Bad in intent and content

Seshadri Chari

A legislation that seeks to divide rather than build upon the collective expression for peace and communal harmony should be rejected — and Sonia Gandhi's toadies on the NAC investigated for their real agenda

Can a Government turn into a scheming enterprise and foist upon the majority community of the country an enactment that charges them as inherently communally rowdy and out to wreak havoc on a major minority in their own land? If your answer is no, think again. The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 smacks of a sinister agenda to divide the society on the basis of religion and draw political mileage. The Bill also unashamedly violates the basic tenets of the Constitution of India. More importantly, the Bill, when it becomes an Act, would end up creating “more equal” citizens, rubbishing the Constitutional guarantee of “equality of justice”.

When a Bill is prepared one can assume that the endeavour is bad in content but the intent of the government preparing it cannot generally be suspected. But this is one Bill which is unreservedly bad in intent as well as content.

The Lokpal draft Bill prepared by the members of the civil society led by Gandhian and anti-corruption crusader Anna Hazare was ridiculed by one Congress worthy as an attempt to destabilise the government by some “unelected and unelectable” persons. So, how did the UPA government institutionalise a body of unelected and probably “unelectable” persons under the banner of the National Advisory Council (NAC), with the specific mandate to “provide policy and legislative inputs to Government?” There is no provision for NAC in the Constitution, and certainly not for a body with a Chairperson who wields greater power than the Prime Minister of the country. The NAC is nothing but a blatant and deplorable deviation from the Constitutional scheme of governance and legislation.

The perpetrators of this obnoxious Bill have not concealed their hatred for anything Hindu or what they conveniently would term as ‘saffron’. Needless their target is the Narendra Modi government of Gujarat followed by all other non-Congress and BJP governments.

The very first offensive definition in the Bill is of the expression ‘group’. A ‘group’, the Bill says, is a religious or linguistic minority and in a given state may include the Scheduled Castes and Scheduled Tribes. Without any deception, Clause 3(e) makes it abundantly clear that the bill seeks to protect only “religious or linguistic minorities.” The insertion of the word “linguistic” appears to be a diversion. There were not many instances of serious strife between one linguistic group and another in the past many years, except the political gimmicks in Mumbai against north Indians. But now if the Bill becomes a law, even if a presumably errant Shiv Sainik utters a word against any north Indian, the Shiv Sena supremo Bal Thackeray could end up as Azmal Kasab’s neighbor in Mumbai’s Arthur Road jail.

The next part of the sentence, “in any State in the Union of India” does not mean anything, because, for any Central law to be applicable to Jammu & Kashmir, concurrence of the state legislature is necessary. Therefore Clause I (2) is simply superfluous. If the naïve believe that it is possible to extend the law to Jammu & Kashmir to protect the Kashmiri Pundits, perish the thought. The tricky Clause 3 (m) contradicts any such possibility: “In the event this Act is extended to the State of Jammu and Kashmir” (not ‘when’, but, in the event!) “…any reference in this Act to a Law, which is not in force in the State of Jammu and Kashmir, shall, in relation to the State, be construed as a reference to a corresponding law, if any, in force in that State.”

In plain English, shorn of legalese, the Law will never be applied in Jammu & Kashmir. This is not surprising in view of the derision that an exalted member of the NAC has for the State’s minorities, the Kashmiri Pandits. She wrote in an article in Deccan Chronicle some time ago that the issue of Kashmiri Pandits has been ‘highly romanticised’ (sic).

The Bill assumes that no member of the majority community can ever be a victim. It is a unilateral declaration by the “wise men (and women)” of the NAC that Hindus in India are a bunch of serial offenders determined to deviate from thousands of years of tolerance, secularism and respect for other’s faith. The discrimination of offences is so evident in the Bill that no member of the minority community is to be punished under this Act for having committed the (same) offence against the majority community.

If the objective of the Bill is to protect the religious minorities, from whom does it seek to protect them? The definition of ‘association’ in Clause 3 (b) is scary and is enough to remind one of the midnight knock of the infamous Emergency. An “accused” need not be an enlisted member of any association ‘whether or not registered or incorporated under any law’. For, if the ‘association’ need not be legally constituted to be accused of an offence, where is the question of ‘enlisted’ membership? If you are ipso facto deemed to be a member of an ‘association’, it is enough for the act to take cognizance. No prize for guessing the target here. The entire top brass of the RSS and VHP can be sent packing to Tihar Jail on the basis of one complaint by a non-descript individual Even the street-corner Ganesh Mitra Madal in Chennai or Mumbai, which erects a huge shamiana every year, can be hauled up for “hurting the sentiments of the minority”.

Clause 15 expands the principle of vicarious liability. An offence is deemed to be committed by a senior person or office bearer of an association and he fails to exercise control over subordinates under his control or supervision. He is vicariously liable for an offence which is committed by some other person. If one is still in doubt about th intensions of the Bill in this regard one has to read the lengthy provisions of Clause 15 which speaks about ‘non state actors’ clearly intended to target Hindu organisations like the Bajrang Dal, RSS, and the VHP. Clause 16 renders orders of superiors as no defence for an alleged offence committed under this section.

The bill creates a whole set of new offences in Chapter II. Clause 6 clarifies that the offences under this bill are in addition to the offences under the SC & ST (Prevention of Atrocities) Act, 1989. Can a person be punished twice for the same offence?Probably the most vicious attack on the Hindu community and the parties and groups opposed to the Congress comes almost at the far end of the lengthy Bill in Clause 129 (Non-applicability of limitation). According to the clause the statute of limitations shall not apply to offences cognisable under the Act. The implications of this clause are far-reaching. For instance, cases being investigated by the SIT and other Commissions in Gujarat may fail to convict the accused. With total disregards to the existing laws, any one of the ‘victim’ can at anytime reopen the cases against the ‘culprits’ and drag the case on till “death do us apart”. Even those who are outside the ambit of the present cases, and you know who, can be dragged under this Bill through a revision of the cases in a superior court — and to be tried under the new act.

It is important to note that ‘offences’ under the Act are non-bailable. All that the Congress has to do is to wait for the Bill to be passed and then, lo and presto, Modi is banished from politics.

NAC-drafted Bill to kill State Govts

Swapan Dasgupta

The next time a partisan Government at the Centre decides to facilitate the dismissal of an elected State Government with majority support in the Assembly, it will not have to appoint a less ham-handed version of Karnataka Governor HR Bhardwaj. The former Law Minister who was sent to Bengaluru on a mission of subversion failed because both the political culture and Supreme Court judgments have made it difficult (but not impossible) for the Centre to impose President’s Rule on flights of whimsy. Gone are the days when Governors such as Ram Lal, BD Tapase and Romesh Bhandari could subvert the Constitution’s federal principles with impunity.

No, the next time an inconvenient BS Yeddyurappa or a Narendra Modi has to be destabilised and eventually dismissed, the role of the Governor will become secondary. The principal part may well be played by an emerging body of professionals who will have the power to hold any State to ransom. Like the wedding organiser and party organiser who have made life incredibly easy for people with sufficient money to burn, a breed of riot organisers will be very much in demand in the coming years. That is if the draft of the Communal Violence Bill prepared by the Sonia Gandhi-led National Advisory Council is passed by Parliament.

India has always been indulgent to bad ideas. The Nehru-Gandhi family in particular has taken exceptional care to nurture quackery and cretinism as long as they were packaged in the garb of ‘progressive’ politics. Just as the Planning Commission was the nursery for bad economics for four decades, the NAC is fast becoming the instrument for Sonia Gandhi’s misapplication of mind. Its contribution to the derailing of India’s global competitive potential will be assessed (and, hopefully, even quantified) by economic historians in the future. However, mercifully, the NAC had so far desisted from imposing its grubby paw prints on the basic features of the Constitution — although the centralist ‘one size fits all’ philosophy was a recurring feature of all its proposals. The draft Communal Violence Bill marks a departure.

The implications of the Bill are grave. To destabilise a difficult State Government, a cynical dispensation at the Centre will merely have to engage the services of a riot organiser. The riot organiser will simply have to either orchestrate tensions in a chosen locality — not a very difficult project — and trigger a little riot against either a minority community or local Dalits and tribals. No administration, however well-meaning and committed to social harmony can prevent a determined bid to foster disharmony. Under the proposed law, that local disturbance will become the pretext for the Centre to use Article 355 to intervene in the State.

Next, the seven-member National Authority for Communal Harmony, Justice and Reparation made up, presumably, of ‘non-partisan’ grandees such as Harsh Mander and Teesta Setalvad, will get into the act. Blessed with statutory sanction, this committee of the good and virtuous will stricture the local administration and the State Government for its alleged lapses and suspected complicity in the riots and make a case for the breakdown of the Constitutional machinery. The committee’s report, in turn, will become the occasion to file FIRs against ‘difficult’ State leaders and an obliging Bhardwaj-like Governor will recommend the imposition of Article 356 on the State.

Yes, a few innocent citizens would have died or had their property destroyed in the exercise. But at least they would have died so that the supercops of secularism could rule.

The Communal Violence Bill proposed by the NAC is not merely flawed, it is positively dangerous. In a country where laws sometimes exist to be subverted, the proposed legislation will be a direct incitement to made-to-order rioting and political destabilisation. The presence of a legally-sanctioned committee of the wonderfully virtuous overseeing the State administration is calculated to undermine any elected Government and make administrators accountable to two masters. Governance would be made dysfunctional and the primary focus of every official would be to keep the Centre happy. Even an issue as localised (but no less regrettable) as the violence in Greater Noida over the quantum of compensation for land acquisition would become the pretext for the Centre to first intervene directly and subsequently dismiss the Mayawati Government.

There is a strong case for ensuring that the State Government (which has ultimately responsibility for law and order and the preservation of peace) carries out its obligations diligently and without fear or favour. The best way to ensure this is all-round vigilance. Many district-level committees made up of local notables can be constituted to be an informal watchdog body and even assist the local administration. But political power ultimately vests with an elected Government and not with do-gooders nominated by the Government because they have the right aesthetic and NGO credentials. Sonia Gandhi has chosen to exercise power without making herself accountable. Now she seems determined to foist this model of colonial paternalism on the rest of the country.

India is a federal country and the more federal it becomes the better. The attempt to regress to back-door centralism has to be resisted. The issue is not riots versus secularism; the choice is between federalism and centralism, between a Delhi Sultanate and local democracy. Parliament should choose wisely.