Asghar Ali Engineer
(Secular Perspective Feb.16-28, 2010)
The Government has got clearance from the Cabinet for introducing the Communal Violence Bill in the coming session of parliament. The Bill was drafted originally in 2005 after 2004 elections in view of the Gujarat carnage of 2002 under the BJP Government headed by Narendra Modi. It was because of Gujarat carnage that Muslims voted for the Congress massively as a result of which NDA was defeated.
The Congress party had promised in its manifesto that it would bring the bill to prevent Gujarat like carnage against minorities. It did draft the Bill in 2005 which we, along with several other NGOs, human rights activists and legal experts, studied and found it wanting in many respects. We organized number of consultations and suggested number of amendments to make it really serve the purpose for which the Bill was drafted.
Mr. Shivraj Patil, the then Home Minister also held number of consultations in few cities and promised to consider various suggestions given by various NGOs and individuals but he did not incorporate these suggestions when final draft was presented. The present draft after going through standing committee and Cabinet too, is hardly better than the original draft. One wonders what Government wants. I would say this cure suggested is worse than the disease.
The present Bill already cleared by the Cabinet, seeks to give more power to the police. In fact police has always been the part of the problem, rather than part of the solution. Had police been fair and impartial, no communal riot can last for more than 24 hours. Those governments which have intended to control communal violence do nothing but ask the police to control violence within 24 hours else office in charge would be suspended. And communal violence stops before 24 hours.
All those who have investigated communal riots know what role police plays in communal riots from remaining spectators to actively helping the rioters instead of controlling it. In Gujarat and Kandhamal, to give two latest examples, but for the role of police, communal violence would have been controlled in no time. In all major riots police have played openly partisan role. In some cases they have even led rioting mobs.
And if you empower police more in such circumstances, as the present Bill seeks to do, one can very well imagine what havoc it is going to cause. It is victims who need to be empowered, not the police. In a consultation held in Delhi on 12-13 February by ANHAD, Institute of Peace Studies and Conflict Resolution, Mumbai (part of CSSS) and several other organizations. They all unanimously rejected the present draft.
Also, another provision of the present draft Bill is to declare an area as disturbed area, if communal riots are not controlled. This is even worse than giving the police more power. It means to give police absolute power. Even when curfew is declared, it is enforced only in minority areas and police hardly enforces its provision in majority areas. Vibhuti Narain’s writings and his novel Shahar Mein Curfew brings this in sharp focus. Vibhuti Narain was a top police officer in the U.P. cadre.
If an area is declared disturbed area police will have powers to shoot anyone at its will. In Kashmir and in North Eastern states people have demanded repeal of disturbed areas act. The victims, instead of getting relief, would feel totally helpless. Any law which gives police more powers without making it accountable cannot be acceptable to those who care for human rights of victims.
Like any other official Bill, there is not a single clause to make administration, police or politicians accountable for their failure to control communal violence. If so, you don’t need any fresh law at all. Human rights activists have always maintained that present laws, if enforced sincerely, can very well take care of any situation. After all the Left Front Government in West Bengal and the RJD in Bihar successfully prevented and controlled communal riots for more than three decades in WB and one and half decade in case of Bihar.
If only state governments enforces section 153-A of Indian Criminal Code in right earnest and arrests all those who make hate speeches and vitiate communal amity, there will be no communal disturbances. No politician would like to go to jail for three years. My experience shows that right from Jabalpur riot in 1961 to Gujarat riots in 2002 to anti-Christian riots in Kandhamal, Orissa, not a single politician was arrested for openly and blatantly provoking communal violence.
Also, no standard and objective method has been laid down for working out reparations and relief measures. It all depends on the whims of chief minister today. Narendra Mody Government offered ridiculous amounts of Rs.500/- and Rs.300/- for houses completely damaged and defying public opinion closed down relief camps much before any concrete measures to rehabilitate the victims were made. Thanks to the private agencies that these camps could be run for a longer period.
Also, there is not much in the present Bill for investigations and successful trial of cases and launching of FIRs. It is well known that police is extremely reluctant to register FIRs and even when it does, it refuses to enter the names of the accused. And less said about the subsequent investigations, the better. The investigation is so shoddy that courts often dismiss the cases against the accused.
In most of the cases the police close them down saying not much evidence is available. In the case of Gujarat the police closed down hundreds of cases which could be reopened only under the Supreme Court orders. Despite all this the present Bill supposedly drafted to help the victims, make no provisions for all this.
It is, therefore, highly necessary to make drastic changes in the present Bill before it is discussed in the Parliament and if the Government is unwilling to introduce necessary changes, the M.P.s should study the Bill carefully and force the Government to bring about necessary amendments in the Bill. All the eminent participants of consultation in Delhi felt that the 59 amendments proposed by the government are nothing but mere tinkering.
The participants felt that neither do the proposed amendments make any structural changes to the Bill nor has the government factored in any of suggestions made by the civil society. The national consultation in Delhi on 12-13 February found fault even with the definition of the communal violence in the Bill. The consultation suggested the definition as “any targeted attack committed on the persons and property of individual or a group of persons on the basis of their religious identity, which can be inferred directly or from the nature or circumstances of the attack.
The consultation also felt that the government’s proposal to declare certain areas as “communally disturbed” was rejected. In fact it demanded that the Chapter II of the Bill be dropped completely arguing that the State already has sufficient powers vested in it by law and further empowering the State and Central governments would, therefore not remedy the situation. The Consultation felt that co-relation between crimes and disturbed area is false, dangerous and untenable, and must not find place in a law on communal violence.
The consultation also felt that instead of doubling the punishment which courts would be reluctant to apply anyway, it noted that other forms of punishment – disqualification from public office, debarring from professional associations or running from public office – should be included in the case of culpability of public officials.
The good example of such disqualification form contesting elections etc. is from Mumbai High Court Judgment delivered by Justice Suresh in late nineties when Bal Thackeray of Shiv Sena made provocative speech in Vile Parle and won the seat for his candidate. Justice Suresh disqualified him for 6 years from voting in any election or contesting any election or even campaigning for his party.
It had restraining effect on him. But this was one instance which was exceptional. If politicians are made to meet such punishment, it would indeed have great effect on them and would desist from temptation to provoke communal violence to win elections in an easy way. The reason why some political leaders are tempted to provoke communal violence, more than ideological reasons, is to win elections by polarizing the voters.
It takes us to yet in another field i.e. that of electoral reforms. In highly diverse country like India with so much religious, linguistic and cultural diversity, the first past the post method which we have blindly copied from England which was then a mono-religious and mono-linguistic society, is highly problematic. We need to either introduce 51% votes for winning or proportional voting or combination of both to remedy the situation. Such electoral method would lead to inclusive rather than exclusive as it is today. Candidates win elections by excluding certain class of people rather than including everyone.
Well until then this Bill needs to be drastically amended to give relief from communal violence.