I have followed several television debates, and newspaper articles on the new proposed Prevention of Communal & Targeted Violence Act(PCTV) and have heard arguments from both sides. But I have not heard anyone making a balanced analysis that mentions both the flaws and the benefits of the new bill.
An argument being put forward by many of the proponents of this bill(including the drafting committee) claiming this bill is not discriminatory is that "Hindus" will also be protected in Jammu and Kashmir by virtue of them being a minority community there (of course they don't mention it is subject to J&K assembly accepting this bill). The argument being made by some opponents is that it is essentially an appeasement of Muslims. Here is my take on this bill.
Anyone who reads the draft bill is greeted with the statement that states "It extends to the whole of India. Provided that the Central Government may, with the consent of the State of Jammu and Kashmir, extend the Act to that State". There in front of us is the reality of our country, where we have given so much autonomy to a minority community simply for being a majority in a particular state and yet the secessionist and divisive elements prevail in J&K. The moderates demand more autonomy and the extremists demand secession. Positive discrimination alone did not ensure communal harmony.
This forms my prime argument about the inherent flaw in this bill. The flaw is that of division of population in front of law and the definition of the victim "group". My argument is that any amount of special rights to a group for being a victim group will not bring justice finally for the individual. Simply because this is an intractable problem, there is no right division. There is no right definition of a “group” victim or victimizer. In fact if this bill read in exclusion of the definition that this act uses for “group”, and the word group is used in a more general term as understood in common language then this act would be an excellent act and nobody in his right mind would disagree with most of the things mentioned here. In fact the definition of “communal and targeted violence” in this act is coloured by the definition of “group”. The victims of the “group” seem to be the real victims and the other victims are second class citizens when it comes to delivery of justice as per this law.
Let me mention what I have always believed about any division based on groups. I would say when you have to divide, divide down to the individual, not to any particular group. So when you have to protect anyone by law, protect the rights of an individual, irrespective of what group, or subgroup he or she may belong to as per a certain definition of a group.
So I don't quite agree with the definition of group (minority) as per this bill, and special protection for that group. Special privileges for Schedule Cast and Tribes in our country were provided to ensure they are protected and have opportunities of growth. 60 years of positive discrimination has not been enough to bring the SC/ST “group” equal rights and respect.
The current framework has only served to institutionalize that discrimination and bring it in the DNA of our country. The so called reservations have only led to more demands from other groups and subgroups for reservations favouring them. The so called general category has become more antagonized against the SC/ST/OBC because of reduced opportunities for them. The recent cut off of 100% in Delhi University which created such an outcry is of course only in general category.
I fear that further divisions of our society are being created in this anti-riots bill. Every citizen should be equal in the eyes of the law. When you define minority for special privileges, how to you define them? Do you define them only in terms of the religious and linguistic minority in a particular state by population? What if there is a Christian family living in a Muslim dominated ghetto in Nagaland. Who is the minority here the Christian family or their Muslim neighbours? Also why does the bill treat all Schedule Cast as one group, there are majority and minority religions in the SC and ST categories too. What if a majority Christian ST group commits violence against a minority Jain ST group? Where is protection for this “group” under the provisions of this law?
We are a secular country that means citizens are equal in front of the law no matter which religion they belong to. Religion is a private affair for the individual and should have no legal bearing in a secular country, except that every individual has a right to pursue his religious beliefs. The constitution does not say that every specially defined “group” has a right to pursue his religious beliefs. The keyword is "individuals" or “citizens”. This bill has simplified its definition of minority group by using the population in the entire state as a whole. This may be simple to define in a law, but does it address all acts of violence by one “association” on another “association”( the law uses “association” in place of the general term of group which we use in common language).
It is fair to assume the greatest culprits have been the public servants who have been derelict in their duty and have taken sides in a communal violence. That means the law should have restricted itself to sever punishment for such dereliction of duty and should make it mandatory for them to take immediate actions as per law to protect the victims of violence. That would have been enough to ensure that the administration does not become a party to the riots. But creating provisions which discriminate against an individual simply because as per the law he belongs to a majority group is not fair. We as a nation have to evolve and grow over this group and sub-group mentality.
If we have to divide, divide down to the individual and protect every individual's right, by treating him or her equal to any other individual, in the eyes of the law. That is the foremost fundamental right guaranteed by the constitution, every individual is equal before law. I am not a constitutional law expert but my intuitive understanding of right to equality under the constitution is that PCTV act in its present form infringes upon a citizens right to equality before the law. Barring special provisions for advancement of women, children, socially or educationally backward and SC/ST the state cannot create laws that are discriminatory.
Lastly I would like to argue that bringing this divisive draft bill in public domain at a time when public opinion is against the government on the Lokpal bill, is highly suspect, and may very well have been intended to deflect attention.