a communal bill

Adv P & H High Court Chandigarh

The National Advisory Council (NAC) is actively engaged in preparing a draft of the Communal & Sectarian Violence Bill, 2010. This is NAC's second attempt at drafting the bill. The NAC had earlier rejected its own draft, the Communal Violence Bill, 2005. This time round the NAC has formed a sub-group to draft the 2010 version which shall deal with "sectarian" violence too.

The NAC's website (http://nac.nic.in/communal/com_bill.htm) throws up as many questions about the council itself as it does about the contents of the proposed bill. As many would know, in India drafting of a bill is undertaken by the concerned ministry. A first draft version is whetted by the law ministry's department of legislative affairs to make the bill comply with an established set of drafting parameters. If serious issues of law pose doubts in the minds of the "drafters", then the proposed bill is sent to the department of legal affairs, also within the law ministry, for scrutiny. After this the draft is sent back to the parent ministry, which then forwards it to the Cabinet for approval and to be tabled in both the Houses of Parliament. It is the privilege of the Houses of Parliament to discuss and/or send the bill to the Standing Committee (consisting of members of Parliament) for a thorough study and recommendations. The Standing Committee may invite citizens groups, non-governmental organisations, experts etc for gaining a better feel of the ground realities and understanding the various crosscurrents of opinion influencing an issue. With the NAC drafting the Communal & Sectarian Violence Bill, would it be wrong to wonder if the home ministry has "outsourced" one of its functions?
The Indian Constitution — through the "Allocation of Business" and the "Transaction of Business" rules — defines the roles of ministries but not of advisory councils. One may argue that the Planning Commission too is an advisory body and we have no issues with it. Then why the discomfort over NAC? The Planning Commission reports to the Prime Minister and he is the head of our executive. Does the NAC report to the Prime Minister? No. The NAC is not a statutory or a constitutional body.

Shouldn't our elected representatives have the first right to frame, amend and review our laws? Is it envisaged in our Constitution that any group of people, led by a member of Parliament elevated to Cabinet rank, can draft laws? If our executive has forfeited its job, shouldn't our legislature pull them up? The legislature doesn't brook the judiciary treading on its toes, and rightly so. Here the executive is being completely bypassed. Doesn't it mind?

The proposed Communal & Sectarian Violence Bill is being drafted on the basis of certain "key elements accepted by the NAC". All the key elements refer to issues which may arise in the unfortunate circumstance of a riot. There is only one brief mention of "prevention" in the draft so far. So essentially it is a bill for dealing with communal riots, rather than communal violence. Then why not call it so?

Violence can be physical, mental, verbal, psychological etc. For instance, a community can be petrified about its safety even without riots. Didn't all of us believe that West Bengal is a temple of communal harmony only till the other day when Deganga happened? What does it take for 60,000 Chakmas to fear that they will be driven out of Arunachal Pradesh? In the old city of Hyderabad, in Hailakandi and Silchar, riots are occasional, but some communities live perpetually in an environment of insecurity, scared that they are, in a planned fashion, being forced out of their ancestral homes. These are the outcomes of communal violence, not of riot. But it's communal violence all the same.

If the NAC relates to only riot-based experiences, has it drawn people from organisations which have worked with victims of Nelli, Bhagalpur, Meerut, Nanded, Mumbai, Hyderabad, Delhi, Marad and others? A broad-based advisory council will have its benefits.

Point two of the draft bill's key elements wants the sub-group "to frame relevant provisions… for… the resettlement and reparations, keeping in mind the rights of internally-displaced persons". Here let us not forget the nearly 3,000 families of Reongs of Mizoram who are living in refugee camps in Tripura. The Kashmiri Pundits may provide inputs to the NAC but are the Dimasas and the Jammi Nagas of the former NC Hills being heard? They too have suffered communal violence.

Another key guiding principle of the NAC is "the need for an independent National Authority to ensure effective compliance with the law, without disturbing the federal structure". Law and order is a state (not Centre) subject. The bill, when passed, will become law in every state. But it is being topped by a supervisory National Authority. Can this be achieved "without disturbing the federal structure"?

The NAC is overloaded with service-driven good Samaritans who are Gujarat obsessed. Their obsession sometimes makes one wonder if they are out to get just one person rather than getting justice for the hapless victims they claim to serve. Laws will learn from experiences but they cannot be framed or drafted based on obsessions or highly charged emotions.

The financial implication of every new law is a serious matter that needs to be addressed even at the drafting stage. The NAC only recently faced this issue in the context of the Food Security Bill. Whatever happened to the Judicial Impact Assessment report by the learned Justice (retd) Jagannadha Rao? The effective implementation of any law depends on the financial and other resource provisions it carries with it and not just the political clout it rides on.

"The question of who in the bureaucratic or political chain should be held responsible and penalised for failure to maintain harmony has dogged the bill", said a leading newspaper in July 2010. Understandably so! In Deganga, it is alleged that a member of Parliament belonging to the United Progressive Alliance coalition is directly involved in communal attacks. In the political chain then will the bill enable us to hold the Prime Minister responsible?




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