With its long history of communal violence, India certainly needs a specific law with a strong focus on preventing clashes between the majority community and minorities and providing reparations to the victims of such violence. The present revised draft of the Prevention of Communal Violence (Access to Justice and Reparations) Bill seeks to address some of the problems associated with communal violence in India, and put in place an institutional mechanism for redress. Whatever the immediate trigger for communal clashes, they are engineered and sustained by chauvinist and anti-social elements in both the majority and minority communities. Communal clashes by definition are starkly different from ordinary law and order disturbances. That there is an institutional bias against minorities and oppressed sections has been shown up repeatedly during times of communal violence. A special legislation that takes into account the specific character and circumstances of communal violence is therefore vital and unquestionable.
But vitiating the earnestness of purpose in the enactment of this legislation is the fact that some of the provisions of the bill are too sweeping to address the real concerns that it intends to address. Tamil Nadu Chief Minister Jayalalithaa has pointed out that many of the provisions are worded vaguely, open to wide subjective interpretation, and hence misuse. Instead of a sharp focus on communal violence, the bill proposes to target “hate propaganda” too. Thus, anyone who disseminates any information “that could reasonably be construed to demonstrate an intention to promote or incite hatred” could attract the penal provisions of this law. Preventing communal violence requires better policing and administrative precautions rather than just prosecuting people who indulge in propaganda with the “intention” to promote hatred. In the absence of specific phrasing, there is scope for misuse by subordinate law enforcers. In its present form, the draft bill also encroaches on the rights of the States, given that law and order is a State subject. The proposed legislation gives ample room for intervention by the Centre in an area falling under the jurisdiction of the States. While there is no denying that India needs special legislation to deal with communal violence, the draft bill currently being circulated is unlikely to serve the purpose. It is important that the bill is redrafted to ensure a sharper focus on the specific issues of prevention of communal violence and reparation. The failure to eliminate the contentious provisions that are in any case too general and sweeping could endanger the passage of a potentially historic piece of legislation which in effect institutionalises a commitment on the part of government to the preservation of national harmony.