‘Communal Violence Bill- A fraudulent draft’ : an analysisDate posted: June 7, 2011 | Short URL: https://samvada.org/?p=4567 | Share:
A fraudulent draft Communal Violence Bill
Incompetent extra- constitutional, biased members do a sham job
By Shivaji Sarkar
IT is a critically flawed move to usurp the powers of the state governments, devastate the federal structure of the country and create schism among different communities. The aim apparently is to create a unitary structure where the Central Government could function like a bully and interfere in the jurisdiction of the states, barred by the Constitution.
The draft bill called Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill is flawed also for the reason, its basic premise is against the secular spirit of the Constitution stated in the preamble.
No wonder. The bill is a creation of an extra-constitutional body – National Advisory Council (NAC) that is expected to function like a super-cabinet, surpassing the elected wisdom of the Prime Minister and the Council of Ministers. Technically NAC is created by the Prime Minister as a body to advise the government. The members are handpicked technically by the Prime Minister but in reality by the NAC chairperson.
Thus the NAC is not a representative body. It also leads to the question whether an elected government or its Prime Minister should have powers to create structures that are not enshrined in the Constitution.
The Prime Minister should have powers to function independently. But should he himself subjugate to the authority of his own creation? Who authorises him to do it? Why should he create a structure that is virtually neither responsible to him nor answerable to Parliament?
It is no wonder the NAC functions with populist views or indulges in vote bank politics to further the political objectives of some political party.
The NAC drafted the Food Security Bill not with the objective of providing food to the needy. Its primary objective was to create a political climate that would help the ruling party garner votes of the deprived classes. It has created enough rift between the officials of the Prime Minister’s Office (PMO), who found the “advice” beyond the capacity of the government to implement it. Any responsible body would have first evaluated the government’s physical and financial strength before jumping in to draft a bill.
The food security bill thus remains in the domain of discussion and may possibly not be given the final shape. Keeping it alive and finally blaming the bureaucrats would pay more dividends at the time of next elections than enacting a law that people are bound to forget even a year later. The NAC would serve the purpose of functioning like a permanent campaigning mechanism for the ruling party.
The proposed bill to prevent communal violence is yet another case of over-reach. It intends to arm the Centre with runaway powers to intervene in state affairs, creation of overlapping authorities and selective definition of victims. The bill, runs the risk of being struck down by the courts for falling afoul of federal principles set out in the Constitution’s seventh schedule that distributes legislative powers between the Centre and the states.
The bill defines that the victim in a communal violence would invariably be from a “group”. The definition of sufferers of communal violence as a “group” comprising only religious, linguistic or religious minorities or scheduled castes and tribes appears highly discriminatory as it can mean that even if a large number of majority community members bear the brunt of communal violence, they will not be victims of “targeted violence”.
If the bill is to meet the objectives of speedy justice and prevention of communal crimes, its framers need to recognise India’s political system is not unitary and states and political parties are bound to challenge the definition of a “group” and other provisions. Even if the bill gets through Parliament, it cannot escape constitutional and judicial scrutiny.
The Constitution does not allow interference on the issue of law and order of any state. Its role is limited to tender advice under Article 356. If the draft bill is enacted as law, it would provide sweeping powers to the Centre to intervene in the affairs of any state. This would be the technical provision but in reality states not ruled by the party at the Centre are to be targeted.
Is the bill targeting states like Gujarat? Is it finding in the rise of Narendra Modi, an efficient administrator with clean credentials, a threat to the pseudo-secularists? It is apparently so. Since Modi is emerging as a youth icon and no electoral politics can demolish him, a “secularist” bill with devastating intentions are sought to be drafted. The bill possibly for that reason does not include the majority community in the definition of a “group”.
Once the bill becomes law not only Modi but any leader of the majority community could be accused of “promoting ill will” against a minority community and he could be put behind bars. The provisions of the bill would provide enough ammunition to tar the image of a forceful leaders belonging to the majority community from any political party.
In fact, the Congress MP from Delhi, Sandeep Dikshit, son of Chief Minister Shiela Dikshit, could be arrested for his recent remarks that the St Stephen’s College promotes communal divide.
The draft bill is structured on the premise that the majority community could never be the victim of communal violence. It believes they would only be the perpetrators.
Those who have drafted the bill have forgotten the recurrence of communal violence by the minority community in 1960s in UP and Bihar. The states like Gujarat suffered recurrent minority violence till late 1980s. The Godhra burning of Ramsewaks in 2002 is too recent to be forgotten.
The bill has also no provision if two minority communities indulge in violence against each other. In fact, as per the provision of the bill even then any person from the majority community could be accused of inciting violence. He could have no defence under the draft bill. The accused would suo moto be considered “guilty” till he can prove his innocence. The bill virtually overturns the simple judicial norm of considering the accused not guilty till he is convicted.
So if there is a Shia-Sunni riot in Lucknow, the bill would not be applicable. It would also not be applicable if a Muslim group initiates violence against Christians, as witnessed recently in Kerala. No wonder it would give freedom to perpetrate crimes against Pandits and evict them from Kashmir for all times to come.
Nothing would also happen to the illegal Bangaladeshi infiltrators, who have captured almost a 20-km tract in West Bengal along the Bangladesh border and forcibly evicting the people of the majority community either through violent means or under threat of violence.
The draft bill also redefines crimes to suit its anti-majority mindset. According to the draft, the members of minority communities could not be accused for violence against the majority community.
Indeed it is “secular” exercise that could be done only in free (so far) country like India. The draft smacks of drawing inspiration from a theological state like Pakistan, where nobody except those following the state religion has the basic civic or human rights. Has the Wahabis or elements like that have penetrated the policy-formulation bodies of the Indian state?
The country needs to draw lesson from the recent developments in Nepal. Similar policy formulators many supported by the CPI-M and other Left parties from India changed the secular Hindu Constitution of Nepal and replaced the last Hindu monarchy. They even did not ponder the security threat it has created for India and the haven created for Pakistan-sponsored terrorists in the neighbourhood.
The Prime Minister is said to have wide international exposure. He is also stated to be a person of understanding. But it is difficult to understand why he has accepted the bill even to be discussed. The bill should have been dumped at the very first glance.
Even a discussion on the bill vitiates the atmosphere of bonhomie and tolerance that this country is known for. Co-existence of different communities and linguistic groups has been an age-old phenomenon.
The drafting a bill with such myopic and blatantly sectarian views would only create a divide that is not there in this country.
The bill needs to be immediately withdrawn and dumped. If the government tries to keep it in circulation it would only affect the social harmony.
But despite that if it is kept alive, it should be viewed as a move to communalise the political scenario in the country with a view to garnering votes of only one powerful minority community. The bill is not in the interest of any other minority groups either.
The draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill should be seen as a precursor to create another partition of the country and needs to be opposed by all right thinking people from all communities across the country.