Provisions of the NAC drafted communal violence bill

According to the draft bill prepared by the National Advisory Council (NAC), the legislation is intended to enhance state accountability and correct discriminatory exercise of state powers in the context of identity-based violence.

The explanatory note on Prevention of Communal and Targeted violence (Access to Justice and Reparations) Bill, 2011, prepared by NAC, lists its key provisions: 

Dereliction of duty by public servants: The bill recognizes offences of both omission and commission.  Public servants who act or omit to exercise authority vested in them under law and fail to protect or prevent offences or act with malafide and prejudice shall be guilty of dereliction of duty with penal consequences.

Defining communal and targeted violence: The provisions of this Bill will apply only when it is first established that the offence was ‘targeted’ in nature. Offences under the Indian Penal Code shall be considered offences under this bill when they meet the definition of ‘targeted’.

Breach of command responsibility: The bill seeks to ensure that the power of holding command over the actions of others is indeed upheld as a sacred duty, and that there is culpability for those who are ‘effectively in-charge’. The chain of command responsibility may extend to any level where effective decisions to act or not act are taken.

Sanction for prosecution of public servants: The bill proposes that if there is no response to a request for sanction for prosecution within 30 days from the date of the application to the concerned government, sanction to prosecute will be deemed granted. In relation to certain offences under the Indian Penal Code, 1860, when committed by a public servant, the requirement of obtaining sanction is being dispensed with.

Monitoring and accountability: Monitoring and grievance redressal shall be the responsibility of the National Authority for Communal Harmony, Justice and Reparation (NACHJR) and corresponding State Authorities for Communal Harmony, Justice and Reparations (SACHJR).

The monitoring mechanism of national and state authorities will also provide the ‘paper trail’ to ensure robust accountability of public officials in a court of law.

Composition of the NACHJR: The bill proposes that NACHJR will have seven members of which four must belong either to a linguistic minority or religious minority in any state or to the SCs or STs. No more than two members of the NACHJR may be retired public servants.

Offences of communal and targeted violence: The Indian Penal Code (IPC) contains most offences committed during episodes of communal and targeted violence. These have been appended in a schedule to the bill and shall be considered offences when they meet the threshold of being ‘knowingly directed against any person by virtue of membership of a group’.
 
The brutal forms of sexual assault (beyond the limited IPC definition of rape)  and torture have been included in the bill.  Additionally, it defines hate propaganda.

Victims' Rights: This bill seeks to strengthen the rights of the victim in the criminal justice system, through certain provisions in their struggle for justice.

Relief and Reparation including compensation:  All affected persons, whether or not they belong to non-dominant groups in a state have been given justiciable rights to immediate relief, and comprehensive reparations, including compensation if they suffer any harm as a result of any offence of communal and targeted violence recorded under this Bill.

No compensation for death shall be less than Rs.15 lakh. No compensation for rape shall be less than Rs.5 lakh.

The federal principle: Advisories and recommendations of NAJCHR are not binding on state governments. All powers and duties of investigation, prosecution, and trial remain with the state governments.