Is this criticism of NAC draft anti-communal violence Bill reasonable ?

Indian Express

Justices Verma and Srikrishna red-flag NAC draft anti-communal violence Bill


Seema Chishti

Jun 26 2011, 01:27 hrs New Delhi:

The Congress may dismiss the BJP’s attack on the National Advisory Council’s draft Prevention of Communal and Targeted Violence Bill as “communal propaganda”. But there’s mounting criticism from quarters it may find hard to shrug off — independent jurists with an impeccable record of having intervened in cases of communal discord or violence.

Their argument: existing laws need to be better implemented, access to justice needs to be expanded — another law isn’t the answer. Especially one which, just like the one for a Lokpal, sets up panels of eminent people of “good moral character” and expects to equip them with a magic wand.

Commenting on the Bill — its amended draft was released this week — former Chief Justice of India Justice J S Verma says: “No law can eradicate communalism in the country...We need to identify lacunae in present laws, if any, and make amendments. We have enough laws, in fact the maximum in the world. The problem is in faithful implementation. It is not the Constitution that has failed us but we who have failed the Constitution.”

Gujarat 2002 is the refrain of many in the NAC to justify this Bill. Verma, who as chairman of the National Human Rights Commission, took a proactive role in cases related to the Gujarat massacres, says: “From the unfortunate history of Gujarat in 2002, we must learn how we can help prevent such incidents and help with reparations and with access to justice.”

Instead, this Bill, critics say, sets up a whole new bureaucracy at the Centre, a seven-member National Authority for Communal Harmony, Justice and Reparation, parallel state authorities and — in a remarkable parallel with the Lokpal proposal — expects it to “prevent” any communal violence, control an outbreak of violence, monitor the probe, the prosecution and the trial and distribution of relief and reparations. (Chapter IV, Clause 30).

The proposed law also defines the victim as member of a religious or linguistic minority or SC/STs — opening the door to a bewildering interpretation of who all are eligible.

Four of the seven members have to be from either a linguistic or religious minority or an SC/ST community. The qualifications include “high moral character and impartiality,” and, in the flavour of the season, it bans membership of any political party for at least a year before the appointment.

No wonder Justice B N Srikrishna, a former Supreme Court judge and author of the report on the communal riots in Mumbai of 1992-3, finds the principle behind the Bill flawed.

“The investigative and prosecuting machinery under the CrPC could itself be used by suitable amendments,” he says. “There’s no need for an elaborate separate Act for that. Large-scale communal riots like in Mumbai or Gujarat do not happen on the spur of the moment. These are the result of elaborate preparations. There should be an effective method of tagging known communal elements and for swooping down on them with preventive arrests in case of intelligence inputs so as to nip the riots in the bud. What is needed is lightning action and not meandering gait. What is needed is pre facto and not post facto activism. The Bill suggests no such quick reactive machinery. Communal riots spread like wildfire and must be treated like fire emergencies. The Bill shows no such thinking. It seems to be long on cure and short on prevention.”

On the National Authority, he says: “It’s a toothless tiger. Its role seems more to collect information and advise the government at the Centre and state levels. This is an example of mindless proliferation of laws. That is the rampant disease in our country. We have and make many laws but hardly implement them seriously.”

Echoing this is chairman of the National Commission for Minorities (NCM) Wajahat Habibullah. He says the creation of such an Authority would mean a “vast centralized machinery, which is also a criticism of the Jan Lokpal Bill”.

He adds: “Instead of empowering the community to safeguard minority interests, the Bill would instead strengthen the government machinery which, in the past, has shown itself to have been the principal offender in failing to so safeguard.”

Welcoming a law to control “collective violence,” the NCM has cautioned on safeguarding the rights of states vis-a-vis the Centre and on varying interpretations of how the term “group” is to be defined.

Endorsing the Bill is Justice M S Liberhan, who headed the Ayodhya Commission after the demolition of the Babri Masjid. He said there’s a need to be less cynical about new laws and accept that there is a lacuna when it comes to communal or group violence. On the BJP’s criticism there is an anti-majority bias in the draft, Liberhan said: “Only those who are weak and numerically weaker need protection. In case, there are gaps like attacks by a Muslim group on Hindus where they are in a majority, the law can be amended later to accommodate them.”

Sources in the NAC rebut the criticism saying the Bill protects all those who are in a “non-dominant” position — not just religious minorities. And that the it does not envisage the National Authority as one “taking away” the functions of the state but merely to “ensure that justice is done.”

They also underline the “progressive reparations” suggested in the Bill — Rs 15 lakh for death to victims of group violence.

Clearly, this Bill, too, is headed for a fractious political — and legal — debate.