Communal Violence Bill – Law for Post Mortem or Prevention?

Prevention Of Communal And Targeted Violence Bill
A question that should perplex many of us, specially to those of us who understand the nuances of the “Prevention of the Communal Violence Act” (in short PCVA) as to why Narendra Modi is opposing such a toothless piece of legislation which cannot prevent any organised violence against the minorities. Modi’s latest tweet asking all the state governments to oppose the bill despite the several amendments agreed to by UPA, exposes his fear that enactment of the law would act as a legal hurdle in the way of BJP’s future communal campaign of instigating communal violence as they did in Muzaffarnagar.

Let us quickly dispose of an illusion being created by UPA that PCVA will be effective in preventing communal violence as the title of the bill would suggest. We have to firstly take notice that the law failed to address the fundamental reason as to how targeted violence against a particular community is carried out in a large scale. Without the active complicity of the Government and it’s police force, no such violence can take place. Does the bill give the Central Government any statutory powers to reach armed forces to save the victims from the targeted violence aided and abetted by the State?

In the 2011 bill, a provision was made under section 18(1) that every public servant charged with duties under sections 129 to 144A of CrPC, i.e. public servants of the concerned State Government which includes executive magistrate and police officers of local police stations, shall take all reasonable steps to prevent any act of communal and targeted violence. Isn’t it wishful thinking to expect that the same policemen who aids and abets the violence would at the same time prevent the rioters from indulging in violence against the victims?

In the 2013 bill, it is reported that, in addition to the above futile provisions, if the local District Magistrate declares an area disturbed and seeks the assistance of Central forces, in such a case, Central Government can send armed forces to that area for maintaining public order! It is even more ridiculous to expect a District Magistrate to go against the State Government and discharge his duties.

In fact, the provisions discussed above can already exist in CrPC 129 and 130, and no further effective provisions have been added. In 2002, despite such provisions existing in CrPC admittedly hundreds of Innocents were killed with the police and the magistrate turning a blind eye.

To carry forward this illusion and fuel a hypocritical debate, Narendra Modi attacks these toothless provisions amongst few others to be fatal provisions that destroys the federal structure of the constitution! Modi is shouting on top his voice that our Constitution does not permit the Centre to send forces to any State or make any law in this regard, thus questioning the legal basis of the communal violence bill. Consequently, he is instigating several other State Governments to oppose the bill on the ground that the law would curb the autonomous power of the state, thus dubbing it Anti-Federal.

We may ask Modi if his claim is true that Centre does not have powers to send forces to any State, how did Centre enact “Armed Forces Special Powers Act” under which central forces are stationed in several states like Manipur, Assam, Jammu and Kashmir etc for maintaining public order. Would Modi like to repeal AFSPA on the ground that this law wholly violates the federal powers of these three states?

We are now pointing out the specific provisions of the Constitution that permits the Centre to legislate for the purpose of sending central forces to help the state maintain public order:

The entry no 2A of List 1 of Union list gives exclusive authority to the parliament to legislate for providing for deployment of any armed force of the Union in any State in aid of the civil power…

Under this entry AFSPA was enacted. Under section (3) of AFSPA, if the Governor of that State was of the opinion that it was necessary to use the armed forces in aid of the civil power, the Governor could declare the whole or any part of such State to be a disturbed area. Thereafter under section (4), the armed forces could assume power to help the civil forces maintain public order.

Thus Modi’s claim that Centre cannot legislate or send central forces for maintaining public order in a state has no legal basis at all.

We at TOG do not support the idea of Central forces directly intervening for maintaining public order in a State since we do not know who really would be ‘controlling the Centre. A far better idea would be create an independent statutory authority which should be empowered to monitor the communal situation in any part of the country and direct immediate deployment of central forces supervised by special officers under it. If the consent of the States are required to enact such a law, let consent be taken instead of rushing a toothless act.

The other grievances voiced by Modi do not exist any longer after UPA has agreed to change the definition of 2(c) “communal and targeted violence†and 2(e) “group†of the 2011 draft. We agree that the earlier definitions were unconstitutional in as much as communal violence is not restricted to religious or linguistic minorities. All penal provisions also cannot therefore discriminate on the ground of minority or majority. These were fatal errors in the 2011 draft.

The provisions regarding rehabilitation and compensation as well as criminal justice are absolutely necessary for all riot victims and Modi can object to such provisions only at the peril of exposing his true communal color. Lastly, is the timing of the bill politically motivated? We believe that whatever any political party does, it is politically motivated and that is the only reason the common man gets some relief! Be that as it may, it is never too late. With Muzaffarnagar staring at our face with several children dying due to lack of rehabilitation, if the law was enacted, they would have perhaps survived. We do not know how many more Muzaffarnagars are going to flare up during the run-up to the 2014 elections and therefore the faster we have a new law against communal violence, the better it is for the common people.