(Indian Express - April 27, 2005)
This law won't prevent a Gujarat
We need a law specifying what the state must do in situations of communal violence
HARSH MANDER
In a nation still deeply wounded by the state-sponsored communal massacre in Gujarat in 2002, one of the most significant pledges made by the newly installed UPA government was to introduce a law that would effectively prevent the recurrence of such crimes. It took a year and considerable prodding for the government to produce its draft. Yet, what has emerged has been deeply disappointing.
The proposed Communal Violence (Suppression) Bill, 2005, arms the government with wide powers to control communal violence, including of arrest and search without warrant. It enhances the punishment that can be awarded for offences in riots, and permits the government to set up special courts and police stations. These courts can hear cases at any protected place, and can order that the confidentiality of wit(nesses be maintained. For relief and rehabilitation, the state government is mandated to nominate a committee of mainly official and some non-official members selected by it, which will advise and assist the government in its duties.
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A superficial reading of the bill suggests that it is an unexceptionable, even welcome code, which will assist future governments to better control communal violence and ensure justice to the survivors. However, the benchmark of the merit of the proposed law should be that if it was enacted when the Gujarat mass violence unfolded, or indeed the ’84 Sikh riots, would it have influenced the conduct of recalcitrant state authorities in terms of ensuring that they take all the necessary steps to protect the victim and prosecute the guilty? The answer is that this law would have made absolutely no difference to a government driven by a communal agenda.
The problem today is not that the state lacks the powers to take any of the steps envisaged in the new law. The predicament in the worst bloody communal conflagrations of the past, climaxed by the shame of Gujarat, is that the governments chose not to use the powers they were already equipped with, for the protection of minorities and the defence of justice, or worse, they used their powers malevolently against the victims of communal violence if they were minorities. The new law does nothing whatsoever to ensure that they will now be forced to perform their fundamental duties, or face legal action.
The law as proposed is at best irrelevant to the challenges of communal governance and, at worst, dangerous, because many of the special powers such as of search and arrest can be used against minorities in the same way as Modi consistently misused the powers under POTA. The governments of today do not require greater powers, but greater moral and legal accountability.
The principal departure in the drafts proposed by human rights activists, but ignored by the government, was that the law should not simply allow the state to act in specified ways in communal contexts. As argued above, if a state chooses even without the new law to act in these ways, it already has the powers to do so. What is desperately required against malevolent and partisan state power, is a law that specifies all that the state must do in these situations. If state authorities fail to perform these duties today, as an unrepentant Modi and his administration has chosen to do, their moral failures are unarguable, even so it is difficult to hold them legally accountable for these crimes. It is for this reason that we need a law that lists the mandatory duties of the state, failing which they can be criminally prosecuted as well as dismissed.
The first binding duty of the state must be to take legal action against all hate propaganda — in speeches, publications and textbooks, and communal mobilisation. The second is to use the maximum force, including deployment of armed forces, in the shortest time to control communal violence when it breaks out. No riot can continue for more than a few hours without the active complicity of state authorities. This monumental crime against humanity must be explicitly and severely punishable under the new law.
In the aftermath of the violence, it must be obligatory for the state to set up relief camps with international standards, for people rendered homeless by the violence and the fear, for as long as the survivors do not feel secure enough to return to their old homes. It must extend reparation to guarantee that the survivors are restored shelters and livelihoods, at least to the levels before the violence. These are decisions that cannot be left to committees nominated by the government. Modi had also set up such committees, but they did nothing to prevent the state from refusing to assist the victims according to the norms of a civilised society.
The provisions for legal justice in the aftermath of the violence are even more disappointing. There are no measures for witness protection beyond guarding their confidentiality. There are no provisions for independent investigation, and it is the government that constitutes the special courts and nominates the prosecutors. Prime Minister Manmohan Singh pledged when he assumed office that the carnages of 1984 and 2002 will never be allowed to be repeated. There is nothing in the new law that redeems that pledge.
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