Government is contemplating a hurried introduction of the Bill in the upcoming Winter Session of Parliament : #NarendraModi
Dear Prime Minister Dr Manmohan Singhji,
My government has received a letter from the Ministry of Home Affairs alongwith a copy of the revised Prevention of Communal Violence (Access to Justice and Reparations) Bill, 2013 asking for comments to be sent “immediately”. It appears that the Government of India is contemplating a hurried introduction of the Bill in the upcoming Winter Session of Parliament.
2. Coming just a couple of months before the expected announcement of the next General Elections, it makes the move look very suspicious. It is almost a giveaway that the move to introduce the Bill is based on political considerations dictated by votebank politics rather than genuine concern for preventing communal violence.
3. My government is sensitive to the issue of communal violence and I am happy to inform you that there have been no communal riots or major incidents of communal violence in Gujarat for the last ten years now. I fully agree that we need to be vigilant about communal violence. However, I have serious objections to the contents of the proposed Bill as also its timing. I am asking the concerned department to send its detailed comments to the Ministry of Home Affairs but considering the importance of the issue at hand, I would like to convey some preliminary observations to you.
4. A plain reading of the bill suggests that it is not confined to Communal Violence on religious lines and includes other considerations like linguistic identities. This expansion of scope may lead to serious issues of operationalizing the provisions.
5. Timing and your political compulsions apart, I also have serious concerns about the constitutional validity, legality, and efficacy of the proposed Bill in addressing the problem of communal violence in the country. To begin with, your government’s attempt to legislate on an issue of “law and order” and “public order” both of which are items in the List II (State List) of the Seventh Schedule betrays its contempt for the federal structure and the separation of powers.
6. The Union List (List I) has 97 entries in it and you will agree that there are a whole range of issues in that list which are waiting for legislation. However, rather than addressing issues which are in its domain, the Government of India seems to be under some compulsion to encroach upon the issues in the State List. Is it because the implementation has to be done by the State Governments? Thus if a poorly conceived and badly drafted legislation does not give the intended results and ends up compounding the problem, the Centre can blame the State Governments for “improper implementation”.
7. I strongly believe that if an issue is in the State list and a proposed legislation will have to be implemented by the State Governments then it should be legislated upon by the State Government. You will agree that after all state governments are also elected by the people and are as much concerned if not more about law and order in general and communal violence in particular.
8. Nonetheless, if you feel that there are certain competencies available with certain people in the Government of India which elude the State Governments and your government cannot but contribute to this issue it should consider preparing a “Model Bill” and circulate to State Governments for consideration if necessary. However, the circulated Bill can be called anything but a “Model Law”. It is a case study on poor conceptualization and even poorer drafting. In short, it is a recipe for disaster.
9. However, knowing its genesis, I am not surprised by the poor drafting of this bill. You will kindly recall that in the Chief Ministers’ Conference on Internal Security in Delhi in May earlier this year, I had brought to your notice how certain individuals with questionable credentials and condemnable links with anti-national elements have penetrated into our policy making think tanks like the Planning Commission and the National Advisory Council, NAC. It is the same NAC, an extra-constitutional authority and the same set of individuals who seem to have now usurped the law-making powers because of the void created at the political level that are behind this draft.
10. The provisions of the proposed Bill will have a consequence of further polarizing Indian society on religious and linguistic lines; the religious and linguistic identities will become more reinforced and even ordinary incidents of violence will be given communal colour to benefit from the provisions of the proposed law. In short, this law will end up achieving just the opposite of its intended objective: it will increase communal violence and fragment Indian society further.
11. Coming to the specific provisions of the Bill, Section 3(f) which defines “hostile environment” and includes “(iii) deprive or threaten to deprive such person of his or her fundamental rights” and “(v) any other act, whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment” is so wide ranging and vague that it can certainly be misused.
12. Similarly, section 3(d) read with Section 4, attempts to bring in the concept of “knowledge and intent” into the definition of communal violence. This makes one wonder whether the Orwellian concept of “thought crime” is being introduced in Indian criminal jurisprudence. The said provision has certainly not been examined from the point of view of Evidence Act as also investigation and prosecution.
13. The proposed bill seeks to undermine the basic constitutional tenet of equality before law by attempting to create different classes of citizens based on religion. Under Section 9A, certain offences under IPC have been classified as offences of communal violence. This is a clear breach of Article 14 and 15(1) of the Indian Constitution. If A murders or rapes B, law has to apply similarly regardless of the religious and linguistic identities of A and B; and the equal application of law includes both substantive law and procedural law.
14. The proposed bill tarnishes the police and security forces and paints them as communal at large. Sections 9B and 10A are totally ill conceived in the context of communal violence. The other assumption is that all incidents of communal violence can be prevented by the law and order agencies. Both these assumptions are fallacious and too simplistic. I must say that overall the members of our police forces and security agencies have done a commendable job in dealing with various law and order problems arising out of caste and communal conflicts as also various political agitations.
15. To belittle their sacrifices and contributions and to put them at grave risk of partisan and politically motivated victimization leading to criminal action for dereliction of duty is most unreasonable. Such provisions have crept in only because most people involved in the drafting of this law have never had the occasion to deal with angry mobs on the ground putting their lives at risk. It would do us no harm if we were to seek the inputs of the heads of various police and security forces as to whether such provisions will help or harm the law enforcement agencies in dealing with communal riots.
16. Section 10B is absurd in that it criminally penalizes a public servant for failure of his subordinates! Incompetence cannot be handled by putting people in jail. It needs capacity building, training, sensitization, motivation, imparting leadership skills etc- certainly issues requiring more inputs and efforts, than mere legislation. I do not know whether such provisions have been weighed at various levels in Government of India.
17. The proviso to Section 10B will only ensure that in times of serious violence, senior officers will rather leave the lower functionaries on the field to fend for themselves than to intervene and expose themselves to criminal liability!
18. There are several other ill-conceived provisions in the proposed Bill which are either non implementable or counter-productive. The only provisions which pass muster are the redundant ones like those in Chapter IV-A and IV-B. These are nothing but a reiteration of existing provisions in the Criminal Procedure Code, 1973.
19. Chapter V and Chapter VI simply reiterate the analogous provisions of the Protection of Human Rights Act, 1993. Here I have a serious opposition to bringing NHRC and SHRC into the process of exercising powers that are vested in the executive wing of an elected government. I think these bodies are already empowered under the existing statute to deal with serious violations of human rights during incidents of communal violence.
20. However, to burden these statutory bodies with redressal of all issues, handling of appeals and monitoring of individual incidents is neither practical nor desirable. Ultimately, in a democratic polity it is the elected government which should be the focal point of all responsibility and accountability. That is the only way elected governments will be held accountable for maintaining law and order. To tinker with this basic structure is ill-advised and ill-conceived. To that extent, the roles of NHRC and SHRC should be confined to their present roles as envisaged under the existing laws.
21. Regarding the relief and rehabilitation, the establishment of the Communal Violence Reparation Fund is a welcome step but the use of the word compensation is arguable as the same should be in the domain of a civil court under the “Law of Torts” or a criminal court after the completion of trial. The role of government should be to provide immediate succour and relief to the victims as an ex-gratia relief/ assistance. However, introducing compensation for “moral injury” as provided under the Bill is strange and does not take into account implementability.
22. In view of all of the above observations, I would like to express my government’s strong opposition to this ill-conceived and poorly drafted Bill. I would also like to convey my government’s strong reservation against this attempt to encroach upon the authority of the state governments. I sincerely request you to direct the Home Ministry to have a wider consultation with the State Governments, political parties and the police and security agencies before proceeding further.
With warm regards.