An Act for every act?

Communal violence is like any other criminal offence

If laws could solve social problems India would be a happy place! There is a certain irony in the United Progressive Alliance (UPA) government’s plans to table a Bill on preventing communal violence when the preamble to the Indian Constitution describes India as a “sovereign socialist secular democratic republic”. The incongruity seems to have escaped the Congress party, the largest of the UPA allies, in its eagerness to highlight its secular credentials. Even if it is assumed that the UPA is being realistic in introducing such a Bill — India, after all, has recently suffered an upsurge of communal violence — it is difficult to see how its provisions will constructively address the issue.

 

The Bill, the preamble informs us, intends to empower state and Central government to protect Indian citizenry from communal violence. The problems begin right there. For one, the Bill empowers the state government to declare an area communally disturbed and to “take all measures which may be considered necessary to deal with the situation”. This effectively gives the state authorities a carte blanche: it could well justify illegal measures as “necessary” and there is nothing to suggest that the authorities won’t interpret these terms as broadly as conveniently possible. The operations of the security forces in Jammu and Kashmir — which is outside the purview of this Bill — are a permanent reminder of the potential for state-sponsored violence against its citizens. And, indeed, this provision could well provide legal cover for, say, Gujarat’s police for many of the atrocities of 2002 that are being investigated by a special court. This surely cannot be the intent of the legislation, and activists are rightly exercised over it. Vesting responsibility in state governments also provides an alibi for public servants to escape accountability. Although there is a provision for public servants to be punished for failing to control communal violence, it will be difficult for a state government to take action if there is no “intent” by it to do the same.

The Bill also lays out three conditions for states to recognise an area as communally disturbed. These include the use of force or violence against any group, caste or community that results in (i) death or destruction of property; (ii) promotes disharmony and ill will between different communities and (iii) requires immediate steps to protect the “secular fabric, integrity, unity or internal security of India”. History has shown that there are any number of incidents that may not fulfill all three conditions but still qualify as acts of communal violence. Rape, which does not result in death or destruction of property, has been one of the most potent weapons in the communal attackers’ arsenal from Partition to Gujarat. Under the current definition, it finds no place in this law. Paying compensation to victims is another area that the Bill covers inadequately. It requires every state to establish a State Communal Disturbance Relief and Rehabilitation Council chaired by the chief secretary to assess the actual compensation to be paid. The problem is the mode of payment that the Bill specifies. It says the immediate compensation will be at least 20 per cent of the full rate of the compensation and will be paid after an inquiry completed within one month from the date of the claim. The Bill, however, specifies neither who will pay the remaining compensation nor a payment deadline.

Finally, there is the big question of whether the Bill is needed at all. How, after all, is violence and murder committed with communal intent different from other crimes? Given that, the current laws — not least in the Code of Criminal Procedure — provide the state machinery with the means to take action and, what’s more, fix responsibility on public servants (a district magistrate or head of a police station). Provisions for special investigative courts and for shifting cases out of states also exist within the ambit of the law — what’s being done in Gujarat, again, provides a heartening example. To push through another Bill with overlapping provisions will only add to the welter of confusion that informs our judicial system and is unlikely to dissuade the criminals.