Girish Patel: Communal violence law — will it really work?

The Prevention of Communal and Targeted violence (Access to Justice and Reparations) Bill-2011, proposed by the NAC, is a much more refined, comprehensive and sharply targeted draft than earlier bills to check communal violence.

The bill is a response of the UPA government and secular people and organisations to the communal violence directed against Muslims in Gujarat in 2002.

As Muslims in Gujarat had become the victims of the biased exercise of state power by the political executive and the police, the bill rightly focuses on ensuring accountability of all officers of state for their acts of commission and omission.

It also aims to hold officials accountable for breach of command responsibility during communal riots so as to cover all those who exercise state power in any form.

The objective is clear and laudable, namely, protection of all minorities in a pluralist society. The necessity of such protection is beyond any doubt but the question is: Will the law work?

Let us examine it. If such a law were in force in Gujarat during the communal riots in 2002, would it have prevented or controlled the violence and brought to justice the real perpetrators of the massacres? Who would invoke such a law? Certainly neither the state government nor the then NDA government at the centre would have invoked it.

Another indicator is the complete failure of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 in preventing or controlling atrocities against Dalits throughout the country.

If the SC/ST (prevention of atrocities) act has failed mainly because of strong social prejudice, what can be the fate of a communal violence law when a major party, the BJP, is openly committed to the cause of a Hindu state? If anti-Muslim riots are sponsored or supported (as in Gujarat in 2002) by the government of the day, who will then protect the minorities and enforce the law?

Effective enforcement of such a law presupposes a more or less neutral government willing to prevent and control the violence against any minority community. In view of the cancerous spread of majoritarian communalism in all spheres of society and the compulsions of electoral politics, few parties and least of all the Hindutva brigade, will be interested in enforcing the law.

Who will rule the rulers and judge the judges? Just consider the working of commissions of enquiry that are headed by retired Supreme Court and high court judges. Do they inspire any confidence?
Secondly, the proposed law against communal violence is mainly punitive. Hence it will suffer from all infirmities of normal criminal law in investigation, prosecution, trial, conviction and series of appeals.

The punishment, as usual, will be highly uncertain and so remote as to cease to be deterrent. Maintenance of law and order and control of mob violence on the spot is to be left to the judgement of the police authorities at the site.

Even courts find it extremely difficult to decide whether the use of force was excessive or was required or not. In such cases, it is really difficult to charge police with dereliction of duty except in very few clear cases. In other cases, the defence of action in good faith will also create many difficulties.

Thirdly, such a law may prove to be counter-productive, particularly in cases of religious minorities. It would be projected by the Hindutva forces and Sangh Parivar as anti-Hindu to instigate the Hindus. It might further polarise the communities.

Fourthly, communal violence is the manifestation of a wider and deeper social problem and, once it breaks out, it further increases the communal divide.

What is, therefore, more important is the pre-emptive and preventive mechanism of vigilance and intelligence. Communal violence doesn't erupt abruptly. Most of the time, it was preceded by small incidents which eventually triggers a major communal conflagration.

Hence constant watch, collection of information, monitoring of explosive situations and mischievous elements, quick response to the problem, more inter-community meetings and other preventive measures are needed. This part of the proposed law should be separated and strengthened.

Communal offences, if not already covered by the existing law, should be added in the Indian Penal Code. In addition, as our judiciary has already recognised, in many cases, the principles of individual responsibility of public officers as in cases of custodial violence, a separate comprehensive law should be enacted to strengthen and consolidate this principle.

Moreover, our law should adopt and develop the new principles of international criminal law, known as 'joint criminal enterprise' or 'command or control responsibility' to hold the political heads of governments criminally responsible with complete jurisdiction of Supreme Court.   

The author is a lawyer and human rights activist