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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 10th September 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 targetted 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 governmetns 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 governmetns to
act swiftly when communal violence went out of hand, as had happed
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 targetted. 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 targetted
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 targetted
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 governmetns 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
hopethat the Bill would be placed before Parliament, possibly as
government amendments to the Bill of 2005, are fading fast.
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