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Hindustan Times, February 19, 2014
When working-class Muslim men and women in many parts of India recount to me their family histories, its markers always are successive riots — in which neighbours turn killers, loved ones are murdered, girls and women savaged, and homes built over lifetimes looted and burned down. They live life between these storms: interludes of suffering, healing, struggle and rebuilding. But these are also periods of waiting, of helplessly preparing oneself for the inevitable next riot. They never speak of what will happen if another riot rages. Instead it is always of what devastation will occur when the next riot will scorch their lives. Their certainty that riots will continue, almost in the natural order of their world, just as do floods, tempests and earthquakes, breaks my heart.
Sometimes laws if crafted with courage, wisdom and compassion carry the potential to change the destinies of a people. One such law — if we get it right — is the communal violence law, which could contribute to ending these periodic cycles of brutal mass violence that target people only because of their religious faith. It is therefore extremely tragic that the ruling government introduced its revised draft of the Bill with such unconscionably clumsy lack of preparation and conviction; and that the entire political opposition from the Left to the BJP joined hands to prevent even its introduction in the Rajya Sabha, without debating its provisions. Unless corrected, this will remain a shameful and painful betrayal of India’s vulnerable people and its secular foundations by the entire political class.
There can indeed be legitimate debates about specific provisions of this complex and sensitive legislation, but not about its objectives of preventing communal violence and ensuring reparation and justice to survivors. The first draft Bill was introduced in Parliament in 2005, but was rejected by most segments of secular public opinion. An entirely new draft was written in the National Advisory Council, with which I too was closely associated. This draft was also attacked in some quarters, especially for restricting its protections to minorities, and its alleged encroachments on the federal framework.
For a statute of such seminal significance, the Union government took far too long in amending the draft in ways that responded to these criticisms. It would have done well to initiate a public debate and invite leaders across political lines to assist in the amendments. But still the latest draft addresses most of the criticisms made by both Opposition parties and segments of secular opinion. The provisions of the new draft apply equally to all persons, majority and minority, and it takes great care not to violate the jurisdictions of state governments.
However, the government did not even share in advance this draft with various political parties before it raised it in the Rajya Sabha. Neither Union home minister Sushilkumar Shinde nor law minister Kapil Sibal explained how the draft incorporates the concerns, suggestions and sensitivities of various political parties. The government’s resultant failure to even introduce the revised Bill seemed like a deliberate and cynical self-goal. It appears that the ruling government tried clumsily to earn the gratitude of minorities for trying to introduce the statute, but not the opprobrium of majoritarian public opinion by actually steering it through in Parliament.
The principal charge of the Opposition that this statute is outside the legislative competence of Parliament because it deals with the State subject of law and order is patently untenable. Communal violence is not merely a simple matter of law and order; it carries grave implications for rights to justice and equal protection of all citizens, and the unity and fraternity of the country, therefore the central government has both the right and duty to ensure that people are not targeted for their religious identity. It has enacted strong national laws against violence targeting Scheduled Castes and Tribes and women. Indeed this criticism is clearly a weak afterthought to prevent consideration of the Bill, because it was not voiced in the last eight years when the earlier draft of the Bill was considered in Parliament, including by a standing committee chaired by Sushma Swaraj of the BJP.
A careful reading of the revised Bill reveals a scrupulous effort to give no new powers to the central government over state governments. It is entirely the states that take action under its provisions when communal violence breaks out, and the Centre can deploy the army only on the request of the state. The national authority which political parties objected to has been replaced with the National Human Rights Commission (NHRC), which already exists, and its powers are restricted to observing, monitoring and issuing advisories, a power which it already enjoys, and the value of which was demonstrated by the sterling role played by Justice JS Verma as NHRC chairperson when Gujarat was in torment in 2002.
If passed, the law would create a new crime of dereliction of duties of public officials: ‘inaction, prejudiced and unlawful exercise of authority or failure, by way of omission or commission to perform duties’ to prevent and control communal violence. It would also make liable non-State and State superiors in command positions. This crime would make it very unlikely that police and magistrates would allow slaughter and arson to continue, because failures could land them in jail for five years. Victims would enjoy the right to information during investigation, and witnesses would be protected during trial. There would be mandatory duties of State authorities after violence, for relief, restitution and rehabilitation. If in force, state complicity and criminal abdication as was seen in Delhi in 1984, Gujarat in 2002 and most recently in Muzaffarnagar, would not have passed.
I therefore fervently appeal to all political parties in this last winter session of Parliament to rise above partisan politics and pass a law to make communal violence history, and help build an India in which some people are not condemned to live life only in the spaces between riots.
Harsh Mander is Director, Centre for Equity Studies.
The views expressed by the author are personal
