Mr. Nitish Kumar,
and Tamil Nadu Chief Minister, Ms. Jayalalithaa, is that it is likely to foment distrust
between the majority and minority religious communities and create among the people
at large an impression that it is the majority community that is invariably responsible for
outbreaks of communal violence.2

The definition of ‘communal and targeted violence’ requires that the violence has to
be such that it ‘destroys the secular fabric’. This increased threshold is a requirement
that is pivotal to the application of all other provisions of the Bill. The threshold of the
crime has been increased so drastically that hardly any situations of targeted violence
against religious minorities, SCs or STs would come within its ambit, for the rest of the
law to be applicable. Crimes such as enforced disappearances have not been included
within the ambit of the law, even though the government has become a signatory to the
international convention in this regard, and thereby, on principle, accepts the standards.
The definition of torture in this Bill falls short of that proposed by the Rajya Sabha
Select Committee on the Prevention of Torture Bill.

The Bill refers to communal and targeted violence as an internal disturbance for
Art. 355 of the Constitution to be attracted (an entry point for the Central
Government to intervene). In contexts of internal disturbance, the State acquires more
power, often unbridled and used in an arbitrary manner, which subverts the intent of this
2
B.S. Raghavan, “Communal violence bill draws ire”, available at:
http://www.thehindubusinessline.com/opinion/columns/b-s-raghavan/article2444833.ece [last accessed on:
18/3/2014].

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law. Punjab in the 1980s, Nagaland, Manipur and Kashmir are some live examples of
this. Hence, any reference to internal disturbance would be dangerous in a law of this
kind. S. 197 of the Criminal Procedure Code, which prescribes prior sanction from the
government for prosecution of public servants, has long been used for shielding public
servants from processes of accountability. As per the provisions of the Bill, the
requirement of sanction for more serious crimes listed in Schedule II is retained, while
dispensing with sanction for the less serious crimes listed in Schedule III. The rationale
for this gradation is hard to decipher, and counters efforts at ensuring accountability.
Further, for offences created by this Bill, it is unclear if sanction is required or not
required.

The provisions on witness protection in the PCTV Bill are sketchy and inadequate. The
provisions place the onus of providing witness protection on the Designated Judge during
investigation and trial. The Bill does not mention eligibility of victims / complainants /
witnesses for protection in the pre-trial and post-trial phases, and if so, which body /
department within the state would be responsible to provide such protection. This could
lead to increased vulnerability for victims and witnesses after they testify in court against
those who wield social and political clout. The recommendations made by the Law
Commission of India in its 198th report appear to have been considerably diluted in the
Bill - this needs to be remedied. While the Bill seeks to set a uniform standard for
granting compensation, the ‘income replacement’ model adopted in this Bill is not
suitable for contexts of CTV as most of those affected are poor, marginalized and
underprivileged people. Their loss of income in actual terms may not be considerable but
their capacity to recuperate after the violence is severely affected because of their
disadvantaged socio-economic status. So, their loss cannot be reduced to loss of wages
alone, nor can compensation be computed solely on that basis. The option provided in
the Bill tostate governments to resettle families in existing or new locations could
whittle down their responsibility to ensure that a conducive, peaceful and secure
environment is created in their places of habitual residence for the return of affected
persons and their families.

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The PCTV Bill (56 pages) is based on presumption that all Hindus are criminals
and communal riots are always committed only by Hindus and never by minorities.
This law can be invoked only against Hindus by minorities. Muslims, Christians
called “the Group” in the bill (sec 3.e). If they commit violence and hate against
Hindus they cannot be booked under this new law as they are exempt from it.3 The bill
in contention i.e. Prevention of Communal and Targeted Violence (Access to Justice &
Reparations) Bill is constitutionally indefensible because it violates the provisions of
Article 15(1) which states that “The state shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them”4 . The very
fact that this bill aims at creating a division among the population in India is enough a
reason in itself to prevent further movement of this bill among the houses of the
Parliament; as it on the face is violation of the principle of Equality before law, an
inviolable fundamental right enshrined in Article 14 of the Constitution.

The bill is under attack principally on the front that it undermines the federal structure
of the constitution which in the case of Kesavananda Bharati5 has been declared as the
basic feature of our constitution. The federal structure is infracted on the fact that
this bill attempts to vest the centre with a wide range of powers to exercise control
over States in the domain of law and order which squarely falls within the states
ambit; Entries 1 and 2 of List II- State List of Schedule 76 empower the state to
maintain public order and control the state police respectively. The institution of a
National Authority for Communal Harmony, Justice and Reparation within the meaning
of Chapter IV, Section 21 of the Act has extensive powers which are beyond
justification. For example, it has been conferred with the status of being a Civil Court
while carrying out its duties and has the power to summon any person for the purposes
of recording evidence.
However, no provision has been made in order to provide for a judicial scrutiny against
any order passed by the National Authority. This is further depictive of the amount of

3
http://communalviolencebill.in/index.php?view=article&catid=34:cvb-articles&id=86:blog-post-all-hindus-are-to-
be-treated-like-criminals-&format=pdf [last accessed on: 20/3/2014].
4
The Constitution of India.
5
Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461.
6
SupraNote 3.

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power which has been granted to the authority and goes against the system of checks
and balances and federal polity. If under any circumstance this bill sees the light of the
day then it would result in giving birth to a structure where the Central Government
could function like an autocratic one and interfere in the jurisdiction of the states, which
is constitutionally barricaded. The proposed bill is a cleverly worded insidious law
aimed at amending the Constitution by fraudulent and manipulative means.
Moreover the bill runs the risk of being constitutionally annulled by the courts as it
directly is in conflict of the federal principles enshrined in the Constitution’s
Seventh schedule that distributes legislative powers between the Centre and the
states. The bill which seeks to give overriding powers to the Centre to the total
exclusion of the States in handling instances of communal and targeted violence is
inconsistent with the norms as prescribed and envisaged by the Justice [R.S.] Sarkaria
Commission7. Further it will “enable the Union Executive to cut at the root of the
democratic parliamentary form of Government in the State. It must, therefore, be rejected
in favour of a construction which will preserve that form of Government’s”.8 “Within the
sphere allotted to them, States are supreme. The Centre cannot tamper with their powers.
More particularly, the courts should not adopt an approach, an interpretation which has
the effect or tends to have the effect of whittling down the powers reserved to the
State. Let it be said that federalism in the Indian Constitution is not a matter of
administrative convenience, but one of principle – the outcome of our historical process,
and recognition of the ground realities”9. Moreover if the judicial tool of Colourable
legislation is applied in the present case then we would arrive at the same result as
mentioned above. The doctrine of Colourable legislation means “the idea that when the
legislature wants to do something that it cannot do within the constraints of the
constitution, it colours the law with a substitute purpose which will still allow it to
accomplish its original goal.”10 And on testing the true nature of the proposed bill it can

7
Sarkaria Commission on Centre-State Relations, Report of the Commission on Centre-State Relations,
Two Volumes (Nasik: Government of India, 1987-1988).
8
S. R. Bommai v. Union of India AIR 1994 SC 1918.
9
Ibid.
10
http://dictionary.sensagent.com/doctrine+of+colourability/en-en/ [last accessed on: 22/3/2014].

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be concluded that the provision thus mentioned amount to an attempt of colouring the
constitution.

In the division of powers between the Centre and the states, the central government has
no direct authority to deal with the law and order issues; nor is it directly empowered
to deal with them nor it can legislate on the subject. “The central government’s
jurisdiction restricts itself to issue advisories, directions and eventually forming an
opinion under Article 356 that the governance of the state can be carried on in
accordance with the Constitution or not.” If the proposed bill becomes a law, then
effectively it is the central government which would usurp the jurisdiction of the states
and legislate on a subject squarely within the domain of the states. The proposed bill to
prevent communal violence if legislated is yet another blow to constitutionalism.
Unfortunately the bill authorizes the centre with overriding powers over its component
units thereby leading to centralization of power and transferring the constitution from a
federal one to an autocratic one.
Also, the National and State Authorities have been created, with the specific purpose of
identifying and countering institutional bias, and operationalizing changes brought about
through this law, particularly in relation to acts of commission and omission by public
servants, commanders and superiors. However, concerns persist that these bodies, on one
hand, replicate the powers of the National Human Rights Commission (NHRC) and other
such commissions, which have failed largely in providing justice and reparations to
victim-survivors or in making perpetrators accountable. Hence, it may amount to the
creation of a huge beauracratic infrastructure that would do little. On the other
hand, the mammoth body ought to be playing a complementary role (by observation and
monitoring) rather than directly intervening in what is happening at the ground, as that
whittles down responsibility of state officials. To conceive that a few members in the
state authorities would have the capability of taking on the might of the State, which
may be complicit in the violence, while being situated within it, is far removed from
reality.

The Bill also draws upon provisions from draconian laws such as MCOCA, TADA and
POTA, such as by increasing the period of detention of the accused (S. 85).

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The prosecution in cases of sexual assault depends heavily on the question of consent.
The Criminal Law Amendment Bill, 2010 – a draft produced by women’s groups and
other civil society groups across the country and submitted to the government last year
- introduces a comprehensive definition of consent, taking cognizance of ground realities.
It explicitly states that no consent can be obtained when the victim is in coercive
circumstances, which includes communal and targeted violence, and a threat / fear of
such violence. This needs to be included in the PCTV Bill. In addition, newer
standards of procedure and evidence need to be formulated in relation to sexual
assault in such contexts since women’s access to police stations (for lodging FIR),
government hospitals (for medical examinations) and the confidence / ability to pursue
legal procedures is substantially reduced during the period of the violence.
A victim has been narrowly defined as one who has suffered various forms of harm
(physical, mental, monetary or harm to property) and his / her relatives, legal heirs etc.
Hence, the law seeks to protect those who are directly harmed by the violence,
excluding thousands of people who may be witnesses to the violence or are members of
the same ‘group’, and who are nevertheless affected by the violence. It is important to
include the broader concept of ‘affected person’ rather than the narrowly defined
‘victim’. The Bill spells out State responsibility with regard to various aspects of relief,
rehabilitation, restitution, compensation etc, but approaches the rights of affected persons
in a paternalistic manner. The Bill, in many ways, objectifies affected persons and their
families and has the potential of reducing them to mere statistics that governments
grapple with, contrary to recent developments in international jurisprudence on the place
of victims in criminal law.

ROLE OF THE NATIONAL ADVISORY COUNCIL

The National Advisory Council (NAC) has been set up as an interface with Civil
Society. “The task of the National Advisory Council (NAC) is to provide inputs in the

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formulation of policy by the Government and to provide support to the Government in

its legislative business. In the discharge of its functions, the NAC will have a special
focus on social policy and the rights of the disadvantaged groups. The NAC comprises
distinguished professionals drawn from diverse fields of development activity who serve
in their individual capacities.”11 This is the vision stated by the NAC on its official
website but the question in debate is whether the functioning of NAC is synonymous to
a think tank, an advisory council or a parallel government? Does NAC comply with the
vision it states?

The members to this body, which may be up to 20, are appointed by the Prime Minister
in consultation with the NAC chairperson. One of the provisions in the draft is that it
would be enforced by a seven-member national authority of which at least four
members, including the chairman and the vice chairman, must be from a minority
community. It has raised the hackles of all right thinking citizens who believe in the
principle that law must have a level-playing field. It appears to be a step to please the
minority communities in the wake of the communal violence bill which has recently
faced much criticism and is a dangerous and mischievous move by the government. It
should be observed that the National Advisory Council comprises of NGO types
unelected and unelectable so-called representatives of the civil society. All of them have
been hand-picked by Sonia Gandhi who enjoys enormous power without accountability12.
No doubt, some of its individual members are distinguished personalities from the
domain of social-sector development, but the concept of NAC is nothing but an
unconcealed and unacceptable deviation from the Constitutional scheme of governance
and law-making13, and their election to the council has not been through a transparent
procedure and due to this the selective interactions in so far affect transparency and
accountability of the State. We can conclude that neither is this elected body, nor are all
its members, duly elected representatives of the people. The logic that the government
has been using against the “civil society” falls flat on its face in the case of the NAC.

11
http://nac.nic.in/ [last accessed on: 22/3/2014].
12
Dr. Mrs. Hilda Raja, “The National Advisory Council-a super Parliament-and a negation of democracy”, May
23, 2011.
13
Sudheendra Kulkarni, Dump NAC’s communal bill, Sunday, May 29 2011, available at:
http://www.indianexpress.com/news/dump-nacs-communal-bill/796643/ [last accessed on:24/3/2014].

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In the garb of representatives of the society the NAC is run solely on the whims and
fancies of a single chairperson. The functions of the NAC include the formation of
policy of the government and assistance in the legislative business of the state.14 The
NAC will have access to all cabinet papers and files. It can make recommendations and
submissions to the various ministries, but being just an advisory body none of them is
bound to accept them. NAC thus is an extra constitutional authority that has been
mandated to provide policy and legislative inputs to the Government. It is accountable to
none but Sonia Gandhi. The NAC derives its apex status and position from the status of
its Chairperson, Mrs Sonia Gandhi who is also the Chairperson of the UPA government.
Its functioning has never been subjected to any review by Parliament. Its policy
announcements and legislative initiatives exert coercive pressure on the Government.

The very concept on which NAC was constituted is undemocratic and totally
unacceptable in a parliamentary democracy. The NAC is an unconstitutional super power
that issues commands in the guise of advice and that too without any responsibility, the
central government steeped in servitude, is always eager to implement its orders.15 The
committee has nine members and four advisors. The common thread that binds them
together is their opposition to the Hindu organisations and their façade to become sole
protectors of the weaker communities. This extra-constitutional parallel government is
becoming mightier than the real government. It drafts Bills and “approves” them. As per
the constitutional scheme of executive (i.e. government) functions, it is the primary
responsibility of the government to draft, consider and approve Bills for legislation for
consideration of the Parliament. No other authority, certainly not the NAC, has been
empowered to discharge this function. If the NAC performs the function of drafting Bills
and approving them, it violates the Constitution with impunity. We should note that the
Comptroller and Auditor General (CAG) has not carried out any audit of the NAC
accounts so far. It is the duty of CAG to audit the NAC expenditure and accounts. The
NAC does not have any executive powers and can only give refutable advice to the
government. But given Sonia Gandhi’s political standing, the ministries may feel bound
to follow the NAC’s advice. So the allegation is that NAC will emerge as a parallel or

14
Mathew Prasad Idiculla, “NAC: think tank, super cabinet or unconstitutional?”, June 02 2010.
15
Ibid.

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a “super cabinet”. This will result in the unelected NAC, which is de jure an advisory
body, de facto performing certain executive functions and definitely violates the spirit of
the constitution and will subsequently violate the doctrine of separation of powers.

The Constitution makes the executive answerable to the legislature, but the NAC is not
answerable to the executive or any authority. Unlike the various advisory commissions
which the government forms for particular tasks, the NAC exercises its advisory powers
continuously over the government. NAC is a result of intra party politics and it is in the
functioning of the NAC where one must evaluate its potential to strengthen or undermine
democratic practice.16

INTERNATIONAL HUMAN RGHTS IN PICTURE

The PCTV Bill has quite evidently failed to refer to international standards related to
Internally Displaced Persons (IDPs). Victim-survivors of communal and targeted violence
become internally displaced persons (IDPs) and are entitled to protection on a wide
range of issues from the State, as prescribed by the international standards related to
IDPs – the Guiding Principles on Internal Displacement. The Principles are guidelines to
governments and international humanitarian agencies in protecting and promoting rights of
IDPs through a human rights approach, in all phases such as protection from
displacement, assistance during displacement and guarantees for return, settlement or
reintegration with safety and dignity. It is rather strange that the PCTV Bill makes no
reference to the Guiding Principles at all.

Victims of communal violence in India suffer a range of violations of internationally

recognized human rights. These include the right not to be arbitrarily deprived of life17,

16
Aditya Nigam, Deconstructing the NAC, August 5, 2011.
17
ICCPR, Article 6.

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the right to equal treatment before the law without discrimination,18 and the right not to
be subject to coercion which would impair the freedom to have or adopt a religion.19
Ethnic, linguistic, and religious minorities are guaranteed the right to enjoy their own
culture, to profess and practice their own religion, or to use their own language.20
Furthermore, under international human rights law states are obligated to prohibit by law
any advocacy of national, racial, or religious hatred that constitutes incitement to
discrimination, hostility or violence.21

The indiscriminate use of lethal force against unarmed demonstrators violates the Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials, which inter
alia states: "Law enforcement officials, in carrying out their duty, shall, as far as
possible, apply non-violent means before resorting to the use of force and firearms ...
Whenever the lawful use of force and firearms is unavoidable, law enforcement officials
shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the
offence and the legitimate object to be achieved; (b) Minimize damage and injury, and
respect and preserve human life ...." The Basic Principles also state: "Governments shall
ensure that arbitrary or abusive use of force and firearms by law enforcement officials is
22
punished as a criminal offence under their law." Unfortunately, the Maharashtra state
government's Guidelines for Dealing with Communal Disturbances 1986 authorize the
early use of lethal force in order to quell a communal disturbance, and prohibit firing
warning shots in the air, in violation of the Basic Principles.23

The violations of human rights that occur in the context of communal violence also
clearly violate protections set forth and defined in the Constitution of India and the

18
ICCPR, Article 26.
19
ICCPR, Article 18.
20
ICCPR, Article 27.
21
ICCPR, Article 20.
22
The Basic Principles were adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders on September 7, 1990. The United Nations General Assembly subsequently welcomed these principles
in Resolution 45/121 and called on all governments to be guided by them.
23
See Amnesty International, India: Memorandum to the Government of India arising from an Amnesty
International Visit to India 5-15 January 1994, (London: Amnesty International, August 1994), pp. 18-21.

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Indian penal code. Under articles 15, 16, and 19 of the Indian constitution,
discrimination on the grounds of religion is prohibited and all citizens are guaranteed the
right to equal treatment before the law and the right to equal protection of the laws.
Section 153 of the Indian penal code criminalizes the promotion of violent attacks
against groups on grounds of religion, race, place of birth, or language.

Section 153 of the Indian Penal Code states in Part 1, section c: “Whoever organizes
any exercise, movement, drill, or other similar activity intending that the participants in
such activity shall use or be trained to use criminal force or violence or knowing it to
be likely that the participants in such activity will use or be trained to use criminal
force or violence, or participates in such activity intending to use or be trained to use
criminal force or violence, or knowing it to be likely that the participants in such
activity will use to be trained to use criminal force or violence, against any religious,
racial, language or regional group or caste or community, and such activity for any
reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity
amongst members of such religious, racial, language or regional group or caste or
community shall be punished with imprisonment which may extend to three years or
with fine or both...." Section 2 states: "Whoever commits an offence, specified in
[section] (1), in any place of worship or in any assembly engaged in the performance of
religious worship or religious ceremonies, shall be punished with imprisonment which
may extend to five years and shall also be liable to fine..." Section 148 of the Indian
Penal Code provides for three years of imprisonment for "rioting [while] being armed
with a deadly weapon or anything which, used as a weapon of offence, is likely to
cause death."

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CONCLUSION

The bill has impugned our federal polity and violated the basic structure. Contravention
of centre in subject matters which fall within the state domain is opposing to
constitution. Setting up of a national authority, for dealing with various issues of
communal violence, has excessive power which is unjustified and arbitrary. There is
ambiguity regarding demarcations on the basis of majority and minority which cannot be
warranted through any constitutional provision as it is discriminatory in nature. The
assumption that majority “group” are the perpetrators and minorities are the “victim”
does not hold water. NAC being an advisory body has no authoritative claim over the
bill. Election of individuals to the advisory body has not been on a transparent basis and
the accountability is also not fixed.
The points for policy and action regarding the bill may include deleting the requirement
of destroying the ‘secular fabric’ from the definition of communal and targeted violence,
lower the threshold, and formulate definitions in a specific manner, leaving little room
for ambiguity and interpretations; deleting reference to ‘internal disturbance’ in providing
an entry point for the central government in this law; deleting provisions that attribute
power to the governments – such as to intercept messages and those that shield public
servants – such as through the ‘good faith’ clause; delineating a role for National
Authority that does not entrench upon the roles and responsibilities of public servants on
the ground and providing it functions of observation and monitoring, based on wide and
broad-based sources of information, giving it the power of intervention only when state
agents do not act; making cross-references to the Criminal Law Amendment Bill 2010
on sexual assault, and adopt the standards recommended in that Bill on issues of
consent, evidentiary and procedural standards; providing for witness protection at all
stages commencing from the time of lodging a complaint to post-trial phases; drawing
upon recommendations of the Law Commission of India in its 198th report in this
regard; balancing witness protection measures with aspects of fair trial guarantees
including rights of the accused; providing for rights of ‘affected persons’ rather than
narrowly defined ‘victims’, etc.

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 Communal Violence Bill: Pro-citizen or Communal?

BIBLIOGRAPHY

PRIMARY SOURCES:
 The Constitution of India
 All India Reporter

 Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461.
 S. R. Bommai v. Union of India AIR 1994 SC 1918.
 1966 International Covenant on Civil and Political Rights
 Articles 6, 26, 18, 27, 20.
SECONDARY SOURCES:

 Sarkaria Commission on Centre-State Relations, Report of the Commission

on Centre-State Relations, Two Volumes (Nasik: Government of India,
1987-1988).
 Raja , Dr. Mrs. Hilda, “The National Advisory Council-a super Parliament-and a
negation of democracy”, May 23, 2011.
 Idiculla, Mathew Prasad, “NAC: think tank, super cabinet or unconstitutional?”,
June 02 2010.
 Nigam, Aditya, Deconstructing the NAC, August 5, 2011.
 Amnesty International, India: Memorandum to the Government of India arising
from an Amnesty International Visit to India 5-15 January 1994, (London:
Amnesty International, August 1994).

ONLINE SOURCES:

 Irfan Engineer, “Prevention of Communal Violence Bill 2013 would deepen democracy”,
available at: http://www.ummid.com/news/2013/December/11.12.2013/on-communal-
violence-bill.html.
 B.S. Raghavan, “Communal violence bill draws ire”, available at:
http://www.thehindubusinessline.com/opinion/columns/b-s-raghavan/article2444833.ece.

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 Communal Violence Bill: Pro-citizen or Communal?

 http://communalviolencebill.in/index.php?view=article&catid=34:cvb-
articles&id=86:blog-post-all-hindus-are-to-be-treated-like-criminals-&format=pdf.
 http://dictionary.sensagent.com/doctrine+of+colourability/en-en/.
 http://nac.nic.in/.
 Sudheendra Kulkarni, Dump NAC’s communal bill, Sunday, May 29 2011, available at:
http://www.indianexpress.com/news/dump-nacs-communal-bill/796643/.

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