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Drafting A Law To
Prevent Communal Violence

By Asghar Ali Engineer

20 October,2004
Centre for Study of Society and Secularism

The 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 fine."

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.











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