The National Advisory Council (NAC) presented a new draft of the much belated and debated Communal Violence Bill, leaders of India’s main opposition party, the Bharatiya Janata Party (BJP) are crying foul. “It is worse than draconian law like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA),” they say. Mahtab Alam talks to Dr John Dayal, a senior journalist and human rights’ activist also member of the National Integration Council who has been closely following the communal violence since three decades, about the politics behind it and different aspects of the draft. Excerpts:
ArunJaitely, the BJP leader and his party is saying the proposed Communal Violence Bill is bound to be misused, what you have to say?
John Dayal: Jaitely is articulating the well-known BJP-RSS strategy of striking pre-emptively against any popular movement or government action that bolsters secularism, strengthens the position of the minorities in India, or can at any stage in the future restrictthe action of fundamentalist forces. We have seen this argument used in the wake of the assassination of Indira Gandhi, where the BJP sought a Hindu consideration against the extremist Akali Sikh mobilisations. It is in keeping with the same strategy that the BJP has been talking of a Hindu consolidation in the recently concluded elections to state assemblies, and particularly in Assam and Kerala.
He says,‘the draft bill proceeds on a presumption that communal trouble is created only by members of the majority community and never by a member of the minority would community and this create disharmony in the inter-community relations in India?
John Dayal: We have serious issues with the draft Communal violence bill as drafted by the National Advisory Council working group – of which I too was a member – but it is very farfetched and “clever” top speak of the law, if it ever so becomes, being used against the Hindu community. ArunJaitely is stepping on very thin ice when he tries to scare the majority community by saying that the draft Bill seems to criminalise the Hindu community by presuming the majority is always the aggressor in communal violence in India.
As far as the actual incidents of violence are concerned – and there have been more than four thousands of them even in the past decade – the statistics speak for themselves. Ever since the 1969 violence in Gujarat through the 1984 ant Sikh violence in Delhi, Kanpur another north Indian cities, the 1992-93 violence in Mumbai in the wake of the Babri Masjid demolition, the 20021 Gujarat pogrom against Muslims and the 2007-2008 anti-Christian violence in Kandhamal in Orissa, it has ways been the minority community in question that has been victimised, traumatised, injured and killed. Incidents of retaliation have been rare, and pitched battles between two communities even rarer. This does not of course give any indemnity to those from any community responsible for individual acts of violence, including terror. We also acknowledge that Hindus have been victimised in the Kashmir valley and made to flee their homes in a massive internal displacement, but terrorist and armed forces have also traumatised Muslim civilians. We also fault police, the military, extremist groups and above all officialdom and political elements for their involvement in abetting communal tension and violence.
Another major point of opposition is, it would also seize the jurisdiction of the states as is undermines state rights (as in federal structure of state-centre relations). It is what going to happen or he is just exaggerating the facts?
John Dayal: All the states, and especially those which tend to err on religious violence issues – such as Gujarat, Karnataka, Madhya Pradesh and Orissa — are fiercely protective of their rights in a federal structure. The Constitution goes out of its way to ensure these rights for states on most issues. But the Constitution also makes provision for exceptional and singular circumstances. Law and Order is a state subject. But protecting the unity of the country is also an issue. That is where the entire jurisprudence and politics of President’s rule comes in. Under the garb of federal “dharma”, prime ministers such as Atal Bihari Vajpayee failed to act when Narendra Modi was defying his “raj dharma” and was conniving, if not ordering, the anti-Muslim pogrom. The State failed to act to protect Christians in Kandhamal. So this issue would always be a controversial factor whether the Bill was drafted by the government on its own or by the NAC. Even in the laws pertaining to forest laws, the governor of the state can take action of his own without reference to the state government. In its current draft, the NAC has used one legal provision to enter the arena to rigger the powers under the Bill. Perhaps the Bill could have been better drafted to foreclose any charge of violating “federal dharma”. We will once again be submitting our suggestions to plug all such loopholes or areas of confusion and disharmony. But Jaitely, eminent lawyer though he is, is objecting to the Bill not on its technical components and arguments, but on its political thesis that religious and other minorities and disempowered groups need protection from hate and aggression, and if they have actually been victimised, they need the nurture of rehabilitation and reparations. The State governments need not fear any law that empowers victims of communal violence. But impunity must end, and inaction must not be tolerated. Minorities who feel safe and comfortable make excellent neighbours and co-citizens for the majorities in any state and in the nation.
You havebeen closely following the process of drafting since the proposal came, how did you find the recent draft of the bill proposed by National Advisory Council (NAC)?
John Dayal: Now that the draft bill has been put in the public domain, I have no hesitation in saying that the going has been very difficult, and many members have differed at various point with elements sought to be put into the draft bill. I and some others have had difficulties with the entry point of the bill, and its inability to negotiate the treacherous ground of centre-state relationships in a federal constitution to the satisfaction of all political groups represented in Parliament. We also have difficulties with the mention of internal disturbances in triggering remedial action, as that phrase is fraught with political implications and can be misused. We also have our own nuances on what sort of central and state structures can be set up learning lessons from the failure of the national human Rights commission and the other Central commissions for minorities, dalits and tribals.
Our effort has been to ensure that the law considers the emerging new patterns of violence, especially against micro minorities such as Christians, the continuous hate campaigns and issues of impunity of the state apparatus and chain of command.
And how it is different from the earlier drafts, which you along with other civil society members opposed, especially the 2005 one?
The 2005 draft strengthened the state without empowering the victims. The joke was that if Gujarat chief minister Narendra Modi had this law in his hand, the death toll of Muslims would have been ten times more!
Formation of National Authority & State Authorities for Communal harmony, justice & reparation with additional power equivalent to a Civil Court is also suggested in the draft but it is not clear, who the new authority will be accountable to? And the power of Civil Courts will be sufficient enough provided the functioning Human Rights and Minorities’ Commissions?
John Dayal: We cannot create a monster that is even superior to Parliament and the Supreme Court. But we do need an independent entity which is free of political misuse, which can investigate, and which can bring about synergy between Union and state governments in preventing communal violence, controlling it if it breaks out, and bring relief, rehabilitation and reparations for the victims. The existing institutions have historically failed miserably. And the administration has failed in even being able to use existing laws under the Indian Penal code to prevent and control violence.
We hope there will be many more opportunities between now and till the Bill becomes law for us to impress on the government our point of view is making the Communal Violence Bill something that the government can enforce, the minority communities can accept as a protective umbrella and everyone considers as an instrument of peace, not of hate. Arun Jaitely and his kind must be proved wrong by the people of India.
The interview was first published in Situations Asia (www.situationsasia.com).