Seven flaws of Communal Violence Bill (CVB)

A lot of TRP chasing has been done this week on prime time television on Communal Violence Bill (CVB), which left me more anguished than before. When a channel chases TRPs, that is exactly what it aims at, the subject of discussion; in this case CVB is just incidental to the TRP chase and gets the occasional spot light so that the chase gets navigated to its desired destination.

As a lawyer, I was tempted to put my thoughts together and find out the good, the bad and the ugly with this bill. This is to initiate a dialogue and highlight some serious concerns I have.

Flaw One – locus standi of NAC:

My fundamental problem with this bill has been the manner in which it has been sourced. Laws, as they teach in law school, have multiple sources. History, nature, customs, equity, religion, legislation, case laws etc. are some sources of law. No where do we find a LPO (legislative process outsourcing, my copyright please) being resorted to in law making. To add to the agony, an LPO without following any fool proof procurement process. How does NAC qualify to be the vendor of choice? That’s the basic question.

NAC is this eclectic illiterate which does not represent the collective authorization the citizens bestow on the legislature to frame laws on their behalf. Laws are given by the people to themselves through the legislature. In this holy process, NAC does nothing but takes away the piety out of law making and makes an unadulterated mockery out of law making.

Flaw Two – Objective

Firstly, law by very definition has to have an objective. You don’t frame laws because you had nothing better to do. You frame laws to promote, protect or foster societal good, citizen prosperity, better governance and wellbeing etc. These are examples of some acceptable barometers against which such objectives of law could be measured.

CVB rightly starts off with an objective;

“To respect, protect and fulfil the right to equality before law and equal protection of law by imposing duties on the Central Government and the State Governments, to exercise their powers in an impartial and non-discriminatory manner to prevent and control targeted violence, including mass violence, against Scheduled Castes, Scheduled Tribes and religious minorities in any State in the Union of India, and linguistic minorities in any State in the Union of India; to thereby uphold secular democracy; to help secure fair and equal access to justice and protection to these vulnerable groups through effective provisions for investigation, prosecution and trial of offences under the Act; to provide for restorative relief and reparation, including rehabilitation and compensation to all persons affected by communal and targeted violence; and for matters connected herewith and incidental thereto.

Assuming that the NAC is as pious a body as any dotting mother earth, let’s review briefly the objective. “Equality before law” and “equal protection of laws” is concepts which Article 14 of our constitution provides us. Any law which is promulgated by any legislature be it the parliament or the states, has to necessarily pass this test. It is one of the basic structures of constitution which no legislature has the capacity or power to violate.

Our constitutional forefathers have given us the right of equality before law, i.e. no discrimination whatsoever on account of gender, race, class, religion etc. In Charanjit Lai Choudhury vs. the Union of India, our Supreme Court explained the concept of equal protection of law. The SC said that equal protection of law means equality under equal circumstances. In a boxing ring, for example, a feather weight boxer does not compete with a heavy weight boxer. In law too, the state can intelligently differentiate between one group and another and have a legislation which positively discriminates one group versus another. This is perfectly alright. However, what is not alright is, when you classify people into groups for intentions which have nothing to do with being fair and equitable.

My perusal of all critical public laws like IPC, CrPC, CPC, Evidence Act etc or Private Laws like Contract Act or Partnership Act etc, tells me that the objective of these laws, does not cover the exact words of Art 14. In fact there is no need to. A law has to comply to the specifications of Art 14 unless there are some really really serious and exceptionable grounds. The constitutional courts shall throw out such laws, if any law were to be found to be crossing the line drawn by Art 14.

I doubt if the drafters of CVB, were innocent in being blunt while drafting the objective, or were the trying to pre-empt a serious scrutiny? It is a thought, difficult to keep away from once mind.

An artist picks up a blank canvas and writes the word “tiger” before he embarks on his painting. What results is something horrible having no resemblance to any living species. When people question the identity of the painting, he tries defending. He claims his painting to be that of a tiger, since he has titled it to be so. Would this fly? If your objective was to drive equality, the law should speak for itself and you don’t need to hide behind the “title” it to get sanctity.

Here is one more, to “uphold secular democracy” of the country is an objective of CVB. Whose definition of secularism, may I humbly ask? We have seen, heard and experienced multiple versions of secularism, haven’t we? Are we talking about the real secularism, which is caged in the theory books, where state has no religion and no inherent bias for or against any religion in its actions(be it law making, administering the state or dispensing justice) or the widely practiced version of secularism’s pseudo cousin.

Flaw Three – Federal structure being compromised

I was amused when Gaurav Kapoor of Samajwadi Party and Sudhanshu Trivedi or BJP found themselves in the same side of a political line. Throw in Jaya Lalitha, Naveen Pattanaik, Communist Parties, Trinamul etc. and we probably are talking about the weirdest possible combination of parties singing from the same sheet. All because this law hits at the very foundation of federal structure.

The 1^st item in the state list of the seventh schedule of our constitution clearly puts “public order” in the domain of the state. Has the government run out of ideas to bring good laws or improve existing ones from among the 97 items in the Union List? How about a law to improve rail safety as an example. Better still, there is a tax payer paid body called “Law Commission of India” which has done some pioneering work on jurisprudence and can give enough ideas to keep our parliament busy with good quality law making for next 20 years. Why chase items from the state list when there is enough to do on the central list?

In fact the current dispensation has time and again tried legislating in the state list as if it is on a mission. NCTC, FSB are couple of initiatives worth highlighting. Creating laws which are toothless federal wonders, who can neither bite nor chew, is no way to create laws.

Flaw Four– New benchmark on ambiguity

The draft looks like a piece of abstract art. Criminal law, like tax law, thrives on specifics. Subjectivity and ambiguity makes criminal law juris-prudentially weak thus losing its punch. Framing a law with words which are amorphous thus letting judiciary to interpret the likely meaning is not a smart way to dispense justice. We are looking forward to an era of appeals, reversals etc in the court system to deal with the minefield of ambiguity that CVB seems to be. Let’s pick just two of words from CVB,

1. How do you define colourably in S 13(a) – “exercise the authority… colorably” my definition of colorably need not match with yours. Whenever law faces such situation, lawyers conveniently argue on two lines “it depends on the facts and circumstances of the case” and “colorably is how a common person interprets colorbly“. Needless to add, both these lines of argument are unlikely to remove any misgivings on these ambiguities.
   

Flaw Five– Its Ambit

 Any law needs to be made with a reasonable mandate in mind. You can’t set out to solve every problem of society with a law. If you have a brat of a kid, can you reasonably expect a law by the government to deal with your problem? What a law is trying to do? How far does it spread its wings? At which point does it start becoming counterproductive? These are critical questions; I would trust only the legislature to decide on my behalf after an honest debate.

To pick an example, S13 says “dereliction of duty” by a public servant is criminally liable if it results into a communal violence. This would create a field day for many phoney activist bureaucrats who tried their trick in Gujarat and created enough nuisances. Imagine the consequences if some of them succeed, rather wrongfully. I can accuse and possibly the prosecution can prove dereliction too since the matter is subjective and court gets guided by facts and circumstances. There are laws within IPC and in the service rules of the government to deal with public servants. Do you really need one more law to scare the public servants who anyway are so scared to inactivity over last few years that governance has come to a standstill?

To pick one more, Section 3 (f) (v) says

“Any other act, whether or not it amounts to an offence under this Act that has the purpose or effect of creating an intimidating, hostile or offensive environment.”

 If this is not ambiguous, then what it? Spreading the ambit to areas which are leaving a lot of subjectivity with the executive which needs to investigate matters to me is a recipe to create hapless victims, not of Communal Violence but of the CV Bills itself. We might as well create a law to protect ourselves against the misuse of CVB alongside CVB.

 Try reading Section 12, subjecting someone to “mental torture” qualifies to be a violence. Pray, how do you know what qualifies as mental torture. How do we establish the occurrence or non occurrence of metal torture? Should the definition not have covered what does mental torture mean?

 Flaw Six – Timing and why a different law

 IPC 1860 is a 150 year old law. It has gone through several amendments to reflect changing requirements of the society and evolving criminal jurisprudence. Having said that the basic architecture of IPC is followed from Pakistan to Sri Lanka to Bangladesh to Myanmar to Singapore. Singapore has been riot free since 1969.That’s 45 years till the riots which occurred last week end. It has had 6 riots in last 50 yrs.

 Not many faces would be lit with incredulity, if I were to say that Singapore would deal with the rioters of last week swiftly and firmly. Why do you a new code of law when you have the IPC. It is no rocket science to know that the problem with IPC is not the IPC itself; it is the willingness to implement it and allowing it reign supreme every time a crime occurs.

 Gujarat 2002 did not need a CVB for successful prosecution. Delhi 1984 would repeat with galore if IPC is not allowed to be implemented in spirit. Enforcement of IPC through CrPC and other procedural laws is compromised in our daily lives. Starting from filing an FIR to shoddy investigation to pathetic framing of charges to weak and misdirected prosecution etc add to the misery of the sufferer.

 Timing of this law is the biggest give away. If we take an inter-generational time frame of last 65yrs, communal violence as a menace, despite encouragement by political class, is on a decline. Thanks to higher levels of awareness, better education, stronger presence of news media, rapid urbanization etc we have the right conditionalities to ensure no communal violence takes place. If political will were to join the party, this kind of violence may as well be consigned to the history books. But, no, it helps to keep it fanned. In the last 65yrs if ever CVB was required, it was in the 70s and 80s; the society has evolved ever since hence I find the timing wrong.

 Taking a much shorter time-frame of six months, the introduction of the bill by a minority government in its last few months of being in power, timed to happen just before a critical election, smacks of political opportunism.

Flaw Seven –It’s discriminatory

Article 15(1) promises to you, me and everyone, the right not be discriminated on certain grounds. The operative words are highlighted below;

 “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them“

 What does CVB do? It goes ahead and defines group (Section 3(a)) and defines “group” as “religious minority” or “linguistic minority”. Does it really find favour with Art 15 (1)? It’s a direct snatching away of a fundamental right; the people of this country have given to themselves.

 This week, one heard that this controversial definition of “group” has been dispensed with. I am happy to revisit this criticism when I see the revised draft. For now it’s a flaw.

In Conclusion:

There is a concept of “colourable legislation” which says that if a legislature makes a law which is outside the constitutional constraints imposed on it, it is colourable. It deserved to be set aside and held non est.

If you think IPC falls short, go ahead and amend it to give it teeth. But for god sake, don’t go through a process of coming up with a law which with the wisdom of how IPC and CrPC got enforced over last 50yrs,holds every promise of being a cruel joke played on unsuspecting people.

There are better ways to play a prank than to hit at the dignity of unsuspecting citizens whose primary crime is to belong to a “group”. Subsidiary crimes thrust on the primary crime through CVB are neither good law nor good politics.

Call it off! Call off the CVB. Give it a quiet and dignified burial and you get many a one minute of silence.