Minority Report

Law  |  9 September 2011  | print

We have more than enough laws, even to deal with issues like communal riots. The government chooses not to enforce them. The answer is not, as the NAC suggests, is to have one more law and do nothing to strengthen enforcement of laws that already exist.

Of all the opening words of the Preamble to our Constitution, the most difficult is one that wasn’t even originally there. Till 1977, we were a sovereign democratic republic, recently turned gloomy with Mrs G in the middle of her run up to pole-vaulting us into bananadom. In that year, we became both socialist and secular; and, as the Aston Martins and Bentleys on our potholed roads, and repeated outbreaks of sectarian violence show, we have honoured both ideals.

Secularism, in the context of governance and law, speaks of the separation of religion from government. The word’s absence in the original Constitution is curious; very likely it was felt unnecessary, for the entire Constitution is a profoundly secular charter. In India, we have learned to recognise secularism only by reference to what it is not: communalism; which, as we understand it in India, means religious and ethnic sectarianism, frequently associated with violence.

The National Advisory Council is a sort of super-Cabinet given to us by the UPA. It sits outside government and has no discernible legal standing. Yet it seems to direct government, and Sonia Gandhi is its chairperson, indirectly inheriting Mummy’s mantle. One of NAC’s latest offerings is the lugubriously titled “Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011”, awaiting Parliamentary benediction.

There are actually two drafts: the official government version, which typically says little and does less and was abandoned early on; and the latest iteration of the NAC version which says far too much and goes much too far.¹ Given that the NAC’s Advisory and Drafting Committees for this project featured some heavy hitters in law and public affairs, one would have expected a draft sound in thought and language, a document that reflected the complexity of the issue. What we have instead is a document that is by turns silly and downright dangerous.

The problem starts very early on with the definition of a “group”, one that is central to the bill. A “group”, in the NAC’s thinking, is a religious or linguistic minority or a Scheduled Caste or Scheduled Tribe;² and it is only a group, so defined, that can be the target or victim of sectarian violence. It seems not to matter that issues of sectarian violence also involve incidents of retaliation or perhaps even provocation. Axiomatically, this definition does not cover Shia-Sunni conflicts, or attacks by one minority on another — remember, it was a Muslim radical group that chopped off the hand of a Christian professor in Kerala. Offensive words like kafir, heathen and pagan are not understood to be hate speech, though these words are commonly used as pejoratives. Years ago, I recall being deeply offended when my family and I were lumped, only on account of accident of birth, with ‘heathens’ and ‘pagans’ at a funeral service conducted by a Jesuit for a Catholic friend’s relative. It is naïve to pretend that these words are confined to their doctrinaire meaning. That is not how they are used in the real world; and communal violence does not occur in sacred texts. These are matters impossible to legislate. A narrow definition like this can only create greater divisiveness and antagonism at a time when we need just the opposite.

Imprudence then leads to absurdity. Another section defines sexual assault.³ A person is guilty of sexual assault if he or she, among other things, is guilty of ‘exposing one’s sexual organs in front of any person’ who belongs to aforementioned ‘group’. The draftsmen of this Bill have quite clearly never taken an early morning local train in Mumbai.

Then there’s the matter of the appointment of a worthy called ‘The Human Rights Defender for Justice and Reparations’, a person with ‘expertise in relation to law or human rights’ and who also has ‘a record of preserving communal harmony’.⁴ How does an individual ‘preserve communal harmony’ and how exactly do you cut a record of it? And the expertise may either be in law (say, monopolies, or patent law) or human rights. We do not yet know whether Defendor is also to sally forth in a mask and a cape and leap over tall buildings in a single bound.

Functionally, the Bill proposes an authority very like the Jan Lokpal, but specifically for communal issues. There is the ‘National Authority for Communal Harmony, Justice and Reparation’ to be stuffed with people with a ‘record of promoting communal harmony’, which sounds like an imbecilic neighbour’s karaoke birthday party, but isn’t.⁵ This November body (one can hardly call it august), must receive quarterly reports from its subordinate State Authorities on incidents, outbreaks and patterns of communal and targeted violence — suggesting that, by law, we must have at least one riot every three months.⁶ Other essential functions are to sit around in courts and watch proceedings and, generally, to ‘preserve communal harmony’ and ‘prevent and control communal and targeted violence’.⁷

Communal riots are failures of state responsibility. They are also potent social forces that alter the fabric, form and functioning of human settlements. Areas that have seen communal rioting never fully recover; the mere possibility of recurrence is enough to make that change, and the displacement caused by rioting extends beyond individuals to entire communities. (The latest version of the Bill does acknowledge that members of dominant groups, too, may be displaced).⁸ It isn’t possible to reverse this displacement by a law; it requires political will with social backing and no amount of legislation can provide that.

In assessing compensation, the NAC bill borrows from the 1985 Bhopal Claims Act.⁹ That was in the context of an industrial disaster and required the corporation responsible to compensate. How is that to be applied to a communal riot? Litigation, government, administrative and other expenses (including environmental damage to flora and fauna) are to be recovered — but from whom? And what if, as the eminent scholar of the University of Washington, Paul Brass, says the state is often complicit in these riots or in the acts that trigger them?¹⁰

There are other serious issues. Special courts are to be set up, in keeping with the mood of the day;¹¹ but here, the special public prosecutor’s must act in the interest of the victim or the complainant.¹² This is a fundamental and crucial departure from established criminal jurisprudence. Therefore, state machinery is to be used for individual retributive justice. Add to this the bias in the appointment of key members of this vast enterprise (a majority to be from the minority, and reservations for women) and we have a very real problem.¹³

This constant repetition on the need for ‘fast-track’ and ‘special courts’ should be seen for what it really is: a vote of no-confidence in and an attempt to undermine the judiciary, the only reasonably functional limb of the three. The government is slow in appointing judges, and slower still in providing courts with basic infrastructure. Instead, it chips away at the powers and functions of existing courts, proposing separate, dedicated, single-focus tribunals. This is no answer and as a cure is possibly worse than the disease, for these parallel courts too have to be staffed and provided for. The government will happily build court houses for its special courts but, as the tragic events of yesterday in Delhi show, do absolutely nothing for the ones that do exit.

An earlier version of the NAC bill was widely criticised. Even after changes to the Bill, many of these criticisms remain valid. The UPA may choose to brush aside the objections from the more right-wing groups. But it can hardly ignore objections when they come from persons like Justice Verma, a former CJI, and Justice Srikrishna, formerly of the Bombay High Court and the Supreme Court and who headed the enquiry into the 1992-93 Mumbai riots.¹⁴ There are other prominent objectors, too — and many of them represent the minorities the bill is supposed to protect. The warnings of two of these, Usha Ramanathan and Vrinda Grover, need close attention, for both once served on the NAC’s Advisory Committee and resigned apparently on account of disagreements over this bill. In contrast, the bill’s supporters when confronted with its essential bias (that definition of ‘group’ again), come up with only this: that after enactment, it can always be amended. You do not push out something defective on the basis that you can rectify it later, and that is not how laws should be made.

What the NAC bill does is to create another layer of complexity that sits on top of all our existing systems and it does this for a matter that is sensitive and delicate. We have more than enough laws, even to deal with issues like communal riots. The government chooses not to enforce them. The answer is not, as the NAC suggests, is to have one more law and do nothing to strengthen enforcement of laws that already exist.