Drafting A Law
Prevent Communal Violence
By Asghar Ali
Centre for Study of Society and
Gujarat carnage had shaken the country very badly and it was felt that
there should be a separate law to prevent recurrence of such carnage
resulting in the death of hundreds of innocent people and bring shame
to our country in the comity of nations. The UPA Government also promised
such a law in its Common Minimum Programme but it is hardly its priority.
It is no more talking about it nor is it preparing any draft for discussion.
Some NGOs like the
Centre for Study of Society and Secularism and Communalism Combat took
initiative to prepare such a draft and circulate it for discussion among
other NGOs and other concerned people. Surprisingly Mr. Ajit Singh of
U.P. also took initiative and drafted a bill to this effect and a discussion
was held in Lucknow. We will throw some light on these drafts here.
It is felt that such law must come into effect as early as possible
so that future recurrence of communal violence may be stopped.
Before we proceed
with the draft law it is also important to point out that some police
and IAS officers who were invited to participate in the discussion on
the draft bill pointed out that there was no need for such special law
as present laws are sufficient to take care of any such
situation. Problem is that these laws are not honestly implemented.
The need, therefore, is to implement these laws effectively and punish
the culprits who create disturbances in the society.
This is also a valid
point of view. The laws are not implemented and not only this the guardian
of law themselves violate the law i.e. the police. The provisions of
IPC section 153 (A), if enforced honestly can prevent the provocateurs
from delivering provocative speeches resulting in
outbreak of violence. How far the police is responsible for this state
of affairs? It would be of course unfair to blame the police alone though
the police should also share part of the blame.
In fact the complicity
of the politicians is no less responsible. If the state government is
determined to prevent violence no communal riot can occur and if it
does, it can be checked within no time. The best examples of this are
states of West Bengal and Bihar. In West Bengal no major communal riot
has taken place for last 27 years since the Left Government is in power.
The West Bengal Government has issued strict instructions to the police
not to allow any communal riot to take place and in the event of any
riot taking place the police officers of the area will be held responsible
and punished. It has worked very well. Similarly since Lalu Yadav took
over in Bihar no riots have occurred though Bihar was highly sensitive
state. The last major riot in Bihar took place in Sitamarhi in 1993.
Mr. Yadav controlled it effectively.
But in most of other
states the governments have no will to control communal riot as it is
part of their political culture. Some chief ministers have even encouraged
communal violence for their own selfish political gains. A chief minister
in Maharashtra in early eighties even made a
political deal with the Shiv Sena Supremo to unleash communal violence
for his personal political gain and Bhivandi-Bombay witnessed major
outbreak of communal violence in 1984. Hundreds were killed and properties
worth crores of rupees were completely destroyed.
Thus much depends
on political will. In Gujarat carnage it is well known that Mr. Narendra
Modi not only looked the other way when communal carnage was taking
place but even allowed his cabinet ministers to lead marauding and pillaging
mobs. This clearly shows that Narendra Modi was
encouraging the violence. The violence went on unchecked for months.
The police openly sided with rioters and marauders.
If the existing
law is violated with such impunity what the new law will achieve? This
question of course cannot be dismissed lightly. But still there is some
point in drafting the new law. This will be a Central enactment. In
fact law and order is a state subject. Normally Centre does not interfere
with law and order matter in the states. But when state fails to ensure
law and order the Indian Constitution makes a provision in the form
of articles 355 and 356 to intervene.
The proposed law
will be a Central enactment and if a state government totally fails
to check widespread communal violence the provisions of this law will
apply and the Centre will intervene to check the violence. But if in
the state and Centre same party governments are there the Central government
may be reluctant to take action. When Gujarat carnage took place BJP
was in power both in state as well as in the Centre and when in Mumbai
widespread communal violence broke out after demolition of Babri Masjid
in 1992 the Congress happened to be in power both in
Maharashtra as well as in the Centre and hence no action was taken in
both cases by the Centre.
But due to regionalisation
of political power and possibility of only alliances of parties ruling
at the Centre such probabilities of same party government both at the
centre and in the state is becoming less and less. And even if it does
happen and such a law against sectarian violence does exist one can
file a case under this law in the Supreme Court. The Supreme Court has
much better record for delivering justice to the aggrieved and hence
it can be relied on enforcing provisions of such a law if state or Central
governments fail in their duty.
Thus seen from whatever
angle this law does have its validity. The Centre for Study of Society
and Secularism took initiative to draft this law and requested Justice
Daud to prepare a draft for discussion. A meeting of justices, eminent
lawyers, retired and on duty police officers, writers and social activists
were invited to discuss the draft. The draft provides both for pre and
post violence situations.
The Bill was originally
called the "Act to Prevent and Punish Genocide" but after
discussion it was agreed to drop the word genocide and replace it with
"sectarian violence". The statement of objects and reasons
of the Bill says, among other things, "For more than 5 decades
after getting independence this country had to contend with several
genocides conveniently classified as communal riots, caste conflicts,
and group differences. These carnages are a blot on the nation and seriously
prevent its emergence as a strong, united and throbbing democracy. The
origin of every group riot lies in something insignificant or obscure.
It is the spark lit by the evildoers who have driven the targeted group
into a corner by painting it as treacherous, lecherous, unreliable and
unscrupulous. The yellow press, which unfortunately has a fairly large
readership in this country, is not slow to embellish accounts received
by it and knowingly publish accounts, which are untrue, orexaggerations
of what has really transpired."
The Bill states
that "With a view to prevent group-hatred and violence emanating
there from and in furtherance of the duty cast upon the Union Government
under Article 355 of the Constitution of India, it is hereby enacted
as follows" and then various sections of the Bill follows.
In Section 4 of
the Act it is states "wherever within the territory of India, (a)
speaks and or writes in any manner or publish matters tending to incite
hatred or ill-will against any group or individual belonging to a group,
resident of any State on account of their or his group identities; (b)
aids or abates the physical, social or economic harm to any person or
persons on the grounds of their affiliation to any such group; (c) advocates
the perpetration or perpetuation of any injury to any group or individual
belonging to that group as a constituent of that group, shall be punished
with imprisonment of either descriptions for seven years and also with
The section 5 of
the Bill provides for registration, the investigation and the trial
of offences falling under this Act shall be in accordance with the provisions
of the Criminal Procedure Code, 1973. Under Section 6 of the Bill the
Central Government shall have the power to issue directions to all authorities
functioning in the land to do or refrain from doing that will trigger,
aggravate or give rise to disharmony amongst groups of people in any
part of the country. The authority so directed shall be bound
to carry out the directions given.
The Act also provides
for compulsory inquiry of all such acts of sectarian violence. Thus
it says after every act of genocide irrespective of the number of those
killed, wounded or maimed and the value of the property destroyed, the
Central Government shall appoint a Commissioner to ascertain the perpetrators
of the violence and destruction of the property, whether it be on individual
or organisations, if the State Government has not done so. The report
will have to be submitted in any case within 12 months of appointment
of Commissioner and in section 8 the Central Government on the basis
of the Commissioner's report shall compensate the bereaved families,
the injured persons and those suffering financial damage as a consequence
of the rioting, in full.
Thus this Bill will
also take care of proper compensation as today it tends to be arbitrary.
It will mot depend on the whims of the chief minister. The section 10
of the Bill also provides for debarring the perpetrators, abettors and
initiators of the violence from contesting or canvassing elections to
any representative body for a period of 10 years. Today the perpetrators
not only contest and win elections but also become ministers or chief
ministers as it happened in Gujarat.
Thus enactment of
such a bill will greatly help control communal violence and Gujarat
like situation will not repeat. If the state government fails to act
it will be the duty of the Central Government to intervene and check
violence and punish the culprits. It is for the UPA Government to enact
such a law before communal violence again breaks out in any other State.
The UPA government should fulfil its pledge to people of India on priority
basis. Unfortunately so far it has not moved in the matter. It is for
NGOs and activists for communal harmony to put pressure on the UPA Government
to act as early as possible in this direction. This exercise by the
Centre for Study of Society and Secularism is part of that campaign.