A bill to settle a terrible debt

Siddharth Varadarajan IN THE HINDU

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It’s time to end this injustice.

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India’s citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does.

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority’ group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn’t, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India’s religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill’s definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill’s language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011



Mending the Food Security Act

New National Advisory Council(NAC)of India: So...

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The National Advisory Council has proposed a framework for the National Food Security Act. But its potential could be wasted by a flawed approach to the PDS.

Two years have passed since the Central government announced that a draft National Food Security Act (NFSA) would be posted on the Food Ministry’s website “very soon.” After prolonged deliberations, a detailed framework for this Act has recently been proposed by the National Advisory Council (NAC), and a draft is on the anvil. This is a “compromise draft” of sorts, heavily influenced by the government’s own concerns and priorities.

The NAC framework includes important provisions relating, for instance, to child nutrition, reform of the public distribution system (PDS), and redress of grievances. It has the potential to put all food-related schemes on a new footing, in a rights framework. However, this potential is in danger of being wasted by a flawed approach to the PDS.

In this approach, the PDS rests on a three-way division of the population, among “priority,” “general” and “excluded” households. (This article focusses on rural areas.) Priority households, covering at least 46 per cent of the rural population at the all-India level, are to get 35 kg of grain a month at “Antyodaya prices” (Rs. 3 a kg for rice, Rs. 2 for wheat and Re. 1 for millets). General households will get 20 kg at no more than half of the Minimum Support Price. And excluded households, which account for 10 per cent of the rural population, will get nothing.

This framework is problematic. First, it hinges on a lasting division of the population into three groups, without any clarity as to how the groups are to be identified. In the absence of any obvious alternative, the NAC is effectively falling back on the Below Poverty Line census to identify priority groups. This is a major setback — the NAC’s entire work began with a virtually unanimous rejection of BPL-based targeting for the PDS. Exclusion errors in earlier BPL censuses were very large, and the next BPL census is unlikely to fare much better, judging from the pilot survey.

Second, since identification criteria are left to the Central government, with some discretion for State governments, nobody has guaranteed PDS entitlements under the Act, except for a few ultra-marginalised groups (such as the so-called Primitive Tribal Groups) which have a right of “automatic inclusion” in the priority list. Other households have no legal entitlement to be included in the priority list or, for that matter, in the general list. Therefore, they have no guaranteed PDS entitlements at all. This undermines the basic purpose of the Act.

Third, the transition from the current Above Poverty Line-Below Poverty Line framework to the NAC framework is likely to be disruptive. There are at least three major sources of disruption: the creation of an “excluded” category; the transition to a new BPL list; and the switch from household to per capita entitlements. Each of these changes entails a loss of entitlements for significant numbers of households. Meanwhile, the entitlements of other households will be enhanced. Can we expect this transition to happen without major tensions, or even to be completed at all?

Fourth, the NAC framework fails to “de-link” PDS entitlements from official poverty estimates, and to prevent a rapid shrinkage of PDS coverage over time. It is well understood by now that official poverty lines in India are abysmally low, and that undernutrition is not confined to households below the “poverty line.” In the NAC framework, 46 per cent coverage of priority groups in rural areas corresponds to the proportion of the population below the “Tendulkar poverty line,” plus a margin of 10 per cent for targeting errors. This is significantly higher than the current BPL coverage of about 33 per cent. But except for ruling out any reduction of PDS entitlements before the end of the 12th Five Year Plan (which is only a few years from now), nothing in the draft NFSA prevents the government from reducing PDS coverage in tandem with official poverty estimates over the years.

Fifth, the idea of a universal PDS in the poorest 200 districts was dropped from the NAC framework (after being agreed and placed on record). This was an important idea, because any targeting process here is likely to lead to massive delays, fraud, and exclusion errors. In many of these districts, the local administration has little credibility. Large numbers of poor households are outside the BPL list, and are likely to remain excluded from the proposed “priority” list. Further, targeting is pointless in areas where an overwhelming majority of the population is vulnerable to food insecurity. Launching a universal PDS in these districts would have addressed a large part of the food insecurity problem in rural India in one go, at a small extra cost.

Sixth, the NAC abandoned another important idea as it went along: the automatic inclusion of all Scheduled Caste and Scheduled Tribe (SC/ST) households in the priority list — unless they come within the standard exclusion criteria. This will be a major protection against exclusion errors, and a well-justified form of positive discrimination in favour of SC/ST families. But the idea was dropped, on the grounds that it is difficult to reconcile with pre-specified “caps” on the coverage of priority groups at the State level based on poverty estimates. Punjab, for instance, has a low poverty ratio but a high proportion of SC/STs in the population — there is no obvious way to handle this.

In short, the NAC framework not only perpetuates the flaws of BPL targeting but also institutionalises artificial social divisions under the law. It is not difficult to imagine the Act being used as a foothold to extend these divisions to other domains.

The obvious alternative, a universal PDS, is a ‘no-no’ for the Central government. Is there another way to repair, or at least contain, the damage? I believe there is. Before coming to that, let me mention an interesting finding of recent BPL identification studies (by Reetika Khera, Sabina Alkire, and Himanshu, and others). These analyses, mainly based on the 2004-05 data from the National Sample Survey or the 2005-06 data from the National Family Health Survey, suggest that about 25 to 30 per cent of households in rural India meet simple, transparent and verifiable “exclusion criteria,” such as having a government job, owning a motorised vehicle, or living in a multi-storied pucca house.

This suggests a simple but far-reaching modification of the NAC framework: expand the excluded category, but extend “priority” entitlements (35 kg of grain at Antyodaya prices) to all other households. With an exclusion ratio of, say, 30 per cent, the foodgrain requirements will be the same as in the current NAC framework. The financial cost will be a little higher (because all entitled households will pay Antyodaya prices), but the extra cost will be a small fraction of the total food subsidy.

In this “quasi-universal” framework, every rural household will be entitled, by law, to 35 kg of grain a month at Antyodaya prices, unless it comes within the well-defined “exclusion criteria.” Everyone will be clear about their legal entitlements. The burden of proof, so to speak, will fall on the government to exclude a household, and poor households will be well protected from exclusion errors. State governments will be free to move even closer to universalisation, if they wish, by waiving some exclusion criteria and contributing additional resources to the PDS (as many States are already doing). Automatic inclusion of SC/STs (unless they come within the exclusion criteria) will be built in. PDS entitlements will be de-linked from the APL-BPL rigmarole, and from poverty estimates. And while some social division will remain, it will be “at the top,” without undermining solidarity among disadvantaged groups.

Two further modifications of the NAC framework will round up this proposal quite nicely. First, the idea of a universal PDS in the poorest 200 districts could easily be reinstated, by waiving exclusion criteria in these districts for an initial period of, say, 20 years. Second, the Act could be gradually extended to the whole country, over a period of, say, three years, starting with the poorest 200 districts. This will make it easier to meet the additional foodgrain requirements in a phased manner.

This approach is not perfect, but it seems much preferable to the confused, impractical and divisive framework that has emerged from the NAC (or rather, from protracted discussions between the NAC and the government). It will be easy to adapt the current NFSA draft to this approach, while retaining the valuable work that has been done by the NAC on other aspects of the draft. This small modification could make a big difference.

(The author is a Visiting Professor at the University of Allahabad. The views expressed here are his own.)

Stamp out khap panchayats: court

J. Venkatesan in THE HINDU

Casteism is one of the main causes holding up the country’s progress

Calling a person by caste name, if used with intent to insult, is an offence under SC/ST Act

Society regarding a section of its own countrymen as inferior is simply unacceptable

New Delhi: While deprecating the caste system in the country, the Supreme Court has declared illegal ‘khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.

“This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal,” a Bench of Justices Markandey Katju and Gyan Sudha Misra said on Tuesday.

Sentence upheld

The Bench upheld the sentence of two-year imprisonment, including six months’ imprisonment under the SC/ST (Prevention of Atrocities) Act, 1989, awarded by a trial court to Arumugam Servai, who called a member of a Scheduled Caste community by his caste name, ‘Pallan‘. It dismissed his appeal against a Madras High Court judgment.

Writing the judgment, Justice Katju said: “The word ‘Pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone. Even calling a person ‘Pallan,’ if used with intent to insult a member of the Scheduled Caste, is, in our opinion an offence under the SC/ST PoA Act.”

Jefferson’s ringing words

The court quoted Thomas Jefferson in the American Declaration of Independence, 1776 saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator by certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”

The Bench said: “Over two centuries have passed since Thomas Jefferson wrote those memorable words, which are still ringing in history, but a large section of Indian society still regards a section of its own countrymen as inferior. This mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress.”

Two-tumbler system

The Bench also expressed its anguish over the two-tumbler system prevalent in many parts of Tamil Nadu. “This system is that in many tea shops and restaurants there are separate tumblers for serving tea or other drinks to Scheduled Caste persons and non-Scheduled Caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST Act, and hence those practising it must be criminally proceeded against and given harsh punishment if found guilty. All administrative and police officers will be accountable and departmentally proceeded against if, despite having knowledge of any such practice in the area under their jurisdiction, they do not launch criminal proceedings against the culprits.”

Condemning honour killings and khap panchayats, the Bench directed the administrative and police officials to take strong measures to prevent such atrocious acts. “If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government concerned is directed to immediately suspend the District Magistrate/Collector and the SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not prevent the incident if it has not already occurred but they have knowledge of it in advance, or if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as, in our opinion, they will be deemed directly or indirectly accountable in this connection.”

The Bench directed that a copy of this judgment be sent to all Chief Secretaries, Home Secretaries and Directors-General of Police in all States and Union Territories, and circulated to all officers up to the level of District Magistrates and SSP/SP for strict compliance. A copy would also be sent to the Registrars-General/Registrars of all High Courts who would circulate it to all judges.