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Dr. Swamy wrote letter to PM to drop the proposed Communal and Targeted Violence Prevention Bill

October 17, 2011.
Dr. Manmohan Singh,
Prime Minister of India,
South Block,
New Delhi.
Dear Prime Minister,
Patriotic Hindus who constitute the overwhelming majority of Indian
population, feel that the draft of the Communal and Targeted
Violence (Prevention) Bill as unconstitutional. I am writing
therefore to you to drop from further consideration, the draft Bill
of 2011 authored by Ms. Sonia Gandhi, Chairperson of the National
Advisory Council. This Bill violates individual and State rights as
well as the principles of equality under the law, separation of
powers, innocent- until- proven- guilty principles underlying due
process, and democracy.
Communal violence is a tragedy that must indeed be prevented. It
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
Hindu traditions and related faiths.
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 for
blame.
It is impossible to read the Bill without seeing the blatant
politicization of the issue of protecting victims, with a “special
focus on disadvantaged groups”: This Bill even on a quick reading
exhibits the following flaws:
1. The Bill creates two “groups” of citizens. The language used in
defining “group” is mischievously, vague. It is unclear as to
whether a ‘group’ is a religious minority as determined by national
demography or by state demographics –
(a) If the Bill intends to determine groups as religious minorities
based on national demographics as seems to be the intention, it
leaves unprotected large groups of religious and linguistic
minorities, namely, the Hindu minority in the States of Jammu and
Kashmir, Nagaland, Mizoram and Meghalaya -
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 Bill will fail
to protect these victims.
(b): If however 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 -
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 the State demographics, the Bill
fails to protect these victims.
© 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.
(d) The way in which the Bill has defined “group” and afforded
special protection on the 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.
Example: In 2007, inter-communal violence erupted between Sikhs and
followers of Dera Sacha Sauda, a distinct religious institution and
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. 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.
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 rights of States.
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.
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.
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.
7. The Bill usurps State police powers through 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.
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.
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.
10. The Bill removes the prosecutional 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.
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.
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.
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.
I therefore urge the Government to reject this Bill.
The Prevention of Communal and Targeted Violence Bill as it is
drafted is to target the Hindu community, and hence a blow to
India’s democracy, which is secular because the Hindus of the
country want it so. This Bill therefore might ignite a mass
upheaval amongst Hindus that would jeopardize secularism and usher
in a theocratic Hindu state. The Bill thus is a cure worse than the
disease it claims to cure.
Yours sincerely,
( SUBRAMANIAN SWAMY )
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