A Bill on hold

The UPA government is in a hurry to push through the Communal Violence Bill, but the lack of confidence expressed by the opposition and several State governments, including some run by its own allies, forces it to defer the Bill.

Union Law Minister Kapil Sibal said there was no provision in the Bill that gave powers to the Central government to interfere in any matter relating to law and order in any State.

THE seeming hurry of the United Progressive Alliance (UPA) government to push through several Bills ahead of the 2014 Lok Sabha elections has not found many takers in Parliament. One such piece of legislation that was cleared by the Union Cabinet in December 2013 and presented for introduction on February 5, 2014, is the Prevention of Communal Violence (Access to Justice and Reparations) Bill, 2014, which now faces an uncertain future with questions being raised about the legislative competence of Parliament to bring forth such a Bill dealing with State subjects such as law and order.

The arguments over Parliament’s legislative competence apart, the failure of the Central government to undertake an exercise involving all State governments in order to arrive at a consensus and assure them that the law would not encroach upon their jurisdiction is glaring. This has led to doubts about the Central government’s motive to get the Bill passed in a tumultuous session of Parliament where the bifurcation of Andhra Pradesh and the creation of the separate State of Telangana has dominated legislative business. The Bill has now been deferred.

At least six political parties—the Bharatiya Janata Party, the Samajwadi Party, the Communist Party of India (Marxist), the All India Anna Dravida Munnetra Kazhagam, the Trinamool Congress and the Dravida Munnetra Kazhagam—opposed the introduction of the Bill on the grounds that it violated the spirit of federalism. The 2014 Bill replaces the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005. The argument of Union Law Minister Kapil Sibal that the new Bill was meant to tackle state-sponsored communal activity such as that in Gujarat did not convince the opposition, whose primary demand was that the clauses that violated the federal principle be discussed first. They pointed out that the Bill was not discussed with many Chief Ministers. Sitaram Yechury of the CPI(M) said that the concerns of federalism had been raised in 2004 as well but no conclusion had been arrived at. While he welcomed the need for legislation of this kind, the present Bill was violative of the federal principle, he said.

Overarching powers

Leader of the Opposition in the Rajya Sabha Arun Jaitley argued that law and order, police power and the power to regulate the services of the State fell exclusively in the domain of State governments. He said that under List II of the Seventh Schedule of the Constitution, where Public Order was entry number one, Police was entry number two and State Public Service entry number three, these areas were neither Central subjects nor subjects in the Concurrent List.

The opposition also pointed out that the National Human Rights Commission (NHRC), a body of nominated persons, was given overarching powers, overriding the constitutional authority of elected State governments.

The powers of the Commission itself as specified in the Bill are ambiguous as far as the words “may” and “shall” have been used. Chapter VI in the Bill empowers the NHRC to carry out functions relating to maintaining communal harmony. Section 27 of the Bill lays down that the NHRC can frame schemes for providing reparation and remedy to all persons entitled under Section 69, including those under Section 77, in consultation with the Central government (the State government has no role here); also, it can frame guidelines in relation to the prevention and control of communal violence in consultation with the Central government.

One particular clause gives overarching powers to the NHRC over the State Commissions wherein it says that where the National Commission (NHRC) is inquiring into complaints of organised communal violence, no State Commission shall have the power to inquire into the same. This effectively means that once a communal conflagration is defined as an organised one, the NHRC has overarching powers over its counterpart in the State. The NHRC has also been given powers to observe, monitor and review the performance of public servants regarding the steps taken for the prevention of offences of communal violence or recording of information where offences have been committed by public servants, in order to ensure timely and effective investigation under Section 30. Interestingly, Section 30 lays down that the NHRC may, with the concurrence of the Central government (the option has been given; it is not binding on the NHRC) or in the case maybe the State government (the concurrence from the State government is not binding), conduct any investigation pertaining to inquiry under this Act and utilise the services of any officer or investigation agency of the Central government or any State government.

Section 33 of the Bill also lays down that the NHRC shall provide a copy of the inquiry report specified in Section 32 to the complainant or his or her representative. In addition, Section 37(2) of the proposed Bill lays down that all reports received by the Central government or the State government or district magistrates relating to communal violence, build-up and possibilities thereof shall be sent to the National Commission without any further delay. These provisions willy-nilly encroach upon the domain of the State governments to maintain law and order.

In its comments on the Bill, the NHRC noted that the proportion of complaints it received on communal riots constituted just 0.024 per cent in 2012, and that the wide range of responsibilities placed on it by the Bill would involve radical changes in its role as envisaged by the Protection of Human Rights Act, which created it. More important, it pointed out that under the Vienna Declaration of Programme of Action, no national human rights commission is expected to prevent violence and stressed the need for commensurate powers to it to implement the Act. The implementation of the law would entail an enormous strain on the NHRC’s resources, it said, while offering the government specific comments on the various provisions of the Bill.

Centre versus States

On the floor of the House, Sibal maintained that there was no provision in the Bill that gave powers to the Central government to interfere in any matter relating to law and order in any State. The opposition pointed out repeatedly that the inclusion of Chapter V, “Maintenance of Public Order”, was a State subject. There were problems in what is construed as “offences” as well. Tamil Nadu Chief Minister Jayalalithaa pointed out that many provisions were open to wide subjective interpretation and possible misuse. For instance, “hate propaganda” has been widely defined as “whoever publishes, communicates or disseminates by words, either spoken or written or by signs or by visible representation or by electronic or other means of mass communication or otherwise acts inciting hatred causing danger of violence against persons having a particular religion, language or religious denomination, in general or specifically or disseminates or broadcasts any information or publishes or displays any advertisement or notice, that shall reasonably be construed to demonstrate an intention to promote or incite hatred or expose or is likely to expose persons having a particular religion, language or religious denomination, to such hatred, is said to be guilty of hate propaganda”.

National Advisory Council member Farah Naqvi opined that unlike the NAC, which had suggested the creation of a national authority and State authorities, the new Bill entrusted those responsibilities to the NHRC and State Human Rights Commissions (SHRCs) respectively. The new Bill also included victims belonging to majority communities. “Democracy is about compromise, therefore, the government seems to have agreed with the view that why create new authorities when the NHRC is already there doing the same work? The idea that the NHRC can be involved is fine in principle. There has been the criticism that creating new authorities may infringe the rights of the people,” she said. She described the concerns of Jaitley that Parliament did not have legislative competence as “bogus”. The issue was not raised when the 2005 Bill was introduced and referred to the Standing Committee chaired by Sushma Swaraj. The committee, she said, had given its report in January 2006, saying that Parliament had the competence to legislate on the subject.

She agreed that the government had not shared adequately with the opposition all the changes it had made. She said that once the Cabinet approved the new Bill, the government shared it with all the State governments. On Gujarat Chief Minister Narendra Modi’s 10-point critique of the new Bill, she said one of Modi’s criticisms was that “you can’t seek accountability of public servants, because it will lower their morale”. She felt that the issue of legislative competence had been answered well by the Standing Committee on the 2005 Bill. The Central government had a duty to protect the secular fabric of the country, and there had been a rise in communal incidents. However, Yechury pointed out in the course of the debate that these concerns (of the federal principle) had been raised in 2004-05, too.

Question of competence

The Standing Committee report averred that regarding the competence of the Central government to legislate on “law and order” and “police” (items of State List), the Bill drew its strength from Entries 1, 2 and 11(a) of the Concurrent List. “Under Article 355 of the Constitution of India a duty is cast on the Centre to protect the State against external aggression and internal disturbances and is not about issuing directions to the States. Article 355 is not a complete Article in itself as it is an enabling provision of Article 356. The present Bill has been intended to take care of situations such as group clashes and massive violence,” the report said. It also quoted the Law Secretary as having stated that legislative competence of Parliament flowed from the Concurrent List. Criminal Law and the Criminal Procedure Code by and large were subject matters that fell within the Concurrent List, where Parliament was competent to enact, the Law Secretary said. The committee implicitly accepted the Law Secretary's position.

The report said: “On the issue of legislative competence, one view presented before the committee was that the subject matter of the Bill was directly related to ‘Law and Order’, which was a State subject. Should Parliament decide to legislate on a matter in the State List, then there should be a resolution of the Rajya Sabha passed by a two-thirds majority or a proclamation of Emergency should be in force or the legislatures of two or more States have passed resolutions empowering Parliament to legislate on a matter in List II. However, in the present case none of the requirements of Articles 249, 250 and 252 have been met.” On this, the Home Secretary clarified that the Bill drew its strength from the relevant entries in the Concurrent List.

According to him, it was not simply to address the issue of “communal violence” of a minor scale. The Bill was addressing a scenario far beyond that. The Bill made its intention clear when its long title said “to empower the State governments and the Central government to take measures to provide for the prevention and control of communal violence which threatens the secular fabric, unity, integrity and internal security of the nation”. It meant “communal violence” of such a scale and in such a manner that it had a bearing on those factors, and hence this kind of a Bill. Clarifying this further, the Law Secretary stated that even though “Public Order” and “Police” are on the State List (Item No.1), “Criminal Law”, “Criminal Procedure” and “Administration of Justice” are on the Concurrent List. So, the Bill draws its strength from Entries 1, 2 and 11(a) of the Concurrent List.

The Law Secretary, in support of the legislative competence of Parliament, also stated: “The provisions of the Bill deal mainly with enhanced punishment for offences committed in communally disturbed areas. These offences are all Indian Penal Code offences and offences under the Acts which have been passed by Parliament. So, Parliament has competence to amend any of these laws.” The committee was convinced that the Bill was within the legislative competence of Parliament.

However, it is amply clear going by the sense of the debate in Parliament that several State governments and political parties other than the BJP had objected to and were desirous of a discussion on the new draft, which is substantively different from the 2005 draft legislation.

While there is little doubt that communal incidents do considerable damage to the secular fabric of the nation and that IPC offences are under Acts passed by Parliament, the onus lies on the Central government to ensure that it does not have any hurried political agenda behind the Bill. Such doubts have risen in the wake of the hurried clearance of the Bill by the Union Cabinet in December against the backdrop of the Muzaffarnagar riots (though it is baffling that the National Integration Council did not discuss this at all). The lack of confidence expressed by the opposition and several State governments, including some run by the UPA’s own allies, in the new Bill cannot be ignored, more so keeping in mind the larger objective of reining in communal violence and incidents.