From the framing of its first draft in 2005 to the heated debates that have followed it, the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill has been mired in controversy. The government feels that civil society organisations want to take over its powers; civil society organisations believe the government is simply not prepared to go far enough.
Now, after five years of back and forth, the National Advisory Council (NAC) is meeting here on Wednesday to, among other things, try and reshape the voluminous draft law into an effective instrument against communal violence. In this task, the NAC is up against both a hostile bureaucracy — as its first meeting with officials proved — as well as the sometimes impossible demands from civil society organisations, from which it derives its legitimacy.
At the heart of the battle is a fundamental question: Can an independent body assume, temporarily, the powers of the government? The government's draft bill, for instance, suggests a Union Home Minister–headed 11-member National Council to oversee relief and the rehabilitation of victims. This has been rejected by civil society activists, which has, instead, proposed a Communal Harmony Justice and Reparation Commission (CHJRC), with national, State and district councils, and a mandate that goes beyond responsibility for relief, compensation and rehabilitation to include the “power to recommend the notification of the application of the Communal Violence Law.”
The government is not amused. “The State is responsible for maintenance of law and order. If the State fails in its task, it has to be made accountable — those powers can't be handed over to civil society members, unless you want to change the Constitution,” senior government sources told TheHindu . The problem, these sources stressed, stemmed from the fact that some civil society activists are “looking at the issue only through the prism of Gujarat,” rather than focussing on creating a bill for all time. “In 2002, the Gujarat government was at fault. But in 1984, the Centre was at fault, while the State government behaved admirably.”
Asked to respond to this view, the NAC's Harsh Mander — who is among those entrusted with holding consultations to come up with a new Bill — agreed that this demand could not be conceded: “I agree, an independent body can't have overriding powers; it can only bring pressure, not interfere with the authority of the executive.”
Having conceded that point, the NAC does have fundamental differences with the architecture of the official bill, with its objections starting with the preamble, which reads: “To empower the State Governments and the Central Government …” This would suggest, says Mr. Mander, that “Narendra Modi — since Gujarat was the context for this Bill — did not have sufficient powers to deal with the violence. That's not true. From my experience as a district magistrate, I can tell you that no riot can last more than a few hours without political support from somewhere. A DM has the authority to call in the Army which, in some senses, makes him more powerful than even the Prime Minister.”
Command responsibility
This leads to the NAC's next submission — that the district administration's acts of omission, possibly because of political pressure, rather than acts of commission, lead to prolonged violence. “Indian law, unlike international law, post-Bosnia, doesn't recognise acts of omission,” says Mr. Mander. That's why the NAC and other civil society activists are talking about “command responsibility,” that those in charge of law and order must be held accountable — and punished, if they fail. Many civil society members feel that the responsibility must be accepted all the way up, but government sources feel this is untenable: “Where will the chain of command end? With the Chief Minister, with the PM?” asks an official. The NAC recognises the problem and sources said that the emerging view is that the district magistrate and the chief secretary, the two locuses of command, must be held accountable. Whether the third locus, the political leadership, should also be punished “needed to be debated,” as the official powers of “command” are with the bureaucracy, even though the reality may be that the bureaucracy takes its cue from the political leadership.
The draft bill's suggestion to declare certain areas “communally disturbed areas” has also come in for criticism, with civil society activists saying this will give the government the opportunity to use the draconian Armed Forces Special Powers Act (AFSPA). The government's argument is that this provision has nothing to do with the Disturbed Areas Act, which allows the use of the AFSPA. The NAC's view is that since the phrase “disturbed areas” has an unpleasant connotation, it could be substituted with “protected areas.”
Intriguingly, there is one provision in the draft bill for which the NAC blames the Union Home Ministry, while other sections of the government hold civil society organisations responsible for its inclusion — the “special powers given to the Central government to deal with communal violence in certain cases,” something that will be hotly contested by the State governments. NAC sources say this has been deliberately included so that the bill is never passed; government sources say “civil society organisations are confused — they don't know whether state governments should have less or more powers.” Clearly, the Communal Violence Bill is a hot potato — and it will be a while before it becomes a law.
