The draft Communal Violence Bill, prepared by a Working Group (WG) of the Sonia Gandhi-led National Advisory Council (NAC), goes beyond the existing legislation in four significant ways: it recognises identity-based or targeted crimes and organised mass violence as special offences, while placing accountability of public officials at the heart of the law, with varying penalties for dereliction of duty. Finally, it provides for the creation of a National Authority and the State authorities to ensure both accountability of public officials as well as to ensure justice and reparation once in the wake of violence.

After months of discussions among civil society groups, and with government representatives, the NAC placed the draft Prevention of Communal and Targeted Violence (Access to Justice and Repatriation) Bill, 2011 on its website on Friday for public comment. Simultaneously, it has been sent to the Union Ministries of Home Affairs and Law and Justice for their comments.

The NAC's WG draft Bill seeks to address the lacunae in the government's draft bill, while taking on board criticism by government officials that the NAC — and the civil society groups it represents — were encroaching on government turf, trying to disempower the existing administrative and justice mechanisms.

The Bill, therefore, stresses that the proposed National Authority/ State authorities are not intended to supersede the existing law enforcement machinery; neither will their advisories and recommendations be binding on any state government. What they will do is to monitor, inquire into complaints, receive orsuo motuseek information, and issue advisories and recommendations only when there is alleged inaction ormalafideaction by public officials and governments. The object is to create a mechanism to make the administrative and criminal justice system work, free from favour or bias ormalafideintent, and prepare a ‘paper trail' to ensure accountability of public officials in a court of law.

The NAC's WG wants the new law to cover religious and linguistic minorities as well as the Scheduled Castes and the Scheduled Tribes and, if possible, extend it to Jammu and Kashmir, so that its protection may extend to Kashmiri Pandits, a religious minority in that State. Regional minorities such as migrants from Uttar Pradesh and Bihar in Maharashtra will also be covered as linguistic minorities.

Communal and targeted violence has been defined as “any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation….” In Indian law, so far, only the SC and ST Atrocity Act recognises that certain groups can be targeted.

The draft bill specifically defines acts that could create an intimidating or hostile environment against members of groups, including economic boycott, denial of public services, and forced migration. It, therefore, mandates that public servants must identify the creation of such a ‘hostile environment' and prevent any communal and targeted violence against such members of groups.

While recommending a set of penalties for dereliction of duty by officials on the ground, it recognises that often those higher up in a chain of administrative or political command are responsible for failure to perform their duties. This Bill, therefore, seeks to ensure that the power of holding command over the actions of others is upheld as a sacred duty, and that there is culpability for those who are ‘effectively in-charge' through the doctrine of command responsibility, which could go right up to, for instance, the Chief Minister.

Interestingly, the offence of breach of command responsibility is also extended to non-state actors and any association. This means that the head of a communal organisation could be punished for the acts committed by the foot soldiers. The Selection Committee for members (including Chairperson) of the National Authority will consist of the Prime Minister, the Leader of the Opposition in the Lok Sabha, the Union Home Minister and leaders of all recognised national political parties in the Lok Sabha.