John Dayal
I must begin with a disclaimer: I was a member of the Working Group of the Mrs Sonia Gandhi-led National Advisory Council, which drafted the Prevention of Communal Violence [Access to Justice and Reparations] Bill 2011. I am also a member of the National Integration Council. In the council’s belated meeting on September 10, 2011, in the magnificent Vigyan Bhawan, I was the solitary Christian member – of the other two, St Stephens College Principal Dr Valson Thampu did not attend and Delhi Archbishop Vincent Concessao was away in Rome – to speak and support the enactment of such a bill, which otherwise came in for a brutal drubbing at the hands of Bharatiya Janata party’s parliamentary leaders Mrs Shushma Swaraj of the Lok Sabha and Mr Arun Jaitely of the Rajya Sabha, and the party’s chief ministers of Madhya Pradesh, Chhatisgarh, Jharkhand, leaders of most major non-Congress parties and even the bosses of some satellite TV channels.
My views in this article may, therefore, be somewhat biased, and if they are, it is despite my trying hard to be absolutely neutral. I may also point out that during the framing of this draft bill, I, together with jurists Vrinda Grover and Usha Ramanathan and activist Shabnam Hashmi, have been a critic of many a provision relating to a feared erosion of the federal character of our governance and possible allusions to “disturbed areas” which are anathema to many of us in the civil liberties movement. The NAC accepted over 57 objections before publishing its draft bill.
Having said that, I fear that there has been a possible attempt in some official quarters to kill this Bill even before it has formally seen the light of the day by being send to the Cabinet, then introduced in Parliament, discussed in select committees and then debate openly on the floor of the Rajya Sabha [where an apparition of a 2005 Bill still lives] before being passed and signed into law. The manner in which it was allowed to be mauled in the open meeting of the National Integration Council – just four of us really supported it, three being social activists – put a huge question mark on why the Bill was so prematurely put before political opponents for their views, and why no one from the government or from the Congress Party spoke, or was allowed to speak, in defence of either the Bill or the rational for coming up with suitable legislation to save religious minorities of all sorts from targetted violence.
The Bill came into being from the group experiences of the anti Muslim pogroms of Gujarat in 2002, the attempted annihilation of Christians in Kandhamal, Orissa in 2007-2008, the haunting memories of the 1984 massacre of Sikhs in Delhi and other cities, together with attacks on Dalits and Tribals over the past few decades. The government had come up with a bill in 2005, but when it presented its version in the Rajya Sabha, it was clear that the administration was empowering governments and police rather than protecting and defending the victims. It took five years of hard labour by civil society and specially by the Muslim groups, led by the likes of former Chief Justice Ahmadi and several retired high court judges, before the government agreed there was need to revise the bill thoroughly.
The National Integration Council took upon itself the task of drafting the proposed new bill, together with other social legislation it was working on, including the Right to Food. It set up a working group with members Harsh Mander and Farah Naqvi as coordinators and experts and activists representing the minorities, legal luminaries and others on the team. It took close to a year before the Bill took some share, seeing bitter and prolonged discussions between members to balance the needs of the minorities and reconciling it with constitutional provisions and the Indian penal Code.
It was quite clear from the beginning that there was a felt need to identify and punish targeted violence, define who will be identified as victims and when, and how action would be taken to end impunity, enforce command responsibility, set up some mechanism to trigger state action. It was also clear that we did not want to repeat the experiments of the National Human Rights commission and the national Commission for Minorities which were either toothless, or as themselves as defenders of national honour by defending the government, or were toothless. It was also clear to us that the federal character of the state could not be trifled with. And above all, many of us were absolutely adamant that there be no reference to disturbed areas on the pattern of Jammu and Kashmir and the north eastern States which gave unfettered powers to the Armed Forces.
Although most of the members had worked with the victims of communal violence, and therefore wanted some universal principles and equality to be introduced both in justice and in reparations and relief and rehabilitation, we did not want fears to be expressed about possible overthrow of state governments by the centre and the introduction of President’s Rule. Therefore it was only the second part of Article 355 which was seen as an entry point for the Central government to encourage state governments to act swiftly when communal violence went out of hand, as had happened in Gujarat and Kandhamal.
In defining groups, it was also clear to us that most groups could be in a minority in some state or the other, and in certain circumstances. Though Muslims, Sikhs, and Christians were the national minorities, even Hindus were a minority in as many as seven of the 35 States and union territories of India. Other issues covered in the bill in detail were dereliction of duty by public servants, which was recognised both in omission and commission. The definition said public servants who act or omit to exercise authority vested in them and fail to prevent or offences or protect victims or act in a malafide or predicted manner will be guilty of punishable offences. They had of course first to identify the violence as targeted. The monitoring and grievance redressal, the bill said, shall be with the National Authority for Communal Harmony, Justice and Reparation (NACHJR) and corresponding State authorities (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.
The critical clauses related to the identification of targeted and communal violence. The Indian Penal Code contains most offences committed during episodes of communal violence. These have been appended in a schedule to the Bill and shall be considered offences when they cross a threshold of being knowingly directed against any person by virtue of his or her membership of a minority group. Brutal forms of sexual offence as seen in Gujarat and Kandhamal have also been included in the bill, as is hate campaign and propaganda leading to alienation and targeted violence.
Just to make it doubly sure that the Bill passed muster, the draft said advisories and recommendations of the NACHJR were not binding on State governments. All powers and duties of investigation, prosecution and trial remained with the State governments.
The draft Bill, after being put in a legislative format by Additional Solicitor General Indira Jai Singh [she did only the formatting, not the actual drafting, it must be made clear] the draft was put on the Internet by the National Advisory Council to garner public opinion which would be sent to the Central government together with the suggestions came. In due course, the ministries were supposed to clear it before the Union Cabinet, chaired by the Prime Minister adopted a final version for introducing in parliament.
That is why the developments in the NIC meeting surprised us. The government had not formally intimated its position on the Bill nor had it formally sent it to the opposition parties and the state governmetns for their official opinion and suggestions other than the NAC putting it on its website. The agenda formulation too made it seem that those who were to speak had either to accept it or reject it, rather than to critique and analyse it. As the formal NIC note put it, the agenda of the meeting was “measures to curb communalism and communal violence, approach to the Communal Violence Bill, measures to promote communal harmony and measures to end discrimination, specially against minorities, and finally, how to prevent radicalisation of youth”.
Unfortunately, barring the preliminary remarks of Prime Minister Manmohan Singh, the discussion, along political divides, focussed on just the Draft NAC Bill. The tone was set by Sushma Swaraj who slammed the Bill and said it did not consider people as Indian citizens but divided them on line of religion or ethnicity and language. Her party, she said, would formally oppose the Bill. Arun Jaitely followed suit, saying the federal structure would be hit. In saying so, they almost verbatim followed the propaganda that had been let loose for weeks earlier by the RSS and its wings, the Bajrang Dal and the Vishwa Hindu Parishad whose leadership threatened a nationwide agitation to ensure that the bill, which they aid stigmatised the Hindu community, did not bring law. It was mostly the BJP chief ministers who were present in force barring Narendra Modi of Gujarat. They all opposed the Bill in the language similar to the Bajrang Dal and RSS. Nitish Kumar, Jayalalitha and Mayawati had stayed away, but the text they circulated criticised the Bill for infringing on the rights of the states. The CPM – and both Prakash Karat and Sitaram Yechury spoke, also had grave apprehensions about the federal motives of the NAC. BJP’s allies at one time or the other, the Akali Dal and the Biju Janata Dal, also toed the line.
What surprised observers was the stance of the UPA ally Trinamul Congress of Mamta Bannerjee which made common cause with other state governments in the issue of the rights of the states. Scholar Zoya Hasan and some media stalwarts also spoke against the Bill for a verity of reasons, but essentially implying that existing laws were more than sufficient.
There were very few supporters. Ministers do not speak at NIC meetings as a matter of form. But other Congressmen do. They refrained this time from supporting a draft emerging out of a council headed by party president Sonia Gandhi.. The support came from Muslim members Navid Hamid and Asghar Ali Engineer and a few others. The Chairman of the National Commission for Minorities, Wajahat Habibullah, repeatedly asked for permission to speak, but in the end could not. In an interview later, he said he wanted to stress issues of Rehabilitation, Accountability and the plight of Internally Displaced persons, which in fact was added on NCM’s recommendation following Kandhamal, Ahmedabad and the situation in Tribal areas of Tripura. He also referred to the agenda item on youth, mentioning the victimisation of Muslim youth arrested In the Mecca Masjid bomb blast case and the governmetns” arresting them under laws on criminal conspiracy and sedition and so on.
The matter of course is not over. The debate continues even among those of us who were members of the NAC Working group. Many have called for an urgent meeting of the Working group to revisit the issues of federalism and possible encroachment of the powers of the States. There is a feeling that even if the objections have been political, there is need to make the Bill go through parliament with consensus and dialogue, and therefore there is a need to engage with the states governments and with various political parties.
There is a definite agreement, articulated by eminent law teacher Upendra Buxi that there is need for a law to prevent targetted and communal violence. Vrinda Grover said “we must also pay heed that criticism or anxiety is being expressed from across the board and not just the usual suspects.” Vrinda and Usha Ramanathan were among the first in the Working group to flag problematic provisions. “There is some merit in reconsidering some legal propositions presented in the final NAC draft of the CV Bill, 2011,” she says. “I am afraid the apprehension that this law is a device for the Union to usurp the power and role of the States and intrude at will, lingers on. The ill advised Clause 20 of the penultimate NAC Bill, still haunts public memory, with some reason. Despite Clause 20 having been dropped no corresponding change has been made the powers and functions of the National Authority. It is this that has invited the wrath of many regional, Left, ‘secular’ parties who would have otherwise been our allies and advocates of this bill.
Most of us agree with Vrinda when she says “tampering with the federal structure will not yield anything for those constituencies who need the protection of the CV law. It will however alienate critical allies, without whose support, it is unlikely that this Bill will ever translate into law, as the numbers will simply not add up.”
All eyes are now on the NAC and the union government, though the hope that the Bill would be placed before Parliament, possibly as government amendments to the Bill of 2005, are fading fast.
(The views expressed in the article are author’s own. It does not necessarily reflect BH’s editorial policy)
