Centre as the Big Brother
A Surya Prakash
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.
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