Muzaffarnagar can be a good benchmark against which to judge the presumptions governing the Bill.
…..This was recently witnessed in Kishtwar, where a private arms factory was generously opened to help miscreants arm themselves against an unarmed populace of anther community.
By Sandhya Jain on October 21, 2013
Communal Violence Bill is Sonia’s game plan
The Muzaffarnagar riots in Uttar Pradesh which put the ruling Samajwadi Party on the defensive, and Narendra Modi’s taunt that his State had ‘passed’ him with distinction while the Congress still had to give an account of itself, have driven the latter to revive the contentious Prevention of Communal and Targetted Violence Bill, now slated to be introduced in the Winter Session of Parliament.
The coveted prize is the Muslim vote-bank, put into jeopardy since Deoband’s Maulana Mehmood Madani reprimanded the party for trying to instil fear of the Gujarat strongman among Muslims.
The Bill, widely perceived as anti-Hindu, is the brainchild of Sonia Gandhi’s National Advisory Council. It has been opposed by the Bharatiya Janata Party (BJP) and some regional parties, and is certain to be resented by public servants who are liable to be penalised for ‘dereliction of duty’ and ‘breach of communal responsibility’ in the event of targetted violence against a community.
Muzaffarnagar can be a good benchmark against which to judge the presumptions governing the Bill. It is widely known that a young school girl was constantly harassed by a boy from the minority community. Two members of her family confronted the miscreant, who died in the altercation between them; the duo was brutally murdered in retaliation.
When the police arrested seven of the alleged assailants, they were ordered by a senior Cabinet Minister of the State to release the men; this triggered a series of group meetings of both communities and the subsequent spiral of violence. How will the proposed Bill apportion guilt and deliver justice to the victims on both sides?
The original version of the Bill, drafted by UPA-I in 2005, was referred to the Parliamentary Standing Committee, which submitted its report in December 2012. Minority Affairs Minister Rehman Khan, who mooted revival of the Bill after the Muzaffarnagar riots, is reportedly busy giving it more teeth. This could intensify opposition to the Bill when finally presented in Parliament this winter.
The extant draft has been resisted because it empowers the Centre to declare an area in a State as “communally disturbed” on its own and send Central forces without the State’s request, thus compromising the federal structure of the Constitution and creating situations of potential confrontation between the Centre and the States. The BJP, Akali Dal, Shiv Sena and Bahujan Samaj Party opposed this as usurping the rights of States.
A contentious provision is transfer of cases outside the State concerned for trial (as happened in Gujarat), ostensibly to protect witnesses. This could establish a dangerous precedent of presuming the entire judiciary of a State as incapable of delivering justice to victims of riots. If riots simultaneously break out in several States (as Maoist violence has affected many at the same time), how feasible will it be to shunt cases, witnesses and lawyers across the country? Who will bear the cost of this exercise?
Controversies pertaining to some Gujarat riot victims (who claimed they had not been raped and did not know that this allegation figured in their sworn affidavits which were in English) establishes that it is not proper to leave witnesses and victims to the mercy of NGOs and activists who may have their own agendas, and may tutor their wards to that end.
The essential criticism of the Bill is its flawed conception, which aims to prevent and control targeted violence, including mass violence, against Scheduled Castes, Scheduled Tribes, and religious and linguistic minorities in any State. Large sections of society that do not fall in any of these categories, and might fall prey to communal violence, are denied protection under this legislation.
Worse, it does not extend to Jammu & Kashmir, where Kashmiri Pandits were targetted and driven out of the Valley in the 1990s, and where Hindus of Jammu Province are now in the crosshairs of jihadi elements who want to drive them out of the entire State.
This was recently witnessed in Kishtwar, where a private arms factory was generously opened to help miscreants arm themselves against an unarmed populace of anther community. If ever there was a State where citizens need the protection of such legislation, it is Jammu & Kashmir.
As rape and gang rape is one of the specific crimes listed in the Bill, it bears asking if rape will be considered as having occurred only on the statement of an alleged victim, or will have to stand medical scrutiny? Secondly, there is no recognition that a communal conflict could be triggered by the targetting of girls from the majority community, a phenomenon widely known as ‘love jihad’.
As for public servants who are to be held responsible for failing to control a situation, it needs to be mentioned that the proposed Bill offers no protection against political interference in the arrest and prosecution of culprits. The extant Bill places disproportionate emphasis upon the role of public servants (police, civil servants), who are all too often forced to abide by the whims of a political class. Nowhere does the legislation provide for punishment for political interference leading to the release of arrested persons in a riot situation.
The proposed National Authority for Communal Harmony, Justice and Reparation, if retained in the final draft, will likely be a sinecure for unelectable politicians and other cronies of the ruling dispensation.
The Authority seems to duplicate the functions of the National Human Rights Commission, National Commission for Minorities, National Commission for Women, National Commission for Scheduled Castes, and National Commission for Scheduled Tribes.
A six year term for the Members, along with attendant permanent bureaucracy, seems an entirely avoidable drain on the exchequer in an era of economic meltdown.
The draft proposes to make all offences committed under the Act as cognizable and non-bailable. This is not objectionable in itself, except for the fact that political interference (as seen in Muzaffarnagar) could ensure arrests from a single community, which may even be the victim/aggrieved community. And if culprits who are arrested are promptly released due to political interference, such persons will roam free with impunity throughout the trial and prosecution of the case, and will have ample freedom to tamper with or intimidate witnesses. The whole legislation is thus flawed in conception and certain to be unfair in implementation.
The proposed National Authority / State Authority has been given the power to order further investigation or re-investigation of cases deemed not to have been carried out in a fair, impartial or unbiased manner. But under the Code of Criminal Procedure, the power to order re-investigation is vested only in a competent court, and further investigations also needs court permission.
Clearly, the UPA is trying to make a mockery of the established law of the land for petty political gains.
Muzaffarnagar communal riots and selective compassion by NHRC
By Sandhya Jain on September 19, 2013
Muzaffarnagar communal riots and selective compassion human rights bodies
Do statutory national bodies such as the National Commission for Women (NCW) and the National Human Rights Commission (NHRC) have only cosmetic value, or are they a political tool to help the ruling dispensation at the Centre to harangue or protect State Governments?
In over three weeks since the murder of a Muslim youth for allegedly tormenting a young girl on her way to inter-college at Nangla Mandore in Muzaffarnagar district of Uttar Pradesh on August 27, the retaliatory murders of her two brothers, and the communal violence that followed and took 49 lives, there was not a peep from these august bodies despite so much human suffering and angst.
Twenty-three days after the first death, on September 19, after a rattled Chief Minister began looking for ways to cover his inadequacies, NCW chairperson Mamata Sharma arrived at Muzaffarnagar to take stock of the situation. The National Human Rights Commission is still notable for his absence, largely perhaps because it tends to confuse its mandate with that of the National Commission for Minorities. Indeed, barring the compulsion of the Centre to provide sinecures for loyalists, there seems no legitimate reason for the continued existence of these bodies.
The National Commission for Women should have rushed to the spot once the print and electronic media reported that the violence was triggered by repeated and routine harassment of Jat girls from Malakpur village as they passed by of the minority-dominated Kawal village to catch a bus to the Inter-College. The sexual harassment of women, particularly minor girls, which could result in crime and/or put an end to their studies on account of their families or communities being unable to provide physical security, should be a primary concern of the NCW. Yet, even the State Commission for Women has not visited the aggrieved family and village.
Mamata Sharma will doubtless indulge in homilies before returning to Delhi. The question is whether the State Government or District administration will provide security to school-going girls. This aspect of the Indian reality, which inhibits realisation of the goal of total literacy, has been highlighted by the Muzaffarnagar tragedy, and deserves to be recognised.
Meanwhile, it would be instructive to examine the cases where the NCW has been proactive in discharging its duty. There is the 2009 Mangalore pub attack, where an hitherto unknown organisation helped in maligning the Hindu community. The Commission rushed to Guwahati in 2012 when public sentiment was inflamed by the rape of a minor girl; it distinguished itself by revealing the name of the victim in its press conference. It took a considerable public outcry to compel the Commission to apologise.
On the issue of acid attacks on girls and women, a Scheme for Relief and Rehabilitation of Offences (by acids) on Women and Children was supposedly prepared by the NCW in consultation with women’s groups a decade ago. But Mamata Sharma claims ignorance in the matter though it figured in NCW Annual Reports until 2008-09. Then, it was subsumed in a new scheme for relief and rehabilitation of rape victims, but acid victims are not mentioned and are thus left out of the new scheme.
The alleged rapes of Bhatta Parsaul in 2011 are the most impressive instance of NCW activism. After Amethi MP Rahul Gandhi claimed there had been police atrocities against villagers in Greater Noida and “women too were raped,” the NCW demanded an urgent CBI probe into the incidents. The then chairperson said villagers in Bhatta and Parsaul in Greater Noida told an NCW fact-finding team about the alleged atrocities, including molestation of the women and burning some men alive in Bhatta village.
The Uttar Pradesh Government stoutly denied the allegations, especially on rape. The National Human Rights Commission found no evidence to support Rahul Gandhi’s allegations, and after initially failing to substantiate the same, the NCW finally claimed evidence of seven rapes in its final report in September 2011. The evidence, interestingly, was affidavits submitted by the victims to the National Commission for Scheduled Castes!
The National Human Rights Commission is equally choosy regarding the recipients of its affection. But the most serious instance of dereliction of duty pertains to the Gujarat riots of 2002 which, as is well known, were a reaction to the Godhra train atrocity.
Here the NHRC became complicit in the games of some high profile individuals and NGOs to defame the Gujarat judiciary and administration, and get the riot cases transferred out of the State.
This was exposed way back in 2007 when Zahira Sheikh, the ‘expert witness’ relied upon to damage the Gujarat judiciary and Chief Minister Narendra Modi, turned hostile and told the Supreme Court that the documents upon which the NHRC recommended shifting the trial outside Gujarat were not signed by her. Indeed, they were found to be blank (where the signature should be). Thus, the pages and pages of allegations prepared by Teesta Setalvad and her NGO, Citizens for Justice and Peace, were unsigned typed papers!
Legally, this made the complaint void — worse than an anonymous allegation. Zahira Sheikh contemptuously called the document Teesta’s “pamphlet-baazi”.
But the NHRC accepted the document as valid, and passed it on to the Supreme Court with a plea to order retrial in the Best Bakery case and take the trial out of Gujarat. The Supreme Court Registry failed to authenticate the document; and thus the cases were transferred to Mumbai. To this date, the Supreme Court is acting on the basis of this unsigned document.
It is notable that though Zahira Sheikh claimed she had been intimidated to give a certain testimony in the Best Bakery case in Vadodara, neither the NHRC nor the Supreme Court asked the State Government to ensure her security in Mumbai. She was left at the mercy of Teesta Setalvad and her NGO. Even in late 2004, when Zahira Sheikh fell out with her mentor and accused Setalvad of virtually imprisoning her (Zahira) and forcing her to sign documents she could not read (in English), and pressurising her to give a certain type of testimony after recognising persons from photographs, no police protection was offered to Zahira. Her whereabouts are presently unknown.
Zahira Sheikh had demanded the right to cross-examine then NHRC chairman AS Anand, saying she visited the Commission with Setalvad and made an oral submission which was recorded by the Chairman and two members. Zahira alleged her oral testimony differed from the record NHRC placed before the Supreme Court. NHRC needs to come clean on this episode if it is to enjoy public esteem in future.
To conclude on a personal note, on November 23, 2008, KPS Gill, Kanchan Gupta and this writer were part of a citizen’s initiative to the NHRC, to demand an enquiry into allegations of illegal detention and torture of Sadhvi Pragya by the Mumbai ATS. Thereafter, some of us went to the NCW to urge it to take up the matter. Needless to add, neither Commission has found the time or the compassion to do so.