Communal Violence Bill

The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, in cold-storage in Parliament since 2005, was referred to in the Centre’s Action Taken Report on the Liberhan Commission recommendations. Could this Bill have prevented the demolition of Babri Masjid? No, I argue in this opinion piece in today’s Indian Express; the Bill curtails state government rights, with few corresponding benefits.

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Tarunabh Khaitan
Tarunabh Khaitan
12 years ago

Agree with you Vinay. I reviewed the Bill here and am convinced that it thoroughly ill-conceived. I believe that exemplary tortious liability of the leadership and the party involved in violence (in addition, of course, to criminal prosecution) may be explored as another tool in the armoury of weapons we need to employ to deal with impunity. This blog has discussed the issue previously here. But as you suggest in your article, law can only lend a helping hand – the ultimate answer to communalism must be found in politics (although, I don't think law is irrelevant to this debate.)

Tarunabh Khaitan
Tarunabh Khaitan
12 years ago

thanks for the provocation, i have risen to the bait…

surely the distinction between law and politics is difficult to make. for e.g., if the one voice missing in the political discourse is that of the victim, isn't this also reflected in our top-down legal procedures? i find civil liability attractive, at least in part, because it can be entirely victim driven – there is no need to convince the centre or the state. of course politics alone will change hearts and minds. but on questions where the response of constitutional morality is beyond dispute (such as, don't kill people because of who they are), shouldnt the attempt to craft laws that ensure this as far as possible run alongside the political discourse? the single most important lesson from Naz foundation and gay activism, to my mind, is that the two discourses-legal and political-must complement each other. why, in naz, the legal change was needed just to kick-start the political conversation. neither must be relegated to a secondary position.

in other words, the point is this – if we can identify factors in laws and legal procedures that allow impunity (such as impunity provisions, lack of police and prosecutorial independence, lack of viable civil damages possibilities), shouldn't we try to eliminate these hurdles while continuing the political struggle? we might have become used to useless laws which pay no more than lip-service, but surely that need not be the case? indeed, by suggesting that laws don't matter, we fail to subject these legislative proposals to close scrutiny and allow pointless laws to be made.

(ok, final eg to impress my point, drawn from your own article – the politics on article 356 changed completely after legal change in Bommai – surely the relationship is symbiotic and co-equal)

so, the problem with riots, at least in part, is not lack of a law, but lack of the right kinds of laws (and indeed, an abundance of the wrong kinds of laws).

Tarunabh Khaitan
Tarunabh Khaitan
12 years ago

>the point being that there is no blanket rule that laws will always change politics.

of course i agree with this – who would not? my main problem is with the assumption in your argument that no legal tool will make any difference to the problem of communal violence.

let me see where we really disagree in policy terms.

both of us agree that the communal violence bill is, on the whole, useless, if not dangerous.

both of us agree that the political conversations on communalism must continue, for it is ultimately a battle of hearts and minds.

i think that alongside our political struggle, we should repeal immunity provisions, provide victim driven civil damages, protect witnesses, acknowledge command responsibility in civil law (and possibly in criminal law). i suspect that you will not oppose these legal changes, in which case we are on the same plane that they may be useful, and at any rate are intrinsically just positions, whatever there instrumental value with regard to dealing with communal violence (incidentally, i have no doubt that they will not solve the problem of communal violence. they may be, as you argue, completely useless, but that is an equally difficult case to make).

if you question any of these changes on their own merit, even then we don't basically disagree because i am also open to be shown that each of them, individually, is undesirable for its own sake.

however, if you position is that these are undesirable changes because they may not make any difference to communal violence (a possibility i admit, if only sceptically), then we do disagree. it is the merit of this do-nothing-legally-because-it-is-all-political argument that i fail to understand.

Tarunabh Khaitan
Tarunabh Khaitan
12 years ago

those who use legal responses as an excuse to do nothing politically (like the govt.'s ATR) are wrong. they are making the mistake of seeing law and politics are alternatives rather than complimentary mechanisms.

those who demand political action (incidentally, i have not seen anyone spell out the sort of political action they want to see) and use that as an argument to do nothing legally (like your column) are also wrong. they are making the same mistake of seeing them as alternatives.

of course i am arguing for a nuanced position, which acknowledges the limitations of law (and, indeed, politics), yet recognises that both have a role to play. your earlier comments indicate (i hope i have understood you correctly) that you agree with this position 'in principle', but 'in practice' it is useless because politics (politicians?) will always seek the easy way out. the argument appears to be that our politics is not mature enough to understand these nuances and therefore we must choose a dumbed-down easier either-law-or-politics approach. perhaps (ironically), i have more faith in our political system's ability to deal with nuanced positions.

Tarunabh Khaitan
Tarunabh Khaitan
12 years ago

another (minor) quibble: you suggest that law is relatively insignificant to solve a social problem like communal violence.

i may agree with you intuitively, but this is a very strong evidentiary claim to make. these questions of facts cannot (should not) be decided on the basis of intuitions. if not hard sociological research, you need to spell out your assumptions regarding the socio-economic context, the nature of the law in question, nature of enforcement bodies etc. perhaps the claim is still sustainable on the force of logic (and in absence of data) in the context of a specific piece of legislation (like the communal violence bill) where you can see the precise legal provisions, have a historical record of enforcement agencies like the police, centre, state etc. but sustaining the claim for 'law' more generally requires much more work than you seem to have done.