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RAM JETHMALANI
ETHICS & POWER

Ram Jethmalani is a senior politician and eminent lawyer.

Communal Violence Bill is vicious, will divide society

he Prevention of Communal And Targeted Violence (Access to Justice And Reparations) Bill, consisting of 138 sections and several schedules and running into 66 printed pages, is as without any legitimate social purpose as it is mischievous in its thinly concealed aims and objects. The need for a marathon criminal statute arises only when the prohibited conduct has assumed endemic proportions and the statutes already in force are ineffective to eliminate it. In other words, it has turned into a chronic cancer of the national multitude. Yes, occasionally in some isolated corners of the country such offences occur, but our people are far too civilised to indulge in them with regularity and frequency to cause what the great Bentham in his "Theory of Legislation" called "alarm".

Even on those rare occasions when they erupt it is almost always that some evil gang leaders instigate and plan them for some ignoble political end. It is these criminals who occupy the upper decks of our social and political life who have to be identified and eliminated. The current available laws have never been used against them. Will somebody examine the statistics of prosecutions and convictions for such offences? The Bill is not designed to cure alarm, instead it is intended to create false alarm, which the leaders will translate into crimes, more social tensions and divisions of our nationhood and patriotism.

This Bill has been drafted by the National Advisory Council headed by Mrs Sonia Gandhi, and put as an agenda item for discussion at the National Integration Council meeting chaired by the Prime Minister on 10 September 2011. The eminent government lawyers who had questioned Anna Hazare's audacity in preparing a draft Lokpal Bill remained silent on this. Obviously, a draft from the NAC (a nominated body of activists, social workers and professionals, without any constitutional or parliamentary status), proposing a Central law on a State subject, and without consulting the States, was far higher in the government's pecking order than a draft from humble Anna Hazare. And woe betide any minister or MP who dared to question its legitimacy for being included in the National Integration Council agenda, without following any prescribed procedures.

It was known that a badly shaken government was anxious to divert the enraged public mind from corruption to something else; from Kalmadi's Commonwealth Games and the 2G scam to non-existent atrocities on minorities to perpetuate vote banks.

Even on cursory reading, the Bill is unconstitutional, anti-national and a communal piece of pseudo legislative work. Unconstitutional, because it violates the federal principle and poaches into the powers of the states as prescribed by the Constitution and the Seventh Schedule. It also violates the provisions of Article 14 by its scandalously communal definition of the word "group" as defined in Section 3(e) that can never pass the test of legal scrutiny.

It is anti-national and communal because it seeks to divide a polity through novel manoeuvres: by the repugnant definition of the term "group" in Section 3(e). "Group" means a religious or linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of Clauses (24) and (25) of Article 366 of the Constitution of India. The lack of good faith in the NAC intention becomes abundantly exposed.

Communal violence, regardless of whichever community perpetrates it, is criminal and anti-national. If the NAC was keen on addressing this issue, it should have established its bona fides by viewing it in a secular perspective, and through the prism of a sound analytical framework to identify recurring causative factors and then suggesting the best preventive and punitive measures, after consultation with legal experts and political parties. The draft does not envisage a mere grant in aid or a welfare scheme for minorities; it contains a bill, the provisions of which have a sinister implication on Constitutional provisions and the prevailing laws of the land, namely, the Indian Penal Code and the Criminal Procedure Code. The NAC's objective to provide a symptomatic framework for "good communal violence" and "bad communal violence" — as if communal violence can be equated with cholesterol — comes through clearly by the definition of "group". It is trying to achieve the ultimate by communalising even communal violence, and ensuring that it further destroys community coexistence in our country.

Social scientists, civil society organisations and administrators would broadly agree that communal violence assumes serious proportions only when fanned and encouraged by local political/religious leaders. Sometimes, communal violence is engineered by political leaders to disgrace a government, and effect a leadership change, such as what happened in Karnataka in 1990. But mostly it is stray incidents, for example, desecration of places of worship during religious festivals that become large communal clashes with the encouragement of local political/religious leaders, who then retreat into the background, leaving the innocent, ordinary people to suffer. Police behaviour would differ from person to person. An honest and conscientious police superintendent would act fearlessly and exercise his ample regulatory powers in accordance with law, whereas a corrupt and political policeman would take orders from his political bosses.

The NAC has several eminent members who would be aware of the dynamics of communal violence and also community dynamics at the grassroots. I am informed that following the dynastic model, there is an outstanding tri-generational advisory group consisting of an elderly retired civil servant, his former joint director, and probationer. Have they taken into account the impact of their Bill purely from the sociological point of view on the lives of the minorities who by and large peacefully inhabit the villages and towns of India? Have the religious and linguistic minorities agitated for a Bill as prepared by the NAC? I don't think so. I have neither read anything in the recent past in defence of the Bill by any respected leaders of the religious and minority communities. Chief Ministers of several states, including UPA partner Mamata Banerjee of West Bengal, have criticised the bill as violating the federal structure. Eminent jurists, particularly the former Chief Justice of India, Justice J.S. Verma and Justice B.N. Srikrishna have argued against it. So why impose a bill, which the BJP rightly termed as dangerous for the country, on the minorities?

would like to make one suggestion to the NAC. Can we stop seeing persons belonging to minority communities as a sheaf of ballot papers with the luckless Hand stamped on them? Can we stop seeing them as a bank of votes, but instead give them the respect due to human beings who wish to live with dignity, peace and security, with religious and cultural freedom that is guaranteed to all citizens by our Constitution, with aspirations for themselves and their children for education, employment and opportunity, and do everything possible in state and society to provide such an enabling environment. Wooing them with such draft laws will only ghettoize and alienate them further, will neither provide them any long-term, sustainable social and economic benefits, nor strengthen national unity.

Minorities of all shades have produced men of magnificent intellectual attainments coupled with ennobling compassion for fellow citizens and a spirit of sacrifice for the greatness of the Indian nation. We can produce many more by a proper system of liberal education that fosters genuine secularism and rule of reason in place of blind superstition and fanatical faith. This is the need of the hour, not this legislative garbage.

 
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