Does National Advisory Council’s draft bill ‘actually’ tackle communal violence?

The National Advisory Council’s (NAC) draft bill to tackle communal violence has created considerable controversy both in the opposition and in sections of the press. Prominent member of the NAC Harsh Mander; the chairman of the minority’s commission, Wajahad Habibullah; Congress spokesman Abhishek Manu Singhvi and BJPs spokesperson Nirmala Sitharaman talk to CNBC-TV18’s Karan Thapar about whether such a bill needed and if yes, does the problem lie in the way the NAC has responded to this need. Below is a verbatim transcript of this interview.

Q: Why do we need a special bill to handle communal violence and why aren’t existing laws sufficient for this purpose?

Mander: India has had a troubled legacy over the last 60 odd years of episodes of mass communal violence and the experience has been almost uniform in each of these episodes, whether the minorities affected are Muslims or Sikhs or Dalits etc. The fact is that justice is very rarely done.

Sometimes a lot of time is taken before people control the violence and the massacre is allowed to continue. Afterwards very few people get punished, rehabilitation happens in fits and starts. It is to correct these injustices and largely to act as a deterrence to future violence that we feel a communal violence bill is really important.

Q: On the principle of a special law for communal violence, where does the BJP stand?

Sitharaman: At the moment, if I have to react to this bill, I would think this is not the bill. But if you are talking about, as Mr Mander rightly says communal violence has happened in this country much before and after 2002. The experiences are unfortunately not uniform and that’s where I would want to differ from him. If I have to straight come out to this bill, those different experiences have not been factored in drafting this bill.

Q: Am I right to understand your position as follows that maybe there is a need for a special bill to tackle communal violence, but the bill that the NAC proposes is not the right one?

Sitharaman: Certainly not the one.

Q: When the Congress party scrapped POTA, one of the grounds that you did was that a special law was not necessary for handling terror. In your eyes, is communal violence different or does that argument apply here as well?

Singhvi: When we made that argument about POTA, it was coupled with a very important argument which you forgot to mention, that 80% of the provisions of POTA were available in other laws especially the Unlawful Activities Act. The 20% or so which we are objecting to include into pernicious provisions which we were anyway opposed to about bail and about presumptions of proof, that in any case according to us violated human rights.

As far as communal violence is concerned, it is a very special factor in domestic law, domestic politics and domestic society. Terror is supposed to be an aberration and most of the terror in India has had a beginning or is sourced from outside. But, communal violence is something which is in-built into society and therefore you have to deal with it on a regular basis.

Q: Are you saying, yes, a special law is needed?

Singhvi: I am saying a special law is needed because the normal law is tardy. There are no special courts, the offense is not described and defined clearly, and the prosecutors are not special.

Q: As chairman of the minorities commission, do you believe that 1984, 2002 and perhaps the Kandhamal riots in 2008 show that a special law is needed to handle communal violence or do you think that the laws that exist already in the Statute if they are effectively and properly implemented are sufficient?

Habibullah: I don’t think the laws are sufficient because of the fact that they don’t deal with prevention. I would like to take note of the fact that this is not an act only to handle communal violence but it is also to prevent it and then to rehabilitate those who are victims. These are the important elements, repatriation and rehabilitation.

The point is these elements have a mental block in our society. In our country, it is something that we can be ashamed of, the anti-Sikh riots that took place, what happened in Kandhamal, what happened in 2002. We do need to address these with a sense of urgency and also with an essence of importance.

Q: The key criticisms made of the law that the NAC has drafted and proposed, as explained by Arun Jaitley, on behalf of the opposition party the BJP is the presumption that underlies the NAC draft that only religious and linguistic minorities are victims of communal and targeted violence and that the majority is in fact the perpetrator and the first question he asks is on what basis do you come to that assumption?

Mander: No, actually, he has misread the basic presumption of this law. The basic presumption of this law is that the anti-Sikh riots or the Bhagalpur riots or the Gujarat violence or Kandhamal, it’s about the fact that all parties are guilty. It’s not about one party; it’s that state governments have tended to be directly or indirectly complicit in enabling this violence to continue and failing to prevent it, to control it, to do justice.

This is a law primarily to create public accountability of officials and people in power who fail to do their duty and for people who lose their lives because of their identity that’s number one.

Q: You said that Arun Jaitley has fundamentally misunderstood the bill. Has Arun Jaitley critically misunderstood the bill? Because the bill hinges on the phrase the group and the group under definitions is defined clearly as religious and linguistic minorities, so is Arun right or Harsh Mander right?

Sitharaman: Absolutely not, if they had not even said the definition there, you and I probably could be accused of misunderstanding. But there we are talking about a leading Supreme Court lawyer who is the leader of opposition, who is an expert in these kinds of laws has very clearly read it and explained to us why he thought this presumption is wrong.

You have very clearly throughout the bill went on narrating that the victim cannot be from the minority groups as defined by you. So how could you preclude or include only one section? On that it is completely wrong to say somebody has misread it and certainly not Arun Jaitley.