Author: A Surya Prakash
Publication: The Pioneer
Date: August 8, 2011
URL: http://www.dailypioneer.com/359507/Centre-as-the-Big-Brother.html
The proposed Communal Violence Bill aims to
slip in provisions that will restore the dadagiri of the Union Government
over the States.
Apart from generating communal strife and
pitting religious minority communities against the majority community in every
State and Union Territory, the proposed Prevention of Communal and Targetted
Violence (Access to Justice and Reparations) Bill, prepared by the National
Advisory Council, incorporates some extremely dangerous provisions which seek
to re-impose the 'dadagiri' of the Centre on the States and even promote insubordination
in the administration in the States. There is also an attempt to introduce
some mischievous provisions to classify crimes on communal lines.
In the earlier article on this proposed Bill,
this writer had referred to provisions that ab initio treat members of religious
minority communities as 'victims' and members of the religious majority community
as 'culprits' in every instance of communal violence. The other insidious
aspect of the proposed law is the attempt to use communal violence as a pretext
to usurp the States' right to maintain law and order and to signal to bureaucrats
and policemen that Big Brother in New Delhi is watching them.
It is obviously a cunning attempt to re-acquire
the unbridled powers which the Union Government had exercised under Article
356 of the Constitution before the Supreme Court's verdict in the Bommai case.
Prior to the Bommai case, the Union Government imposed Article 356 with reckless
abandon. The Congress, which was ill at ease with the growth of regional parties,
used this provision regularly to sack duly elected State Governments and to
impose President's rule on the States.
For example from 1950, when the Constitution
came into being, to 1994, when the Supreme Court pronounced its judgement
in the Bommai case, Article 356 was used by the Union Government on 102 occasions.
On 77 of these occasions the Congress was in power at the Centre and just
one Prime Minister - Mrs Indira Gandhi - used this provision 50 times. The
Supreme Court stopped such misuse of Article 356 through its judgement in
the Bommai case.
The court declared that henceforth the proclamation
issued under Article 356 would be judicially reviewable and the court would
examine whether the proclamation was issued for mala fide reasons. It said
the court would retain the power to reverse the actions taken by the President
if they were found to be mala fide. This judgement virtually put an end to
the misuse of Article 356. The Communal Violence Bill now offers scope for
mischief via a backdoor entry of Article 356 as it stood prior to the Bommai
case in the guise of ensuring minority rights.
Initially the proponents of the Bill wanted
organised communal violence in a state to be classified as "internal
disturbance". Article 355 imposes a duty on the Union Government "to
protect every State against external aggression and internal disturbance".
Therefore, this was a clever move to snatch away the basic constitutional
right of every State to manage law and order and to impose Central rule.
However, following public protests, the NAC
has recently announced that this provision has been deleted from the draft
Bill. But the threat to the independence of State Governments is not over
because of certain other provisions in the Bill, like Sections 9, 13, 14 and
16 pertaining to the bureaucracy and the police in the States and Section
15 which directly targets office-bearers of political parties. Section 13
pertains to dereliction of duty and is so worded that every public servant
working in the district or State administration (with some responsibility
in regard to maintenance of law and order) can be hauled up in the event of
a communal flare-up.
Officials can also be accused of helping or
harbouring culprits belonging to the majority community. Section 14 deals
with public servants for breach of command responsibility, meaning their failure
to control the men in their command. In other words, police officers can be
prosecuted if men under their control commit an offence or are accused of
committing an offence against a religious minority community. The law proceeds
on the assumption that the officer ought to have known that persons under
his command would commit an offence.
But the worst provision is Section 16, which
is directly aimed at promoting insubordination in the police and para-military
forces deployed in a troubled State. It says, "Where an offence has been
committed under this Act, the fact that it was committed by a person pursuant
to an order of a superior shall not relieve that person of criminal responsibility...".
In other words, it encourages every policeman to question or challenge his
superior right up the line of command and, if he so believes, to disobey his
superior. Every policeman will need to worry about how the Union Government
(and not the State Government) will view his actions. It is difficult to find
a more irresponsible provision in any law.
The law proposes for the establishment of
a National Authority for Communal Harmony, justice and reparation and similar
authorities in the States. It empowers the national authority to enter any
building and seize any documents, which means it has the authority to intrude
into State Government offices and even the chambers of Chief Ministers. Several
other provisions also hit at the root of federalism and weaken the States.
Equally disgusting is the communal colour
that this Bill gives to every major offence. Though the Indian Penal Code
deals with all such crimes, the proposed law draws a distinction between rape
of a 'minority' woman and a 'majority' woman and assault of a 'minority' person
and a 'majority" person. The victim acquires an exalted status if he
or she belongs to a 'minority" community. Nowhere in the democratic world
does one get to see such communalidation of crimes.
Finally, politicians belonging to parties
which are not part of the political dispensation at the Centre had better
watch out. Section 15, which talks of offences committed by "other superiors",
says, "Whoever, being any non-state actor or superior or office-bearer
of any association
". The implication of this is that office-bearers
of political parties and associations and organisations affiliated to political
parties in power in the States can be hauled up under this law. This is obviously
a provision to enable the Union Government to haul up political opponents
and their affiliates in the States.
The net result is that this Bill will destroy
communal harmony, weaken the federal structure and encourage authoritarian
trends at the Centre. The Communal Violence Bill must be rejected lock, stock
and barrel.