My views on the Communal Violence bill : An ostensible Secular Act
Section 3 (e) defines the word “Group”. It 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.
Section 3 (k) defines “victim”. “It means any person belonging to a “group”as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate.”
The UPA and its secular allies had fought TADA tooth and nail which was an anti-terrorist law and had argued that the terrorists should also be tried under the normal laws. They presumed that that TADA is too draconian to be implemented. A far more draconian law is now being proposed. This law is against the majority which means that it is an anti-Hindu law and this can be easily deduced from the following explanation.
This draft Bill proceeds on a presumption that communal trouble is created only by members of the majority community which essentially mean Hindus and never by a member of the minority community which for all practical purposes means Muslims, as riots among Hindus and Muslims is a rule and with or among the other minority communities, an exception. The majority community will be decided on the basis of majority in a State. This act is not applicable to the state of J&K and the remaining States except for few North Eastern states, the majority community means Hindu community.
The offences committed by members of the majority community against members of the minority community are punishable. Identical offences committed by minority groups against the majority are not deemed to be offences at all. Thus,
A) A sexual assault is punishable under this bill and only if committed against a person belonging to a minority ‘group’.
B) A ‘hate propaganda’ is an offence against minority community and not otherwise.
C) Organised and targeted violence, hate propaganda, financial help to such persons who commit an offence, torture or dereliction of duty by public servants are all offences only if committed against a member of the minority community and not otherwise.
D) No member of the majority community can ever be a victim.
E) The inevitable consequences of such a law would be that in the event of any communal trouble the majority community would be assumed to be guilty. There would be a presumption of guilt unless otherwise proved.
F) Only a member of the majority shall be held culpable under this law.
G) A member of the minority shall never commit an offence of hate propaganda or a communal violence. Let us have a look at the draconian anti-Hindu provisions of the law.
Coming to the definition of a Group defined in section 3(e), the Group consists of Minorities and people belonging to S.C and S.T categories. This excludes Hindus except for S.C and S.T population which is 21% of the total Hindus. Riots against S.Cs and S.Ts by the Hindu community is something which totally unheard of. Yes, there is sometimes targeted violence against S.Cs and S.Ts but which is very rare and is covered by a strict S.C/S.T Atrocities Act. This is ostensibly an attempt to claim that few Hindus are also added to the group. For all practical purposes, the group essentially means Muslims.
This means that No member of the majority community can ever be a victim. And hence according to Arun Jaitley, ” It can incentivize members of some communities to commit such offences encouraged by the fact that they would never be charged under the Act. Terrorist groups may no longer indulge in terrorist violence. They will be incentivized to create communal riots due to a statutory assumption that members of a Jihadi group will not be punished under this law.”
The other draconian anti-Hindu sections of the bill are as following :
1) Section 7 talks about Sexual assault. “A person is said to commit sexual assault if he or she commits any of the following acts against a person belonging to a group by virtue of that person’s membership of a group. ” Here the words ‘said to commit ‘essentially means that it shall be presumed to have been done by the member of the majority community. This presumption is made clear in the following proviso to section 7 :
” Provided that where sexual assault under sub-section (a) or (b) is committed as part of or in the course of organised communal and targeted violence, it shall not be necessary to prove that the said act was committed against the victim without their consent or against their will.” Pay attention to the phrase ” it shall not be necessary to prove “. The word “shall” needs to stressed here. In such a case no court, inspite of the sufficient evidence to the contrary, can consider it otherwise. If the victim says so, it’s over. Putting an object into the mouth is also covered under Sexual Assault. Although this cannot be verified medically in all cases unlike rape, but if the victim says so, the judge shall accept it as evidence.
2) Section 8 defines Hate Propaganda, which can be done only against the “Group.” Everything which can be punished, is only done by the majority against the Group.
Coming to the Evidences, the Indian Evidence Act has been bypassed and following provisions have been added :
3) Section 70 reads thus – Evidentiary standard for sexual assault.- Upon the sole testimony of the victim of sexual assault, the Designated Judge appointed under this Act may conclude that an offence of sexual assault has been committed by the accused against the said victim. Provided that in a prosecution for the offence of sexual assault, it shall not be permissible to put questions in the cross-examination of the victim as to his or her general immoral character or to rely on any evidence of such victim’s previous sexual conduct.
4) Section 71 : Inference from nature and circumstances of the act.- Where any question arises whether an offence committed against a member of a group was committed against him or her by virtue of his or her membership of a group, it shall be inferred that it was so directed from the nature and circumstances of the act.
5) Section 72 : Presumptions as to offences under this Act.-
(a) If in a prosecution for any offence committed under this Act, it is shown that the accused committed or abetted or conspired to commit the offence of hate propaganda under section 8, it shall be presumed, unless the contrary is proved, that the offence committed was knowingly directed against a person by virtue of his or her membership of a group.
(b) Whenever an offence of organised communal and targeted violence is committed and it is shown that a hostile environment against a group exists or the offence of hate propaganda under section 8 was committed against a group, it shall be presumed, unless the contrary is proved, that the said offence was knowingly directed against persons belonging to the group by virtue of their membership of the group.
This bill is a result of an insidious campaign against Hindus and we should rise to the occasion not only to protest against this anti Hindu Bill, but for creating a Virat Hindu identity to repel attacks of such nature.